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(ii) Whether the High Court can entertain application under Section 427, Cr.(a) from accused who, while undergoing sentence of imprisonment was sentenced on subsequent conviction to the imprisonment and whose appeal/revision against the subsequent sentence stood disposed of without any direction under Section 427, Cr.(b) from accused who, while undergoing sentence of imprisonment, was sentenced on subsequent conviction to the imprisonment without any direction under Section 427 of the Code and does not file appeal or revision against his subsequent sentence?The applicant along with others was prosecuted in Sessions Trial No. 21/84 decided on 12-4-1984 by the 1st Additional Sessions Judge, Durg, and he was convicted and sentenced to undergo imprisonment for a term of two years under Section 148, IPC and under Section 307/149 he was sentenced for a term of 5 years.It does not appear that any appeal was preferred against the convictions and sentences.The applicant along with others was again prosecuted in S.T. No. 45/84 decided on 25-9-1984 by the 11 Additional Sessions Judge, Durg, and so far as the applicant is concerned, he was convicted under Section 395, IPC and sentenced to R.I. for 5 years. | ['Section 427 in The Indian Penal Code'] |
This criminal original petition is preferred by the petitioners/accusedhttp://www.judis.nic.in against the proceedings pending in C.C.No.821 of 2008 on the file of the 2 learned Judicial Magistrate, Alandur and quash the same.2.Brief case of the petitioners/accused The case is that one Rajasekar who is the publisher of Akni Parvai, playing active role in a political party and published certain news item about the petitioners/accused.The further allegation is that after 3 months, the 1st petitioner had threatened Rajasekar with dire consequences.Both Rajasekar and defacto complainant are said to have gone to the petitioner’s office, when both of them entered them, the 1st petitioner along with the 2nd petitioner attacked the defacto complainant and Rajasekar and his car driver with Uruttukattai and fled away from the scene of occurrence.The case was filed in Crime No.911 of 2007 for the alleged offences under section 341 of IPC, 324 of IPC and 506(i) and after enquiry, the offence under section 506(i) IPC against the petitioners/accused had been deleted by the Investigating Officer.Aggrieved over the same this quash petition is filed.3.The respondent police also filed their counter alleging that in the course of the investigation, the then Sub Inspector of police enquired six witnesseshttp://www.judis.nic.in and recorded their statements.Then, new C.C.Nos.8 of 2008, 821 of 2008, 6 of 2009 and 95 of 2010 were assigned during the trial conducted by special regular Magistrate.The case was posted for next hearing on 24.1.2011, hence at this stage there is no necessity to quash or stay the proceedings in C.C.No.821 of 2008 in Cr.No.911 of 2007 on the file of the respondent police.6.The learned counsel for the petitioners/accused submits that thehttp://www.judis.nic.in 4 allegation made in the FIR, even it is taken as a whole, would not constitute an offence and the FIR registered is politically motivated by way of retaliation and it is to be noted that a complaint in FIR No.910 of 2007 had been filed by the Assistant Commissioner of Police against the defacto complaint for indulging in road roko in Madipakkam Coot road and thereby causing nuisance to the Public while he was on patrol.7.The learned counsel for the petitioners/accused submits that the FIR and the final report against them are false, frivolous and liable to be quashed for false story.8.The learned Additional Public Prosecutor appearing for the 1st respondent opposed the contentions of the petitioners and sought for dismissal of the petition.9.I heard M/s.Vedavalli Kumar, learned counsel for the petitioners and Mr.P.Govindarajan, learned Additional Public Prosecutor for the 1st respondent and perused the entire materials available on record.No representation on behalf of the 2nd respondent.http://www.judis.nic.in10.The allegations made in the F.I.R. even it is taken as whole, 5 would not constitute an offence but the Police on the instigation of the politically motivated persons had filed the final report.11.In the case on hand, the allegations made in the FIR and in the final report do not constitute an offence under section 341,324 of IPC.The case of the petitioner/accused is that the final report filed by the respondent police is politically motivated.This contention cannot be rejected and the same was found in the averments contained in 161 statements.Therefore the proceedings in C.C.No.821 of 2008 are nothing but sheer abuse of process of law.12.In the result, this criminal original petition is allowed and the proceedings pending in C.C.No.821 of 2008 against the petitioners/accused on the file of the learned Judicial Magistrate, Alandur is hereby quashed.Consequently, connected miscellaneous petitions are closed.22.06.2017 Note:Issue order copy on 15.03.2019 vs Index:Yes/No Internet:Yes/No To The Judicial Magistrate, Alandur.http://www.judis.nic.in 6 M.V.MURALIDARAN,J.vs Crl.O.P.No.30124 of 2010 and M.P.Nos.1 and 2 of 2010 22.06.2017http://www.judis.nic.in | ['Section 341 in The Indian Penal Code', 'Section 324 in The Indian Penal Code', 'Section 506 in The Indian Penal Code'] |
Dipak Misra, J.In this appeal, the assail is to the judgment and order dated31.8.2009 passed by the High Court of Delhi in Criminal Appeal No. 417 of2001 whereby the Division Bench has dismissed the appeal while affirmingthe judgment and order dated 17.01.2001 of the learned Additional SessionsJudge, Delhi in Sessions Case No. 27 of 1998 whereunder the trial Court hadconvicted the appellant under Section 302 of the Indian Penal Code (forshort "the I.P.C.") and sentenced him to suffer rigorous imprisonment forlife.Theparental home of the deceased was situated at a distance of half akilometer.On the fateful day i.e. 2.11.1997 about 11:00 p.m., Seema, PW-3, daughter of the deceased, aged about ten years, came running to thehouse of her grandfather Shivcharan, PW-8, and informed him as well asSatish, brother of the deceased, PW-1, that her father was threatening toburn her mother.The information compelled PWs 1 and 8 to rush to thehouse of the deceased and, as the factual matrix would show, PW-1, beingyoung in age, reached the house of his sister earlier than his father andfound his sister was burning and she told him that it was the accused-appellant who had put her ablaze by pouring kerosene.The brother pouredwater on the deceased in order to extinguish the fire and thereafter tookher to Deen Dayal Upadhyay Hospital where she could not be admitted due tolack of facility and thereafter they brought her to Safdarjung Hospitalwhere she was admitted.Despite availing treatment, she breathed her laston 3.11.1997 about noon.It is necessary to mention here that after thedeceased was taken by her father and brother to the hospital, twoneighbours, namely, Shanker Lal and Surender, PW-2 and PW-4 respectivelywent to the Police Station at Mangol Puri and gave the information aboutthe incident by DD-73 dated 2.11.1997 on the basis of which, the S.I.Vijender Singh, PW-21, went to the place of the occurrence where he met PW-3, the daughter of the deceased, and came to learn that her parents hadquarreled and her mother had suffered burn injuries and was taken to thehospital.As the prosecution case would further unfurl after thedeath took place they proceeded with the investigation, seized the burntclothes, a quilt, one plastic cane, one match-box and match stick and sentthe dead body for post mortem.The investigating agency in course ofinvestigation arrested the husband on 03.11.1997 and after recording thestatements of number of witnesses laid the chargesheet for the offencepunishable under Section 302 IPC before the competent Court, which in turncommitted the matter to the Court of Session and eventually it was tried bythe learned Additional Sessions Judge.The accused abjured his guilt and pleaded that he was not at home ashe had gone to his sister's place, Shyamwati, DW-1 at MJ-1/61, Vikas Puri,Delhi and claimed to be tried.The prosecution in order to substantiate the charges leveled againstthe accused person, examined as many as 21 witnesses and got number ofdocuments exhibited.On the basis of the ocular and the documentaryevidence, the learned trial Judge came to hold that the prosecution hadestablished the charge levelled against the accused to the hilt andaccordingly convicted him under Section 302, I.P.C and imposed the sentenceas has been stated hereinbefore.On an appeal being preferred, the High Court reappreciating theevidence and placing reliance on the oral dying declaration and thetestimony of the brother and further accepting the post mortem report foundthat the learned trial Judge had really not faulted in recording theconviction.Being of this view, it dismissed the appeal.We have heard Ms. Nupur Choudhary, Advocate (Amicus Curiae) for theappellant and Mr. W.A. Quadri, counsel for the State.It is submitted by Ms. Nupur Choudhary, learned Amicus Curiae thatthe learned trial Judge as well as the High Court has erroneously recordedthe conviction against the appellant though PW-3, the daughter of thedeceased, had not supported the case of the prosecution and she being theprincipal witness, the accused deserved to be acquitted.Mr. Quadri, learned counsel for the State, per contra, would contendthat though the daughter of the deceased, PW-3, has turned hostile yet herevidence cannot totally be brushed aside as both the prosecution and thedefence can rely on such parts of the testimony which are favourable tothem.To appreciate the rivalised submissions raised at the bar, we haveperused the judgments of the trial Court and the High Court with concernedanxiety and cautiously scrutinized the evidence on record.As we find,there are basically seven witnesses whose evidence are important, they areSatish, brother of the deceased, PW-1, Shivcharan, father of the deceased,PW-8, Dr. G.K. Chaubey, who conducted the post mortem, PW-5, Seema,daughter of the deceased, PW-3, Shanker Lal, PW-2 and Surender, PW-4 whoinformed the police at the first instance and Vijender Singh, PW-21, thesub-Inspector who recorded the statement.At this juncture, it isnecessary to mention that apart from PW-3, PWs 2, 4 and 8, were alsodeclared hostile by the prosecution and were cross-examined by the state.It was PW-3, the daughter of the deceased, whowitnessed the quarrel and rushed to the home of her grandparents.Thelearned trial Judge has put the relevant question to her to find outwhether she was in a position to understand the questions and depose inCourt.In her evidence, she had stated that on the fateful day about 11.00p.m.her mother was preparing food for the children and for the saidpurpose she was pouring kerosene oil in the stove as it was empty andthereafter when she tried to light the stove, the kerosene oil was notcoming from the nozzle of the stove, then the deceased inserted a pin inthe nozzle and the oil sprinkled on her and in the process she caught fire.On being declared hostile, she was cross-examined.It is relevant to notehere that she has first deposed that she was not aware who had removed hermother to the hospital and thereafter changed her stand stating that heruncle had removed her mother.As her testimony would show she has notmentioned whereabouts of her father at the time of the incident.Herignorance about how the mother was shifted to the hospital shows that asthe High Court has correctly analysed, she has not spoken anything abouther father in order to protect him.Keeping in abeyance whether the pleaof alibi taken by the accused is proven or not to be dealt with at a laterstage, we think it apposite to scan the evidence of other witnesses.PW-1,the brother of the accused, has unequivocally deposed that after gettingthe information from Seema, PW-3, his father and he rushed to the house ofthe deceased.As is evincible from the testimony, he reached the house ofthe sister first and found she was burning and she told him that hisbrother-in-law had poured kerosene and put her ablaze.She has also statedthat the children should not be given to the accused.He has, in detail,spoken about going to the hospital and how the site plan was prepared andthe items were seized in presence of the witnesses.In the cross-examination, no suggestion has been given about the absence of husband inthe house, contrivance of the dying declaration by him or anything whichwould create a dent in his testimony.What has been sought to be broughtin the cross-examination is that no one was present in the room of thedeceased and certain other questions which have nothing to do with theincident.It has been suggested to him that his sister and the accused hadkept Rs.90,000/- with his father, PW-8, for purchasing a house and as theyrefused to return the money, they had, getting an opportunity, falselyimplicated the accused.It has also come out in the cross-examination thatthe accused was a habitual drinker and gambler and his family was supportedby the in-laws."Superficial to deep burn injury over all the body surface area including scalp, skin peeled off at various places, margins red underneath tissues bright red and there was blackening of skin over various area.Skin was peeled off at soles, but not at palms.Venisection at left leg above medial malleolus was present."It was 100 per cent antemortem deep burns.Internal examination revealed that Larynx contained soot particles and rest of the organs were found to be congested."In the cross-examination he has categorically denied the suggestionthat the injuries received by the deceased could have been sustainedbecause of kerosene oil from the stove fell on her body due to the pinningof the stove and also by fall of a tin of kerosene oil on the floor.Hehas deposed without any equivocation that the burn injuries sustained bythe deceased were not possible due to accidental burns.The High Court hastaken note of the FSL Report, Ext. PW 20/B, from which it is evident thatthe analysis by gas liquid chromatography showed, kerosene oil residueswere found on the scalp hair of the deceased.It is apt to note that thepresence of kerosene on the scalp hair of the deceased and presence of dustparticles in the larynx of the deceased clearly evince that kerosene oilwas poured on the skull of the deceased which could not have happened byaccident.The testimony of the daughter, Seema, PW-3, a young girl of tenyears that the kerosene oil accidentally spilled on the body of her motheris thus absolutely unbelievable.The use which the defence can make of the medicalevidence is to prove that the injuries could not possibly have been causedin the manner alleged and thereby discredit the eye-witnesses.Unless,however the medical evidence in its turn goes so far that it completelyrules out all possibilities whatsoever of injuries taking place in themanner alleged by eyewitnesses, the testimony of the eye-witnesses cannotbe thrown out on the ground of alleged inconsistency between it and themedical evidence.It is also true that the post-mortem report by itself isnot a substantive piece of evidence, but the evidence of the doctorconducting the post-mortem can by no means be ascribed to be insignificant.The significance of the evidence of the doctor lies vis--vis the injuriesappearing on the body of the deceased person and likely use of the weaponand it would then be the prosecutor's duty and obligation to have thecorroborative evidence available on record from the other prosecutionwitnesses.It is also an accepted principle that sufficient weightageshould be given to the evidence of the doctor who has conducted the post-mortem, as compared to the statements found in the textbooks, but givingweightage does not ipso facto mean that each and every statement made by amedical witness should be accepted on its face value even when it is self-contradictory.Such an opinionshall be tested by the Court.That apart,it would be erroneous to accord undue primacy to the hypothetical answersof medical witnesses to exclude the eyewitnesses' account which are to betested independently and not treated as the 'variable' keeping the medicalevidence as the 'constant'.As per the evidence of thebrother, Satish, PW-1, he after reaching the place of occurrence found hissister ablaze and she had stated that her husband has poured kerosene onher and put her ablaze.But once the prosecution succeeds in discharging the burden it is incumbent on the accused, who adopts the plea of alibi, to prove it with absolute certainty so as to exclude the possibility of his presence at the place of occurrence.When the presence of the accused at the scene of occurrence has been established satisfactorily by the prosecution through reliable evidence, normally the court would be slow to believe any counter- evidence to the effect that he was elsewhere when the occurrence happened.But if the evidence adduced by the accused is of such a quality and of such a standard that the court may entertain some reasonable doubt regarding his presence at the scene when the occurrence took place, the accused would, no doubt, be entitled to the benefit of that reasonable doubt.Applying the aforesaid test, we have to x-ray the evidence on record.The father of the deceased, PW-8, has stated in categorical terms that theappellant-accused was there at home.Nothing has been elicited in thecross-examination.The prosecution has been able to establish that theoccurrence took place at 11.00 p.m. There is conclusive medical evidencethat the deceased did not suffer the injuries because of accidental fire. | ['Section 302 in The Indian Penal Code'] |
The FIR No.447 was registered on 5.11.2016 at 20.25 P.M., FIR No.448 on the Digitally signed by Trilok Singh Savner Date: 22/10/2018 18:13:53 4 MCRC Nos.18921/17, 19005/17 & 19016/17 same day at 21.10 P.M. and FIR No.449 also on the same day at 22.05'O Clock.All the three FIRs contain allegation relating to the alleged offence in respect of the colonies Vidya Vihar, Sai Bagh and Natural Valley.(Passed on 11/10/2018) 1/ This order will govern the disposal of MCRC Nos. 18921/17, 19005/17 & 19016/17 since it is submitted by counsel for the parties that all these MCRCs involve the same issue on the identical fact situation.2/ These MCRCs have been filed by the petitioners Taranjeet Singh Hora and Harmans Singh Hora for quashing the FIRs registered against them.In M.Cr.C. No.18921/2017 the prayer is for quashing of FIR No.449 dated 5.11.2016, in M.Cr.C. No.19005/17 the prayer is for quashing of FIR No.448 and in M.Cr.All these FIRs have been registered on the same date alleging commission of offence by the petitioners under Section 420, 467, 468, 120B and 34 of the IPC.Digitally signed by Trilok Singh Savner Date: 22/10/2018 18:13:53 2 MCRC Nos.18921/17, 19005/17 & 19016/17 3/ Learned counsel appearing for the petitioners submits that the three FIRs relate to the same transaction and they are registered in the same police station within a short interval, therefore, only one FIR ought to have been registered and the subsequent complaints should have been added in the first FIR.5/ Learned counsel for the objector has also referred Digitally signed by Trilok Singh Savner Date: 22/10/2018 18:13:53 3 MCRC Nos.18921/17, 19005/17 & 19016/17 to various documents and has submitted that the agreement dated 9.1.2010 and 31.3.2010 on which the petitioners are relying upon are prima facie fabricated documents and that in the MOU dated 13.9.2012 entered into between TDS Infra and Phoenix Infra relating to Natural Valley Colony, there was no clause relating to the tripartite agreement.He submits that different rates have been mentioned on different agreement between two companies and that the sales have been made to different parties for consideration less than what has been mentioned in the MOU between TDS Infra and Phoenix Infra which itself reveals that the agreement between TDS and Phoenix have been fabricated.3 MCRC Nos.18921/17, 19005/17 & 19016/176/ I have heard the learned counsel for the parties and perused the record.7/ The petitioners are praying for quashing of the FIR broadly on the following grounds:-i. That, for the same incident three FIRs should not have been registered, therefore, the subsequent two complaints should be investigated with the first FIR without registering separate second and third FIR.8/ So far as the first ground relating to registering the 3 FIRs is concerned, the record reflects that all the three FIRs have been registered at Police Station Betma.Accordingly, the FIR was instituted in which the name of the petitioners figure as accused.No such agreements have been mentioned in the FIR.The said report has been produced by counsel for the State in the sealed cover and on the opening of the sealed cover, it is found that in respect of Crime No.448/2016, 449/2016 and 447/2016 registered at Police Station Betma, an enquiry was conducted by the SDOP, Depalpur and he has submitted three separate reports even dated 5.6.2017 to the Dy.Inspector General of Police, Indore.In the enquiry he had found that the petitioners Taranjeet Singh Hora and Harmans Singh Hora had not committed any offence and Phoenix Infra had entered into an agreement with the prospective purchasers and received the amount, but the amount was kept with themselves and no amount was paid to AR Town Developers, therefore, Phoenix Infra had not only cheated the complainants but had also cheated AR Town Developers, therefore, the names of Taranjeet Singh Hora and Harmans Singh Hora should be deleted from the list of accused.31 MCRC Nos.18921/17, 19005/17 & 19016/17Ms. Archana Kher, learned counsel for the respondent/State. | ['Section 420 in The Indian Penal Code', 'Section 468 in The Indian Penal Code', 'Section 120B in The Indian Penal Code', 'Section 467 in The Indian Penal Code', 'Section 471 in The Indian Penal Code', 'Section 406 in The Indian Penal Code', 'Section 409 in The Indian Penal Code', 'Section 34 in The Indian Penal Code', 'Section 302 in The Indian Penal Code', 'Section 465 in The Indian Penal Code'] |
As prayed by learned counsel for the parties, heard them finally.The applicants have challenged the order dated 13.12.2012 passed by the lerned Additional Sessions Judge to First Additional Sessions Judge, Hoshangabad in ST No.347/2011 whereby the charges of offence punishable under Sections 147, 148, 307 read with Section 149, 324 read with section 149, 323 read with Section 149 and 294 of I.P.C were framed against the applicants.The prosecution's case in short is that the complainant had lodged on FIR on 24.2.2011 against three accused persons in which name of the applicants was not mentioned.Thereafter, their names were added in the statements of the various witnesses under Section 161 of Cr.P.C.After considering the submissions made by learned counsel for the parties and looking to the facts and circumstances of the case, it appears that the learned counsel for the applicants challenges the impugned order on the two important counts.Firstly, names of the applicants were not mentioned in the FIR.However, at present no appreciation of evidence can be done at this stage and therefore, the evidence given by the various witnesses under Section 161 of Cr.P.C cannot be brushed aside at this stage.So far as the charge under Section 307 of I.P.C is concerned, it is true that there are five persons who assaulted the victim Mukendra Singh.The victim Mukendra Singh sustained three injuries.One was a lengthy incised wound on the cheek upto the ear, one lacerated wound in the skull whereas, one incised wound on right hand.Looking to the injuries, it cannot be said that the applicants were intended to kill the victim Mukendra Singh.Similarly there was no evidence to show that Mukendra Singh sustained any fatal injury.Under Such circumstances, no ingredient of offence punishable under Section 307 of I.P.C is visible from the injuries caused to Mukendra Singh and therefore, no offence punishable under 307 of I.P.C. Is constituted for the victim Mukendra Singh.However, looking to his injury no.1 which is a very lengthy injury from cheek to the ear , it is clear that it must have caused disfiguration to him and therefore, instead of offence punishable under Section 307 of I.P.C, offence punishable under Section 326 of I.P.C is constituted.On the basis of the aforesaid discussion, the revision filed by the applicants can be partly allowed and therefore, it is partly allowed.The impugned order dated 13.12.2012 is hereby set aside for the charge under Section 307 read with section 149 of I.P.C against all the accused persons.Instead of that charge the charge under Section 326 or 326 read with section 149 of I.P.C shall be framed against the accused persons. | ['Section 307 in The Indian Penal Code', 'Section 149 in The Indian Penal Code', 'Section 326 in The Indian Penal Code', 'Section 294 in The Indian Penal Code'] |
2. Facts of the case in short are that in the intervening night of 2/3-07-2007 from Village- Sadalatpur, information has been received that transformer from the field of Habib Mohd (PW-1) have been stolen.Makanlal, Lineman (PW-2) informed the incident to Sharad Chandra Banchode, Assistant Engineer (PW-3) who submitted a written report Ex.P-9 at Police Station- Raisen regarding theft of transformer.On the basis of which FIR Ex.08/05/2012 This appeal has been preferred against the judgment dated 31/12/2008 passed by Special Judge (Electricity) Raisen in Special Case No. 199/2007 convicting the appellants under section 379 IPC read with section 136 of Electricity Act 2003 and sentenced to 6 months R.I and with fine of Rs.1000/-.P-11 was registered at Crime No. 313/2007 under section 2 Cr.A. No.73 of 2009 379 IPC read with section 136 of Electricity Act 2003 against unknown persons.Police prepared Spot Map Ex.P-10 and also made seizure memo Ex.P-8 of the cover of the transformer on the spot.Police Station Raisen submitted a charge sheet against the appellants.Trial Court framed charges under section 379 IPC read with Section 136, Electricity Act against the appellants.Appellants abjured guilt.To substantiate case of the prosecution, statements of Habib Mohd. (PW-1), Makanlal Pawar, Lineman (PW-2), Sharad Chandra Banchode, Assistant Engineer (PW-3), and T.P. Tripathi, ASI (PW-4) were recorded.Defence of the appellants in trial court was that of false implication.After appreciating aforesaid evidence, Trial Court convicted and sentenced the appellants as above.This appeal has been preferred by the appellants on the grounds that appreciation of evidence is not proper.Evidence of prosecution witnesses are suffering from material contradictions and omissions.Evidence of recovery is not reliable and unconvincing.Conviction is based on insufficient and doubtful evidence.On the other hand, learned Panel Lawyer supported the findings of conviction and sentence both.Makanlal, Lineman (PW-2) stated appellants were arrested on 30/07/2007 and on the basis of the information furnished by them, police made recovery.T.P. Tripathi, ASI (PW-4) stated that on the basis of information furnished by the appellants, copper wire has been recovered from Kabad shop.It is submitted by learned counsel for the appellants that during investigation appellants have already suffered custody period of about 8 days in this matter.No direct recovery has been proved by the police against them.No other such incident has been reported against them during pendency of the appeal.No useful purpose would be served in sending the appellants back to jail.Cr.A. No.73 of 2009For offence under section 379 IPC read with section 136 of Electricity Act 2003 undergone jail sentence of 8 days seems to be just, proper and sufficient, if fine amount is enhanced.For offence under section 379 IPC read with section 136 of Electricity Act 2003, 8 days undergone jail sentence and fine of Rs.3000/- seems to be just and proper and will meet the ends of justice. | ['Section 379 in The Indian Penal Code'] |
Shri R.T. Thanewala, learned counsel for the objector.This is a petition under Section 482 of Code of Criminal Procedure, 1973 (for short 'The Code') praying for quashment of F.I.R bearing crime no.627/2015 dated 03/09/2015, registered at police-station Madhav Nagar, District Ujjain for offences under Sections 306/34 of IPC and consequent proceedings taken up in S.T. No.128/2016, pending before the XI Additional Sessions Judge, Ujjain.The learned counsel for the petitioner has invited the attention of this Court to order dated 31/08/2016 passed in Cr.R. No.1086/2016, whereby the charge with regard to offence under Section 306 of IPC in S.T. No.128/2016 was quashed, on a petition preferred by co-accused Dilip and Madhu Gupta.It is submitted by the learned counsel for the petitioner that on the basis of same allegations in the same case, trial for offence under Section 306 of IPC is still going on against petitioner Subhash Yadav.C. No.10306/2016 2Though the prayer is not opposed by the learned Public Prosecutor, however, the learned counsel for the objector, Asha Rani-wife of deceased Gyaneshwar Prasad Mittal, has strongly opposed the prayer for quashment.It is submitted that earlier, Cr.R. No.904/2016, preferred by the petitioner before this Court against the order of framing charge was dismissed, on 26/07/2016, as withdrawn, therefore, identical prayer for quashment cannot be entertained under Section 482 of 'The Code'.Heard learned counsel for the parties and perused the record.The law is well settled that the jurisdiction of this Court under Section 482 of 'The Code' is wide enough and that if the proceedings are going to result in abuse of process of the Court, then the high Court in exercise of powers under Section 482 of 'The Code' can quash such proceedings and nothing will come in the way.No doubt, the revision preferred by the petitioner against charge was dismissed as withdrawn by this Court vide order dated M.Cr.C. No.10306/2016 3 26/07/2016, however, thereafter another petition being Cr.R. No.1086/2016, filed by co-accused Dilip and Madhu Gupta was allowed by this Court vide order dated 31/08/2016 after elaborate consideration of factual and legal position obtaining in the matter.Relevant part of the order dated 31/08/2016 runs as under:C. No.10306/2016 3"As per prosecution, Gyaneshwar Prasad Mittal aged about 75 years residing at 72, Dussehra Maidan, Ujjain committed suicide on 27/08/2015 at around 1.30 a.m. inside his house by strangulation as a result of hanging.His wife Asha Rani also attempted to commit suicide.Merg was registered in this connection with police station Madhav Nagar, Ujjain.The sale consideration of Rs.55.00 lakhs, as per the agreement, was to be paid in four installments.The petitioners had already paid an amount of Rs.41.25 lakhs against first three installments and forth installment was to be paid at the time of registration of sale deed.As per prosecution, Gyaneshwar Prasad Mittal (deceased) and his wife Asha Rani had requested the petitioners many a times to pay the fourth installment and get the sale deed executed, however, they refused to pay the fourth installment, and further pressurised Gyaneshwar Prasad Mittal (deceased) to vacate his house.Allegedly, thereafter, almost three months prior to the incident, they suddenly vacated the house saying that they have handed over its possession M.Cr.C. No.10306/2016 4 to one Subhash Yadav, advocate so that he can manage to get it vacated from Gyaneshwar Prasad Mittal (deceased).It is further alleged that Subhash Yadav has opened an office in the premises and anti-social elements used to assemble there.Gyaneshwar Prasad Mittal (deceased) was also being obstructed from using common pathway and thus a lot of nuisance was being caused.C. No.10306/2016 5M.Cr.C. No.10306/2016 8The proceedings pending before XI Additional Sessions Judge, against the petitioner are hereby quashed.Certified copy as per rules.(Ved Prakash Sharma) Judge sumathi | ['Section 306 in The Indian Penal Code', 'Section 482 in The Indian Penal Code', 'Section 107 in The Indian Penal Code', 'Section 34 in The Indian Penal Code'] |
Prosecution case in brief is that on 21.07.1993 the deceased Chandanlal (Forest Guard) with Vijendra Kumar, Abdul Hamid and others were patrolling in the Kanha Reserve Forest (Project Tiger).At about 7:00 p.m., they found 15 to 20 persons assembled there 2 for hunting the animals.They had axes, traps, utensils and clothes.After seeing the patrolling party, the appellants fled away from the spot leaving the aforesaid articles.Chandanlal (since deceased) and his team members took articles left by the appellants at their Chowki.After sometime, the appellants about 15 to 20 persons attacked at the Chowki (sauf-naka).They assaulted Chandanlal by an axe and sticks.His team members Vijendra Kumar and Abdul Hamid (Forest Guards) climbed on the tree to save themselves.They saw, the appellants inflicting the injuries to Chandanlal.The appellants took their articles from the Chowki and fled away from the spot.Another Officer R.N. Awasthy (PW-6) brought Chandanlal to the Hospital, Mocha.Doctor declared him dead and conducted autopsy of his body.The said fact is also unchallenged in their testimony.Hence, at the time of the incident, the presence of Abdul Hamid (PW-2) and Vijendra Kumar (PW-9) are found reliable.Both the witnesses stated that they were on patrolling duty.They found that some persons were gathered and talking together in the Kanha Reserve Forest.They had axes, traps, utensils and clothes.After seeing the patrolling party, the appellants fled away from the spot leaving the aforesaid articles.Therefore, Chandanlal (since deceased) and his team members took the aforesaid articles with them at the outpost (Chowki), Saufnaka.After sometime, the appellants about 15 to 20 persons attacked at their outpost (Chowki).They assaulted Chandanlal by axes and sticks, at that time Abdul Hamid (PW-2) and Vijendra Kumar (PW-9) climbed on the tree to save themselves.They witnessed the incident.They saw that the appellants took their articles from the outpost (Chowki) and fled away from the spot.Then they went to the spot and brought Chandanlal to outpost (Chowki).They saw Chandanlal sustained several injuries.He was bleeding from his head.His condition was critical.Their Officer R.N. Awasthy and staff personnel also came there.R.N. Awasthy (PW-6), who was Range Officer received wireless message about the incident and thereafter, he came to the 5 spot.(29/01/2018) Per : Smt. Anjuli Palo, J :-Appellants/accused persons have filed this appeal against the judgment dated 04.07.1998 passed by the Second Additional Sessions Judge, Mandla in Sessions Trial No.85/95 whereby the appellants were convicted under Section 302 read with Section 149 and Section 353 read with Section 148 of the Indian Penal Code and sentenced to life imprisonment with fine of Rs.100/- each.FIR was lodged by R.N. Awasthy (PW-6) against the appellants for the offences under Sections 353, 147, 148 and 302 read with 149 of I.P.C. After due investigation, charge- sheet was filed before the concerned Court.After committal of the case, charges under Section 302 read with Section 149 and Section 353 read with Section 148 of the Indian Penal Code has been framed by the learned Trial Court against the appellants.Appellants abjured guilt and stated that they are innocent and falsely implicated by the police in this case.Findings of the learned trial Court are challenged by the appellants on the grounds that the trial Court has wrongly appreciated the evidence on record and failed to see that the alleged story of the prosecution is solely based on the "Dock Identification" and on the memorandum and seizure which were not proved by the prosecution.Further the prosecution witnesses have not supported the prosecution story.There are so many lacunae in the prosecution case, hence, the appellants deserve to be acquitted.Heard learned counsel for the parties at length and perused the record.Abdul Hamid (PW-2) and Vijendra Kumar (PW-9) are the eye witnesses to the incident.Their testimonies with regard to the posting of the deceased on the date of incident, i.e. 21.07.1993 as Forest Guard at Kanha Reserve Forest Area is not challenged by the 4 appellants.Along with the Deceased-Chandanlal, Vijendra Kumar (PW-9) and Abdul Hamid (PW-2) were also on duty.He brought Chandanlal to the hospital, but on the way Chandanlal died.Bachchu @ Pappu (PW-7) and Rameshwar (PW-1) partly corroborated the testimony of above witnesses with regard to the injuries sustained by Chandanlal and presence of Abdul Hamid (PW-2), Vijendra Kumar (PW-9) and R.N. Awasthy (PW-6) at the scene of occurrence.They turned hostile but their testimony which supported the prosecution story, can be used for the corroboration.After considering the above evidence which establish that Chandanlal was assaulted by the accused persons who were present in the forest for hunting or committing illegal act which is punishable under the provisions of the Forest Act. It has also been established from the evidence brought on record that they had an intention to obstruct the Forest Guards to restrain them from prohibiting the offence.The articles seized from the possession of the accused persons also indicate their intention to commit the offence.Learned counsel for the appellants contended that the identification of the appellants for involvement in the crime has not been proved beyond the reasonable doubt.He has also urged that at the time of the incident, the number of culprits and darkness on the spot creates reasonable doubt in favour of the appellants.K.C. Bopte (PW-10), Naib Tahsildar deposed that on 07.08.1993 he conducted identification parade of the appellants at Sub-Jail, Mandla and prepared memo (Ex.P/2) which was signed by witnesses Vijendra, Abdul Hameed and Ganga Prasad.During identification parade, 28 persons were added with the appellants.In his presence appellants Samlu, Naval, Munna, Deepu, Boda, Rattu, Gareeba, Premlal, Pansari, Chamru and Subbal were properly identified by Vijendra, Abdul Hameed and Ganga Prasad.On 29.09.1993 the appellants Shankar and Veershay were identified by Abdul Hamid and Ganga Prasad in between 12 persons.In cross- examination, they failed to explain that who were joined with the appellants for identification parade.Abdul Hameed (PW-2) corroborated the testimony of K.C. Bopte (PW-10), Naib Tahsildar.He admitted his signatures (Ex.P/2 and P/3).Similarly, Vijendra Kumar (PW-9) also corroborated the testimony of K.C. Bopte (PW-10), Naib Tahsildar.Learned counsel for the appellants submits that both the witnesses are tutored witnesses.They falsely stated against the appellants.Hence, there is necessity to scrutinize the testimony of Abdul Hameed (PW-2) and Vijendra Kumar (PW-9) with great caution because incident took place at about 7.00 p.m. In cross-examination, in para 16 Abdul Hameed (PW-2) stated that he heard some noise then both of them (he and Vijendra) climbed on the tree.He failed to explain 7 number of culprits who came on the spot for assaulting Chandanlal.He said about 10-15 persons came there, but he did not say, who caught hold the deceased, who caught hold Ganga Prasad, who beaten them and who was searching the articles.In para 18, again he submitted that the place of the incident was 50 to 60 feet away from them.Vijendra Kumar (PW-9) also deposed that his camp and that of the deceased Chandanlal were situated in opposite direction and when the persons attacked on the deceased-Chandanlal's camp, immediately, he climbed on the tree which was at the other camp.That tree was very dense.The statement of Vijendra Kumar (PW-9) creates reasonable doubt that in such a situation, they are not able to see exactly the assailants in dark and from some distinct place.In para 17, he stated that identification parade was conducted at Panchayat house but Abdul Hameed (PW-2) and K.C. Bopte (PW-10), Naib Tahsildar deposed that identification parade was held at Sub-Jail, Mandla.Vijendra Kumar (PW-9) also stated that he signed without reading identification memo (Ex.P/2).Prosecution examined Ganga Prasad (PW-15) as an eyewitness but he turned hostile.He stated that he identified Chamaru, Dukali and Munna only.In para 5, he stated that he did not remember how many persons identified by him. 8After considering of the above facts, we find that the evidence of identification parade and identification of the appellants are not sufficiently proved against the appellants.There is a reasonable doubt in favour of the appellants.L.S. Kashyap (PW-19), In-charge Police Station deposed that he recorded the memorandum of appellants Dhaniram, Subbal, Gariba, Naval, Munna, Premlal, Bhiku, Samlu, Rattu, Pansari, Boda, Veershay and Shankar and recovered incriminating articles as stated earlier.But panch witnesses Chadamilal (PW-18), Ramgopal (PW-17), Chhidilal (PW-11) and Puranlal (PW-8) turned hostile.Similarly, Anurag Das (PW-5) did not support the prosecution story and testimony of Investigating Officer.Therefore, the proceeding of memorandum of the appellants and seizure of incriminating articles from their possession are not duly established by the prosecution.The alleged charges are not proved beyond reasonable doubt against the appellants.Even though, Dr. B.K. Chaturvedi (PW-3) supported the prosecution story that Chandanlal died due to fatal injury of his head and chest as shown in postmortem report (Ex.P/4).But the prosecution failed to prove that the injuries were caused by the 9 appellants in furtherance of their common object to commit the murder of the deceased as a member of unlawful assembly.Under these circumstances, we are of the opinion that learned trial Court wrongly convicted the appellants on the basis of weak type of evidence.Hence, they are entitled to be acquitted.Accordingly, the appeal is allowed.The impugned judgment of conviction and sentence is hereby set aside and the appellants are acquitted of the offences.Other remaining appellants are on bail.Their bail bonds stand discharged.Copy of this judgment be sent to the Court below for information and compliance alongwith its record. | ['Section 148 in The Indian Penal Code', 'Section 353 in The Indian Penal Code', 'Section 302 in The Indian Penal Code', 'Section 149 in The Indian Penal Code', 'Section 147 in The Indian Penal Code'] |
In support of the said charges, the prosecution examined P. Ws. 1 to 4, and marked exhibits P-1 to P-58, and, on behalf of the defence, one Gurusami, Fourth Income-tax Officer, City Circle III, Madras-6, was examined as D.W. - 1 and exhibits D-1 to D-6 were marked.The case of the complainant, the appellant herein, is that the respondent herein/accused is doing business in the name and style of Messrs. Rajasekaran and Co., and he is an income-tax assessee.The balance-sheet and profit and loss account were also filed along with the return.In the balance-sheet, he has shown a sum of Rs. 2,53,498.92 as due to sundry creditors on the liabilities side.In the schedule to the balance-sheet for the sundry creditors, a sum of Rs. 1,05,000 was shown as due to Messrs. Greaves Cotton and Co. Ltd., while actually it was an amount received as commission in June, 1975, and it was not an advance or loan.In an enquiry by the Department with Messrs. Greaves Cotton and Co. Ltd., it was revealed that Messrs. Rajasekaran and Company was actually paid a commission of Rs. 1,05,000 in June, 1975, itself by cheque for the services rendered by them.Thus, it is clear that the accused, with a view to avoid payment of lawful dues to the Government, intentionally fabricated his account books relating to the assessment years 1976-77 and 1978-79 by deliberately suppressing the commission receipt of Rs. 1,05,000 from Messrs. Greaves Cotton and Co. Ltd., for the assessment year 1976-77, and falsely showing it as if it was income for the assessment year 1978-79 with the intention to use them as genuine evidence in the course of the income-tax assessment proceedings.In addition, he has wilfully made false verification in the returns of income for those years.JUDGMENT K.M. Natarajan, J.These two appeals are directed by the offences under sections 193 and 196, Indian Penal Code, and for nor awarding the minimum sentence as per law for the offence under sections 276C and 277 of the Income-tax Act, 1961, in E.O.C.C. No. 2222 of 1982 by the Additional Chief Metropolitan Magistrate (Economic Offences II), Madras.The respondent in both the appeals, who is the accused in the case, was prosecuted by the Income-tax Department under six charges - the first charge is under section 420 read with section 511, Indian Penal Code; the second charge is under section 193, Indian Penal Code, read with section 136 of the Income-tax Act, 1961; the third charge is under section 196, Indian Penal Code, read with section 136 of the Income-tax Act, 1961; the fourth charge is under section 276C of the Income-tax Act, 1961; the fifth charge is under section 277 of the Income-tax Act, 1961, and the sixth charge is also under section 277 of the Income-tax Act, on the allegations that the accused has intentionally fabricated his account books relating to the income-tax assessment years 1976-77 and 1978-79 by deliberately suppressing the commission receipt of Rs. 1,05,000 from Messrs. Greaves Cotton and Co. Ltd. for the assessment year 1976-77 and falsely showing the same as income for the assessment year 1978-79 with a view to defraud the exchequer of its legitimate revenue, and deliberately delivered false returns of income and statements of accounts based on the abovesaid fabricated account books and thereby attempting to mislead the Income-tax officer and dishonestly inducing him to deliver the assessment orders relating to the above assessment years, computing the total income at a considerably lower figure than that to which he is properly assessable, and acting and relying on the aforesaid fabricated account books and false returns of income and statements for the aforesaid income-tax assessment years.Hence the complaint.Four witnesses were examined on the side of the complainant.P.W. - 1 is the Income-tax Officer.He has deposed in support of the allegations stated in the complaint.Through him, the income-tax return, exhibit P-1, received from the accused for the assessment year 1976-77, exhibit P-3, the statement of accounts signed by Thiru G. Venkatesan, chartered accountant of Messrs. Venkatesh and Co., exhibit P-2, the trading and profit and loss account for the year ended March 31, 1976, exhibit P-4, schedule to balance-sheet as on March 31, 1976, about sundry creditors and sundry debts, exhibit P-5, statement of total income for the year ending March 31, 1976, and exhibit P-6, power of attorney in favour of Messrs. Venkatesh and Co., were marked.He then issued exhibit P-7 letter to Messrs. Greaves Cotton and Co. Ltd. inquiring whether they have deposited the said amount with the accused-company on June 27, 1975, and to furnish details of commission payments made by them.The debit note dated June 26, 1975, exhibit P-18, sent by Thiru T.K. Vaidyanathan, Regional Accountant of Messrs. Greaves Cotton and Co. Ltd., showed that the accused was paid a commission of Rs. 1,05,000 as final settlement for the services rendered by the accused concern in canvassing for the sale of 50 marine engines to Kerala Fisheries Department and the said amount was paid by way of cheque.According to him, at page 127 of exhibit P-31, ledger containing an account for Messrs. Greaves Cotton and Co. Ltd., there was an entry for a receipt of Rs. 1,05,000 on June 27, 1975, by cheque No. 086581 on Grindlays bank without any narration to the effect that the same was account.But there is no account for commission receipt.The correspondence between the accused-company and Messrs. Greaves Cotton and Co. Ltd. were also filed.A sworn statement, exhibit P-45, was recorded from the accused on February 21, 1979, in which the accused has clarified that he had no other business with Messrs. Greaves Cotton and Co. Ltd. excepting the commission of Rs. 1,05,000 and that the receipt of the amount was shown as deposit and it was a mistake.P.W. - 2, S.K. Kandasami, Income-tax Officer, deposed that he recorded sworn statements, exhibits P-50 and P-55, from P. W. 3, T. K. Vaidyanathan, Regional Accountant of Messrs. Greaves cotton and Co. Ltd. P.W. - 3 deposed about his giving statements to P.W. - 2 and production of documents.The accused was examined under section 313, Criminal Procedure Code.He would further state that the returns were prepared by the auditor and he merely signed in a routine way.Thereupon, charges were framed and the accused pleaded not guilty to the charges.One witness was examined on the side of the accused.D.W. - 1, S. Gurusami, is the Fourth Income-tax Officer, City Circle III, Madras, and it is his evidence that, in the original assessment order for the year 1978-79, which was marked as exhibit D-4, a sum of Rs. 1,05,000 received by way of commission from Messrs. Greaves Cotton and Co. Ltd. has been fully assessed to income Messrs. Greaves Cotton and Co. Ltd. has been fully assessed to income-tax.Because the accused disclosed this amount as income for the year 1978-79, it was assessed for that year.The trial judge framed three points for consideration, namely :-As regards the first point, the trial judge held that the Income-tax Officer is not a court within the meaning of section 195, Criminal Procedure Code, and, consequently held that the complaint under sections 193 to 196 of the Indian Penal Code has to fail.As regards points Nos. 2 and 3, the trial judge held that the charges under section 276C and 277 of the Income-tax Act have been proved.Applying the ratio in the above-quoted decisions to the facts of this case, it is seen that the offence is said to have been committed in the year 1976-77 and the order of acquittal was passed in 1984, and no useful purpose would be served by ordered re-trial at this length of time especially when the respondent has already undergone imprisonment till the rising of the court and paid the fine in respect of the offences committed in connection with the same transaction. | ['Section 193 in The Indian Penal Code', 'Section 420 in The Indian Penal Code', 'Section 109 in The Indian Penal Code'] |
In brief the case of the prosecution is that in the after noon of 18-9-1992 the prosecutrix who is an innocent child of 6 years, was accompanying her mother, lateron her mother Kusum Bai, as she was walking little fast proceed ahead, later on the prosecutrix came to her, she was weeping.The mother noticed that the private part of the prosecutrix is stained by blood and blood was squeezing, on being asked, she said that appellant committed this hateful sin.The mother of the prosecutrix approached the appellant and asked why he has done such a sin, in reply when he denied, the mother of the prosecutrix snatched the towel which he was wearing and found the blood stains on his underwear.JUDGMENT A.K. Shrivastava, J.By this appeal preferred under Section 374 of the Code of Criminal Procedure, 1973, the appellant has challenged the judgment of conviction and order of sentence dated 9-3-1999 passed by 3rd Additional Sessions Judge, Shivpuri in Sessions Trial No. 187/92 whereby he has been convicted under Section 376(2), IPC and has been sentenced to suffer R.I. of 10 years and fine Rs. 5000/-, in default further R.I. of one year.The mother of the prosecutrix narrated the incident to her husband and thereafter alongwith Chaukidar they went to lodge the report on the same day, i.e., 18-9-2002 at 5 p.m. The first information report is Ex. P-6 which was lodged by Brakhlal (P.W. 4).On lodging the FIR criminal law was set in motion.The prosecutrix was immediately sent for medical examination and she was examined on the same date, i.e., 18-9-2002 by Dr. Veena (P.W. 1).In furtherance to his investigation, the Investigating Officer arrested the accused, seized his undergarments, as well as that of the prosecutrix, recorded the statement of the witnesses and after completion of the investigation, a charge-sheet was submitted in the Competent Court, who on its turn committed the case to the Court of Sessions and from where it was received by the Trial Court for the trial.The learned Trial Judge after perusing the charge-sheet framed charge punishable under Section 376, IPC.Needless to emphasis the appellant abjured his guilt.His defence is of maladroit implication.In order to prove the charge, prosecution examined as many as 9 witnesses and placed Exs. P-1 to P-17 the documents on record.In his defence the accused/appellant did not choose to examine any witness.The learned Trial Judge after X-raying the evidence came to hold that appellant did not commit the offence punishable under Section 376(2), IPC and eventually convicted him and passed the sentence which I have mentioned hereinabove.Hence, this appeal.In this appeal Shri Sanjay Gupta was appointed as amicus curiae and I must mention here that he has placed all the arguments possible in the case.According to her, the appeal sans substance and same be dismissed.After having heard the learned Counsel for both the parties, I am of the view that this appeal deserves to be dismissed.At the outset, I think it germane to discuss the evidence of the prosecutrix because it is well settled in law that in a case falling under Section 376, IPC no corroboration is required and the sole testimony of prosecutrix is to be seen and if it is found to be worth reliable, a conviction can be passed on the basis of her sole testimony.On the basis of this backdrop I shall now consider the evidence of the prosecutrix.On that date she was 10 years.The learned Trial Judge after putting certain questions to her came to hold that she understand the questions and is able to answer and thereafter she was examined.In her evidence the prosecutrix says that the appellant took her away at a well and lay over her, at that time he was wearing a shirt and a towel.She further says that she was wearing a panty, the appellant thereafter took off her panty and also opened the knot of his towel thereafter she narrated that how the appellant intercoursed with her.After the commission of the offence the prosecutrix narrated the incident to her mother.Lateron she was taken to the hospital.This child witness (prosecutrix) was cross-examined at length but she remained embedded in her version.On minutely scrutinizing the evidence of this witness only, singular inference is gathered that the appellant who at the relevant point of time was more than 18 years just to satisfy his dirty thirst committed such a vile sin and ravished a feme-sole who had seen only 6 springs.On going through the evidence of the prosecutrix, it is perceivable that on committing such a hateful act, the blood came out from her private part and it was squeezing when the innocent prosecutrix reported the incident to her mother.The evidence of the prosecutrix in this regard has been corroborated by the evidence of her mother Kusum Bai (P.W. 3), who had specifically said that the prosecutrix came to her, she was weeping.She noticed that the blood was squeezing from her private part and her last cloth of the body (panty) was stained by blood.On being asked by her, the prosecutrix said that this shameful act was done by the accused/appellant, as a result of which she went at the spot where the appellant was sitting and asked him why he has done this hateful act and on being denied by him, she snatched the towel which he was wearing and noticed that the undergarment of the appellant was also stained by blood.Smt. Kusum Bai, immediately narrated the incident to her husband Brakhlal (P.W. 1) and thereafter they went to lodge the FIR.The evidence of the prosecutrix is fully corroborated, by the medical evidence.The lady doctor Veena Kumar (P.W. 1) on examining the prosecutrix found her hymen to be torned and there was swelling.The blood was coming out from her vagina. | ['Section 376(2) in The Indian Penal Code', 'Section 376 in The Indian Penal Code'] |
Heard on the question of admission.By this Criminal Revision under Section 397/401 of Cr.P.C. the applicants have challenged the order dated 4.2.2013 passed by the learned Additional Sessions Judge/Special Judge, Jabalpur in ST No.468/2012 whereby the charges of offence punishable under Sections 306/34 and 498/34 of IPC were framed against the applicants.The prosecution's case, in short, is that on 8.4.2012 the deceased was found dead.She was found hanged.The applicants are relatives of the husband of the deceased and the parents and other relatives of the deceased have made allegations against the applicants about the harassment.After considering the submissions made by the learned counsel for the parties and looking to the facts and circumstances of the case, the main grievance of the learned counsel for the applicants is that initially the brother of the deceased did not say anything about the harassment and after sometime he made false allegation against the applicants, therefore no charge under Section 306 or 306/34 of IPC can be framed.However, at this stage appreciation of evidence cannot be done.It cannot be said that the witnesses were telling a truth in their previous statements or now they are telling a truth.Under such circumstances, at this stage, it cannot be said that no charge under Section 306/34 of IPC can be framed.No illegality or perversity is visible in the impugned order dated 4.2.2013 passed by the learned Additional Sessions Judge/Special Judge, Jabalpur.There is no basis by which the present revision can be accepted.Consequently, the revision filed by the present applicants is hereby dismissed at motion stage.A copy of this order be sent to the trial Court for information.(N.K.Gupta) Judge Ansari | ['Section 306 in The Indian Penal Code', 'Section 34 in The Indian Penal Code', 'Section 498 in The Indian Penal Code'] |
The dead body of Saira Bano was exhumed on 14.5.90 and on 15.5.90 second Post Mortem examination was performed.In this Post Mortem an incision mark from sternum down to pubic symphosis with stiches, a contusion extending across forehead was also noticed.Both these Post Mortem examinations were conducted by three Doctors.In the first P.M. examination the cause of death was found to be shock due to 85% burns.In the second P.M. examination it was observed that if skull has been earlier opened it might have revealed an injury if present.JUDGMENT V.S. Kokje, J.The applicants Nos. 3 and 4-Mohd.Umar and Moinuddin are his brothers.They reside at 358, Jawahar Marg, Indore except Mohd. Umar who resides at 19, Champabag, Indore, half a kilometre away.On 7.5.1990 at about 1.30 p.m., applicant No. 1 Moinuddin reported to the Police that Saira Bano was lying dead having burn marks on the body on the roof of Ghori Lodge.A merg was registered Under Section 471 Cr.P.C. The matter was investigated and a case Under Sections 498A and 306-B IPC was registered.The body was sent for Post Mortem and was handed over to Faqruddin for burial and it was accordingly graved.On 13.5.90, Rasul Ahmed, father of deceased Saira Bano complained to a Minister in the M.P. State Cabinate alleging that Saira Bano did not die a natural death but it was a case of dowry death.It was also written in the alleged complaint given to the Minister that the deceased Saira Bano was attacked with sharp edged weapon and then she was put a fire.The prosecution collected some documentary evidence in the shape of letters written by Saira Bano.On this material on record the charges were framed.It is contended on behalf of the applicants that there is no direct evidence on record sufficient to implicate any of the applicants.On the charge Under Section 302 IPC it cannot be lost sight of that the doctors performing second Post-Mortem examination have reported evidence of injuries by hard and blunt object present on the body.The blood and viscera from the dead body had been sent to F.S.L. Sagar.In both the P.M. Examinations, body was found to be burnt and in the first P.M. Examination 85% burns injury was reported.Let the record be sent back immediately to the Trial Court. | ['Section 302 in The Indian Penal Code', 'Section 498A in The Indian Penal Code', 'Section 304B in The Indian Penal Code'] |
Case Diary is perused.Learned counsel for the rival parties are heard.The applicant has filed this first bail application u/S. 439, Cr.P.C. for grant of bail.The applicant has been arrested on 26.04.2015 by Police Station Bahodapur, District Gwalior in connection with Crime No.237/2015 registered in relation to the offences punishable u/Ss. 364A of IPC and S.11/13 of M.P.D.V.P.K. Act added S. 302, 201, 120B of IPC and added S.25/27 of Arms Act.Learned Public Prosecutor for the State opposed the application and prayed for its rejection by contending that on the basis of the allegations and the material available on record, no case for grant of bail is made out.Prosecution story indicates that seizure of motor-cycle and cell phone is made from the applicant.The call details have also been collected indicating that the applicant had made phone calls to the brother of the abductee.The prosecution has recorded confessional statement of the applicant u/S.27 of the Evidence Act, whereafter the dead body of the deceased was 2 M.Cr. | ['Section 302 in The Indian Penal Code', 'Section 120B in The Indian Penal Code', 'Section 201 in The Indian Penal Code'] |
This petition has been filed to set aside the order dated 15.02.2018 made in C.M.P.No.1038 of 2018 in C.C.No.233 of 2012, on the file of the learned Judicial Magistrate No.I, Kuzhithurai.2.The facts of the case is that the petitioner was implicated in the Crime Number 937 of 2010 on the file of respondent police for thehttp://www.judis.nic.in 2 offences punishable under sections 324, 506(ii) of IPC and 3(1) of P.P.D.L. Act @ 447, 427, 324, 506(ii) of IPC.After completion of investigation charge sheet has been filed before the learned Judicial Magistrate No.However, after four years the petitioner filed a petition under Section 311 Cr.However, the said petition was dismissed.Hence, this criminal original petition has been filed by the petitioner.3.The learned counsel for the petitioner would submit that the earlier counsel engaged by the petitioner has not properly communicated with the petitioner.Hence, the petitioner has engaged a new counsel with request to recall the P.W.1 and P.W.2 and cross examine them.If the petitioner was not given an opportunity, he will be prejudiced and the case will be decided against him.Hence, prayed to allow this petition and the petitioner is ready to deposit reasonable amount as per the direction of this Court.3.The learned Additional Public Prosecutor appearing for the state has no objection to entertain this petition on payment of cost.4.Hence, considering the principles of natural justice, this Courthttp://www.judis.nic.in 3 inclined to give an opportunity to the petitioner to cross examine the P.W.1 and P.W.2 on condition of payment of Rs.5,000/- to the Dog Squad, Kaniyakumari District.4.Accordingly, the order passed by the learned Judicial Magistrate No.The petitioner shall cross examine the P.W.1 and P.W.2 on the same day itself.The petitioner shall pay a sum of Rs.5,000/- by cash to the Superintendent of Police, Kanyakumari District for the welfare of Dog Squad, Kanyakumari District.5.With the above direction, this criminal original petition is allowed.Consequently, connected miscellaneous petition is also closed.18.03.2019 Index : Yes / No Internet : Yes / No TM To1.The Judicial Magistrate No.I, Kuzhithurai.http://www.judis.nic.in 4 M.DHANDAPANI, J. | ['Section 324 in The Indian Penal Code', 'Section 506 in The Indian Penal Code'] |
ORDER J.K. Maheshwari, J.This petition has been filed assailing the order dated 9.3.2000 passed by respondent No. 3 by which on revocation of the suspension, a direction was issued for non-payment of the salary for such period except the subsistence allowance along with a direction to count such period permissible for the purpose of pension.Because the petitioner was under detention for more than 48 hours, therefore, as per order dated 13.10.1996, he was placed under suspension.Vide order dated 29.11.1996 passed by this Court in M.Cr.C. No. 3399/96, petitioner was released on bail.Thereafter, the trial has resulted into acquittal as per judgment dated 31.8.1998 (Annexure-A/5).Some of the accused persons were convicted for the same offence but the petitioner was acquitted.Arising out of the judgment passed on 31.8.1998, two appeals were preferred.One appeal Cr.A. No. 1049/98 was preferred on behalf of the convicted accused persons and another Cri.A. No. 1345/98 was preferred on behalf of the State Government against petitioner Kanhaiyalal.The appeal filed on behalf of the convicted accused persons was allowed and the appeal filed by the State Government against the petitioner was rejected.In such a circumstance, it is apparent that the criminal prosecution lodged against the petitioner resulted into acquittal as per the order passed by the Sessions Court on 31.8.1998 and affirmed by the High Court.However, on conclusion of the trial petitioner ought to be reinstated on revocation of suspension.It is further submitted by him that filing of the appeal against the order of acquittal passed by the Sessions Court against him having no consequences in revocation of suspension.Respondents have filed their return and tried to justify their action.By filing the return, it is stated that because the order dated 31.8.1998 passed by the learned Sessions Court acquitting the petitioner was under challenge before the High Court in Cr.A. No. 1345/98 and the final order was passed in Cr. A. on 31.10.1999, therefore, the order Annexure-A/1 has rightly been passed.In the return, it is stated that because the petitioner was placed under suspension, therefore, the period in which he was under suspension has been directed to be treated as 'no work no pay'.I have heard the learned Counsel appearing for the parties and perused the record.On perusal of the record, it is apparent that the suspension of the petitioner was on account of his detention in a criminal case registered at Crime No. 28/97 for an offence under Section 302, Indian Penal Code.Sessions trial has been concluded as per order dated 31.8.1998 resulting into acquittal of the petitioner and conviction of some accused persons.Against the judgment of the Sessions Court two appeals were preferred, one is on behalf of the convicted accused persons and another is on behalf of the State Government challenging the acquittal of the petitioner.The appeal preferred by the State Government has been rejected and the appeal preferred by the accused persons was allowed.The authority competent ought to have passed an order determining the fact that placing the petitioner under suspension was justifiable or not and continuation of his suspension during the trial was justified or not.In the present case', on perusal of the document Annexure-A-l, it does not reveal that the Competent Authority has passed an order in due exercise of his powers.In the present case in order impugned Annexure A-1 dated 9.3.2000, the period with effect from the date of passing of an order of suspension till revocation of such suspension was treated on duty but during such period petitioner has been directed to be paid the subsistence allowance only.In the circumstances, there is no order as to cost. | ['Section 302 in The Indian Penal Code'] |
This petition has been filed to quash the FIR in Crime No.282 of 2017, on the file of the first respondent registered for the offences under Sections 147, 148, 448, 294(b), 506(ii), 468, 471, 420 of IPC r/w 149 of IPC.http://www.judis.nic.in 2Thereafter, the said Koulanthini and the petitioners entered into registered sale agreement dated 20.01.2003 to purchase the said property.In this regard, one Alexander Joseph, who shown as A7 in the present FIR, lodged a complaint on 19.07.2003, against the petitioners' vendor and others.He also filed a suit in O.S.No.508 of 2003 before the Principal District Munsif, Puducherry against the petitioners and obtained an order of status-quo in respect of disputed property.The petitioners also filed a suit in O.S.No.374 of 2007 on the file of the learned Principal District Munsif, Puducherry, as against the second respondent and his brother, in respect of the very same disputed property and also obtained interim injunction.In fact, the complaint lodged by the petitioners referred under Section 145 of Cr.P.C., to the Executive Magistrate and after conducting enquiry the Executive Magistrate directed the parties to approach civil Court and also ordered to maintain status-quo in respect of the disputed property.Thereafter,http://www.judis.nic.in 3 by the judgment and decree dated 13.08.2007, the suit filed by the petitioner in O.S.No.374 of 2007, allowed and granted permanent injunction as against the second respondent.The learned Senior Counsel appearing for the petitioners further submitted that on the complaint lodged by one Alexander Joseph the charge sheet laid in C.C.No.43 of 2019 on the file of the learned Chief Judicial Magistrate, Puducherry, in which the petitioners have been shown as witnesses, since they were bonafied purchaser and no materials were found as against the petitioners to add them as accused.Thereafter, on the complaint lodged by the second respondent/defacto complainant, the District Registrar passed an order dated 05.10.2015, thereby cancelled the document registered in favour of the petitioners and as against which the petitioners preferred a writ petition before this Court in W.P.No.33680 of 2015 and obtained an interim order of stay and the writ petition is still pending before this Court.The learned Senior Counsel appearing for the petitioners further submitted that suppressing the above facts and circumstances, the second respondent filed a direction petition in Crl.Thereafter, the petitioners filed a petition in Crl.Thereafter, the said Alexander Joseph filed a petition under Section 319 of Cr.P.C. to add the petitioners as accused in C.C.No.43 of 2009, pending before the learned Chief Judicial Magistrate, Puducherry.In the said application the Investigation Officer, CBCID, Puducherry filed counter and categorically stated that the petitioners are bonafied purchasers, as such no material found as against them to add them as accused.Therefore, by an order dated 03.07.2017, the learned Chief Judicial Magistrate, Puducherry dismissed the said application filed under Section 319 of Cr.P.C. As against the same, the said Alexander Joseph filed a revision petition in Crl.After these long years i.e., from 2003, after the period of 14 years, the second respondent lodged a false complaint as against the petitioners and the same has been registered in Crime No.282 of 2017, which is impugned in this petition.Further he submitted that the entire transaction completely civil in nature and even from the FIR, there is no offence made out as against the petitioners, since they are bonafied purchasers, according to the Investigating Officer, CBCID, Puducherry.Therefore, he prayed for quashment of FIR.The second respondent/defacto complainant has two ancestral properties, one is bearing old No.3/New No.5, Faracis Martin Street, Puducherry and another one is bearing Old No.10/New No.12, Faracishttp://www.judis.nic.in 5 Martin Street, Puducherry.One Joseph Raj claimed title over the properties by way of forged partition deed dated 12.11.1914, by which he executed forged sale deed vide document No.3435 of 2002 in favour of one S.Koulanthini, who in turn executed a sale deed vide document No.2165 of 2003 in favour of the petitioners.Therefore the petitioners have purchased the said property knowing fully well aware that their vendor S.Koulanthini does not have title over the property.The learned counsel appearing for the second respondent further submitted that the petitioners have filed a suit in O.S.No.374 of 2007 before the learned Principal District Munsif, Puducherry as against the second respondent and his bother.In the said suit no notice was served on the second respondent and subsequently an exparte decree granted by the learned Principal District Munsif, Puducherry and hence it does not bind on the second respondent.The second respondent had preferred a complaint before the District Registrar, Government of Puducherry for holding enquiry under Section 75(4) of Registration Act, 1908 and after conducting enquiry the Registrar passed an order dated 05.10.2015, thereby cancelled the sale deed executed in favour of the said S.Koulanthini and also subsequent sale deed executed in favour of the petitioners herein, as against which the petitioners filed a writ petition before this Court and the same is pending.He further submitted that there are specific allegations as against the petitioners to attract the offence under Sections 147, 148, 448, 294(b), 506(ii), 468, 471, 420 of IPC r/w 149 of IPC.Further, it is in the FIR stage and though civil suitshttp://www.judis.nic.in 6 are pending, there is no impediment to the second respondent/defacto complainant to initiate the criminal proceedings as against the petitioners.Therefore, he sought for dismissal of the quash petition.Due to his official occupation, the defacto complainant could not able to visit his properties and using this opportunity, the accused persons created forged notarial sale deed and claimed that one Joseph Raj is the owner of the said property by way of partition deed dated 12.11.1914, through which the said Joseph Raj executed sale deed in favour of one S.Koulanthini, who in turn sold out the property to the petitioners herein.He further submitted that on 21.12.2017, when the second respondent/defacto complainant went to his properties and started cleaning work, the accused persons tried to trespass into his land, abused him with filthy language and assaulted him and also threatened with dire consequences.Hence, he prayed for dismissal of the quash petition.Heard Mr.N.R.Elango, learned Senior Counsel appearing for the petitioners, Mr.V.Balamurugane, learned Additional Public Prosecutor (Pondy) appearing for the first respondent and Mr.Prakash Adiapadam, learned counsel appearing for the second respondent.The petitioners are arraigned as A5 and A6 in Crime No.282 of 2017, registered for the offences under Sections 147, 148, 448, 294(b), 506(ii), 468, 471, 420 of IPC r/w 149 of IPC, on the file of the first respondent.The crux of the complaint is that the second respondent is the French citizen and he has two ancestral properties and the same were inherited after demise of his father.In his absence, the accused 2,3 and 4 created three forged notarial sale deed in the name of the first accused to grab his property.The said Joseph Raj also executed another forged sale deed in favour of one Koulanthini.In fact the second respondent/defacto complainant is in possession and enjoyment of the said property till date.He further alleged that the some of the accused persons attempted to trespassed into the property as such he lodged the present complaint.In fact, the second respondent made allegations as against seven persons, in which there is no allegation as against the petitioners herein, even on the complaint lodged by him.It is also seen from the complaint lodged by one Alexander Joseph as against thehttp://www.judis.nic.in 8 petitioners' vendors and others, the petitioners are shown as witnesses.Though the said Alexander Joseph filed a petition to add the petitioners as accused in the said proceedings i.e., C.C.No.43 of 2009, it was dismissed.Admittedly, the first transaction for the disputed property happened on 04.09.2002, by way of registered sale deed in favour of one Koulanthini.When the civil disputes are pending between the parties, the first respondent ought not to have been registered a case as against the petitioners.“…The said monies were paid in cash as per the dicta of the accused person’s son Mr. Rajiv Vijayasarathy Ratnam has filed a false and frivolous suit…” (Emphasis supplied)The condition necessary for an act to constitute an offence under Section 405 of the Penal Code is that the accused was entrusted with some property or has dominion over property.The first respondent has stated that the disputed sum was transferred by the son of the appellants of his ownhttp://www.judis.nic.in 11 volition to her.If factual foundation for the offence has been laid in the complaint the court should not hasten to quash criminal proceedings during investigation stage merely on the premise that one or two ingredients have not been stated with details…” The decision does not advance the submission of the first respondent.As we have noted above, the complaint in the present case is bereft of the basic facts necessary to constitute the offences alleged under Sections 405, 406, 415 and 420 of the Penal Code.The jurisdiction under Section 482 of the Code of Criminal Procedure has to be exercised with care.In the exercise of its jurisdiction, a High Court can examine whether a matter which is essentially of a civil nature has been given a cloak of a criminal offence.Where the ingredients required to constitute a criminal offence are not made out from a bare reading of the complaint, the continuation of the criminal proceeding will constitute an abuse of the process of the court.In the present case, the son of the appellants has instituted a civil suit for the recovery of money against the first respondent.The suit is pending.The first respondent has filed the complaint against the appellants six years after the date of the alleged transaction and nearly three years from the filing of the suit.The averments in the complaint, read on its face, do not disclose the ingredients necessary to constitute offences under the Penal Code.An attempt has been made by the first respondent to cloak a civil dispute with a criminalhttp://www.judis.nic.in 17 nature despite the absence of the ingredients necessary to constitute a criminal offence.For the above said reasons and the law applicable to the present case, the impugned FIR in Crime No.282 of 2017 is liable to be quashed as against the petitioners.Accordingly, this Criminal Original Petition stands allowed and the FIR in Crime No.282 of 2017 on the file of the first respondent is hereby quashed insofar as the petitioners are concerned.Consequently, connected miscellaneous petition is closed..04.2019 Internet:Yes/No Index :Yes/No Speaking/Non speaking order rtshttp://www.judis.nic.in 18 G.K.ILANTHIRAIYAN, J.The Station House Officer, Grand Bazaar Police Station, Jawaharlal Nehru Street, Puducherry.The Public Prosecutor, High Court of Madras, Chennai.CRL.O.P.No.6545 of 2018 and Crl.MP.No.3349 of 2018 .04.2019http://www.judis.nic.in | ['Section 420 in The Indian Penal Code', 'Section 448 in The Indian Penal Code', 'Section 294(b) in The Indian Penal Code', 'Section 147 in The Indian Penal Code', 'Section 415 in The Indian Penal Code', 'Section 506 in The Indian Penal Code', 'Section 148 in The Indian Penal Code', 'Section 471 in The Indian Penal Code', 'Section 468 in The Indian Penal Code', 'Section 406 in The Indian Penal Code', 'Section 120B in The Indian Penal Code'] |
2 Cr.A. No.14 of 1998The prosecution case, in brief, is that on the day of incident 30.05.1997 in the mid afternoon during marriage celebration of one Kalia's son at village Kasmar Khandi some scuffle took place between the accused and Champalal.The matter was settled by mediators.At the time of incident at 5:00 p.m. when Champalal was returning to his house with his nephew Shobha and reached near the one Jariya's house there at from behind the shrubs the accused and his brother Banshi @ Lakhan were came out with deadly weapons, Hari Shankar was also standing at some distance.The accused and Banshi started given blows to Champalal and Shobha.The accused given a lathi blow on temporal region of head of Shobha who felt down, succumb to injury.Banshi also gave one blow of lathi to Shobha.Then accused and Banshi also beaten Champalal and caused injuries on his person, then left the spot.The dead body of Shobha was lying down on field.The Champalal came to village and informed the matter to Kotwar Shekhlal and next day i.e. 31.05.1997 Champalal reported the matter Police Station, Betul, situated 50 kms away.Shri P.R. Bhave, learned Senior Advocate with Shri Bhanu Pratap Yadav, Advocate for the appellant.Shri Samdarshi Tiwari, learned Government Advocate for the respondent/ State.Judgment reserved on : 26.07.2013 Judgment delivered on : 07.10.2013 (JUDGMENT) In this appeal preferred under Section 374(2) of the Code of Criminal Procedure the appellant, hereinafter referred to as "the accused", has called in question the soundness of the judgment passed by the learned First Additional Sessions Judge to the Sessions Judge, Betul in the Sessions Trial No.173/97, whereby the learned trial court has recorded a conviction against the accused under Sections 304 part II and 323 of the Indian Penal Code and sentenced him to undergo the rigorous imprisonment for 8 years and 6 months respectively.However, both the sentences were run concurrently.On the basis of this First Information Report lodged, the investigating agency registered a crime.Champalal was sent to medical examination to the hospital.The investigating agency got the autopsy done of the deceased, prepared spot map, seized lathi at the instance of the accused and examined number of witnesses including Champalal under Section 161 of the Cr.P.C. After conducting the inquiry, the investigating agency placed the charge-sheet before the competent Magisterial Court who committed the case to the Sessions Judge, Betul on his turn transferred the case for trial before the learned Trial Judge.3 Cr.A. No.14 of 1998The learned Trial Judge framed charges against the accused Patiram and his other two aids accused Banshi @ Lakhan and Hari Shankar punishable under Sections 302, in alternate 302/34, 323 in the alternative 323/34 of the Indian Penal Code.Accused persons denied the charges and pleaded innocence, therefore, put to trial.Champalal (PW/10) injured witness in the incident and maker of the FIR (Ex.P-15).Eye witnesses Sabulal (PW/9) and Gangabai (PW/1) is mother of Shobha.Kalia (PW/3) in whose son's marriage scuffle held between accused and Champalal.Kotwar Shekhlal (PW/2), Hariram Yadav (PW/5) are punch witnessed, Dr. B.L. Kushwaha (PW/6) is conducted postmortem on the dead body of Shobha.Constable Mallu Singh (PW/7) Head Constable Rajanlal (PW/8) are investigation officers.Shri H.N. Mehar (PW/11) is the main investigation officer who conducted the investigation and seized lathi from the accused on his information under Section 27 of the Evidence Act.The statements recorded under Section 311 of the Cr.P.C. the accused persons denied all the evidence which putforth before them and pleaded innocence as well as false implication.The defense does not choose to examine any evidence.The learned Trial Judge on the basis of ocular and documentary evidence recorded conviction and imposed punishment against the accused Patiram as has been indicated herein above.But acquitted Banshi @ Lakhan and Hari Shankar from the charges punishable under Sections 302, in alternative 302/34 and 323 in 4 Cr.A. No.14 of 1998 alternative 323/34 of the IPC, against which the respondent State does not file any appeal.4 Cr.A. No.14 of 1998Shri P.R. Bhave, learned Senior Counsel for the appellant argued that as per postmortem report cause of death is injury on temporal region of head, however, the witnesses have failed to narrate that this injury caused by the accused by lathi.Other injuries, fracture of second and third ribs were also not explained by the witnesses who inflicted these injuries.Scrutiny of statement of prosecution witnesses raises doubt about their evidence.It appears that because of the earlier incident the accused gave two slaps to Champalal, the witnesses have presumed that the accused given beaten to allowing this appeal, therefore, the accused may be acquitted.Shri Samdarshi Tiwari, Government Advocate for the respondent/State has submitted that the prosecution has proven the assault by the accused as the injured eyewitness Champalal have totally stood embedded and nothing has been elicited to discredit this witness.It is further submitted that learned trial court did not commit any error while passing the impugned judgment hence; this appeal deserves to be dismissed.The facts that deceased sustained injuries in the evening on 30.05.1997 and died a homicidal death on account of the said injuries where neither in dispute before the learned trial court nor are under challenge in this appeal.That apart, there is overwhelming ocular and medical evidence on record which is more than sufficient to establish the above facts beyond any shadow of doubt.Dr. B.L. Kushwaha (PW/6) conducted autopsy on the dead body and vide his postmortem report Ex.P-13 opined that injury caused on temporal region of Shobha's head 5 Cr.A. No.14 of 1998 and other injuries were cause of death.As per query report Ex.P-14, Doctor also given opinion that injury found on head of the Shobha can be inflicted by lathi in question, which was seized vide memo (Ex.P-5) on information given by the accused.Champalal was also medically examined by the Doctor and vide MLC report (Ex.P-12) he found injuries on person of Champalal.5 Cr.A. No.14 of 1998Therefore, upholding the findings recorded by the learned trial court in that behalf injured eyewitness Champalal (PW/10) has deposed that on the fateful day the accused and others were consuming liquor on the eve of the marriage of Kalia's son and prior to the main incident in the afternoon the accused and he indulged in a quarrel and during that the accused given him slaps and he also reacted.He further stated by mediation the matter was settled then and there.Kalia (PW/3) also supported these facts.About main incident Champalal (PW/10) has categorically deposed that in the evening when he was returning to his home with Shobha and reached near the house of Jadiya thereon behind the shrubs the accused appeared with Banshi, both having lethal weapons and started beating them.He also stated that the accused given a lathi blow on the head of Shobha so he felt down and died instantly.He stood firm in his cross-examination and nothing could be elicited by the defence which may discredit his evidence.Nothing has been elicited in the cross examination to discredit his testimony.I do not find any earthly reason for this witness to depose falsely against the accused.Champalal (PW/10) unequivocally and categorically stated about the genuineness of occurrence, development and the voluntarily assault by the accused.6 Cr.A. No.14 of 19986 Cr.A. No.14 of 1998Gangabai (PW/1), Shekhlal (PW/2), Kalia (PW/3), Sukhlal (PW/4), Sabulal (PW/9) also deposing in line with the evidence of Champalal (PW/10) stated that it was accused who after the course of sudden wordy quarrel in the afternoon with the Champalal caused injuries to deceased Shobha by means of lathi, resulting in his death, when Shobha and Champalal were returning to their home in the evening.Nothing substantial could be brought out by the defence in their cross examination which may referred their evidence unworthy of credence.On a close scrutiny of eyewitness account of eyewitness on account of Champalal (PW/10) and other witnesses Gangabai (PW/1), Kalia (PW/3), Sukhlal (PW/4), Sabulal (PW/9), I do not find any infirmity whatsoever in their evidence they are truthful witness and there evidence has rightly been relied upon by the learned trial court in holding accused Patiram guilty of causing that injury on the head of deceases Shobha by means of lathi blow, which ultimately resulted in his death.The next question crops up for reconsideration in this appeal are about the nature of the offence proved against the accused Patiram and punishment for it.The intention of the assailant, the weapon used, repetition of assault, amount of force applied and certain other factors are important to decide the matter.It is agreed fact that the accused had inflicted a single blow.It is also come in the evidence of Champalal (PW/10) and other witnesses including Gangabai (PW/1), mother of the deceased that there has been no previous enmity.There is no criminal antecedent of the accused.Since his arrest on 01.06.1997 to 15.07.1998 the accused was under custody.7 Cr.A. No.14 of 19987 Cr.A. No.14 of 1998It is perceivable from the evidence that the accused had no intention of causing murder of the deceased because his main intention of causing injuries to the Champalal and nor there was any ill feeling or enmity between the deceased and the accused.The quarrel ensued without any kind of prior preparation and singular blow was given by way of lathi which is carried by every villager in normal course of life.It is not disputed before me that the death of the deceased was due to the injury.This is also perceivable from the ocular evidence brought on record which gets corroboration from the medical evidence.On cumulative consideration of above mentioned features brought on the record, I find it is more than sufficient to hold with certainty that accused Patiram while causing injuries on the head of deceased had intended to cause death of Shobha.Therefore, uphold the findings recorded by the learned trial court in this behalf.In view of the aforesaid, I am of the considered opinion that substantive sentence should be confined to the period already undergone in respect of the offence punishable under Section 304 Part II of the I.P.C. with a further stipulation that accused Patiram shall pay the compensation of Rs.50,000/- (fifty thousand) to Gangabai (PW/1), the mother of Shobha.The said amount shall be deposited before the learned Trial Judge within a 8 Cr.A. No.14 of 1998 period of 3 (three) months from today.The learned Trial Judge on proper identification shall pay the said amount to Gangabai.If accused Patiram fails to deposit the aforesaid amount, he shall suffer total rigorous imprisonment of 3 years, for which he will be entitled to set off his period of custody already undergone.No further sentence for Section 323 of I.P.C. is required separately in both the situations.8 Cr.A. No.14 of 1998Accordingly, this appeal is allowed to the extent indicated above.Appeal partly allowed.(Subhash Kakade) Judge AK/- | ['Section 304 in The Indian Penal Code', 'Section 323 in The Indian Penal Code'] |
3.The case of the petitioner is that the petitioner purchased a tractorbearing Registration No.TN-46-A-9249 from one Rajapandi for a sum ofRs.2,32,000/- (Two Lakhs Thirty Two Thousand only) and he has brought thetrailer bearing Registration No.TN-60-U-8348 from one Ponnusamy @ Joker.When purchasing the tractor, the petitioner obtained a loan from Anantham MotorFinance.Due to irregular payment, the finance company seized the vehicle.The petitioner approached the third respondent for a sum of Rs.1,00,000/-(Rupees One lakh only) as security.The third respondent received the R.C.Book as well as the Transfer form of the earlier owner as security.Thepetitioner failed to pay the interest .The third respondent along with onemore person committed theft of the vehicle and the complaint was registeredin Crime No.86 of 2015 dated 03.06.2015 for the offence under Section 294(b),379(N.P.) IPC r/w.Heard Mr.K.Sivabalan, learned counsel appearing for the petitioner andMr.K.Suyambulinga Bharathi, learned Government Advocate (Crl.Side) appearing for the respondents 1 and 2 and Mr.S.Muthumalai Raja, learned counselappearing for the third respondent.2.This petition has been filed to set aside the order passed inCr.M.P.No.4267 of 2017 on the file of the learned Judicial Magistrate No.3(1)(r) SC/ST Act. After lodging of the complaint, thethird respondent transferred the ownership of the vehicle to his name.Thepetitioner lodged a complaint in Crime No.65 of 2016 before the secondrespondent under Sections 406, 465, 468, 471 and 420 of IPC.The thirdrespondent has filed a petition in Cr.M.P.No.118 of 2016 and the same wasdismissed by the learned Judicial Magistrate No.II, Usilampatti and the thirdrespondent challenging the same filed the revision in Cr.R.C.No.1 of 2016before the learned III Additional District and Sessions Judge, PCR, Madurai.The petitioner filed a petition for return of the property in Cr.M.P.NO.4267of 2017 and the same was dismissed by the learned Judicial Magistrate,Usilampatti.On the side of the petitioner, it is stated that the learnedMagistrate failed to consider that the complaint was launched on 03.10.2015and the respondent has transferred the ownership only on 07.10.2015 andprayed the property to be returned to him.4.On the side of the third respondent, it is stated that the thirdrespondent is the owner of the tractor who purchased the same from oneShanmugam.The petitioner worked under the third respondent misusing the position has registered a case against the third respondent.The case was nottaken up by the respondent police.Hence, he filed a private complaint.Therespondent produced the copy of the R.C. Book and copy of Insurance policy.5.On the side of the prosecution, it is stated that both the petitionerand the third respondent were claiming the vehicle and that the R.C. Bookstands in the name of the third respondent who is an accused in the case.6.Records perused.The records reveals that both the petitioner and thethird respondent claimed the property before the lower Court.The R.C. Bookis in the name of the third respondent.Already both the petitions filed bythe petitioner and the third respondent have been dismissed by the lowerCourt.The criminal revision petition filed by the third respondent beforethe lower Court is pending.7.Mere receipt for payment of some amount to the finance company is notsufficient to prove that the petitioner is the owner of the property.On theside of the third respondent, it is stated that R.C. Book and Insurancepolicy in the name of Shanmugam and insurance policy in the name of one Palanivel were filed.Copy of R.C. book is also filed.8.Whether the petitioner has borrowed any amount from the thirdrespondent is not proved by way of any documents.Mere filing of complaintsand registering of FIRs cannot confer ownership.At this stage, thepetitioner has failed to prove the ownership and the petitioner has failed toproduce sufficient documents to substantiate the claim.The reasons stated inthe petition are not satisfactory.There is no reasons to interfere with theorder of the lower Court.Hence, this criminal revision petition isdismissed.Consequently, connected miscellaneous petitions are closed.1.The Judicial Magistrate No.II, Usilampatti.2.The Deputy Superintendent of Police, Usilampatti, Madurai District.3.The Inspector of Police, Valanthur Police Station, Usilampatti, Madurai District.4.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai. | ['Section 468 in The Indian Penal Code', 'Section 465 in The Indian Penal Code', 'Section 471 in The Indian Penal Code', 'Section 406 in The Indian Penal Code', 'Section 420 in The Indian Penal Code'] |
Mr. Amit Bagchi ... For Opposite Party No. 2Learned Counsel for the parties submit that both parties have filed joint petition of compromise to the effect that Sk. | ['Section 363 in The Indian Penal Code', 'Section 376 in The Indian Penal Code'] |
CRM No. 7111 of 2018 Re:- An application for anticipatory bail under section 438 of the Code of Criminal Procedure filed on 31.8.2018 in connection with Nabadwip Police Station Case No.408/2017 dated 1.10.2017 under Sections 341/326/307/506/34 of the Indian Penal Code.And In Re:-Shribas Haldar ... Petitioner Mr. Prabir Majumder, Advocate ..for the Petitioner Mr. Goutam Banerjee, Advocate Mr. Ayan Basu, Advocate .. for the State The petitioner seeks anticipatory bail in connection with Nabadwip Police Station Case No.408/2017 dated 1.10.2017 under Sections 341/326/307/506/34 of the Indian Penal Code.The petitioner claims that following an altercation between two groups there was some violence and only minor injuries were suffered by the de facto complainant's side.The petition for anticipatory bail is allowed subject to the conditions as indicated above.A certified copy of this order be immediately made available to the petitioner subject to compliance with all requisite formalities.(Abhijit Gangopadhyay, J.) (Sanjib Banerjee, J. ) 2 | ['Section 506 in The Indian Penal Code', 'Section 34 in The Indian Penal Code', 'Section 326 in The Indian Penal Code', 'Section 307 in The Indian Penal Code', 'Section 341 in The Indian Penal Code', 'Section 438 in The Indian Penal Code'] |
No. 4 of 2004 Page 1 Indian Penal Code.Prosecution case stands unfolded by Master Banti (PW-11), who along with his maternal uncle Dinesh had gone to the nearby shop to purchase candle as there was no electric light in the residential area at about 10:00 p.m. on 29th Day of May, 2001 and while they were returning, Mehndi, younger brother of appellant-accused started abusing aforesaid Dinesh and in the meanwhile, appellant-accused came there and started giving leg and fist blows to abovesaid Dinesh.According to this witness (PW-11), he immediately rushed to his house and had informed his parents about this incident and soon he along with his father returned at the spot and they saw appellant- accused and his co-accused were beating Dinesh.As per the prosecution version, many persons had gathered at the spot and injured-Dinesh was removed to the hospital, where he was declared as brought dead.Regarding this incident, FIR No. 268/2001 under Section 302/34 of Indian Penal Code was registered at Police Station Timarpur, Delhi.After conducting the spot proceedings, Sub- Inspector Surya Prakash collected MLC of the deceased and thereafter had arrested the appellant/accused in this case.Post Crl.Appellant herein has been convicted by the trial court for the offence of culpable homicide not amounting to murder and has been sentenced to rigorous imprisonment for ten years with fine for the offence under Section 304 (Part-II) of the Crl.No. 4 of 2004 Page 2 Mortem Report of the deceased was obtained and the exhibits of this case were seized and were sent to CFSL for analysis.Investigation of this case stood completed with the filing of charge sheet for the offence under Section 302/34 of Indian Penal Code before the Sessions Court, whereas, co-accused - Mehndi was prosecuted before the Juvenile Justice Board, as he was said to be a juvenile on the day of this incident.Trial of this case proceeded as appellant/accused chose to contest the murder charge framed against him in this case.Prosecution evidence consists of deposition of twenty witnesses and the material ones out of them, whose deposition has been referred to, during the hearing of this appeal, are Bunty (PW-11), his parents (PW-3) and (PW-9).Post Mortem Report of the deceased is Ex.PW-2/A, which gives the cause of death as shock due to sudden vagal inhibition caused by blows to the testis of the deceased.Sub-Inspector Surya Prakash (PW-19) and Inspector R.K. Rathi (PW-20) had conducted the investigation of this case.The stand of the appellant/accused before the trial court was of denial of the prosecution case and of his being innocent.He had claimed that he has been framed in this case Crl.No. 4 of 2004 Page 3 by the police.Three witnesses, who had been got examined by the appellant/accused in his defence were his neighbourers and the stand taken by them was that appellant/accused was not present at the spot, when this incident had occurred.However, the defence evidence was not referred to, during the hearings of this appeal.The trial of this case ended with the conviction of the appellant/accused for the lesser offence, i.e., under Section 304 (Part-II) of Indian Penal Code and the sentence imposed upon him, is under challenge in this appeal.Learned counsel for the appellant had tried to dislodge the evidence of Bunty (PW-11) by contending that the time of this incident given by this witness, is 9.30 p.m., whereas, in the FIR of this case, the time of this incident mentioned is 10:00 p.m. It is urged on behalf of the appellant/accused that PW-3 - brother-in-law of the deceased, who had lodged the FIR of this case, has not supported the prosecution case.It has been emphatically argued by appellant's counsel that there was no previous dispute or enmity, nor there was any intention or knowledge on the part of the appellant/ accused that the alleged beating would result in death of injured-Dinesh.It has Crl.No. 4 of 2004 Page 4 been urged that the evidence of star witness (PW-11) does not show that appellant/ accused had given any injury on the private parts of the deceased.It is pointed out that the Doctor (PW-2) who had conducted the post-mortem examination on the dead body of the deceased, has stated that possibility cannot be ruled out of the injury, which is the cause of death in this case, being sustained by the person falling on the hard object.According to learned counsel for the appellant, the alleged incident was on sudden impulse and no knowledge can be attributed to the appellant/accused that mere giving of kick and fist blows could by any stretch of imagination, result in the death of Dinesh.Thus, it is urged that the impugned judgment is unsustainable and is liable to be set aside.No. 4 of 2004 Page 5Mr. Amit Sharma, Additional Public Prosecutor for the Respondent - State counters the arguments raised on behalf of the appellant/accused, by contending that the deposition of Bunty (PW-11) by itself is sufficient to prove the prosecution case.It is pointed out that the hostility of PW-3 - father of Bunty is of no avail, as PW-9 - mother of Bunty corroborates the version of this incident as narrated by Bunty (PW-11).It is also pointed out that the medical evidence corroborates the ocular version and the appellant/accused has been rightly convicted by the trial court for the offence under Section 304 (Part-II) of Indian Penal Code, as the fatal assault on Dinesh by the Appellant and his co-accused - Mehndi was without any provocation and that there is no merit in this appeal.After carefully considering the arguments raised by both the sides and upon analysis of the evidence on record, this Court finds that the most crucial evidence is that of Bunty (PW-11), whose deposition is assailed by the defence by contending that there is variation in the timing of this incident as this witness has stated in his evidence that this incident had happened at 9:30 p.m. whereas in the FIR lodged by father of the deceased, the time of this incident given is 10:00 p.m. To Crl.During the hearing of this appeal, it was not shown as to how inconsequential variance in the timing of this incident, adversely reflect upon the prosecution case.It is true that this witness (PW-11) has not stated in so many words that any injury was caused to the deceased on his private parts, but it has to be kept in mind that this incident had taken place at night time and when the deceased was being assaulted by giving of kick and fist blows by the appellant, then in normal course of events, it is not expected that the witness would state with precision as to on which particular part of the body, the leg and fist blows were given.In a somewhat similar case of a deceased receiving injury by kick on his private parts and of his dying instantly at the spot, Apex Court in "State of Karnataka vs. Mohamed Nazeer @ Babu" AIR 2003 SC 999 had set aside the conviction of the accused for the offence under Section 323 of the Indian Penal Code and had restored his conviction under Section 304 (Part- II) of Indian Penal Code, by aptly observing as under:-"One has never come across nor can it be expected of the witnesses to state that the blow or kick was Crl.Out of the three injuries sustained by the deceased, the two which are material, are as under:-Bruise 4X2 cm over left scrotam on lower surface.Bruise 3X3 cm , over right scortam over lower surface.There was effusion of blood under injury No.2 and 3 alongwith contision of both testis."The effusion of blood under aforesaid injuries no. 2 & 3 clearly shows that the intensity of the kick blows was quite severe, otherwise effusion of blood under injuries no. 2 & 3 with contusion of both the testes is just not possible.The presence of bruises at the seat of injuries no. 2 & 3, also indicate that the kick blows were inflicted upon the private parts of the deceased with considerable force by the appellant.The possibility of deceased receiving the injuries in question by Crl.No. 4 of 2004 Page 8 falling on a hard object, is ruled out as there is no whisper in the evidence of the eye witness (PW-11) or in the deposition of any other witness that deceased had fallen on any hard object.There is nothing in the medical evidence which creates a reasonable doubt about deceased sustaining the injuries in question by kick blows.Infact, the medical evidence advances and proves the prosecution case to the hilt.Though it was urged on behalf of the appellant, that the happening of this incident was on sudden impulse, but the appellant does not disclose as to what was that impulse.Infact, the deposition of the eye witness (PW-11) reveals that the deceased was fatally assaulted by the appellant, without any provocation being there from the side of the deceased.This distinguishes the case of the appellant from that of Shivalingaiah alias Handigidda (Supra), where the deceased had put his hands on the shoulder of the respondent/accused with a view to make him sit down and all of a sudden, the accused had reacted by squeezing the testicals of the deceased resulting in his instantaneous death and in the facts of the aforesaid case, the conviction was enhanced from Section 323 to Section 325 of the Indian Penal Code.No. 4 of 2004 Page 9If someone gives blows on testis, he would having a knowledge that such injury was likely to cause death.Herein the case blows were given on testis of the deceased as a result of which there was bruise on lower surface of left as well as right scrotum.Effusion of blood alongwith contusion on testis were also noted by the autopsy surgeon.These facts bring it over the record that blows with full force were given on the testis of the deceased.When accused gives blows with full force on the testis of the deceased, he is to be credited with the knowledge that the acts committed by him was likely to cause death of the victim.The appeal as well as pending application, if any, are accordingly disposed of. | ['Section 304 in The Indian Penal Code', 'Section 323 in The Indian Penal Code', 'Section 34 in The Indian Penal Code', 'Section 302 in The Indian Penal Code', 'Section 325 in The Indian Penal Code'] |
Heard on this first application for bail under Section 439 of the Code of Criminal Procedure filed on behalf of petitioner Budhu Pav in Crime No.257/2017, registered by P.S. Kotma, District-Anuppur under Sections 498-A and 306 of the IPC.As per the prosecution case, petitioner had married the deceased about 2-3 years back.For a while, he kept her well; however, thereafter he used to consume alcohol and beat her and threaten that he would expel her from her matrimonial home; therefore, the deceased had returned to her maternal home and stayed there for a long time.However, since her husband, mother-in-law and father-in-law, all come to pacify her, she had gone with them about 8 days before the date of incident.Learned counsel for the petitioner submits that there is no allegation for demand of dowry against the petitioner.All that has been alleged is that he used to beat the deceased after consuming alcohol and used to threaten that he would expel her from her matrimonial home.The petitioner has been in custody since 21.06.2017 and the charge-sheet in the matter has been filed; therefore, it has been prayed that the petitioner be released on bail.Learned Government Advocate for the respondent/State on the other hand has opposed the application.However, keeping in view the facts and circumstances of the case in their entirety, particularly the facts as pointed out by the learned counsel for the petitioner, in the opinion of this Court, petitioner deserves to be released on bail.Consequently, the first application for bail under Section 439 of the Code of Criminal procedure filed on behalf of the petitioner Budhu Pav is allowed.It is directed that the petitioner shall be released on bail on furnishing a personal bond in the sum of Rs.40,000/- with one solvent surety in the same amount to the satisfaction of the trial Court for his appearance before that Court on all dates fixed in the case and for complying with the conditions enumerated under Section 437 (3) of the Code of Criminal Procedure.Certified Copy as per rules.(C V SIRPURKAR) JUDGE sp/- | ['Section 498A in The Indian Penal Code', 'Section 306 in The Indian Penal Code', 'Section 437 in The Indian Penal Code'] |
Constable M.C. Alexander, Lance Nayak Hari Singh and Sub-Inspector M. Ramachandran Pillai were employed with the Central Reserve Police Force (CRPF).On 5.12.1986, all these three officials serving with the 42nd Battalion of the CRPF were deployed at New Delhi, Gole Dak Khana area for controlling the law and order situation.The situation in the area was stated to be tense because the authorities of the nearby Gurudwara wanted to take out procession in connection with the Martyrdom Day of Guru Teg Bahadur and the local authorities were resisting the same.Prohibitory orders under Section 144, Criminal Procedure Code were also imposed in the area.After some negotiations, it appears that Gurudwara authorities were permitted to take out the procession.Because of some incidents in other parts of the city, the processionists were stated to have withdrawn inside the Gurudwara Bangla Sahib.The two companies of the CRPF who were deployed there to control the law and order situation were asked to remain there.The higher authorities of the CRPF belonging to the 42nd Battalion were also present at the spot to avoid any untoward incident.The aforesaid three officials were standing on the pavement with other jawans of the 42nd Battalion.Suddenly a truck bearing No. DHL 4815 belonging to one Ranjit Singh and being driven by one Paramjit Singh (now deceased) and insured with the appellant came at a very high speed from the direction of the main entrance of the Gurudwara Bangla Sahib, took a round of Gole Dak Khana and rammed against the three aforesaid officials and some other CRPF jawans standing on the pavement.It happened so suddenly that no one could move to safety or take any preventive measure to avoid the accident.The vehicle after crushing the jawans rammed against the wall of the Church and came to a halt.As a result of this accident, several CRPF personnel died and received injuries.JUDGMENT S.K. Mahajan, J.Since common questions of law and fact are involved in all these three appeals as well as in the cross-objections, they have been heard together and are being disposed of by this common order.A few facts relevant for deciding these appeals are:Though some of the officials had managed to escape by jumping left or right and thus sustained injuries, but the three above named officials having received severe injuries were taken to the hospital and were declared brought dead.After the matter was investigated an F.I.R. under Sections 302, 307 and 324 of the Indian Penal Code was registered by the police.Alleging that accident was caused entirely due to rash and negligent driving of the aforesaid vehicle by its driver, the legal heirs of the deceased officials filed separate applications claiming compensation for their death caused in the road accident stated to have been caused due to rash and negligent driving of the offending vehicle by its driver.The written statements were filed by both the owner and the insurance company of the offending vehicle.In the written statement they took the plea that the owner had no concern or connection with Param-jit Singh who was driving the vehicle at the time of the accident nor he was in his employment.The Tribunal did not frame any issue but directed the parties to lead evidence on the pleas taken by them in their respective pleadings.Claimants besides producing themselves as witnesses also produced one Ram Lal Joshi, who had retired from CRPF, as a witness in the case.The said Ram Lal Joshi, in his statement before the court stated that he joined CRPF on 1.4.1968 as Head Constable and retired on 30.10.1994 as a Deputy Commandant.He stated that accident took place on 5.12.1986 and he was the seniormost officer of 42nd Battalion at the spot and the same was under his control.He stated that his company was deployed to control law and order situation along with Delhi Police at Gole Dak Khana near the Church and Section 144 of Criminal Procedure Code had also been imposed.He further deposed that suddenly a truck came at a high speed from the side of Gole Dak Khana towards Guru-dwara and rammed against the deceased officials and other jawans standing on the pavement.He stated that the speed of the truck was so high that nobody could move to safety or take any preventive measure, but some of the jawans managed to escape by jumping left or right.He further deposed that three officials who sustained injuries were so badly injured that they died on the spot.They were taken to Ram Manohar Lohia Hospital where they were declared brought dead.According to this witness, the accident took place entirely due to negligence of the driver of the offending vehicle.Despite opportunity, the witness was not cross-examined either by the insurance company or the owner of the offending vehicle.One assistant from the office of insurance company also appeared in court as a witness but except proving the policy of insurance nothing more was said by the said witness.No other evidence was produced either by the owner of the truck or by the insurance company.On the basis of the aforesaid evidence produced before the Tribunal, it came to a finding that even if it was a case of murder, since the driver had no ill-will or any motive against the CRPF personnel and his motive was to act against the authority of the State and not against the deceased officials, it was an accident arising out of use of motor vehicle vis-avis three victims and legal representatives of the deceased would, therefore, be entitled to compensation.After holding that the legal representatives would be entitled to compensation, the Tribunal awarded compensation in their favor.Compensation for the death of Hari Singh, Lance Nayak:The legal heirs of the deceased would also be entitled to interest on the enhanced compensation at the rate of 9 per cent per annum from the date of filing the application till payment.Seven- teen years have passed since the death of the deceased and the family of deceased is in need of money.Appellants are directed to deposit the balance 50 per cent compensation along with enhanced compensation with interest within six weeks from today.On deposit of this compensation with the Tribunal, the respondent/claimants will be entitled to withdraw 20 per cent of such amount and the balance 80 per cent would be deposited in fixed deposit in the names of the claimants in terms of the award for a period of five years.With these observations, these appeals and cross-objections stand disposed of.Copy of the order be given dusty to counsel for the parties. | ['Section 324 in The Indian Penal Code', 'Section 307 in The Indian Penal Code', 'Section 302 in The Indian Penal Code'] |
A.No.718/2000 Page 3 of 49 persons including Ishwar Chand/accused No. 1/respondent No.1 herein (three other accused having since been expired) was to the effect that on 09.08.1989 at H. No.L-101, Gali No. 7 Kartar Nagar within the jurisdiction of PS Bhajanpura all of them along with Mahender (expired on 11.01.1995) and Shakeel (also dead) had in furtherance of their common intention wrongly confined Smt. Ram Kumari Sharma, PW-2 wife of Sh.Narender Kumar Sharma PW-1 in a room for the purpose of extorting her ornaments and some documents and for making her sign and execute documents and had also in furtherance of the said common intention kidnapped and obstructed Smt. Ram Kumari Sharma secretly and wrongly confined her at Pran Garh, U.P. and had criminally intimidated and threatened to kill her and had also beaten her and thereby put her in fear of death or grievous hurt, extorted and snatched the registered deed, title deed and her ornaments and thereby committed offences punishable under Section 347/365/506/323 and 368 read with Section 34 IPC to which all the said accused pleaded not guilty and claimed trial.Furthermore, it is stated that Ishwar Chand/accused No.1/respondent No.1 herein and the co-accused respondent No. 2 (since expired) were also charged to the effect that on 09.08.1989 at house No L-101, Gali No. 6 Kartar Nagar they used a rifle and katta i.e. deadly weapons whilst committing robbery and they were both charged for the commission of the offence punishable under Section 397 IPC to which they both pleaded not guilty and claimed trial.A.No.718/2000 Page 3 of 49In support of the prosecution version, the State put forth in the witness box 17 witnesses of whom PW-10 SI Gauri Shankar and PW-14 Dr. S.B.Aggarwal were given up as being unnecessary by the State on 06.03.1999 and 20.04.1999 respectively.Ishwar Chand/accused No.1/respondent No.1 herein (the only surviving accused to the present appeal) through his statement under Section 313 Cr.P.C.A.No.718/2000 Page 4 of 49denied the incriminating evidence led against him and claimed that he had paid a sum of Rs.83,000/- to Narender Kumar Sharma i.e. complainant PW-1 his Sadu (i.e. his wifes sisters husband) which the respondent No. 1 had paid to Sh.Narender Kumar Sharma towards the sale consideration of a plot which was adjacent to the house of the complainant and that an amount of Rs.22,000/- remained due which was to be paid at a later stage.It was also claimed by the respondent No. 1 that he had not got the documents executed but had taken possession of the said plot and had started living there with his family members and that he had asked the complainant Narender Kumar Sharma to get the documents executed but that Narender Kumar Sharma had been putting off the same on the pretext that the owner of the property was an old lady residing at Shahpura.The respondent No. 1 further claimed that one day when he met the son of the owner and asked for the execution of the sale deed, he, the respondent No. 1 learnt that Narender Kumar had got the documents of that plot executed in his own favour.Respondent No. 1 thus submitted that this was the bone of contention between him and Narender Kumar Sharma i.e. the complainant and that he, the respondent No. 1 thus met the father of the Narender Kumar and asked him to get the documents executed, but, the father of Narender Kumar Sharma told respondent No. 1 that Narender Kumar Sharma was a fraud.Respondent No. 1 thus stated that he had been cheated and that the father of Narender Kumar Sharma could also not help him and that he, Narender Kumar Sharma then asked him to return the money or to get the documents executed, as a consequence of which he the respondent falsely implicated him in this case in connivance with the police.Ishwar Chand/accused No.1/respondent No.1 herein claimed innocence and further stated that his goods were also grabbed by Narender Kumar Sharma.Seven witnesses in defence to assert the plea of innocence of the accused were put forth.A.No.718/2000 Page 5 of 49PW-5/A which is copy of DD No. 28A dated 09.08.1989, PP Gamri indicates that ASI Om Prakash had given a telephonic information at 12:35 a.m. that a person known to him i.e. Narender Kumar Sharma R/o L-101, Gali No. 6, Shivaji Marg Kartar Nagar, Delhi and his wife Smt. Ram Kumari Sharma had been taken to U.P. and had been assaulted by Ishwar Chand/accused No. 1/respondent No.1 herein and 2-3 men who had also taken away their articles and that the police be sent.PW-5/A i.e. DD No. 28A further indicates that the inquiry on the basis of this information was entrusted to ASI Chhote Lal who along with Ct.Virender Kumar went to the spot.PW- 1/A which forms the basis of the registration of FIR No. 331/89, PS Bhajanpura under Section 347/365/368/506/34 IPC indicates that ASI Chhote Lal along with Ct.Virender Singh No. 1307, North East had reached H.No.L-101,No.6, Kartar Nagar, Delhi on receipt of Ex.PW-5/A i.e. DD No. 28A PP Gamri Extn., where they met Sh.Narender Kumar Sharma, the complainant who gave his statement.As per the said statement which forms the complaint, Sh.Narender Kumar Sharma stated that on 09.08.1989 at about 8:00 a.m. he was present at his house when his brother-in-law who was also his Sadu, his sister-in-laws husband and who was also his paternal aunts son (buas son) Sh.Ishwar Chand s/o Shyam Dev, respondent No. 1 herein, native of Bulandshahr who was then residing in the house of the complainant at Kartar Nagar had come to his house along with a fair complexioned normal built 20 year old boy and after some time, the wife of Ishwar Chand i.e Smt. Shashi Bala who was his sister-in-law (saali) i.e. sister of the wife of Narender Kumar Sharma) also came and that the respondent No. 1 told him that he had to take Rs.15-20,000/- from a lady at Sikendarabad and that he, Narender Kumar Sharma and his wife Smt. Ram Crl.A.No.718/2000 Page 6 of 49 Kumari Sharma should accompany them and make an excuse that they needed money urgently for their maternal uncles daughters marriage.As a consequence thereof, as per the FIR, Sh.The said vehicle was driven by a driver and that when they reached Ghaziabad, a man standing on the road aged 27-28 years was made to sit in the vehicle by Ishwar Chand and after some time they made the vehicle stop at Sikendarabad.Thereafter Ishwar Chand/accused No. 1/respondent No.1 left the complainant and his wife and Shashi Bala in the vehicle saying that he was first going to meet that lady alone to get his money and after some time Ishwar Chand/accused No. 1/respondent No.1 herein came back and informed them that the lady had gone to Pran Garh and thus they were all to go there and then all went in that vehicle to Pran Garh in the same Maruti van.There, as per the FIR at the house of Ishwar Chand/accused No. 1/respondent No.1 herein there were two persons present, as it was very hot inside the house, all of them left the complainants wife seated in that house and (came out of the house and sat in a room amongst the trees) and in sometime, respondent No. 1 along with five men came to the spot and threatened Narender Kumar Sharma and tied his hands and made him lie down on a cot and made everyone leave the room and took a katta and a rifle in their hands and started beating him and threatening him with dire consequences and assaulted him, and asked him where the registered documents and ornaments were kept.As per Ex.PW-1/A, the complainant stated that out of fear, he informed Ishwar Chand as to where his money and ornaments were placed in an almirah in his room and after about 11:00 a.m., Ishwar Chand/accused No. 1/respondent No.1 herein left the Crl.A.No.718/2000 Page 7 of 49 complainant under the supervision of two men and two men were deputed outside the room and at about 4:00 p.m. Ishwar Chand/accused No.1/respondent No.1 herein came back and threatened the complainant and took his signatures and thumb impression on some documents and also snatched Rs.4000/- and his identity card from his pocket and also took away the watch and ring that he was wearing and left him i.e. the complainant in a tied condition.A.No.718/2000 Page 6 of 49A.No.718/2000 Page 7 of 49As per Ex.PW-1/A after sometime on hearing his noise 2-3 ladies came and untied him and in the meantime his wife also came on hearing his voice, and she informed that Ishwar Chand/accused No.1/respondent No.1 herein and his men had also snatched her chain and bangles and had taken her signatures and thumb impression on several papers.The complainant as per Ex.PW-1/A further stated that Ishwar Chand and his men had threatened him that if he lodged a complaint with the police he would be killed.As per Ex.PW-1/A the complainant took a lift from the villagers and on a scooter and Vicky, and he and his wife reached Sikanderabad from where they took a bus and came home.As per Ex.PW-1/A, Smt. Shashi Bala, the sister-in-law (saali) of the complainant i.e. the sister of the wife of the complainant who had been left behind by the complainant and his wife to take care of the children informed that Ishwar Chand/accused No. 1/respondent No.1 herein had come with a man to the house of the complainant and had taken away a VCP and a gold tika and documents of the registration of the house of the complainant.As per Ex.PW- 1/A, the complainant thus alleged that Ishwar Chand/accused No.1/respondent No.1 herein had cheated him and deceptively taken him and his wife to Sikendarabad and Pran Garh and had forcibly extorted the taking of his signature and taken away his gold articles and his VCP in relation to which a complaint was also made at Pran Garh, U.P. and that the accused Ishwar Chand/accused No. 1/respondent No.1 herein had thus taken him and his wife to Crl.A.No.718/2000 Page 8 of 49 Pran Garh in a Maruti van No. DID 2580 or DID 2850 and had assaulted him.As per Ex.PW-1/A it was stated by the appellant that he could identify Ishwar Chand/accused No.1/respondent No.1 herein and his associates.A.No.718/2000 Page 8 of 49On the basis of Ex.PW-1/A and the endorsement thereon, i.e. Ex.PW- 9/A, DD No. 16A dated 10.08.1989 and FIR No. 331/89, PS Bhajanpura are indicated to have been registered at 2:35 a.m. on 10.08.1989 with the copy of the said FIR being on the record as Ex.PW-3/A. Subsequently, vide Ex.PW- 1/D the complainant Narender Kumar Sharma vide a written complaint dated 02.09.1989 addressed to the SHO, PS Bhajanpura informed that at the time of making his complaint on 10.08.1989 on the basis of which FIR No. 331/89 was registered, he knew only the name of Ishwar Chand/accused No.1/respondent No.1 herein and was not aware of the names of other accused persons about whom he had stated he could recognize on seeing them, and that at the time of submission of his complaint Ex.PW-1/D dated 02.09.1989 he had learnt from his close sources the names of these associates of Ishwar Chand, Ravinder Kumar Tewatia S/o Khacheru Tewatia, Shakeel Ahmad @ Shakeel, Mahender Singh S/o Chadru, Birender S/o Rajpal r/o Village Pran Garh PS Sikendarabad, Distt.Bulandshahr and that these were the persons who had tied his legs and hands and had assaulted them and had kept a watch on him and his wife and that he sought action against these persons as well.As per the charge sheet the accused persons were arrested during the course of investigation but the accused Shakeel Ahmad @ Shakeel expired on 03.12.1990 at the JPN hospital, due to an accident.The charge sheet further indicates that Smt. Shashi Bala wife of Ishwar Chand along with Neeraj Kumar S/o Vikram Singh were arrayed in column No. 2 as accused persons and were not sent up for trial.(Significantly Sh.Neeraj Kumar S/o Vikaram Singh was examined as a defence witness DW-6 by the accused).The charge sheet Crl.PW-1/A also stated that after he had been left bolted inside the room of his house by Ishwar Chand/accused No.1/respondent No.1 herein at Pran Garh, he and his companions who had taken his signatures on some stamp papers, most of which were blank i.e. 25 in number and in the denomination of Rs.50/-, Rs.10/-, Rs.20/-, Rs.5/- and Rs.2/- and some were plain judicial papers and some of which had revenue stamp affixed on them, his hands had been untied but his feet had been kept tied and he was also threatened that he would be killed in case he does not sign those papers and his thumb impression on some of them had been taken and thereafter they left bolting him inside the room.He further stated that he cried and that his wife along with some ladies came there and opened the door and thus his wife took him to the house of the Sarpanch as he was bleeding from his nose and had injuries on his feet and thereafter they narrated the incident to the Sarpanch.It was also stated by PW-1 that his wife Smt. Ram Kumari Sharma told him that she had also been beaten and her gold ring and chain had been snatched and that her modesty has been outraged by all the five persons i.e. Ravinder, Devender, Shakeel, Mahender and Ishwar Chand/accused No.1/respondent No.1 herein and that he had also been threatened by them that their children would be killed.He, PW-1 further stated in his testimony that the Sarpanch got them dropped at Sikendarabad bus stand by Vicky and Scooter and when they boarded the bus, he PW-1 told the driver about the incident and that he had no money to Crl.A.No.718/2000 Page 10 of 49 purchase the ticket and the driver allowed them to travel without a ticket and left them at Delhi.A.No.718/2000 Page 10 of 49PW-1 further stated when they reached their home they found that Ishwar Chands wife was present in the house along with the children and she told them that Ishwar Chand had come along with two persons and had taken away from the safe, one gold tika, a VCP, sale deed of the house, one LIC certificate, ration card and his educational certificate and that their children were safe and they reported the matter to the police.He further stated that he and his wife were medically examined at the GTB hospital and after some time their relatives came from the village and told the name of the persons, who accompanied Ishwar Chand/accused No.1/respondent No.1 herein and after 5-6 days the police took them to Sikendarabad at the GT Road where they saw the vehicle No. DID 2850 standing there at some distance from there and the accused Ravinder (since deceased) was standing and they informed the police about it and the police arrested Ravinder and took the van into possession vide a seizure memo Ex. PW-1/B, which bore his signatures.PW-1 further stated that the police interrogated the accused Ravinder and recorded his disclosure statement and after 10-12 days, the police arrested the Ishwar Chand/accused No. 1/respondent No.1 herein and then he was called by the police and he identified Ishwar Chand/accused No.1/respondent No.1 herein and got recovered ornaments from his brothers house and told that the VCP had been given to Shakeel.This witness further stated that the VCP was not recovered but Ishwar Chand/accused No.1/respondent No.1 herein got recovered the gold chain, ring, identity card and ration card of the complainant and that Ishwar Singh also disclosed that the sale deed and rifle had been kept by him at Chithera but they were not recovered.Inter alia, this witness identified the gold ring, gold chain, identity card and ration card and identity card Ex.P1, P2 and P3 and stated that Crl.A.No.718/2000 Page 11 of 49 the gold chain and gold ring belonged to his wife and that the identity card belonged to him.PW-1/A, he had stated that due to the summer season his wife sat inside and due to the heat, they all came out and sat down between the trees.He also stated that he had not stated in his statement Ex.A.No.718/2000 Page 12 of 49Significantly, this witness in his cross-examination stated that he had not told the police that the modesty of his wife has been outraged and had stated that his wife did not disclose to the Sarpanch regarding outraging of her modesty and even did not inform him when they were going back to Delhi from Pran Garh nor did she tell him about the same when they reached the house nor did she inform him when they were going to police, nor did she tell about the same in the police station, and rather stated that his wife informed about the same on 11.08.89 for the first time at about 5:30 p.m. about her modesty being outraged and he further stated that he had enquired from his wife whether in her statement she had told the police on 09.08.1989 of her modesty being outraged but she had stated that she had not so told to the police.The witness further stated that he had told the police on 11.08.1989 itself when his wife had told him about the outraging of her modesty, though he admitted that in his complaint dated 02.09.1989 i.e Ex. PW-1/D given by him to the SHO he had not disclosed about the modesty of his wife being outraged.He admitted that in Ex.PW- 1/A and in all other subsequent statements, he made no mention about the outraging of the modesty of his wife by the culprits.He, PW-1 further stated that he had told the police that the wife of Ishwar Chand on his return had told him that accused Ishwar Chand/accused No. 1/respondent No.1 herein had come along with a companion and not two persons and that he PW-1 had mentioned that the LIC certificate, ration card and educational certificate were also stated to have been taken away by the accused Ishwar Chand/accused No. 1/respondent No.1 herein as told by his wife and was thus confronted with Ex.PW-1/A where there was no mention about Crl.A.No.718/2000 Page 13 of 49 the said documents.He further stated that he did not know about the financial dealing of Ishwar Chand/accused No.1/respondent No.1 herein and that he did not ask the name or the address of the lady from whom Ishwar Chand/accused No.1/respondent No.1 herein was to get money before proceeding from Delhi nor did he enquire about this dealing nor was this lady known to him.He further stated that at that time, as he, PW-1 was ready to go to hospital and, therefore, (the witness having already stated in his complaint also testified that he was working as a dental hygienist in the police hospital since 1988) he went with Ishwar Chand/accused No.1/respondent No.1 herein without asking any question and that he did not ask Ishwar Chand/accused No.1/respondent No.1 herein to take his wife along with them though Ishwar Chand/accused No.1/respondent No.1 herein proposed that Narender Kumar Sharma should take his wife along with them.A.No.718/2000 Page 13 of 49This witness further stated during cross-examination that he had visited the house of Ishwar Chand/accused No. 1/respondent No.1 herein at Pran Garh once earlier.PW-1 further stated that he raised an alarm when he was being tied at the house of Pran Garh but no one had come to his rescue and that he was raising an alarm when he was being beaten and that he was wearing a safari of a white colour and his clothes had become blood stained because of the injuries and that he had gone in the same clothes to PP Gamri where his report was lodged.This witness has further stated that none of the police officials demanded his blood stained clothes nor did he hand them over to the police.This witness has further stated during cross-examination that he had raised an alarm for about half an hour and that the door had been opened.Significantly, Crl.This witness testified that the Ishwar Chand/accused No. 1/respondent No.1 herein had taken her and her husband to Sikendarabad for taking Rs. 20,000/- from a lady and from Sikendarabad as the lady was stated to be not there at Sikendarabad to Pran Garh.This witness stated that when they reached Pran Garh and reached the house of Ishwar Chand, he Ishwar Chand/accused No. 1/respondent No.1 herein asked her and her husband to sit in a room together and he asked her husband to accompany him outside the house as he wanted to introduce some of his friends to doctor sahib and thus her husband accompanied Ishwar Chand/accused No. 1/respondent No.1 herein and she remained sitting alone in the house.She further stated that 2-3 ladies were also talking just adjacent to the room where she was sitting and in the meantime at about 11-11:30 a.m. she heard the shrieks of her husband "Neetu Bachao Maar Liya" and after hearing the shrieks she came outside the room and asked for help.She, PW-2 stated that there were 20-25 papers in number including stamp papers of denomination of Rs.2 to Rs.100/- and some of them were written and revenue stamps were also affixed on them.She further stated that the chain and the ring worn by her were also snatched and from there they went to her husband to get the signatures and thereafter they went away after closing the room of her husband and after they went, she came out and heard the cry of her husband and with the help of 2-3 ladies she rescued him.She further stated that thereafter Crl.A.No.718/2000 Page 17 of 49 been removed from her house and that her children had been brought, which aspect also did not form part of Ex.PW-2/DA.She testified further during cross-examination that she had told the police in Ex.PW-2/DA, that they had narrated the incident to the Sarpanch which aspect was also not so recorded and rather it was mentioned that with the help of other persons after arranging the scooter and Vicky they then came to Sikendarabad and the assistance of the Sarpanch was not detailed in Ex.PW-2/DA.24. PW-2 Smt. Ram Kumari Sharma in her cross-examination admitted that there was a post office being run in one of the rooms of that house which was closed on that day and stated that post office was run next to the room where she was confined and that Madhu Sudan was the Post master of that post office.She also stated that Madhu Sudan, Jatan Saroop, Radhey Shyam, Brahmanand and Dev Dutt were brothers of accused the Ishwar Chand/accused No. 1/respondent No.1 herein.She further stated during cross-examination that Ishwar Chand/accused No. 1/respondent No.1 herein, is the husband of her younger sister and that the marriage of Ishwar Chand/accused No. 1/respondent No.1 herein and her sister had taken place 6-7 years prior to the incident and both of them had been living in their house which was near the house at Kartar Nagar being relatives without rent.This witness has also stated that her statement was also recorded by the Crime Branch 2/3 days after the incident and that she had told the Crime Branch official in her statement that all the five persons did with her what a man would do after closing a woman in a room and that Crl.A.No.718/2000 Page 18 of 49 they were five in number and was thus confronted with ExPW-2/DA wherein it was not so recorded.PW-2 further stated that those persons misbehaved with her after closing the door from outside and that she could not resist as they were five persons.She further stated that she was medically examined the next day and stated that she did not tell the doctor regarding the 'galat kaam' and rather stated that she told the next day about the same to her husband and that she was not medically examined thereafter.Inter alia, this witness in her statement denied the fact that she had fabricated the version of galat kaam' just to gain sympathy.A.No.718/2000 Page 18 of 4925. PW-9 examined by the State was Sh.Om Prakash who testified to the effect that on 09.08.1989 he was posted at the PCR as an ASI and at about 12/12:30 midnight he was coming to Kartar Nagar from Maujpur and he met Narender Kumar Sharma and his wife i.e. PW-1 and PW-2 respectively and they were in a bad state of affairs and had injuries on their person and he heard their complaint and lodged a report at PP Gamri.On being cross-examined, this witness admitted that Narender Kumar Sharma was a dentist at the Old Police Line Hospital and he had come in contact within him there and on that day he was not aware of the residential house of Narender Kumar Sharma.He stated that he made no statement to the police but denied that that he did not meet him at Kartar Nagar and denied that he had lodged no police report at PP Gamri.26. PW-8 examined by the State was ASI Chhote Lal who stated that on 09.08.1989 he was posted at PP Gamri and on that day DD No. 28A, copy of which Ex.PW-3/A was assigned to him for action and he along with Ct.Narender Kumar reached the spot at Kartar Nagar where he met Narender Kumar Sharma whose statement Ex.PW-1/A was recorded by PW-8 on which he made the endorsement as Ex. PW-9/A which was sent through Ct. Varender for registration of the FIR.This witness in his cross-examination stated that Crl.A.No.718/2000 Page 19 of 49 Ex.PW-1/A and Ex.PW-2/DA were correctly recorded by him.He further stated that the investigation was conducted by him but that he had not interrogated the neighbours.PW-8, however, denied that he had testified falsely.A.No.718/2000 Page 19 of 49S.K.Sarvaria, the then Additional District and Sessions Judge who testified to having prepared the report of the test identification proceedings of the case property conducted on 28.02.1990 (Ex.PW-12/B).PW-6 examined by the State was SI Prem Singh who testified to the effect that the investigation of the case was handed over to him by the Inspector of the Crime Branch and he had prepared the site plan Ex.PW-6/A on 24.12.1989 i.e. at Pran Garh.PW-15 examined by the State was SI Jagdish Prasad who testified to the effect that investigation of the case had been assigned to him on 12.08.1989 and that the complainant was joined in the investigation on 15.08.1989 and testified inter alia to the arrest of the accused Ishwar Chand/accused No. 1/respondent No.1 herein on 22.08.1989 from his house located at Vishwas Nagar, Shahdara and testified to the arrest and disclosure statement made by Ishwar Chand/accused No. 1/respondent No.1 herein and testified to the recovery of the chain, ring, identity card along with driving licence at the behest of the accused.He further testified to the seizure of the receipts of the ornaments vide memo Ex.WITNESSES OF RECOVERY30. PW-1, the complainant Sh.Narender Kumar Sharma in his examination- in-chief testified to the recovery of ornaments of the complainant at the house of Crl.A.No.718/2000 Page 20 of 49 the brother of accused Ishwar Chand/accused No. 1/respondent No.1 herein at Satta Mohalla, Bulandshahr i.e. the recovery of the gold chain, gold ring, identity card and ration card i.e. Ex.P1 to P3 respectively.A.No.718/2000 Page 20 of 49PW-16 HC Ompal Singh also testified to the recovery of the ring, chain, driving licence, identity card on 23.08.1989 when the accused Ishwar Chand/accused No. 1/respondent No.1 herein was in the lock up at Gokulpuri and had thereafter been interrogated by the IO whereafter the accused had led the police on 24.08.1989 to the house of Madhu Sudan and on checking it was found to contain a ring, driving licence, identity card and another driving licence which was sealed and put in a cloth parcel and sealed with the seal of JPS.The witness also testified to the preparation of the seizure memo of Maruti van No. DID 2850 Ex. PW-1/B seized on 15.08.1989 signed by him.32. PW-15, examined, SI Sh.Jagdish Prasad of the Special Branch testified to the effect that the investigation of this case was entrusted to him on 12.08.1989 and that the complainant was joined in the investigation on 15.08.1989 and that Ishwar Chand/accused No. 1/respondent No.1 herein was arrested from a house located at Vishwas Nagar, Shahdara and on his personal search being conducted vide Ex.PW-1/C whereafter the accused made a disclosure Ex.PW-15/A, the Ishwar Chand/accused No. 1/respondent No.1 herein had taken the police party to Mohalla Satta Bulandshahr and had got recovered a chain, ring, identity card and driving licence and regarding the ownership of ornaments two receipts Ex.P1 and P2 were filed.During cross- examination this witness had stated that he met the residents of the Village Pran Garh there, but they expressed their ignorance about the same and that he had not seen any post office in the house at Pran Garh .He further stated that the receipts Ex.PW-11/A and Ex.PW11/B were issued in the name of the daughter of Gauri Shankar and that he did not meet Gauri Shankar since Crl.The nature of injuries sustained by Narender Kumar Sharma were also opined to be simple caused by a blunt object, as opined on 16.09.1989 with the nature of injuries being contusion with tenderness and of horse shoe shaped 4 cm above the umbilical level and 3 cm to the mid umbilical line swelling on the nose and upper lip and left side of the neck and small blister on the wrist and right arm and contusion on the right arm and deep abrasion and multiple blisters on the left radial aspect.Both Crl.A.No.718/2000 Page 22 of 49 Smt. Ram Kumari Sharma and Sh.Narender Kumar Sharma at the time of examination on 10.08.1989 were found to be alert and conscious and Narender Kumar Sharma was also opined to be fit for statement.The said MLCs of Sh.Narender Kumar Sharma Ex.PW-13/A and that of Smt. Ram Kumari Sharma Ex. PW-17/A were proved through the testimonies of Dr.B.Narayan, CMO GTB hospital and PW-17 Dr. R.K.B.Choudhary, CMO GTB hospital respectively.He stated that the complainant Narender Kumar Sharma was the real son of his real maternal uncle and was also the brother-in-law Sadu of the accused Ishwar Chand/accused No. 1/respondent No.1 herein.He further stated that he was working as a Post Master in the post office being run from his house situated at Pran Garh, Distt.Bulandshahr which is open from 10:00 a.m. and closed at 5:00 p.m. He further stated that on 09.08.1989 (i.e. the date of incident) the said post office was open and he was present in the post office on that day from 10:00 a.m. to 5:00 p.m. and stated that the postmen Rohtash Kumar and Satish Chand were also present in that office.He further stated that on that day he had not noted Narender and his wife coming and going out from that house.He further stated that the adjoining room was also in the possession of the post office and stated that he had not heard any commotion on that day.He further stated that he resided in the said house where the said post office is located.He further stated that his father was the owner of the said premises and after his death he becomes the owner of the said premises.He also stated that the permission of his father had been taken for opening the post office in the said premises and a sum of Rs.200/- is paid as rent by the Government.He further stated that he was issuing rent receipts and he could produce the same.He further stated that there were four villages in the postal circle and about 150 postal articles are received in the post office daily and there are two post men in the post office and that there is a record in the form of attendance and he could produce the same in relation to the date of incident.He further categorically denied that Ishwar Chand/ the accused No. 1/respondent No.1 herein, Ravinder Kumar, Davender, Mahender and Shakil had wrongly confined Smt. Ram Kumari Sharma wife of Narender Kumar Sharma in the house at the Village Pran Garh and denied that he had extorted ornaments at the point of a country- made pistol and also denied that Smt. Ram Kumari Sharma was beaten by them.He denied that Narender Kumar Sharma PW-2 was also beaten by them and denied that he had testified falsely in order to save his brother, Ishwar Chand/the accused No. 1/respondent No.1 herein.This witness testified to the effect that he was residing in the said house which was to be purchased by him and that he DW-2 came from his native village and then he came to know that Ishwar Chand/accused No. 1/respondent No.1 herein and others had been arrested.He further stated that he had met Narender Kumar Sharma who had told that Ishwar Chand/accused No. 1/respondent No.1 herein had misbehaved with him and he would teach him a lesson.Inter alia, he DW-2 along with Narender Kumar Sharma had gone to the house of Ishwar Chand/accused No. 1/respondent No.1 herein and stated that in his presence PW-2 Narender Kumar Sharma had broken the lock of the said house and removed the entire articles from that house and loaded all the goods in a matador and transported the same to Pilkhawa.On being cross-examined by the State, the witness DW-2 stated that Ishwar Chand/accused No. 1/respondent No.1 herein intended to purchase a plot in J-block Kartar Nagar, Shahdara but that he DW-2 did not know to whom the said plot belonged.The said plot was stated to be of 50 sq. yds.and a sum of Rs.83,000/- was paid in his presence and that some notes were of Rs.100/- in denomination, some of 50/- and some were of 10/- denomination had been used and had been brought by Ishwar Chand/accused No. 1/respondent No.1 herein in a red coloured bag made of cloth.The witness also denied the occurrence of the incident as alleged by the prosecution.38. DW-3 examined by the defence was Babu Giri who stated that he was residing at village Pran Garh since his birth and that his house was located at a space of about 10 paces from the house of the accused Ishwar Chand/accused Crl.A.No.718/2000 Page 25 of 49 No. 1/respondent No.1 herein.He stated that he was running a shop in his house and that the door of his shop opened towards the house of the Ishwar Chand/accused No. 1/respondent No.1 herein.He further stated that he was present at his house and no untoward incident had taken place.He also stated that Narender Kumar Sharma, the complainant was known to him and was related to the Ishwar Chand/accused No. 1/respondent No.1 herein.Satender Kumar S/o Sh.Babu Singh who stated that during the period 1988-90 he was residing as a tenant at house No. 11/1155 Satha Mohalla, Bulandshahr and stated that as far as he recollected the police never came to the said house during the said period.He further stated that Ishwar Chand/accused No. 1/respondent No.1 herein used to visit the said house since it was the house of the in-laws of his elder brother.This witness categorically denied during cross-examination that on 24.08.1989 Ishwar Chand/accused No. 1/respondent No.1 herein had led the police party to the house of Madhusudan at 11/1155, Satta Mohalla and that he had got recovered one ladys ring and a driving licence belonging to Narender Kumar Sharma and an identity card and another identity card of the police hospital and the copy of learning licence from a heap of papers.DW-5 Sh.Manender Singh stated that a sum of Rs.70,000/- was borrowed from the accused Ishwar Chand/accused No. 1/respondent No.1 herein from him in the month of March, 1988 and that the accused Ishwar Chand/accused No. 1/respondent No.1 herein had borrowed the sum from him to purchase a plot or a house.He further produced the photocopy of Crl.A.No.718/2000 Page 26 of 49 his saving bank account No. 6327/30 situated at the State Bank of India, Dadri Branch U.P. which is Ex.PW-5/A, original of which is seen and returned, in support of his statement, that he had in fact given a sum of Rs.70,000/- to Ishwar Chand/accused No. 1/respondent No.1 herein and stated that he had paid this amount at the instance of his brother.On being cross-examined he further stated that no writing was done when he gave the amount to Ishwar Chand/accused No. 1/respondent No.1 herein as an interest free loan.Furthermore, the learned trial Court observed that when Narender Kumar Sharma and his wife were to leave it was expected that they would keep their house in safety, under lock and key, and the factum that the safe at the house was not locked and the title deed, jewellery, cash were lying in the safe, was not in consonance of human behaviour and standards of Crl.A.No.718/2000 Page 35 of 49 behavioural probability, as while leaving his home for outstation, the owner would put his belongings into safe custody.ANU MALHOTRA, J.This judgment shall dispose of an appeal filed by the State instituted on 29.9.2000 seeking to assail the impugned judgment dated 19.04.2000 of the learned ASJ, Shahdara the FIR No. 331/89, PS Bhajanpura whereby four of the accused Ishwar Chand, Ravinder, Davender arrayed as respondent Nos. 1, 2 and 3 respectively to the present appeal (of whom respondent No. 2 Ravinder S/o Kanchan Singh having expired, was deleted from the array of parties vide order dated 28.02.2002), were acquitted of the charges levelled against them of the alleged commission of offences punishable under Section 347/365/323/368 r/w Section 34 of the Indian Penal Code, 1860 (hereinafter referred to as "IPC") apart from the separate charge having also been framed against the Ishwar Chand/accused No.1/respondent No.1 herein and the accused Ravinder Kumar- respondent No. 2 (who has already been deleted from the array of parties) under Section 397 IPC, with which, the said accused persons had been charged on Crl.The State was granted leave to appeal vide order dated 22.11.2001 whereby Crl.M.C. 2967/2000 was allowed.A.No.718/2000 Page 1 of 49The proceedings against the accused Davinder S/o Rajpal arrayed as respondent No 3 have also abated as observed vide order dated 04.11.2016 in view of his demise on 16.05.2008 as reported by Inspector Kishan Kumar SHO PS Bhajanpura.The trial Court record indicates that there were four persons facing trial before the trial Court i.e. Ishwar Chand, Ravinder, Davinder and Mahender.The present appeal thus now is only against the surviving respondent No. 1, Ishwar Chand.In the instant case the Ishwar Chand/accused No. 1/respondent No.1 herein did not put in appearance on the date of hearing i.e. 04.11.2016 but the record indicates that he had been served and was represented on 12.12.2001 by counsel Mr.Rupesh Sharma when Ishwar Chand/accused No. 1/respondent No.1 herein and respondent No. 3 (since deceased) were both allowed to be released on furnishing personal bonds with surety to the satisfaction of the Registrar General of this Court with direction that the appeal be listed in due course.The said bond is indicated to have been submitted by Ishwar Chand/accused No. 1/respondent No.1 herein on 19.12.2001 before the then Registrar General, High Court of Delhi.Taking into account the factum that Ishwar Chand/accused No. 1/respondent No.1 herein himself did not put in appearance on 04.11.2016 and his interest has been duly put forth and looked after by the learned Amicus Curiae in terms of the verdict of this Court in State vs. Ram Gopal & Ors., 2006 Cri LJ 2805, the appeal has been taken up for hearing.Through the appeal, the State has sought to submit that the acquittal of the respondents had resulted in the miscarriage of justice and that the impugned Crl.A.No.718/2000 Page 2 of 49 judgment dated 19.04.2000 was against the facts and the law.It was further submitted through the appeal on behalf of the State that the complainant Narender Kumar Sharma PW-1 and his wife Ram Kumari Sharma PW-2 had both supported the prosecution version and the multiple injuries caused to them were corroborated by medical evidence and that the learned trial Court had not given justifiable reasons to discard their testimony.Inter alia, it was submitted through the appeal that a strong circumstantial evidence of recovery of robbed articles such as gold chain, gold ring, driving licence at the instance of Ishwar Chand/accused No. 1/respondent No.1 herein from his brothers house at Bulandshahr, U.P. had been discarded erroneously by the learned trial Court.It was further submitted by the State that the learned trial Court had given no substantial reason as to why the testimony of PW-9 ASI Om Prakash who first saw the complainant in blood stained clothes was not to be believed.It was also contended by the learned APP through the appeal that the learned trial Court had erred in believing the defence version of the respondent that the plot was purchased by the Ishwar Chand/accused No. 1/respondent No.1 herein, though no receipt of any documentary proof was shown.It was also submitted on behalf of the State that the impugned judgment is based on conjunctures and surmises and was not in accordance with law.A.No.718/2000 Page 2 of 49Vide order dated 04.11.2016 Ms.Inderjeet Sidhu, Advocate was appointed as Amicus Curiae to assist the Court on the merits of the appeal.Arguments were addressed on behalf of the State by Ms.Public Prosecutor and on behalf of respondent No. 1 by Ms. Inderjeet Sidhu, learned Amicus Curiae.The trial Court record requisitioned on 22.11.2000 has been received and perused.The charge of allegations framed on 03.11.1995 against the accused Crl.PW-9/A, the rukka recorded on the statement of Narender Kumar Sharma, the complainant Ex.A.No.718/2000 Page 9 of 49 indicates that a gold ring and gold chain, identity card and driving licence belonging to Narender Kumar Sharma were allegedly recovered at the instance of Ishwar Chand/accused No.1/respondent No.1 herein.A.No.718/2000 Page 9 of 49MATERIAL WITNESSES EXAMINED BY THE STATEPW-1 Narender Kumar Sharma, the complainant in his testimony on oath while putting forth the version in Ex.Inter alia, PW-1 testified to having identified the ornaments at the Shahdara Court.A.No.718/2000 Page 11 of 49CROSS EXAMINATION OF COMPLAINANTOn being cross-examined PW-1 Sh.He further stated that his wife was sitting in an adjacent room where he had been confined at the village Pran Garh and there was a distance of a wall between both the rooms where he was confined and where his wife was sitting.During his cross-examination this witness, inter alia, stated that he had stated to the police in Ex.PW-1/A that he had been tied up with a rope from the cot lying in the room and he had stated that Ishwar Chand/accused No. 1/respondent No.1 herein had given him a rifle butt blow on his shoulder, stomach and back.This witness was during cross-examination confronted with his statement that he had told the police that Ishwar Chand/accused No. 1/respondent No.1 herein had obtained his signatures on blank judicial stamp papers and on plain judicial papers, as these aspects were not recorded in Ex.PW-1/A. The witness has also Crl.A.No.718/2000 Page 12 of 49 been confronted with Ex.A.No.718/2000 Page 14 of 49 this witness during cross-examination stated that he had never informed anyone about this incident except the police after coming to Delhi and stated that before lodging of the FIR, he, had not disclosed this fact to anyone except ASI Om Pal of the PCR.A.No.718/2000 Page 14 of 49EXAMINATION OF PW-221. PW-2 examined by the State was Smt.Ram Kumari Sharma w/o Narender Kumar Sharma.PW-2 further stated that Ishwar Chand/accused No. 1/respondent No.1 herein and his companions compelled her to go inside in her room and they took her forcibly to the room and started beating her.She further stated that at that time Ishwar Chand/accused No. 1/respondent No.1 herein was armed with a rifle and the accused Ravinder was armed with a katta and the third man was also armed with a katta and that Ishwar Chand/accused No. 1/respondent No.1 herein had given her beatings with the rifle.She further stated that the accused persons did with her what they should not have done and Crl.A.No.718/2000 Page 15 of 49 stated that they were five persons and she cannot explain what they had done and she further stated that they misbehaved with her.As per the trial court record as the witness was hesitating, the proceedings were held in camera and the witness then stated that they did what a man would do after closing a woman in a room and stated that the accused persons did galat kaam.She further stated that Ishwar Chand/accused No. 1/respondent No.1 herein had asked her for the keys of the safe on the point of the rifle and had asked her where she had kept the documents of the title of the house and had also asked her to disclose where she had kept the cash and jewellery and she had then disclosed that the safe was open and the money, jewellery and the documents were lying there and that her sister Shashi Bala i.e wife of the accused Ishwar Chand/accused No. 1/respondent No.1 herein was present there and that she would tell everything.This witness has further stated that Ishwar Chand/accused No. 1/respondent No.1 herein had left the room at about 12:00 noon and had asked three persons to look after her i.e. Smt. Ram Kumari Sharma and they were the accused Ravinder, Davender and another person who had been picked up from the Ghaziabad bus stand and about 4:00 p.m. Ishwar Chand/accused No. 1/respondent No.1 herein came and all the persons stated that the goods had been removed from her house and that her children had also been brought and that they wanted her to sign the papers failing which she would be killed.A.No.718/2000 Page 16 of 49 they had gone to the Sarpanch and had narrated the incident and that she had also told her husband what had happened with her and he similarly told what had happened with him and informed that he had also been made to sign all such papers and also that his driving licence, cash of Rs.4000/-, and wrist watch were also snatched from him.Significantly, this witness during cross- examination stated that her statement was recorded by the IO at her house in the night at about 12/12:30 midnight i.e. statement Ex.PW-2/DA.A.No.718/2000 Page 15 of 49A.No.718/2000 Page 16 of 49Apart from being confronted with the aspect that she had told the police in her statement under Section 161 Cr.P.C. that she had heard the cries of "Neetu Bachao Maar Liya", on hearing the cries she had come out, which aspect was not recorded in Ex.PW-2/DA.She also stated that she had told the police in Ex. PW-2/A that they did with her what they should not have done and that she could not explain what they misbehaved with her and was confronted with Ex.She further stated that what they did was after closing the woman in a room and that they did and it was Galat Kam and thus she was confronted with Ex.She was also confronted with her statement in examination-in-chief that Ishwar Chand/accused No. 1/respondent No.1 herein has asked her about the goods of the safe at the point of the rifle and she had disclosed that the safe was opened wherein this aspect was also not recorded.This witness stated that she had told the police that her sister Shashi Bala wife of the Ishwar Chand/accused No. 1/respondent No.1 herein was present at house and she would tell everything and which aspect was also not found recorded in Ex.PW-2/DA.She was also confronted with Ex.She further stated during cross- examination that she had told the police in her statement dated 10.08.89 what had happened with her and she similarly told her husband what had happened with her and thus was confronted with Ex.PW-2/DA wherein this aspect was not recorded.A.No.718/2000 Page 17 of 49PW-11 Narayan Verma S/o Lakhpat Rai, a jeweller, testified to having manufactured the chain Ex.P2 and ring Ex. P2 for which he issued receipts Ex. PW-11/A and Ex.A.No.718/2000 Page 21 of 49 the goldsmith told that those receipts pertained to the wife of Narender Kumar Sharma and the complainants wife had not stated in her statement that her fathers name was Gauri Shankar.This witness further stated that he had not enquired about the address of Gauri Shankar but denied that the receipts had been fabricated by the police in collusion with the complainant.He further testified to the recovery having been effected from the possession of Ishwar Chand/accused No. 1/respondent No.1 herein at 7:30 a.m. on 24.08.1989 and he stated that he had not recorded the statement of any person from where the recovery was made and stated that he had not associated anyone from the locality from the time of recovery.Inter alia, this witness stated that he was not aware that there was any altercation between the accused and the complainant for getting the house vacated.He also denied that he had learnt that Narender Kumar Sharma had falsely framed Ishwar Chand/accused No. 1/respondent No.1 herein in the case.A.No.718/2000 Page 21 of 49PW-17/A and Ex.PW-13/A placed on record are the MLCs of Smt.Ram Kumar (PW-2) and Sh.Narender Kumar Sharma (PW-1) respectively both dated 10.08.1989 of the GTB hospital.Ram Kumar Sharma Ex.PW-17/A are indicated to be a contusion longitudinal lateral aspect of right thigh with a nature of injuries being having been opined to be simple caused by a blunt object.A.No.718/2000 Page 22 of 49DEFENCE WITNESSES EXAMINEDSeven defence witnesses were examined during the trial before the learned trial Court.DW-1 examined was Madhusudan, the elder brother of the Ishwar Chand/accused No. 1/respondent No.1 herein.A.No.718/2000 Page 23 of 49DW-2 examined by the defence Sh.Dharamveer testified to the effect that the complainant of the case i.e. Sh.Narender Kumar Sharma was the son of his uncle and stated that earlier Ishwar Chand/accused No. 1/respondent No.1 herein was residing in J-Block Kartar Nagar and stated that Ishwar Chand/accused No. 1/respondent No.1 herein had paid a sum of Rs.83,000/- to purchase a plot from someone through Narender Kumar Sharma and that the money was paid by the Ishwar Chand/accused No. 1/respondent No.1 herein to Narender Kumar Sharma, PW-1, the complainant at his house and that he later Crl.A.No.718/2000 Page 24 of 49 on learnt that there had been altercations between Narender Kumar Sharma and Ishwar Chand/ the accused No. 1/respondent No.1 herein.It was further stated by DW-2 that Narender Kumar Sharma had informed Ishwar Chand/accused No. 1/respondent No.1 herein that his elder brother would pay the remaining amount of Rs.22,000/-.He, inter alia, stated during cross-examination that Ishwar Chand/accused No. 1/respondent No.1 herein along with other co-accused persons had committed robbery and had they had robbed Smt. Ram Kumari Sharma and her husband of their ornaments and documents.A.No.718/2000 Page 25 of 4939. DW-4 produced by the defence was Sh.A.No.718/2000 Page 26 of 49DW-6 examined was Sh.Neeraj Kumar R/o Village Bhattpura, PS Sikendarabad, Distt.Bulandshahr who as per the prosecution version was the driver of the vehicle No. DID 2850 in which the accused/respondent No.1 herein had taken Narender Kumar Sharma and Ram Kumari Sharma to Bulandshahr.This witness categorically stated that on 09.08.1989 he had not gone anywhere with a vehicle along with Ishwar Chand/accused No. 1/respondent No.1 herein and others.He further stated that on 15.08.1989 his vehicle No. DID 2850 was apprehended by the police in the area of PS Bhajanpura because documents of the vehicle were not there with him at that time.This witness further stated that the Ishwar Chand/accused No. 1/respondent No.1 herein was not known to him.He further denied that on 09.08.1989 Ishwar Chand, respondent No. 1 herein had hired his vehicle i.e. DID No. 2850 for Pran Garh @ Rs.350 per day and denied that he came to Delhi along with Ishwar Chand/accused No. 1/respondent No.1 herein.He also denied that Narender Kumar Sharma, Ram Kumari Sharma and others were taken by him at Pran Garh in the vehicle.DW-6 further denied that one person had Crl.A.No.718/2000 Page 27 of 49 boarded his vehicle from the bus stand at Ghaziabad and that they had further gone to Pran Garh.He also denied that he remained standing outside the house of Ishwar Chand/accused No. 1/respondent No.1 herein and denied that Ishwar Chand/accused No. 1/respondent No.1 herein along with Narender Kumar Sharma and his wife had gone inside the house.He further denied that he received a sum of Rs.600/- as fare from Ishwar Chand/accused No. 1/respondent No.1 herein and denied that he had been won over by the accused persons and thus had testified falsely.He further categorically denied that his vehicle had been used by the accused persons for the purpose of dacoity.A.No.718/2000 Page 27 of 4942. DW-7 examined by the defence was Smt.Manorma w/o of Sh.She further stated that the Ishwar Chand/accused No. 1/respondent No.1 herein used to visit the said house often.She further stated that she had never seen Narender Kumar Sharma and his wife being taken away by anyone and also denied that Ishwar Chand/accused No. 1/respondent No.1 herein ever came to the aforesaid house in her presence.She also denied that Ishwar Chand/accused No. 1/respondent No.1 herein ever tried to lift the goods of the said house and to load them into a vehicle.(e) Whether the witness is found to have been bribed or accepted a bribe or received other corrupt inducement to give his evidence and;This is so, in as much as, the testimony of prosecution witnesses, Sh.Narender Kumar Sharma and Smt. Ram Kumari Sharma, bring forth the inconsistencies in the prosecution version as under:A.No.718/2000 Page 30 of 49related to Ishwar Chand/accused No. 1/respondent No.1 herein in as much as is the son of the Bua of Narender Kumar Sharma;Furthermore, Ishwar Chand/accused No. 1/respondent No.1 herein, is the co brother of Narender Kumar Sharma in as much as the wife of Ishwar Chand/accused No. 1/respondent No.1 herein, Smt. Shashi Bala and Smt. Ram Kumari Sharma w/o Narender Kumar Sharma are sisters as brought forth through the record.The closeness of relations between the complainant and his family and that of the accused is indicated through the testimony of Smt. Ram Kumari Sharma PW-2, who categorically stated that no rent or any other charges were being taken from Ishwar Chand/accused No. 1/respondent No.1 herein, though he was residing in the house owned by Narender Kumar Sharma;She stated that they were living in their house without paying rent being their relatives.The testimonies of Narender Kumar Sharma and his wife Ram Kumari Sharma do not attribute any hostility, bias or enmity between the Ishwar Chand/accused No. 1/respondent No.1 herein and Narender Kumar Sharma till the date of the alleged incident i.e. 09.08.1989;A.No.718/2000 Page 31 of 49 he had some property dispute at his village with his brother and that he had never lived at the house of Narender Kumar Sharma as a tenant and that he had paid a sum of Rs. 83,000/- to Narender Kumar Sharma towards the sale consideration of the plot which was adjacent to the house of the complainant and an amount of Rs. 22,000/- remained due which was to be paid at a later stage.He had further stated that he had not got the document executed and had taken possession of the said plot and had started living there with his family members and though he had asked Narender Kumar for getting the document executed, he had made a pretext that the owner was an old lady and was residing at Shahpura, and that one day when he met the son of the owner and asked for execution of the sale deed, he learnt that Narender Kumar Sharma had got the documents executed in his favour and then he met the father of Narender Kumar Sharma to get the document executed and that the father of the complainant informed him that Narender Kumar Sharma was a fraud and that the father of Narender Kumar Sharma could also not help the accused/respondent No.1 when the accused/respondent No.1 asked Narender Kumar Sharma to return the money or to get the document executed, and that Narender Kumar Sharma had falsely framed him in this case with the connivance of police.A.No.718/2000 Page 31 of 49As observed by the learned trial Court in para.8 page 10 of the impugned judgment, it was not the case of Narender Kumar Sharma or his wife that they had ever asked the accused Ishwar Chand/accused No. 1/respondent No.1 herein to vacate their house and that when relations between the parties were cordial and that the accused was residing as a licensee in the house of Narender Kumar Sharma and Narender Kumar Sharma himself did not assert that he was in a hurry to get the house Crl.A.No.718/2000 Page 32 of 49 vacated, it was held by the learned trial Court that in that event, Ishwar Chand/accused No. 1/respondent No.1 herein allegedly stating that after getting the amount he would vacate the house, - was not in consonance with ordinary human behaviour;A.No.718/2000 Page 32 of 49It was furthermore observed by the trial Court that Ishwar Chand/the accused No. 1/respondent No.1 herein was to vacate the house on his own and in that event there was no necessity for the complainant and his wife to go to Sikendarabad on a particular day to take a sum of money for after getting the money, from Sikendarabad the house was not to be vacated on that very day;Whereas Sh.Narender Kumar Sharma stated that Ishwar Chand/the accused No. 1/respondent No.1 herein had asked him to accompany him to Sikanderabad as he had to take some money from some person to the tune of Rs.8-9000/- , Smt. Ram Kumari Sharma in her testimony in examination in chief stated that Ishwar Chand/accused No. 1/respondent No.1 herein had come on 09.08.1989 to her house and had stated that he wanted to get Rs.20,000/- from some lady at Sikanderabad whereas in Ex. PW-1/A, the complainant stated that the Ishwar Chand/accused No. 1/respondent No.1 herein stated that he had to recover a sum of Rs. 15- 20,000/- from a lady at Sikanderabad whereas in Ex. PW-1/A which forms the basis of the FIR the complainant asserted that the accused/i.e. respondent No. 1 herein stated that he wanted the complainant to make an excuse that the money was required for his maternal uncles daughters wedding, there is no such assertion in the examination-in-chief of PW-1 Narender Kumar Sharma to this effect, though PW-2 Smt. Ram Kumari Sharma makes an assertion qua this aspect;A.No.718/2000 Page 33 of 49Through his testimony, the witness Narender Kumar Sharma stated that Ishwar Chand/accused No. 1/respondent No.1 herein was residing as a tenant in his house in Delhi and when he asked the Ishwar Chand/accused No. 1/respondent No.1 herein why he needed him, Ishwar Chand/ the accused No. 1/respondent No.1 herein stated that after collecting that amount from Sikenderabad he would vacate his house and would get another house.statement of PW-1 Narender Kumar Sharma, Ishwar Chand/ the accused No. 1/respondent No.1 herein asked PW-1 to take his wife along with him as money had to be collected from a widow, but in the meantime, the wife of Ishwar Chand/ the accused No. 1/respondent No.1 herein also came there and offered to look after their children in their absence and that it could not be understood why Narender Kumar Sharma had not questioned Ishwar Chand/ the accused No. 1/ the respondent No.1 herein for not taking his own wife, as the wife of Ishwar Chand/accused No. 1/respondent No.1 herein would have played the same role which was expected from Smt.Ram Kumari Sharma.It was thus observed by the learned trial Court that the behaviour and conduct of the complainant and Smt.Ram Kumari Sharma was not in consonance with ordinary human behaviour in the natural course of events;It was observed by the learned trial Court that though the complainant and his wife had been taken by Ishwar Chand/ the accused No. 1/respondent No.1 herein to take money from the lady on reaching Sikendarabad, the complainant and his wife were made to remain seated Crl.A.No.718/2000 Page 34 of 49 in the vehicle in which they were taken to Sikendarabad and were not brought face to face with the lady from whom the money was to be collected and the said aspect as to why they were not taken was not explained nor was the accused questioned by the complainant or his wife as to why they were not being taken to that lady;A.No.718/2000 Page 34 of 49That as per the statement of PW-1 Narender Kumar Sharma, - Ishwar Chand/ the accused No. 1/respondent No.1 herein returned back in 2-3 minutes from that house at Sikendarabad and informed that that lady had gone to Pran Garh and thus they went to Pran Garh and even there at Pran Garh, the complainant and his wife were not taken to meet that lady but despite the same they did not put any query to the Ishwar Chand/accused No. 1/respondent No.1 herein;blows and confined inside a room with his hands and legs tied with rifle butt blows given on his back, shoulder and stomach and he was asked a question as to where the sale deed of his house was and the keys of his safe were also demanded, he, the complainant, informed that the safe was not locked and that the ornaments and title deed were lying in the safe but at that time when he was being so assaulted, the complainant raised no alarm for help nor did he call out for the attention of his wife at that time.The learned trial Court also observed that the accused persons had, as per the testimony of PW-1, taken away the ring, wrist watch, Rs.4000/- cash, driving licence and identity card from the complainant around 11:30 a.m. on 09.08.1989 and had confined him and bolted him inside the house and as per the testimony of PW-1, Ishwar Chand/accused No. 1/respondent No.1 herein had returned at 4:00 p.m. and started giving beatings to him and obtained signatures by him on 25 judicial papers of the denomination of Rs.50/-, 10/-, 20/-, 5/- and 2/- whereafter his hands were untied and his thumb impressions were obtained, and after the same he was again bolted inside the room.When he cried his wife came along with some ladies and opened the door.It was observed by the learned trial Court that the testimony of DW-1 brought forth that for about 4 hours neither Narender Kumar Sharma did any act to invite the attention of his wife or villagers, nor did his wife bother to invite the attention of any of the villagers who ought to have reached for their rescue;A.No.718/2000 Page 35 of 49That PW-1 had stated that on hearing his cries, his wife along with some ladies reached there, which fact brought forth that there were some persons near the room where PW-1 was detained and that his cries could invite the attention of some ladies along with his wife and that if some disorderly behaviour had been going on in the house, those ladies ought to have taken note of that fact, but PW-1 stated that all that was going on went unnoticed and the ladies reached there when the accused persons left.It was observed by the learned trial Court that this version was not believable;A.No.718/2000 Page 36 of 49The factum that PW-1 stated that he had taken his wife to the house of the Sarpanch of the village and they had narrated their tale and that he was bleeding from his nose and had injuries on his feet and that his wife also told him that she too was beaten and her gold ring and chain had been snatched, and that though the Sarpanch got them dropped at Sikendarabad on a scooter and Vicky, he made no attempt to call any other person nor did he accompany them to the police station, - was all unnatural;It was also observed by the learned trial Court that the factum that when PW-1 and his wife reached their house they found Smt. Shashi Bala wife of Ishwar Chand/ the accused No. 1/respondent No.1 herein was present there with the children and she informed that the Ishwar Chand/accused No. 1/respondent No.1 herein had reached there with two persons and had taken away a gold tika, VCP, sale deed and educational certificate from their safe, - were all unbelievable versions, for if the husband of Shashi Bala had committed theft at the house of the complainant, the factum that Shashi Bala neither opposed her husband from removing the goods and valuable security from the house of her own sister nor did she lodge any report with the police, nor did she herself move away from the house though she had an option to leave if she had a guilty conscious and she continued to wait for the arrival of the complainant and his wife, - were all contrary to the ordinary human behaviour especially, as Shashi Bala continued to be present with the children of Narender Kumar Sharma when he and his wife returned back during the night hours;A.No.718/2000 Page 37 of 49(e) VARIANT VERSIONS OF LODGING OF COMPLAINANT The trial Court has also observed to the effect that PW-1 had informed that after reaching his house he had reached PP Gamri at about 11:30 p.m. and lodged his report which was also confirmed by his wife.Both of them denied that they had narrated the facts to anyone on the way but ASI Om Prakash PW-9 had put forth another version for, he stated, that on 09.08.1989 at about 12/12:30 a.m. when he was coming to Kartar Nagar from Maujpur, Narender Kumar Sharma and his wife met him and they were in a bad state of affairs and their clothes had blood stains and he heard them and lodged their complaint at PP Gamri.As observed by the learned trial Court ASI Chhote Lal PW-8 reiterated the same as stated by ASI Om Prakash.DD No. 28A dated 09.08.1989 Ex.PW-5/A recorded at the behest of ASI Om Prakash at 12:35 a.m. on 09.08.1989 categorically stated that Ishwar Chand/the accused No.1/respondent No. 1 herein and 2-3 persons had allegedly assaulted and beaten Narender Kumar Sharma and his wife Ram Kumari Sharma.DD No. 28A also records the case of the complainant that he had been taken away.It was also brought forth as observed by the learned trial Court that ASI Om Prakash knew the complainant and his wife and thus they narrated their tale of woe to him.The learned trial Court observed to the effect that the entire record indicated that Narender Kumar Sharma and his wife had denied having given any information to ASI Om Prakash as per DD No. 28A stating that they had not informed anyone of the incident till they reached PP Gamri because they wanted to wipe out the impression that facts were reported after consultation with ASI Om Prakash.The learned trial Court also observed to the effect that the testimony of ASI Om Prakash also brought forth the circumstances that all efforts were made Crl.A.No.718/2000 Page 38 of 49 by Narender Kumar Sharma and Ram Kumari Sharma to remove the impression that the report was lodged by Narender Kumar Sharma after due deliberation by ASI Om Prakash.A.No.718/2000 Page 38 of 49The learned trial Court also categorically observed to the effect that though ASI Om Prakash denied that he was aware about the residential address of the complainant when he met them on the way, Ex.PW-5/A DD No. 28A categorically contradicts this aspect in as much as the complete postal address of the complainant, is found mentioned therein.It was also observed by the learned trial Court that Smt. Ram Kumari Sharma had deposed that they had reached Delhi at about 10:30 p.m. but had not gone to their house due to fear that someone may be present there and reached the house of their neighbour and narrated the incident to their neighbour who called the police at the spot and that if they had gone to a neighbour at 11/11:30 p.m., it could not be understood as to why and when they met ASI Om Prakash at about 12/12:30 p.m. in the night and thus it was not explained as to how DD No. 28A stood registered;in the investigation nor were they brought into the witness box to substantiate the contentions of the complainant.It was thus observed by the learned trial Court that the confusion created by the complainant party Crl.(g) NON REPORTING BY PW-2 OF FACTUM OF SEXUAL ASSAULT The factum that PW-2 for the first time gave her version of sexual exploitation when she entered the witness box and did not report about the same through Ex.PW-1/A nor through Ex.PW-1/D to the police nor before any doctor when she was examined nor did she inform anyone at Pran Garh nor did she inform the Sarpanch, - all made her version wholly improbable;(g) NON FUNCTIONING OF POST OFFICE The learned trial Court also observed to the effect that though PW-2 Crl.A.No.718/2000 Page 40 of 49 stated that there was a post office at Pran Garh in the house of the Ishwar Chand/accused No. 1/respondent No.1 herein which was run by Madhusudan, brother of the accused, she stated that it was closed on that day but she had herself stated in her testimony that it was a working day, and her husband who was working at the Old Police Line Hospital had sent his leave application when he had accompanied the accused Ishwar Chand, respondent No. 1 herein.A.No.718/2000 Page 40 of 49(i) DOUBTFUL RECOVERIES The learned trial Court also observed that it was not probable that the accused who had allegedly snatched the gold ornaments and documents of the complainant had preserved the identity card and driving license of Narender Kumar Sharma who got them recovered subsequently which itself cast a doubt on the prosecution version.The learned trial Court further discarded the testimonies of Jagdish Prasad PW-15 and HC Om Pal Singh PW-16 stated recovery witnesses as their testimonies in relation to recoveries of Ex.P1 gold ring and Ex.P2 gold chain Ex.P3 Identity card and Ex.P4 driving license of Narender Kumar Sharma were variant in relation to the date when they went to get the recovery effected at the behest of the accused Ishwar Chand, respondent No. 1 herein.Though SI Jagpal Singh stated that they left Delhi on 23.08.1989 in a private vehicle and recovery was effected on 24.08.1989 and they returned to Delhi at 5-6:00 p.m. HC Om Pal Singh stated that they had gone to Bulandshahr on 24.08.1989 by a bus during noon hours and clarified that he remained outside a room when Ishwar Chand/accused No. 1/respondent No.1 herein went inside and brought the polythene containing ring, chain, identity card and driving licence of the complainant.It was thus observed by the learned trial Court that there are Crl.A.No.718/2000 Page 41 of 49 discrepancies about the date when the two witnesses left and in relation to the vehicle by which they travelled and the time when they reached and effected recovery.A.No.718/2000 Page 41 of 49(j) PROBABLE REASONS FOR FALSE IMPLICATION The learned trial Court has also observed to the effect that the reason as to why Narender Kumar Sharma and Ram Kumari Sharma roped in their relations and others in the battle, and the answer thereto was available in the statement of Vikram Singh recorded under Section 161 Cr.P.C. It was further observed by the learned trial Court to the effect that the said statement can be used only to contradict the witness and had been so used by the prosecution in as much as this witness Vikram Singh R/o village Pran Garh, Sikendarabad, Distt.Bulandshahr, U.P. had stated that he is an agriculturist at village Pran Garh, Sikendarabad and that Narender Kumar and his wife had never come.This witness on being cross-examined by the State denied that on 09.08.1989 at about 7:00 p.m. Narender Kumar with his wife came to his house and that Narender Kumar had wounds on his body and denied that he made any statement before the police.This witness was confronted with the entire statement under Section 161 Cr.P.C. and reiterated having not made the same.The learned trial Court has observed to the effect that though this statement under Section 161 Cr.P.C. which can be used only for contradicting the witness and was so used, yet it presented the case of the prosecution and needed attention.The learned trial Court observed to the effect that it was reported in the said statement that on 09.08.1989 at about 7:00 p.m. Narender Kumar Sharma and his wife came to the house of Vikram Singh and there were injuries on the person of both of them, they were frightened and asked Crl.A.No.718/2000 Page 42 of 49 this witness to save their life.Both of them told him that they were beaten by the Ishwar Chand/accused No. 1/respondent No.1 herein, with the help of his associates and thereafter obtained his signatures on some pieces of papers and after narrating those facts they went to the house of Ishwar Chand/accused No. 1/respondent No.1 herein.After some time he went to the house of Ishwar Chand/accused No. 1/respondent No.1 herein.Ishwar Chand and his brother Satya Dev were present there and Narender Kumar Sharma and his wife were also present.Satya Dev was arranging milk to give it to them for drinking and Narender Kumar and his wife after consuming the milk asked Satya Dev to take out his scooter and drop Narender Kumar and his wife to Sikanderabad.It was observed by the learned trial Court to the effect that this statement brought forth that Ishwar Chand/accused No. 1/respondent No.1 herein and Satya Dev were present at the house at Pran Garh and were arranging milk for Narender Kumar Sharma and his wife, when PW-7 had gone there and that the story of abduction of Narender Kumar Sharma and his wife from Delhi had not been projected before this witness.A.No.718/2000 Page 42 of 49It was further observed by the learned trial Court to the effect that it would be implicit thus to the effect that Narender Kumar Sharma and his wife had gone there at village Pran Garh and there was some dispute between Ishwar Chand/accused No. 1/respondent No.1 herein and Narender Kumar Sharma and as a result of their dispute, some altercation had taken place in which Narender Kumar Sharma had sustained some injuries and also alleged that his signatures were obtained on some papers.It was further observed by the learned trial court that the story of robbing them was also not projected before Vikram Singh nor was the Crl.A.No.718/2000 Page 43 of 49 aspect of sexual exploitation spoken about before Vikram Singh and though they had an altercation with Ishwar Chand/accused No. 1/respondent No.1 herein, yet they were ready to consume milk when Satya Dev arranged it for them.A.No.718/2000 Page 43 of 49(k) OTHER INCONSISTENCIES The learned trial Court further observed that it was obvious that the incident which might have taken place between Ishwar Chand/accused No. 1/respondent No.1 herein and Narender Kumar and Ram Kumari was not so alarming which could make these witnesses panic and that on the way to Delhi, Narender Kumar Sharma had deliberations with his wife and ASI Om Prakash and a twist had been given to the facts and while leaving for Pran Garh and that Smt. Shashi Bala was left by them at their house to look after their children.It was also observed by the learned trial Court that Shashi Bala was not aware of the happenings and she was present at the house of Narender Kumar Sharma when they returned back to Delhi.The learned trial Court further observed to the effect that the incident if at all it had happened, had taken place only at Pran Garh.It was also observed vide the impugned judgment that Narender Kumar was working as dentist hygienist at the Civil Hospital, Delhi which was earlier known as Police Hospital, Delhi.He exploited his connection with Delhi Police and got roped Ishwar Chand/accused No. 1/respondent No.1 herein and others in the case here and this case was a brainchild of Narender Kumar Sharma and ASI Om Prakash and that the crime had not been generated here at Delhi;PW-11/A and Ex.PW-11/B, the receipts issued by Narayan Crl.A.No.718/2000 Page 44 of 49 Verma PW-11, the goldsmith who prepared the ornaments Ex.The learned trial Court thus observed to the effect that this itself indicated that these receipts were later on procured by Narender Kumar Sharma and that the witness Narayan Verma entered at the instance of Narender Kumar Sharma and that in the receipts Ex.PW-11/A and Ex.PW-11/B, the name of Narender Kumar was not mentioned which itself made the testimony of the witness Narayan Verma hollow and that this fact itself brought forth that their testimonies were unworthy of any credit.A.No.718/2000 Page 44 of 49The learned trial Court also adverted to the testimonies of two defence witness Neeraj Kumar DW-6 and Smt.Manorma DW-7 observing to the effect that the testimonies of Neeraj Kumar, the alleged driver of the vehicle No. DID 2850 who was not produced in the witness box of the prosecution and was produced by the accused testified that on 09.08.1989 he had not gone with Ishwar Chand/accused No. 1/respondent No.1 herein anywhere with his vehicle and his testimony had not been effectively challenged by the prosecution.The learned trial Court observed to the effect that the testimony of Manorma, the tenant of Narender Kumar Sharma who was not produced in the witness box by the prosecution and was produced by the defence as witness was not shattered in any manner and that DW-7 had categorically denied that Narender Kumar Sharma and his wife had gone along with Ishwar Chand/accused No. 1/respondent No.1 herein and it was observed to the effect that it was thus brought forth that though the version of abduction of the complainant and his wife from their house was not established in Crl.A.No.718/2000 Page 45 of 49 any manner what emerged was that Narender Kumar Sharma and his wife had gone to Pran Garh of their own where they had some altercations with Ishwar Chand/accused No. 1/respondent No.1 herein and after reaching Delhi they fabricated facts after deliberation with ASI Om Prakash and lodged a false case.A.No.718/2000 Page 45 of 49A.No.279-80/1995 which lays down that "Depositions of witnesses, whether they are examined on the prosecution side or defence side or as Court witnesses, are oral evidence in the case and hence the scrutiny thereof shall be without any predilection or bias.No witness is entitled to get better treatment merely because he was examined as a prosecution witness or even as a Court witness.It is judicial scrutiny which is warranted in respect of the depositions of all witnesses for which different yardsticks cannot be prescribed as for those different categories of witnesses."Taking the said principles of law for appreciation of evidence into account it is essential to observe that DW-1 Madhusudan, brother of the accused Ishwar Chand, respondent No. 1 herein who was running the post office in the house where the incident is alleged to have taken place at Pran Garh, Distt.Bulandshahr has categorically testified to the effect that on the date i.e. Crl.A.No.718/2000 Page 46 of 49 09.08.1989 the said post office was open and that he was present from 10:00 a.m. to 5:00 p.m. and that Rohtash Kumar and Satish Chand were also present and that Narender Kumar Sharma and his wife had not come out of that house nor had he heard any commotion in the house.The prosecution during the cross-examination of this witness has been unable to challenge the veracity of the testimony of this witness in any manner.The statement of DW-2 corroborates the fact that Ishwar Chand/accused No. 1/respondent No.1 herein had paid a sum of Rs.83,000/- to Narender Kumar Sharma for the purchase of a plot in relation to which the title deed was stated to have been executed by the complainant in his own name instead of it being in the name of the Ishwar Chand/accused No. 1/respondent No.1 herein.The testimony of DW-5 Mahender Singh produced by the accused also brings forth the aspect that a sum of Rs.70,000/- was also borrowed by the Ishwar Chand/accused No. 1/respondent No.1 herein from the said witness.This witness has also categorically asserted that his vehicle had been intercepted by the police as he did not have Crl.Significantly, Ex.PW-1/B the seizure memo in relation to Maruti Van shows that it was seized on 15.08.1989 and had been seized by the police of PS Bhajanpura.This witness has categorically denied that his vehicle was used by the accused persons for commission of any dacoity.A.No.718/2000 Page 47 of 49Taking the totality of the circumstances of the case into account, especially the discrepancies in the testimonies of the prosecution witnesses including inter alia:-the improvements made by PW-1 and PW-2 in their statements made from their statement recorded by the police including variations from Ex.PW-1/A, the complaint, which forms the basis of registration of the FIR, the variations in relation to material particulars set forth during the prosecution version and in the testimonies of the prosecution witnesses examined on oath especially PW-1 and PW-2;the variations in the testimonies of SI Jagdish Prasad and HC Om Pal Singh, the alleged recovery witnesses in relation to the mode and manner in which the recovery was allegedly effected; the probabilization of the facts put forth by the defence witnesses being brought forth through the entire available record, all make the allegations levelled of the alleged commission of the offence punishable of extortion, abduction, criminal intimidation, assault and robbery as alleged by Narender Kumar Sharma and his wife Smt. Ram Kumari Sharma, wholly circumspect and it is thus apparent in the facts and circumstances of the instant case that there are no compelling Crl.A.No.718/2000 Page 48 of 49 nor substantial reasons to differ with the view taken by the learned trial Court on the basis of the evidence on record, both on questions of fact and of law.A.No.718/2000 Page 48 of 49In view thereof the Crl.Appeal No.718/2000 filed by the State which survives now only against the sole surviving accused No. 1/respondent No.1/ Ishwar Chand herein, is thus dismissed.The trial Court record be returned.ANU MALHOTRA, J GITA MITTAL, J JANUARY 09, 2017 mr Crl. | ['Section 34 in The Indian Penal Code', 'Section 365 in The Indian Penal Code', 'Section 506 in The Indian Penal Code', 'Section 397 in The Indian Penal Code', 'Section 323 in The Indian Penal Code'] |
The facts leading to passing of the impugned Detention Order are thatthe defacto complainant Alwyn repaired the lights of the vehicle of the detenuand the detenu assured to pay repair charges of Rs.380/- after 2 days and wentaway.On 3.10.2008 at 4.45 p.m., the defacto complainant Alwyn along with oneManikandan was coming near Petrol Bunk, Uchigopuram, Palayamkottai, Alwyn askedmoney from the detenu and the detenu is alleged to have abused Alwyn andManikandan in filthy language and also threatened Alwyn by brandishing Aruvaland snatched Rs.570 from his shirt pocket.On the complaint lodged by Alwyn, the ground case was registered inCrime No. 1610/2008 under Sections 314, 294(B), 427, 387 and 506(ii) IPC and thedetenu was arrested on 4.10.200 and remanded to judicial custody.In para 3 of the Detention Order, the detaining authority has statedthat owing to the conduct of the detenu, those who were coming to petrol bunk,those who were walking on the road and those who were waiting for the bus tookto their heels out of fear and those who were coming in two wheelers sped awayin their vehicles.Bus drivers stopped the buses and nearby shop-keepers closedtheir shops.(Order of the Court was made by R.BANUMATHI, J) The petitioner, mother of the detenu - M.Udayar alias Durai challenges theDetention Order dated 13.10.2008 passed by the detaining authority, Commissionerof Police, Tirunelveli whereby the detenu was ordered to be detained under theprovisions of the Tamil Nadu Prevention of Dangerous Activities of Boot-Leggers,Drug Offenders, Forest Offenders, Goondas, Immoral Traffic Offenders, SandOffenders, Slum-grabbers and Video Pirates Act, 1982 (Tamil Nadu Act 14 of 1982)branding him as a "Goonda".The detenu had earlier come to adverse notice in a case inPalayamkottai Police station Crime No.862/2006 under Section 302 r/w 120(b), 34IPC and 3(2)(v) SC/ST (Prevention of Atrocities Act, 1989 and in MurappanaduPolice Station Crime No.198/2007 under Sections 294(b), 506(ii) IPC and Section4 of Tamil Nadu Prevention of Harassment against Women Act.Accordingly, theimpugned order of detention is quashed and Habeas Corpus Petition is allowed.The detenu is directed to be set at liberty forthwith unless he is required inconnection with any other case.1.The Commissioner of Police, Tirunelveli City.3.The Inspector of Police, Palayamkottai Police Station, Tirunelveli District.4.The Additional Public Prosecutor, The Madurai Bench of Madras High Court, Madurai. | ['Section 506 in The Indian Penal Code', 'Section 294(b) in The Indian Penal Code', 'Section 294 in The Indian Penal Code', 'Section 302 in The Indian Penal Code', 'Section 427 in The Indian Penal Code'] |
The incident resulting in the death of Jugendra Pal Singh and causing injuries to his sister Smt. Ramwati and mother Smt. Ketuki occurred on 13.04.1981 at about 7.00 a.m. In the Khalihan near village Hasanpur under Soron Police Station of District Etah.The case of the prosecution as appearing from the first information report and statement of the complainant Suresh Pal Singh (P.W. 1) S/o Suraj Singh r/o village Hasanpur P.S. Soron (Etah), in brief, is that a case under Section 366/376 IPC regarding abduction and rape of Km.Asha and Munni, both nieces (sister's daughters) of complainant, was got registered against the recused Yatendra Singh etc. on 10.04.1981 at P.S. Soron.On 13.04.1981 at about 7.00 a.m., the complainant Suresh Pal Singh, his brothers Jugendra Pal Singh and Narendra Pal Singh and his nephew (sister's son) Mahesh Pal Singh, who was residing with him, were going to see their Khilihan.When they reached near the Khalihan, the accused Bishan Singh, Jangi Singh, Gajju @ Gajraj Singh, Yatendra Singh sons of Pyare Singh, Natthu Singh S/o Sahib Singh, Bhupendra Singh S/o Natthu Singh, Ombvir Singh @ Munna S/o Udaivir Singh, Udai Pratap S/o Gajju Singh, Suraj Pal Sijngh S/o Amir Singh, Dhoom Singh, Munendra Singh @ Ram Singh, Ramvir Singh Sons of Mukut Singh Thakur, Bhoodev, Man Singh sons of Jhamman, Manendra Pal S/o Bhoodev, Ram Nath S/o Liladhar, Shibbu S/o Chattar, Hardev S/o Heeru, Ram Singh S/o Hardev and Lalau S/o Shivani Mallah ail residents of village Hasanpur P.S. Soron District Etah and Kundan Singh Thakur r/o village kachhla, District Budaun, who was Samdhi of Natthu Singh, came out from the side ofKhalihan having lathies, tamancha and Farsa.The accused Natthu Singh, who was armed with his licenced gun, exhorted saying "Jugendra pal Singh ko pakad to tatha jan se mar do, Kyunki hamare khilaf jhutha mukadama darj karaya hai".On this exhortation, the accused persons with intention to cause the death of Jugendra Pal Singh began to assault him by lathies etc. Somehow the complainant Suresh Pal Singh, his bother Narendra Pal Singh and his sister's son Mahesh Pal Singh escaped and rushed towards village raising alarm.On hearing hue and cry, Smt. Ramweti, sister of the complainant and his mother Smt. Ketuki, his nieces Munni and Asha and other village people came to the place of occurrence and saw the incident.When Smt. Ramwati and Smt. Ketuki tried to save Jugendra Pal Singh, they were also assaulted by the accused persons, due to which they sustained injuries.Thereafter, the accused persons considering the injured Jugendra Pal Singh to have died, fled away towards Ganga Ji.The complainant carried his brother Jugendra Pal Singh, sister and mother by bullock cart to P.S. Soron, where he made over the their written report Ext. Ka 1, on the basis of which Chik FIR Ext. Ka 4 was prepared by P.W. 4 Gurudutt, who registered a case under Section 147, 148, 149, 307 IPC at Crime No. 97/81 against above named accused persons on 13.04.1981 at 9.05 a.m., entry of which was made in the G.D. No. 12 (Ext. Ka 5).The injured Jugendra Pal Singh, Smt. Ramweti and Ketuki were sent to Primary Health Centre (PHC) Kasganj (Etah).JUDGMENT Vijay Kumar Verma, J.This appeal has been preferred against the judgment and order dated 22.01.1982 passed by 3rd Additional Sessions Judge Etah, in ST.No. 400 of 1981, whereby the accused-appellants (1) Jangi Singh (2) Gajju Singh @ Gajraj Singh, (3) Bhupendra Singh (4) Omvir Singh (5) Udai Pratap Singh (7) Dhoom Singh (8) Munendra Singh @ Ram Singh (9) Rambir Singh (10) Man Singh (11) Bhudev (12) Mahandra Pal (13) Ram Nath (14) Shibbu (15) Hardev (16) Ram Singh and (17) Lalau @ Lala Ram have been convicted and sentenced to undergo rigorous imprisonment for one year under Section 147 IPC, imprisonment for life under Section 302 read with Section 149 IPC and five years rigorous imprisonment under Section 307 read with Section 149 IPC.The appellants accused (1) Bishan Singh (2) Natthu Singh (3) Yatendra Singh and (4) Kundan Singh have been convicted and sentenced to undergo rigorous imprisonment for two years under Section 148 IPC, imprisonment for life under Section 302 read with Section 149 IPC and five years rigorous imprisonment under Section 307 read with Section 149 IPC.During pendency of this appeal, the appellants-accused Jangi Singh, Gajju @ Gajraj Singh, Natthu Singh, Saraj Pal Singh, Munendra Singh @ Ram Singh, Ram Nath, Shibbu, Hardev, Lalau @ Lalaram and Kundan Singh have died.Hence their appeal has been abated.In the way near village Hulpur.the Injured Jugendra Pal Singh succumbed the injuries and his dead body along with both the iynjured were carried to P.H.C. Kasganj, where Smt. Ramwati was medically examined by P.W. 3 Dr. R.C. Bajpai on 13.04.1981 at 12.30 p.m. According to the injury report Ext. Ka 2, the following injuries were found on her person:Traumatic swelling 7cm x 3 cm.on outer side of right Forearm upper part.2. Contusion 5 cm.x 1.5 cm.on outer side and owner portion of Rt. upper arm.3. LW. 3 cm.x 1/2 cm.x bone deep on back and root of Rt. thumb.Abrasion 2 cm.x 1/2 cm.on top of Rt. thumb.Contusion 2 cm.x 1 cm.on front and upper part of left knee joint.All the injuries were simple, which were caused by blunt weapon and friction.Duration was about 5-7 hours old.On the same day at 12.45 p.m. Smt. Ketuki was examined by Dr. Bajpai, who found the following injuries on her person vide injury report Ext. Ka 3:Contusion 3 cm.x 2 cm.on top of right shoulder.2. Contusion 10 cm.x 6 cm.on left buttock upper part.Traumatic swelling 20 cm.x circumference of left leg.U.O. Adv.X-ray of left leg.Abrasion 1 cm.x 1 cm.on inner side of left big toe.Traumatic swelling 12 cm.x circumference of left hand and writs.U.O. Adv.X-ray of left hand.Abrasion 2 cm.x 1/2 cm.on back of right hand.All injuries except injury No. 3 and 5 were simple, which were caused by blunt weapon and friction.Duration was about 5-6 hours old.Injuries No. 3 & 5 were kept under observation and X-ray of left leg and left hand with wrist was advised.Thereafter, the dead body was sent in sealed condition for post-mortem examination, which was conducted on 14.04.1981 at 11.00 a.m. by P.W. 6 Dr. O.P. Vaidya.According to post-mortem report Ext. ka 19, the following ante-mortem injuries were found on the person of deceased:Two lacerated wound each measuring 4 cm.x 1 and 3 cm x 1cm.x bone deep on the top of skull 2 cm.Abraded contusion 3 cm.x 3 cm.just lateral to left outer angle of the eye.Contusion 4 cm x 2 cm on the top of right shoulder.Contusion 3 cm.x 1/2 cm on the top of left shoulder.Contused swelling all over the right forearm.There is a clinical evidence of fracture both bone of the forearm at lower 1/3rd.Contused swelling all over the left forearm including back of the left hand.Double line contusion 15 cm.x 4 cm on the R. side back of chest.6 cm below the inferior angle of scapula.Contusion 6 cm.x 3 cm.in right hypochondrial region.Double line contusion 9 cm.x 2 1/2 cm on the back left side in the middle & outer part.Multiple abraded contusion all over the thigh, leg & foot right side ranging from 3 cm x 2 cm to 2cm x 2 cm.on the anterior aspect only.Multiple abraded contusion on the front of left thigh and leg all over ranging from 5 cm x 2 1/2 cm to 2 cm x 1 1/2 cm on the anterior aspect only.In internal examination, the membrances and peritoneum were found congested.The cavity contained about 20 ounces of free & clotted blood.In the stomach few ounces of watery fluid was found present.Large intestine contained very little amount of faucal matter.Right lobe was lacerated and Gall Bladder was half full.According to Dr. Vaidya, the death was caused due to coma shock and haemorrhage as a result of ante-mortem injuries.The investigation was entrusted to S.I. Munshi Lal (P.W.5) who recorded the statement of witnesses, prepared site plan Ext. Ka.After making other necessary formalities regarding investigation, charge sheet Ext. Ka.11 was against all accused-appellants.On the case being committed to the court of session for trial, charges under Section 147, 148, 302 and 307 read with Section 149 of Indian Penal Code were framed against the appellants-caused, to which they pleaded not guilty and claimed to be tried.The prosecution in order to prove its case examined six witnesses in all in this case.P.W. 1 Suresh Pal is the complainant, who had lodged the FIR at P.S. Soroa.He has proved his written report Ext. Ka 1, which was scribed by him.P.W. 2 Ramwati is the injured.P.W. 3 Dr. R.C. Bajpai has proved injury reports Ext. Ka 2 and Ka 3 of the injured Smt. Ramwati and Smt. Ketuki respectively.P.W. 4 constable Gurudatt is the scribe of chik FIR Ext. Ka. 4, which has been proved by him along with the copy of G.D. (Ext. Ka 5) regarding registration of case.The copy of hat G.D. (Ext. Ka 6) has been proved by him.S.I. Munshi Lal (P.W. 5) is the Investigating Officer.Inquest report Ext. Ka 12 and connected papers Ext. Ka 13 to Ext. Ka 16 have also been proved by this witness by recognizing the had writing and signature of S.I. A.S. Khan, who had conducted inquest proceeding on the dead body.G.D. No. 16 time 9 30 a.m. dated 10.04.1981 (Ext. Ka 17) has also been proved by S.I. Munshi Lal by recognizing the hand-writing and signature of constable/clerk Gurudatt.This G.D. pertains to the registration of case under Section 366/376 IPC against the accused Bishan Singh etc, FIR of which was lodged at P.S. Soron by Narendra Pal Singh brother of the deceased.In their statements recorded under Section 313 Cr.P.C. the appellants-accused denied their participation in the alleged incident and they have stated that due to connivance of the police and Bhagirath, they have been falsely implicated in this case.It is also stated by some accused that earlier also, they were falsely implicated in the case under Section 376 and 332 IPC.The accused Kundan Singh has stated that he is the father-in-law of accused Bhupendra Singh and for this reason, he has been falsely implicated in this case.The accused-appellants did not examine any wetness in their defence.The learned Trial Court after hearing parties counsel and perusing the evidence on record, convicted the appellants-accused and sentenced them as mentioned in para 1 above vide impugned judgment, which has.been challenged in this appeal.We have heard Sri Somesh Khare learned Counsel appearing for the appellants-accused and learned AGA for the State-respondent and also perused the impugned judgment and entire evidence on record carefully.Regarding the incident that occurred on 13.04.1981 at about 7.00 a.m. in the Khalihan, the prosecution has examined Suresh Pal and Smt. Ramwati.Supporting FIR version, P.W. 1 Suresh Pal after narrating some facts leading to the enmity, has stated in his statement that when on 13.04.1981 at about 7.00 a.m. he and his brothers Jugendra Pal Singh and Narendra Pal Singh and his nephew Mahesh Pal Singh had gone to see their Khalihan, all the 21 accused persons present in court came out from the side of Khalihan and on exhortation of Natthu Singh began to assault Jugendra Pal Singh by lalthies.It is further stated by this witness that somehow he.his brother Narendra Pal and nephew Mahesh Pal escaped and raised noise, on which his mother Ketuki Devi, sister Ramwati and nieces Asha and Munni came there and, when his mother and sister tried to save Jugendra Pal Singh by laying upon him, they we e also assaulted by the accused persons, due to which they sustained injuries.The witness (P.W. 1) has named and recognized all the appellants-accused who were present in court at the time of his deposition.It is further stated by this witness that the accused Natthu Singh was armed with licenced gun, his samdhi Kundan Singh was having tamancha, Bishan Singh and Yatendra Singh were armed with Farsa and Ballam respectively and other accused were having lathies.He has further stated that after the incident he carried the injured persons to P.S. Soron, where he lodged the FIR and when he was carrying the injured persons for medical examination to Kasganj, Jugendra Pal Singh succumbed to the injuries near village Hulpur after which his dead body and both injured were carried to Kasganj hospital, where the injured were medically examined and after inauest proceeding, the dead body of Jugendra Pal Singh was sent to Etah for post-mortem examination.Regarding the motive to commit this crime the witness Suresh Pal has stated that on 10.04.1981, the accused Bishan Singh etc. had abducted his nieces (sister's daughters) Asha and Munni, with whom rape was also committed by them, report of which was lodged by his brother Narendra Pal Singh.It is also stated by this witness that incident of police encounter had taken place on 10.11.1980 with accused Bishan Singh etc. and during investigation of that case, his brother Jugendra Pal Singh had told the real incident to police against the accused persons, due to which they began to have enmity and they had declared that they will kill all of them and okust them from village due to which Judgndra Pal Singh had given application to S.S.P. Etah and CO.Kasganj for his security.Lengthy cross-examination made from P.W. 1 Suresh Pal by the learned Counsel for the appellants accused, out nothing material could be elicited from him.He has fully supported the case of prosecution and his testimony is worth relying.There is no serious infirmity in his testimony and the learned Trial Judge has rightly placed reliant on the testimony of this witness.Next witness is Smt. Ramwati (P.W. 2) who is injured also.In her statement recorded on 17.12.1981 in trial court, P.W. 2 Ramwati has stated that about 9 months age at about 7.00 a.m. Jugendra Pal Singh along with his brothers Suresh Pal Singh and Narendra Pal Singh and nephew Mahesh Pal Singh had gone to see hisKhalihan and when on hearing hue and cry, she and her mother Ketuki and girls Asha and Munni reached on the place of occurrence near Khalihan they saw that 21 accused present in court were assaulting her brother Jugendra Pal Singh.She has further stated that she and her mother were also assaulted by the accused persons due to which they both sustained injuries.It is further stated by Smt. Ramwati that considering her brother to nave died, the accused persons fled away towards Ganga Ji.It is also stated by this witness that being widow she has been residing in the house of her brother and she knows all the accused prior to the incident.She has also named some accused in her examination-in-chief and recoanized all the 21 accused present in the court.In cross-examination it is stated by Smt. Ramwati Devi that Jugendra Pal Singh was surrounded by the accused persons and 17 accused having lathies were assaulting him by lathies.It is also stated by this witness that Natthu Singh and Kundan Singh were armed with gun and tamancha respectively, Bishan Singh was having Pharsa and Yatendra Singh was armed with ballam and rest accused where having lathies.Smt. Ramwati also has been cross examined at length by the learned Counsel for the accused-appellants, but none material has been elicited from this witness also.Being injured, the presence of Smt. Ramwati at the time of occurrence is not doubtful.Her testimony also is wholly reliable and there is no reason to disbelieve her testimony.The learned Trial Judge has not committed any illegality in placing reliance on the testimony of this witness.Ocular evidence of the witnesses Suresh Pal Singh and Ramwati finds corroboration from medical evidence.We have already extracted the injuries found on the person of deceased Jugendra Pal Singh and injured Smt. Ramwati and Smt. Ketuki.All the injuries of deceased and both the injured are possible to be caused by lathies.As such, on the basis of the testimony of Suresh Pal Singh and Smt. Ramwati, it is fully proved beyond reasonable doubt that Jugendra Pal Singh, Ramwati and Ketuki were assaulted by appellants-accused on 13.04.1981 at about 7.00 a.m. near the Khalihan, which was kept at a distance of about 100 paces from the house of complainant.There was motive for the accused persons to commit this crime.Admittedly, an FIR regarding abduction and rape of Km.Munni and Km.Asha, (both unmarried niece of the deceased) was lodged on 10.04.1981 against some accused by Narendra Pal Singh, brother of the deceased.In a case of police encounter with some accused, the deceased had told the real facts against them to the Investigating Officer.On the basis of the application moved by the deceased for his security against the accused persons, action under Section 107/116 Cr.P.C. was also taken against some accused prior to this incident.There was long standing enmity between the parties and due to that enmity, the accused persons after forming an unlawful assembly on 13.04.1981 at about 7.00 a.m. made a plan to eliminate the deceased Jugendra Pal Singh and in prosecution of that common object, rhey all having deadly weapons and lathies assembled behind the Khalihan and assaulted the deceased when he cama to see hisKhalihan along with his brothers Suresh Pal Singh and Narendra Pal Singh and his nephew Mahesh Pal Singh and when Smt. Ramwati and Ketuki tried to save the deceased by laying upon him, they also were assaulted.The main submission made by Sri Somesh Khare, learned Counsel for the accused-appellants was that the appellants-accused Natthu Singh, Kundan Singh, Bishan Singh and Yatendra Singh did not use their weapons and hence their conviction with the aid of Section 149 IPC s bad in law.From the evidence on record, this fact is borne out that the accused-appellants Netthu Singh, Kundan Singh, Bishen Singh and Yatendra Singh having deadly weapons along with other accused having lathies formed an unlawful assembly, with common object to commit the murder of Jugendra Pal Singh with whom to they were having enmity.17 accused having lathies had mercilessly beaten the deceased Jugendra Pal Singh, who suffered 11 ante mortem injuries, which have extracted above.In ante mortem injury No. 1 two lacerated wounds measuring 4 cm x 1 cm and 3 cm x 1 cm x bone deep on the top of skull were found.In the result, the appeal is hereby, dismissed. | ['Section 149 in The Indian Penal Code', 'Section 302 in The Indian Penal Code', 'Section 307 in The Indian Penal Code', 'Section 148 in The Indian Penal Code', 'Section 147 in The Indian Penal Code', 'Section 376 in The Indian Penal Code', 'Section 366 in The Indian Penal Code', 'Section 304 in The Indian Penal Code', 'Section 325 in The Indian Penal Code', 'Section 332 in The Indian Penal Code'] |
Skm Crl OP(MD)No.15211 of 2014 and MP(MD)No.1 of 2014 26.09.2019http://www.judis.nic.in | ['Section 482 in The Indian Penal Code', 'Section 467 in The Indian Penal Code', 'Section 420 in The Indian Penal Code', 'Section 471 in The Indian Penal Code', 'Section 465 in The Indian Penal Code', 'Section 468 in The Indian Penal Code'] |
The petitioner is an agricultural Collie.He has four sons and a daughter.2.The petitioner claims that his son was originally appointed by the 8threspondent in his Biscuit Factory and that the petitioner's son fell in lovewith the 8th respondent's daughter.According to the petitioner, the respondents8 to 11 murdered his son in Malaysia in January 2007 and that the body is keptin the mortuary in Malaysia.On the above said premise, the petitioner claims tohave sent telegrams to the President of India, the Prime Minister, the Ministryfor External Affairs, the Chief Minister and the High Commission of Malaysia,seeking action against the culprits and also to make arrangements to bring thebody of his son from Malaysia.If the petitioner isfinancially sound, he could have gone to Malaysia and brought the body to Indiafor performing the funeral rites.(a) The respondents 1 and 2 are directed to make arrangements through theHigh Commission of India at Kualalumpur to bring the dead body of thepetitioner's son S.Suseendran who died on 28.01.2007 at Malaysia, to India andhand over the dead body to the petitioner, within a period of three weeks fromthe date of receipt of a copy of this order.(b) The 7th respondent is directed to register the First InformationReport and investigate into the same in accordance Section 4 I.P.C. and Section188 Cr.P.C. for the purpose of carrying out an effective investigation, the 7threspondent shall seek such assistance and such information from the Police inMalaysia at Bukit Puchong, Subang Jaya, as well as from the High Commission ofIndia at Kualalumpur.The 7th respondent shall complete the investigation withina period of three months and file a final report.No costs.4.The Superintendent of Police, Sivaganga District.5.The Superintendent of Police, Ramanathapuram District.6.The Inspector of Police, Ilayankudi Taluk Police Station, Ilayankudi, Sivaganga District.7.The Inspector of Police, Paramakudi Police Station, Paramakudi, Ramnad District.Finding no response to the telegrams, thepetitioner has come up with the present writ petition seeking the issue of awrit of mandamus directing the respondents 1 to 7 or the 12th respondent toinvestigate into the death of his son and also to take steps to bring the deadbody from Malaysia for the purpose of performing the obsequies.M.Thikvijayapandian, learned counsel for the petitioner,Mr.D.Sasikumar, learned Government Advocate appearing for the respondents 1 and2 and Mr.4.The Inspector of Police, Paramakudi Town who is the 7th respondent inthe writ petition has filed a report.According to the said report, theInspector made enquiries with one M.Shiek Sabir who is the 11th respondent inthe writ petition and came to know from him that the petitioner's son allegedlycommitted suicide and that the Malaysian Police is investigating into the samein Bukit Puchong (Balai) Police Station No.Report Crime No.5.The learned Government Advocate also filed a report from the VillageAdministrative Officer to the effect that the respondents 8, 9 and 10 are notresiding in India but residing in Malaysia.6.The learned Government Advocate also produced the copy of a letterwritten by the Deputy Secretary to Government of Tamil Nadu, Home Department,Chennai-9 addressed to the Second Secretary, High Commission of India,Kualalumpur in his Letter No.71834/CITZ.II/2007-1, dated 27.07.2007 by which hehas requested the High Commission to get a copy of the Postmortem Reportrelating to the son of the petitioner who died in Malaysia.R.Rajagopal, learned counsel representing the Consulate General ofMalaysia in India filed a letter dated 26.06.2007 addressed to him.In the saidletter, the Consulate General of Malaysia has advised the petitioner to takerecourse to any of the two alternatives namely, either to make a report to thePolice Department in Malaysia or to seek an assistance through the HighCommission of India at Kualalumpur for making a Police report and undertaking afurther investigation.The petitioner claims thathis son was murdered at the instance of respondents 8 to 11 since his son was inlove with the daughter of the 8th respondent.Therefore, he has filed the present writ petition.Sub Inspector of Police, Tanur (1993Crl.L.J. 1098).Regarding the death of one Sulaiman, a complaint was filedbefore the Sub-Inspector of Police, Tanur (Malappuram District), Kerala, by hismother, widow and brother alleging that he was murdered at Sharjah, UAE by oneAli.The Sub-Inspector of Police refused to register the complaint on the groundthat the alleged offence was committed out side India.Therefore, the defactocomplainants filed an O.P. on the file of the Kerala High Court.For the purpose ofcompleting the investigation, if the 7th respondent is required to get necessarydetails from the Malaysian Police at Bukit Puchong, Subang Jaya in No.BKTPUCHONG/001045/07 dated 28.01.2007, the 7th respondent has a duty to get suchdetails including the Postmortem Report as well as all other details.A question arose in Ashray AdhikarAbhiyan Vs.3.The High Commissioner, Malaysian Embassy, T.T.K.Road, Mandhaveli, Chennai. | ['Section 4 in The Indian Penal Code', 'Section 3 in The Indian Penal Code', 'Section 188 in The Indian Penal Code'] |
Heard on admission.sh Also, heard on I.A. No.24116/2017, which is an application e u/S.389(1) of Cr.P.C. for suspension of the custodial sentence passed ad against appellants No.2 Harpal, appellant No.3 Hiralal, appellant No.4 Pr Ballu @ Balwan Gurjar and appellant No.5 Ramnath.This appeal has been preferred against the judgment dated a hy 08.11.2017 passed by Third Additional Sessions Judge, Tikamgarh in S.S.T.No.400128/2015 whereby learned Additional Sessions Judge ad found appellants No.2 to 5 guilty for the offences punishable under M Sections 363 & 366 of IPC and sentenced each of them to undergo five years R.I. with fine of Rs.1,000/- and five years R.I. with fine of of Rs.1000/- with default stipulation.rt Learned counsel for the appellants submitted that the trial court ou without appreciating the evidence properly wrongly convicted the appellants No.2 to 5 for the offences punishable under Sections 363 & C 366 of IPC.Although, the prosecutrix in her examination-in-chief h deposed that appellant No.5 Ramnath called her at sweet shop and at ig that time appellants No.2 Harpal, appellant No.3 Hiralal and appellant H No.4 Ballu @ Balwan Gurjar were also present there but in the case diary statement of the prosecutrix (Ex.D/1), it is not mentioned that appellants No.2 to 5 called her so in this regard her statement becomes afterthought.From the statements of prosecutrix and other prosecution witnesses, it is not appear that apart from co-accused Pappu @ Raghuraj Singh, appellants No.2 to 5 also abducted the prosecutrix.It is further submitted that due to enmity, the prosecutrix also implicated them in the crime.Learned trial court without appreciating these facts wrongly found the appellants guilty for the aforesaid offences.Hence prayed for suspension of the jail sentence and release of the appellants on bail since the hearing of this appeal is likely to take long time.On the other hand, learned counsel for the State opposed the prayer and submitted that the guilt of the appellants No.2 to 5 was proved beyond reasonable doubt, therefore, learned trial Court has rightly convicted and sentenced the appellants.Considering the facts and circumstances of the case, the application (I.A. No.24116/2017) is allowed and it is directed that the sh execution of the jail sentence alone passed against the appellants No.2 e Harpal, appellant No.3 Hiralal, appellant No.4 Ballu @ Balwan Gurjar ad and appellant No.5 Ramnath shall remain suspended during the Pr pendency of this appeal and they be released on bail upon furnishing personal bond in the sum of Rs.50,000/- (Rs. Fifty Thousand a only) each with one surety each in the like amount to the satisfaction hy of the trial Court for their appearance before the Registry of this Court ad on 30.04.2018 and on such further dates as may be fixed in this behalf M by the Registry during the pendency of this appeal.Matter be listed for final hearing in due course.of C.C. on payment of usual charges.rt (RAJEEV KUMAR DUBEY) ou JUDGE C h ig H (ra) Digitally signed by RANJEET AHIRWAL Date: 2018.02.01 13:32:28 +05'30' | ['Section 363 in The Indian Penal Code', 'Section 366 in The Indian Penal Code'] |
(i) Criminal Bail Application No.2472 of 2019 is rejected;(ii) Criminal Bail Application No.2352 of 2019 is allowed;(iii) The applicant Laxman Kantappa Shinde in Bail Application No.2352 of 2019 is directed to be released on bail in connection with CR No.2 of 2019 registered with Ratnagiri Rural Police Station, on furnishing PR bond in the sum of Rs.25,000/- with one or more sureties in the like amount;::: Uploaded on - 22/01/2020 ::: Downloaded on - 22/01/2020 21:17:58 :::Rural Police Station once in a month on every first Saturday between 10 am and 1 pm till conclusion of trial;(v) The applicant Laxman Kantappa Shinde shall not tamper with prosecution witness and shall attend the Trial Court proceedings regularly, unless exempted by the Trial Court for some reason.(PRAKASH D. NAIK, J.) MST::: Uploaded on - 22/01/2020 ::: Downloaded on - 22/01/2020 21:17:58 :::::: Uploaded on - 22/01/2020 ::: Downloaded on - 22/01/2020 21:17:58 ::: | ['Section 34 in The Indian Penal Code', 'Section 302 in The Indian Penal Code'] |
Subsequently, telephone number was said to be given by applicant and prosecutrix responded to the telephonic call made by Junaid.The accusation against present applicant is at different footing than Juanid, against whom subsequent accusation is there.Heard learned counsel for the applicant, learned counsel for the informant, learned A.G.A. and perused the record.By means of this application, the applicant Tajeem Khan, who is involved in Case Crime No. 492 of 2019, under Sections 376, 354C, 504, 507, 406, 377, 506 I.P.C., P.S. Civil Line, District Aligarh, is seeking enlargement on bail.It has been submitted by learned counsel for applicant that applicant is innocent.He has been falsely implicated in this very case crime number, which was got registered on 26.08.2019 upon report of Km.Shaheen Hussain for offences punishable under Sections 376, 354C, 504, 507, 406, 377, 506 I.P.C. against Tajeem Khan, Junaid Khan, Smt. Farhat, Jubair Khan, Azam Khan, Shamia, Kahkashan and Smt. Rafat.Prosecutrix was major and was working as staff nurse.Applicant too was an employee at above hospital as ward boy.No accusation against applicant is made for those period and the previous instance of 2016 was not complained by prosecutrix.Hence bail has been prayed for.Learned counsel for informant and learned A.G.A. vehemently opposed the prayer for bail with this contention that it is a heinous offence of rape wherein present applicant along with Junaid continued physical exploitation of prosecutrix under threat of dire consequences and making a video viral, which was got prepared by them.The prosecutrix suffered this mental and physical exploitation under above threat.Subsequently, she got this case registered and a request has been made to Superintendent of Police for getting investigation in the light of above obscene video, which was got prepared by accused persons.Hence, bail be rejected.Prior to this report, an attempt was made for getting marriage performed.Hence, the accusation against present applicant was not reported by prosecutrix. | ['Section 376 in The Indian Penal Code', 'Section 506 in The Indian Penal Code', 'Section 406 in The Indian Penal Code', 'Section 504 in The Indian Penal Code'] |
The case of the prosecution was this:- The deceasedPrakash Chandra was the father of the deceased Umesh Chandraand the injured witness Dinesh Chandra (P.W. 11) as well asof Gyan Chand (P.W. 1).Prakash Chandra and his sons wereliving in Seohara town, Bijnor district.The appellant RamKaran and his five sons including the deceased Chhotey Lalwere living in another house in the same town as theneighbours of Prakash Chandra and his sons.The appellant Ram Karan and fiveothers filed Civil Suit No. 34 of 1967 in the court of theMunsif, Nagina against Prakash Chandra and his brother GopiChandra and one Krishna Devi, alleging that whileconstructing the new house Prakash Chandra had encroachedupon a portion of their land.In that suit, Ram Karan gotCommissioners appointed by the court on five or sixoccasions for taking measurements of the properties with theobject of proving his case of encroachment by PrakashChandra.But those Commissioners' reports were set aside onthe objection raised by Prakash Chandra and the otherdefendents.The last Advocate Commissioner Mr. Mathur (C.W.1) visited the spot on 6.9.1970, accompanied by Mr. ZafarHussain (C.W. 2) who appeared for Prakash Chandra andanother and Mr. Mahesh Chand (C.W. 3) who appeared for RamKaran.After the completion of the survey work at about12.30 p.m. all the three lawyers were standing and talkingin front of Ram Karan's baithak at about 1.00 p.m. ThenPrakash Chandra and Umesh Chandra came there to talk withthe Commissioner.Ram Karan, who was present there alongwith his five sons, did not like that interference ofPrakash Chandra and Umesh Chandra with the Commissioner.Hestated that he has spent thousands of rupees for taking outthe commissions and that the reports of the Commissionerswere set aside on the objection of Prakash Chandra.Sosaying, he instigated his sons to kill Prakash Chandra andhis sons.Thereupon, Chhotey Lal and Ved Prakash attackedPrakash Chandra with knives while Sunil Kumar, Anil Kumarand Satish attacked Umesh Chandra with knives.On seeingDinesh Chandra (P.W. 11) who rushed meanwhile from theeastern side to help his father and brother, Ram Karaninstigated his sons to attack him and caught hold of him by402his waist, and all his five sons attacked him and inflictedinjuries.Then P.W. 11 took out a knife from his pent pocketand wielded it against Ram Karan and Chhotey Lal in self-defence and they sustained injuries.P.W. 11 receivedinjuries and fell down.Gyan Chandra (P.W. 1), who wasseeing the occurrence, ran to his house along with someothers and bolted the door when Sunil Kumar, Anil Kumar andSatish chased him for attacking him.Abdul Wahid, P.W. 10,and others who were witnessing the occurrence raised analarm, and Ram Karan and his sons ran away.Gyan Chand, (P.W. 1) came out of his house sometimelater and found his father Prakash Chandra and brother UmeshChandra dead and Dinesh Chandra (P.W. 11) lying withinjuries.He prepared the report, Ex. Ka. 3 and proceeded ina jeep with his brother Dinesh Chandra (P.W. 11), to SeoharaPolice Station situate about half a mile away and handedover that report at 1.30 p.m. Dinesh Chandra (P.W. 11) wastaken to Dhampur hospital after he was given first aid by aDoctor on the way.He was examined at the Dhampur hospitalby Dr. Bagchi, P.W. 3 who found on his person an abrasionand nine incised wounds of which injury No. 7 on the rightside of the chest through which blood and air were comingout was serious and the rest were simple.The dead bodies of Prakash Chandra and Umesh Chandrawhich were found lying in front of their house where bloodalso was found, were later sent for autopsy.Ram Karan andChhotey Lal went to the Government hospital, Bijnor wherethey were examined by Dr. Sarin (P.W. 2) at 4 p.m. and 4.15p.m.From the Judgment & Order dated the 15th April, 1975 ofthe Allahabad High Court in Crl.R.L. Kohli and S.K. Sabharwal for the Appellants.D.P. Uniyal and R.K. Bhatt for the Respondent.The following Judgments were delivered:FAZAL ALI, J. This appeal by special leave is directedagainst a judgment dated 15.4.1975 of the Allahabad HighCourt by which the Judges of the High Court while acquittingthe accused, Anil Kumar and Satish Kumar, altered theconviction of Ram Karan, Sunil Kumar and Ved Prakash fromone under ss. 302 and 307 read with s. 149 I.P.C. to oneunder ss. 302 and 307 read with s. 34, I.P.C. and confirmedthe sentences of imprisonment for life imposed on theseappellants.The entire occurrence seems to have been the result ofa chronic land dispute between the parties in which severalcommissions were issued and which ultimately proved futile.The prosecution has no doubt proved that the two personswere killed at the hands of the accused and that theoccurrence had taken place while the Commissioners werepresent at the spot though they were not able to see theactual assault and were, therefore, not in a position todepose the detailed manner in which the assault had takenplace.The only serious question on which we would like tosound a discordant note from our Brother Varadarajan, J. isas to the actual nature of the offence which had beencommitted by the appellants, Sunil Kumar and Ved Prakash.Itwould appear from the evidence398of CW 1 as also other eye-witnesses that the accused werealso assaulted with knife and one of them, Chhotey Lal, diedas a result of the injuries caused to him.The medicalevidence as also the evidence of CW 1 clearly shows thatthere was exchange of hot words, followed by the assault onthe appellants which, according to the prosecution, was aresult of the exercise of self-defence by the prosecutionparty, particularly Dinesh Chandra.In fact, the learned Sessions Judge and the High Courtheld that the accused were the aggressors and, therefore,they had no right of private defence.In order to ascertainwhether the accused had the right of private defence, thegenesis of the incident has to be traced.Now, in this casethe prosecution witnesses being partisan, the only importantinjured witness Dinesh Chandra, PW 11 being the son of thedeceased, it would be necessary to ascertain with accuracythe genesis of the quarrel as revealed from the evidence ofCourt witnesses not shown to be partisan.CW 1, Prem NarainMathur is the practising advocate and was appointed as aCommissioner.He was accompanied by Mahesh Chandra, Vakil,CW 3, advocate appearing on behalf of the plaintiffs(accused Ram Karan) in the suit in which Commission wasissued and Shri Jafar Imam, CW 2, learned advocate appearingfor the defendants in the same suit.C.W. 1 and C.W. 3 wereat the house of accused 1 Ram Karan.C.W. 1 says thatseveral persons assembled at that time at the house of RamKaran.He is a bit vague but he says that at that time aftertea was served and he was about to leave that place he saw aperson lying on the pavement of the road.This injuredperson was lying in front of the house of accused 1 RamKaran.This statement has not been questioned in cross-examination nor adversely commented upon.It gives a clue tothe genesis of the occurrence.After measurements were takenas directed by the Court, C.W. 1 and C.W. 3 came to thehouse of accused 1 Ram Karan.Some persons collected there.According to C.W. 1 injured persons were seen lying in frontof the house of accused 1 and that was none else than thedeceased.If amongst those who collected at the house werethe two deceased and P.W. 11 Dinesh Chandra, another injuredwitness on the side of the prosecution, it is crystal clearthat the prosecution witnesses and the two deceased PrakashChandra and Umesh Chandra had come to the house of accused 1Ram Karan.How, if one of them was armed with a knife, theymust have come with a view to either picking up quarrel orto guard themselves.On the side of the prosecution Prakash Chandraand Umesh Chandra received fatal injuries and Dinesh Chandrawas also injured.However, on the side of the accusedChhotelal, son of accused 1 Ram Karan, suffered six injuriesone of which proved fatal and he died.Accused Ram Karanhimself was also injured.Both the parties were completely exasperated with thelitigation.Therefore, both sides were in anexasperated mood.Suddenly at the spur of the moment thereensued a quarrel.Prakash Chandra and Umesh Chandra on theside of the prosecution died and Chhotelal on the side ofthe accused died and each of them met a homicidal death.PrakashChandra and his two sons and others came to the house ofaccused 1 to protest for the work of the Commissioner.Dinesh Chandra amongst them was armed with a knife.May be,he may be usually carrying the same for his safety.Theincident occurred in front of the house of accused 1 upon asudden quarrel by this confrontation with eyebrows havingbeen raised because of a persistent litigation, theoccurrence took place.Taking an overall view of the situation, we find noevidence of any intention to kill the two deceased on thepart of the accused because the occurrence itself had takenplace suddenly when, to begin with, the entire episodestarted for the particular purpose of partitioning the landby the Commissioners who had visited the village.In thesecircumstances we are satisfied that Exception 4 of s. 300,I.P.C. is attracted and the offence of murder would bereduced to culpable homicide in respect of accused SunilKumar and Ved Prakash and, therefore, they would be guiltyof committing400an offence under s. 304(1)/34 I.P.C. and they should beconvicted accordingly.To this extent, therefore, we areunable to agree with Brother Varadarajan, J. that theconviction of the appellants Sunil Kumar and Ved Prakashunder s. 302 read with s. 34 of the I.P.C. should beconfirmed.We, therefore, allow this appeal to the extent that theconviction of Sunil Kumar and Ved Prakash are altered fromone under s. 302 read with s. 34 of the I.P.C. to that unders.304(1)/34 I.P.C. and they are sentenced to rigorousimprisonment for seven years.Conviction and sentences unders.307/34, I.P.C. are maintained and sentences awarded havealready been directed to run concurrently.We allow theappeal of Ram Karan as indicated by Brother Varadarajan, J.VARADARAJAN, J. This Criminal Appeal by special leaveis directed against the judgment of a Division Bench of theAllahabad High Court in Criminal Appeal No. 1144 of 1971,whereby the learned Judges, while acquitting two appellantsAnil Kumar and Satish Kumar of the charges, altered theconviction of Ram Karan, Sunil Kumar and Ved Prakash,appellants in this Criminal Appeal, under s. 302 and 307,both read with s. 149 I.P.C., into one under ss. 302 and 307both read with s. 34 I.P.C. and confirmed the sentences ofimprisonment for life for each of the two counts of murderof Prakash Chandra and Umesh Chandra and rigorousimprisonment for four years for attempt to murder DineshChandra (P.W. 11) to run concurrently and set aside theconviction of the appellant Ram Karan under s. 147 and theother two appellants under s. 148 I.P.C.The first appellant Ram Karan is the father of otherappellants Sunil Kumar and Ved Prakash and also of AnilKumar and Satish Kumar, who have been acquitted by the HighCourt as well as of deceased Chhotey Lal.P.W. 2 found one puncturedwound and four incised wounds on Chhotey Lal and threeincised wounds on Ram Karan.The injuries on both of themwere fresh and those on Ram Karan were simple while injuryNo. 1 on Chhotey Lal, namely, a punctured wound which waslung-deep and anterior to the left nipple, was grievous andthe rest were simple.The injuries on both could, in theopinion of P.W. 2, have been caused by knife.P.W. 2 issuedthe wound certificates Ex. Ka.Dr. Zuber conducted autopsy on the bodies of PrakashChandra and Umesh Chandra on 7.9.1970 and found nineantemortem, injuries, of which six were incised wounds, onthe body of Prakash Chandra and six antemortem incisedwounds on the body403of Umesh Chandra and he opined that the death of both ofthem was due to shock and haemorrhage resulting from theincised injuries.Ex. Ka. 1 and Ka. 2 are the postmortemcertificates relating to Prakash Chandra and Umesh Chandraissued by Dr. Zuber who was examined as P.W. 1 in theCommitting Magistrate's Court (Ex. Ka. 37).Dr. Dua (C.W. 4)conducted autopsy on the body of Chhotey Lal on 11.9.1970and found an abrasion and five incised wounds which weresufficient in the ordinary course of nature to cause death.The prosecution's case rests mainly on the evidence ofGyan Chand (P.W. 1), Abdul Wahid (P.W. 10) and DineshChandra (P.W. 11).As stated earlier P.Ws 1 and 11 are thesons of deceased Prakash Chandra and brothers of the otherdeceased Umesh Chandra.P.W. 11 had received injuries duringthe occurrence and P.W. 1 is the witness who had lodged theFirst Information Report (Ex. K. 3) in the Seohara PoliceStation at the earliest opportunity at 1.30 p.m. soon afterthe occurrence which had taken place at about 1.00 p.m.These three witnesses were put forward as eyewitnesses andthey have deposed in support of the case of the prosecution.The accused put forward their version of the case.According to the accused, after the Commissioner (C.W. 1)finished his work and went to the house of the appellant RamKaran, Prakash Chandra and his sons Umesh Chandra and DineshChandra (P.W. 11) came to the baithak of Ram Karan andattacked Ram Karan and deceased Chhotey Lal with knives andthereupon they grappled with those three persons and wrestedthe knives from them and attacked them in self-defence.Theaccused examined D.W. 1 on their behalf.The evidence of C.W. 1 is that after he completedtaking measurements he went along with Ram Karan's counselMr.Mahesh Chandra (C.W. 3) to the baithak of Ram Karan'shouse, that both of them came out of the house 8 or 10minutes later, that when he advanced from the door of thebaithak he saw a person lying injured on the pavement of theroad and another injured person standing there, that a thirdperson came and struck the injured person who was standing,and that he and C.W. 3 left the place thereafter.C.W. 3 has addedthat soon after he went and sat in the baithak of RamKaran's house, Zafar Hussain (C.W. 2) came and saidsomething to C.W. 1 from beyond the door of the baithak.Theevidence of Zafar Hussain (C.W. 2) is that aftermeasurements had been taken C. Ws. 1 and 3 went to thebaithak of Ram Karan's house while he sat in the verandah ofthe old haveli of Prakash Chandra, that he and PrakashChandra's son, who is now no more, thereafter went near theCommissioner (C.W 1) and he told C.W. 1 that he may hearwhat Prakash Chandra wanted to say, that after saying so hegot back for meeting another person while Prakash Chandraand his son remained there, that after reaching the verandahof Prakash Chandra he went away with Mehboob Ali who waswaiting for him to Mehboob Ali's house and that no quarreltook place when he was present there though when he wasreturning to the verandah of Prakash Chandra's house heheard some hot words being exchanged near the baithak of RamKaran's house.The learned Sessions Judge has observed in his judgmentthat the evidence of C.Ws. 1 to 3 is contradictory,unnatural and not truthful.He found that P.W. 1's report(Ka. 3) was lodged in the Police Station at 1.30 p.m. soonafter the occurrence had taken place at about 1.00 p.m. andthat there has been no attempt at concoction in this case.He rejected the contention that Abdul Wahid, (P.W. 10) hadany reason to depose falsely against the appellant VedPrakash and found his evidence to be reliable.He observedthat though Prakash Chandra had been working as an Engineerin a sugar mill at Seohara and P.W. 10 was employed in theengineering department, P.W. 10 was actually working underone Bachcha Lal and is an independent witness.P.W. 1 hasstated in his evidence that Prakash Chandra, Umesh Chandraand Ram Karan did not have any weapon at the time of theoccurrence.The evidence of the injured witness P.W. 11 isthat when he returned home from Moradabad at about 12.30p.m.on the day of occurrence405he saw his father Prakash Chandra and brother Umesh Chandralying in a pool of blood and that on seeing him Ram Karanshouted that he also should be killed and caught hold of himby his waist and that he was attacked with knives by theaccused persons including Ram Karan and he wielded in self-defence the knife which he had purchased on that day for hiswork.The learned Sessions Judge accepted the evidence ofP.Ws.1, 10 and 11 and commented upon Ram Karan and ChhoteyLal going to the hospital at Bijnor without arranging for areport being given at the Police Station at Seohara in timeand held that the accused were the aggressors and thatDinesh Chandra (P.W. 11) caused injuries to Ram Karan andthe deceased Chhotey Lal in the exercise of the right ofprivate defence.Accordingly he found the accused guilty andconvicted them and sentenced them as mentioned above.The High Court also rejected the defence theory thatChhotey Lal was attacked by three persons armed with knife,chura and khukhri having regard to the fact that he had onlyone lung deep punctured wound and the other four wounds wereonly skin deep and of very minor dimensions.The learned Judges of the High Court found that thename of Anil Kumar is not mentioned in the First InformationReport (Ex. Ka. 3) but instead the name of one Virendra ismentioned and that it appears from the evidence of P.W. 1that Virendra is the name of Prakash Chandra's brother.Theyfound that in the statement of P.W. 11 recorded as dyingdeclaration, Sushil Kumar is mentioned instead of SatishKumar.In these circumstances the learned Judges found thatthere is reasonable doubt regarding the participation of theaccused Anil Kumar and Satish Kumar and they gave thebenefit of that doubt to those two appellants before themand acquitted them.In other respects, the learned Judgesaccepted the evidence of P.Ws. 1, 10 and 11 regarding theoccurrence and rejected the defence version and held theappellants guilty under s. 302 read with s. 34 in respect ofthe murder of Prakash Chandra and Umesh Chandra and under s.307 read with s. 34 in respect of Dinesh Chandra, (P.W. 11)and convicted them accordingly and sentenced them to undergoimprisonment for life under s. 302 read with s. 34 I.P.C.and rigorous imprisonment for four years under s. 307 readwith s. 34 I.P.C.We perused the records and the judgments of the learnedSessions Judge and of the learned Judges of the High Courtand heard the arguments of Mr. R.L. Kohli, Senior Advocatewho appeared for the appellants and of Mr. D.P. Uniyal,Senior Advocate who appeared for the respondent-State ofU.P. We were taken through the evidence of P.Ws. 1, 10 andThe learned Sessions Judge has observed in his judgmentthat the evidence of the three lawyers C.Ws. 1 to 3 iscontradictory, unnatural and not truthful and that if theyhad given honest evidence it would have been easier for thecourt to conclude which side was the aggressor.Thisobservation of the learned Sessions Judge appears to be toosweeping and not correct at least with reference to C.W. 2who has professed ignorance about the actual occurrence inthe case and has stated that he left after asking C.W. 1from outside the baithak of Ram Karan's house to hear whatPrakash Chandra who had gone with him and his deceased sonwanted to tell him because another person Mehboob Ali withwhom he later went to his house was waiting for him in theverandah of Prakash Chandra's house.P.W. 1 has stated that when exchangeof hot words started the Commissioner and Vakils of theparties moved from there to the road and that just when RamKaran's Vakil had gone a short distance from Ram Karan'shouse, Ram Karan and others stated that "they have got ourthousands of rupees spent over litigation.We have becometired of getting commissions issued.Kill them today so thatthe trouble may be ended for ever.At that time all the fivesons of Ram Karan, Chhotey Lal, Ved Prakash, Satish Kumar,Sunil Kumar and Anil Kumar were present, and when Ram Karansaid so all five sons whipped out knives and startedassulting.....".Even P.W.10 has stated in his evidence that "when he reached neardharmshala at about 12.45 p.m. he heard the shouts of RamKaran from his house situate at a distance of 30 paces, thatwhen he reached the end of the road he was in a position tosee the house of Ram Karan, that on hearing the shouts heproceeded towards the place from where they came and stoodnear407the wall and found three Vakils present and also PrakashChandra and Umesh Chandra, that as soon as he reached theplace, the Vakils left the place, that Ram Karan then statedthat he got the Commissioner appointed 5 or 6 times andspent several thousands of rupees and he should be killedand that when Ram Karan said so his sons Chhotey Lal and VedPrakash began to attack Prakash Chandra with knives, thatSunil Kumar and Ram Karan's other sons began to assaultUmesh Chandra with knives, that during the marpit PrakashChandra and Umesh Chandra fell down after receivinginjuries, that thereafter Dinesh Chandra, son of PrakashChandra came from the eastern direction, and on seeing himRam Karan shouted that he should also be done to death, andhe caught hold of Dinesh Chandra by his waist, and that allthe four boys and deceased Chhotey Lal began to assaultDinesh Chandra with knives, and Dinesh Chandra wielded hisknife in self-defence and caused injuries to Ram Karan andChhotey Lal and thereafter fell down and becameunconscious....".This portion of the evidence of P.W. 10also shows that C.Ws. 1 to 3 left the place soon afterexchange of hot words began between the two sides.Therefore, I am of the opinion that there is no reason toreject the evidence of C.W. 2 that no quarrel took placewhen he was present near about the scene of occurrence.Thiscriticism of the learned counsel for the appellants appearsto be well-founded, for I find that a suggestion has beenmade to P.W. 10 in cross-examination and he has admittedthat there is also408another person named Wahid son of Abdul Rehman in hismohalla and that that person was an accused in a riotingcase.And in the cross-examination of P.W. 1 it has beenclearly suggested that he was not present at the spot andthat he prepared the report Ex. Ka. 3 afterwards with someconsultation.P.W. 1 has no doubt denied that suggestion andstated that he was present at the spot and that he himselfwrote the report Ex. Ka.3 before he came out of the houseby opening the door.The learned Judges have stated in theirjudgment that after Ram Karan stated that he has spentthousands of rupees on commissions and every time the reportof the Commissioner was set aside on the objection ofPrakash Chandra and he instigated his sons to kill PrakashChandra and Umesh Chandra, all the five sons of Ram Karanstarted giving knife blows to Prakash Chandra and UmeshChandra and both of them fell down.This portion of thejudgment of the learned Judges is to the effect that all thefive sons of Ram Karan including the deceased Chhotey Lalattacked the deceased Prakash Chandra and Umesh Chandrawhereas it is the case of the prosecution as brought out inthe evidence of P.W. 1 that after Ram Karan instigated hissons to open the attack only Chhotey Lal and Ved Prakashattacked Prakash Chandra with knives and only Sunil Kumar.Anil Kumar and Satish Kumar attacked Umesh Chandra withknives. | ['Section 34 in The Indian Penal Code', 'Section 302 in The Indian Penal Code', 'Section 307 in The Indian Penal Code', 'Section 304 in The Indian Penal Code', 'Section 300 in The Indian Penal Code', 'Section 148 in The Indian Penal Code', 'Section 147 in The Indian Penal Code', 'Section 149 in The Indian Penal Code'] |
Shri Adarsh Muni Trivedi, Sr.Advocate with Shri Ashish Tiwari, Advocate for the objector.Heard on the question of admission.The prosecution case, in short, is that on 30.4.2013 at about 10:15 PM the applicants surrounded the victim Mukul Pandey.The applicant Pradeep Sahu assaulted him by a sword on his head, whereas the applicant Sonu assaulted by baseball bat causing injury on his left eye.The remaining applicants assaulted him by the base of a revolver on his head and some other persons assaulted the victim by kicks and fists.Initially the case was registered for the offence under Sections 147, 148, 149, 506-B, 324 and 341 of IPC whereas the charge sheet was filed for the offence under Sections 147, 148, 149, 294, 506-B, 324, 341, 307 and 201 of IPC.After considering the submissions made by the learned counsel for the parties, it is admitted by both the parties that no fatal or grave injury was caused to the victim Mukul Pandey.The learned counsel for the objector has raised an objection mainly that for constitution of offence under Section 307 of IPC, intention of the accused should be seen.On the basis of the submissions made by the learned counsel for the parties and looking to the facts and circumstances of the case, at present it is to be seen as to whether prima facie the applicants had an intention to kill the victim Mukul Pandey or not.For framing of the charges, no defence evidence is to be considered and it is the golden yardstick that if the evidence collected by the prosecution is considered and the accused can be convicted for the any offence and if no rebuttal evidence is produced, then charge of that offence shall be framed.In the present case, it would be apparent that there is no allegation against the applicants that they took any contract from anyone to kill the victim Mukul Pandey, and therefore due to their criminal past, no effect would be caused in assessment as to whether a charge under Section 307 of IPC can be framed or not.The victim was assaulted by base of the firearm.If the applicants were interested to kill the victim, then certainly they could use firearm and gun shot injury could have caused to the victim.As submitted by the learned counsel for the State, the witnesses Ramakant and Ravindra have stated that the applicants fired from the gun, but such statements were given one month after the incident.If fire was done by firearm, then the victim could mention this fact in the FIR, and therefore the story told by the witnesses Ramakant and Ravindra that fire was done by the applicants cannot be accepted in the light of the FIR lodged by the victim.Under such circumstances, if the entire conduct of the applicants is seen, then Sonu did not assault for second time, whereas his first assault was not in forceful manner and no fracture was caused in the hand of the victim.The assault of the applicant Pradeep was not forceful, therefore no fatal or grave injury was found to the victim.When one injury was caused in the head of the victim, applicant Pradeep Sahu did not assault for second time.Similarly, the remaining applicants assaulted the victim causing simply injury.They had a firearm but no fire was done, and therefore by examining the entire evidence collected by the prosecution, it cannot be said that the applicants were intended to kill the victim.Hence, prima facie no charge under Section 307 of IPC could be framed against any of the applicants either directly or with the help of Section 149 of IPC.On the basis of the aforesaid discussion, the present revision filed by the applicants can be accepted.The impugned order dated 19.12.2013 passed by the Third Additional Sessions Judge, Jabalpur in ST No.490/13 is hereby set aside.The applicants are discharged from the charges of offence punishable under Sections 307 or 307/149 of IPC. | ['Section 307 in The Indian Penal Code', 'Section 149 in The Indian Penal Code', 'Section 324 in The Indian Penal Code', 'Section 148 in The Indian Penal Code', 'Section 341 in The Indian Penal Code', 'Section 147 in The Indian Penal Code', 'Section 201 in The Indian Penal Code', 'Section 300 in The Indian Penal Code', 'Section 294 in The Indian Penal Code'] |
None for the complainant.Heard on IA No. 7876/2019, an application for amendment in the subject matter.For the reasons mentioned in the application, the same is allowed.Let necessary amendment be incorporated during the course of the day.The applicant has filed this first application u/S 438, Cr.P.C. for grant of bail.The applicant apprehends arrest in connection with Crime No. 266/2019 registered under Secs.420, 406, of the IPC initially and subsequently Section 467 of I.P.C. was added at Police Station University, District Gwalior.Before this Court, the proof of conversation between the parties has been filed to show bonafides.On these grounds he prayed for bail.Per contra, learned Public Prosecutor for the State opposed the application and prayed for its rejection by contending that Section 467 of I.P.C. has been enhanced.While inviting attention to the statement of Sailendra, it is submitted that it is evident from the statement that offence under Section 467 of I.P.C is attracted to the facts and circumstances of the case.He has prayed for rejection of application.Heard learned counsel for the parties and perused the case diary.Considering the aforesaid facts and circumstances of the case and looking to the fact that FIR has been registered against the present applicant the information was received at 11.45 P.M. and FIR has been registered on same day within a period of 10 minutes on 30/07/2019, in such hurried and hasty manner without inquiry into the allegations, this court is inclined to extend benefit of bail to the applicant.The applicant shall mark his attendance before the concerned Police Station in the first week of every month till conclusion of investigation and thereafter as may be directed by the trial court.A copy of this order be sent to the Court concerned for compliance.as per rules. | ['Section 467 in The Indian Penal Code'] |
JUDGMENT A.S. Venkatachalamoorthy, J.One Sundaram, a per meant resident at Periyathatchur Agaram Village, Dindivanam Taluk was returning from Kollidam Thaikkal with his hand cart to his house in Kalaignar Colony at about 20.00 hours on 16.01.1990, when a tractor bearing Registration No. TCO-6043 attached with a Trailor bearing Registration No. TCO-6044, belonging to the 2nd respondent in MCOP No. 206/90 (on the file of the Motor Accident Claims Tribunal, Nagapattinam), driven by one Jagannathan (first respondent in the MCOP) in a rash and negligent manner, came and dashed against him and the cart.In the said incident, the deceased Sundaram sustained serious injuries and subsequently died in Poosai Hospital at Kollidam.Respondents-1 to 4 herein, as petitioners, filed MCOP No. 206 of 1990 against the appellant and Respondents-5 to 7 herein, under Section 166 of the Motor Vehicles Act, 1988, claiming compensation at Rs.1,25,000/-.The first respondent is the wife of the deceased Sundaram while Respondents-2 and 3 are the minor children and the 4th respondent is the sister of the said Sundaram.The appellant herein viz., the owner of the said vehicle resisted the petition contending that the Tractor was driven by the driver slowly and cautiously and it was the deceased, who suddenly crossed the road without noticing the tractor, which ultimately resulted in the accident.Yet another contention has been raised to the effect that he purchased the tractor and trailor under Hire Purchase Scheme from the State Bank of India, Sirkali Branch, the 6th respondent in this appeal and who has agreed to insure the vehicle and renew the same from time to time till the entire loan is cleared and collect the premium from the appellant.In fact, the said Bank did so for the first three years, but however, omitted to renew the Insurance Policy probably due to oversight or negligence.Instead of renewing the policy on or before the expiry date, the Bank paid the premium only on 18.01.1990 that was on the 3rd day of the accident.The Sixth respondent herein viz., State Bank of India, filed a counter statement, denying the claim that they paid the insurance premium for the vehicle to the Insurance Company and therefore, they are liable to pay compensation to the claimants.According to the Bank, the loan was advanced on an agreement for hypothecation of the vehicle and therefore, the petitioner has got a first charge over the vehicle for realisation of the loan advanced to the owner of the vehicle.4.The 7th respondent herein viz., the Insurance Company claimed that since the accident was on 16.01.1990 and the Insurance Policy expired well before that, and the same was renewed only subsequently, that was on 18.1.1990, the Insurance Company is not in any way liable to pay any amount.The Motor Accident Claims Tribunal, after due enquiry, came to the conclusion that the accident took place only due to the rash and negligent driving by its driver and fixed the compensation payable to the claimants at Rs.83,500/- with interest at 12% per annum thereon.Thirdly, it held that the said amount has to be paid only by the owner of the vehicle viz, the appellant herein and completely absolved the Insurance Company of the liability.The owner of the vehicle viz., the appellant herein, being aggrieved by the said award, has filed the above appeal.Respondents-1 to 4 viz., the claimants in the MCOP., have filed Cross Objection No. 57/94, claiming compensation as claimed in the Original Petition.We heard the elaborate submissions made by the counsel for the respective parties.The materials available on record have also been perused.8.Three questions arise for consideration viz., :-(a) Whether the driver of the vehicle was negligent and because of which, the accident had happened?(b) What is the amount of compensation payable to Respondents-1 to 4 viz., the claimants in the O.P.?(c) Who is liable to pay the compensation?As far as the first question is concerned, this Court can safely come to the conclusion that the accident had taken place only because of the rash and negligent driving of the driver of the tractor, for the following reasons:-(i) PW-2 is an eye witness to the occurrence and who is also a person, carrying on a similar profession that of the deceased.He has categorically deposed that he was pulling his cart which was loaded with cement slabs and going behind the deceased, when the accident took place.We perused his testimony and we find no reason to disbelieve the same.(ii) Secondly, the version given by the driver of the tractor is totally contrary to the contents that are found in the complaint given by him before the police.(iii) Thirdly, the motor vehicle Inspector, after proper test, issued Ex.P-3 certificate, which is to the effect that there was no mechanical defect in the said vehicle.(iv) Finally, the driver was prosecuted before the Criminal Court for an offence under Section 304(A) IPC., found guilty and paid fine.The next question is as to what is the amount of compensation that is payable to R-1 to R-4, the claimants in the MCOP.In the petition, it is claimed that the deceased was earning Rs.1200/- per month.The wife of the deceased, as P.W.1, has deposed before Court that the deceased used to earn a sum of Rs.40 to 50/- per day and out of which, he used to pay Rs.10 to 15/- towards the hire charges for the cart.The Tribunal, proceeded on the basis that he would have earned for 25 days in a month, fixed the monthly income at Rs.625/-, and out of which, it deducted the amount which he would have spent for himself and applying the multiplier of 15, fixed the compensation at Rs.58,500/-.PW-1 would claim that her husband used to earn Rs.40/- to 50/- per day and out of which, he used to give Rs.10/- towards hire charges for the cart.PW.3, the owner of the cart has also deposed that he used to collect Rs.10/- from the deceased towards hire charges.So, even taking that the deceased was earning Rs.40/- per day and out of which, deducting Rs.10/- as hire charges, one would arrive at a figure of Rs.30/-.Therefore, on that basis, it can be safely taken that he would have earned a sum of Rs.900/- per month.This Court, applying the unit method, decides to deduct Rs.250/- and take Rs.650/- as the amount he would have contributed to the family per month.Applying the multiplier of 13, we arrive at a figure of Rs.1,01,400/-.With this, we add Rs.15,000/- in all under various heads for special damages including transportation, damages to clothes, cremation expenses, loss of love and affection and arrive at the figure of Rs.1,16,400/- (Rupees one lakh sixteen thousand four hundred only) with interest thereon at 9% per annum from the date of petition.The learned counsel appearing for the State Bank of India at this juncture would contend that since the appellant is questioning only the correctness of the order, in that the Tribunal has not fastened the liability on the bank, the cross objection is not maintainable.But if one goes through the grounds of appeal, particularly ground Nos.5, 7, 10, the appellant has specifically questioned the quantum.The next question is, as to who is liable to pay the compensation.Learned counsel for the appellant contended that only because of the negligence on the part of the State Bank in not renewing the policy before it expired, he has been now made liable to pay and that further, in the facts and circumstances of the case, the Tribunal ought to have directed the State bank to pay the compensation.Learned counsel appearing for the State Bank would contend that though it reserved a right to pay the Insurance Policy if it so desires, no duty was cast on it as per the agreement and that being so, the Bank cannot be fastened with the liability.There can be no doubt with regard to the ownership of the vehicle.On 15.8.1990 when the appellant was driving the car along with others, met with an accident on the National Highway.Let us proceed to consider the second point.We have also pointed out that the State Bank has filed rather a false counter statement in that it has even denied having paid premium for two years i.e., for 1988 and 1989, prior to the accident.In this case, though the claimants have a remedy, as on date the question of their neglecting to avail themselves of the same, does not arise.In the result, the Civil Miscellaneous Appeal is allowed. | ['Section 304 in The Indian Penal Code'] |
13.09.2019 This revision petition under Section 397 read with Section 401 of Cr.P.C has been preferred challenging the impugned order dated 23/04/2019 passed by 13th Additional Sessions Judge, Bhopal (MP) in Sessions Trial No.109/2019, whereby against the applicant No.1 the charges under section 307, 323 in alternatively Section 323/34, 294 & 506(2) of IPC and against the Applicant No.2, charges under section 307/34, 323 in alternatively 323/34, 294, 506(2) of IPC have been framed.The facts giving rise to this petition in brief are that on 30.05.2018 at about 12:56 o'clock, complainant, Nasir, son of Abdul Majeed, aged about 42 years, resident of 1629/58, Dashmesh Nagar, in front of Gurudwara, Ashoka Garden Bhopal lodged a report alleging that on 30.05.2018 in between 11:30 to 11:40 am, the complainant who is having the auto parts shop at Apsara Complex, where the mechanic of neighbour asked the complainant to keep aside the vehicle, on this the complainant replied that he has parked his vehicle on his side.2 Cr.On this, the applicant No.1 Shadiq started abusing by filthy language, to which, complainant has objected then the applicant No.1 assaulted by danda on the left side of the head and left hand, complainant sustained head injury, blood came out, thereafter, the mechanic of the complainant Shaariq intervened.Applicant No.2 also abused the complainant by filthy language and asked to assault Shaariq and on which, the applicant no.2 assaulted Shaariq by means of danda on the right hand thumb and due to which Shaariq sustained injury and blood came out.On this FIR was lodged and offence under Section 294, 323, 506, 34 of IPC was registered by the police and after investigation, charge sheet was filed and the case was committed to the Court of Session, where the charges under sections 307 or 307/34 of IPC have been framed against the applicants.3 Cr.Learned Government Advocate opposed the aforesaid contentions and submitted that there is sufficient material against the applicants to prosecute them for commission of offence punishable under sections 307 or 307/34 of IPC therefore, prays for dismissal of the revision petition.I have heard rival contention of learned counsel for both the parties and perused the entire material available on record including the case diary.At the stage of charge, credibility and reliability of the evidence is not required to be considered.R.No.3412/2019 the complainant.Consequently, complainant Nasir and mechanic Saariq sustained injuries. | ['Section 34 in The Indian Penal Code', 'Section 307 in The Indian Penal Code', 'Section 323 in The Indian Penal Code', 'Section 294 in The Indian Penal Code', 'Section 506 in The Indian Penal Code'] |
The petitioner has come before this court for quashment of FIR No.29 registered at Police Station Kalapipal, District Shajapur under Section 420 of IPC on the allegation that using forged documents the petitioner obtained a Government job.The contention of the petitioner is that on the basis of a complaint departmental enquiry was initiated against him and after concluding the departmental enquiry order dated 24.09.2016 passed against him.Charges were found proved and he was terminated from the court, but no directions were given in this order to file any complaint or to register any case under the IPC, while the FIR is said to be registered on the instigation of one Abhishek Ranjan, Executive Engineer, who was not authorized in any way to lodge such FIR.Learned counsel for the petitioner submitted that Executive Engineer has no authority to take any criminal action against the petitioner in the absence of any such direction from his superior authorities.It is mentioned in the FIR that on receiving a letter from the Executive Engineer, M.P. Pakshim Kshetra Vidyut Vitran Company Limited, Shujalpur that two persons namely Kasam @ Munnu Khan S/o Hasan Khan and Kasim Khan S/o Hasan Khan have obtained Government job by producing forged documents, therefore, an appropriate action be taken HIGH COURT OF MADHYA PRADESH BENCH AT INDORE M.Cr.C. No.3762/2017 (Kasam Khan S/o Hasan Khan V/s.State of M.P.) against them.The Police has registered the case against the present applicant and investigated the case and on finding sufficient evidence to prosecute him have filed the charge-sheet.It is well settled law that for registration of a cognizable crime, no such direction as stated by the petitioner is required to the Police.On revelation of any cognizable offence from any information received from anyone, Police can register case and investigate the same. | ['Section 420 in The Indian Penal Code'] |
i. The Bail Application stands withdrawn as against applicant No.1-Amol.The Bail Application stands allowed in respect of applicant No.2- Vikas Gorakh Mahanor.He be released in connection with CR No.414/2019 registered at Dhule City Police Station, District Dhule for the offences under Sections 307, 326, 452, 323, 504, 506 read with 34 of IPC dated 4.12.2019, on PR of Rs.30,000/- with two sureties of Rs.15,000/- each.Applicant No.2 shall not tamper::: Uploaded on - 07/07/2020 ::: Downloaded on - 08/07/2020 05:23:03 ::: (6) with the evidence of the prosecution in any manner.::: Uploaded on - 07/07/2020 ::: Downloaded on - 08/07/2020 05:23:03 :::v. Bail before the Trial Court.(SMT.VIBHA KANKANWADI,J.) BDV::: Uploaded on - 07/07/2020 ::: Downloaded on - 08/07/2020 05:23:03 :::::: Uploaded on - 07/07/2020 ::: Downloaded on - 08/07/2020 05:23:03 ::: | ['Section 506 in The Indian Penal Code', 'Section 504 in The Indian Penal Code', 'Section 323 in The Indian Penal Code', 'Section 452 in The Indian Penal Code', 'Section 326 in The Indian Penal Code', 'Section 307 in The Indian Penal Code'] |
Submissions were made on the appeal filed under Section 14(A)(2) of the SC/ST (Prevention of Atrocities)Appellant is facing trial before the Special Court, SC/ST Act in respect of Crime No.194/2015 registered at Police Station Pandrinath, Indore for committing offence under Sections 341, 294, 506 and 195-B of IPC along with Section 3(1)(x) of the SC/ST (Prevention of Atrocities)It has also been submitted that appellant was infact in jail in respect of some other case.This Court vide order dated 24.04.2019 had directed to file certified copy of the order in which he was granted bail.Learned counsel for the appellant has filed certified copy of the order-sheets in which it has been mentioned in order dated 21.12.2016 that appellant is in jail.Let document pertaining to that be filed before next occasion.Matter be listed after a week.(Shailendra Shukla) Judge gp Digitally signed by Geeta Pramod Date: 01/05/2019 | ['Section 294 in The Indian Penal Code', 'Section 506 in The Indian Penal Code', 'Section 341 in The Indian Penal Code'] |
ORDER S. Ashok Kumar, J.This revision petition has been fled by the petitioner against the order of the learned Judicial Magistrate, Periyakulam passed in Crime No. 571 of 1999 of Theni Police Station.The brief facts of the case are as follows : The petitioner is the de facto complainant and he lodged a complaint against the S. I. of Police of Theni Police Station which was registered as Crime No. 571/1999 for the offences under Sections 341, 323 and 324, IPC.After investigation a final report under Section 173, Cr. P. C. was filed on 2-8-1999 before the Court and a final order dated 26-8-1999 was also recorded by the learned Magistrate.Learned Magistrate by order dated 11-3-2003 rejected the said application on the ground that part of the record shall not be given under Section 173(4) Cr.The accused in the complaint given by the petitioner which was referred, is the S. I. of Police. | ['Section 173 in The Indian Penal Code'] |
The prosecution case in short is that complainant's nephew Virendra Singh was doing medical practice in village Sojna.On 6-3-87 at about 2.30 in the night he had some altercation with Shiv Nayak Singh.Pairokar of police station Sojna in front of Aata Chakki of Purshottam Namdeo.The altercation had taken place when the Pairokar was in a drunken condition and he was accompanied with another constable whose name was subsequently disclosed as Pahalwan.The altercation had started when two constables had started abusing Virendra Singh.After the said occurrence his nephew had run away.The F.I.R. was lodged at police station Sojna by constable on 7-3-87 at 3.05 a.m. under Section 307 I.P.C. against his nephew Virendra Singh and the case was entrusted to S.I.R.K. Tewari for investigation.Virendra Singh was arrested by the police and was brought to the police station by S.O. J.B. Katariya and two constables Ghanshyam Sharma and Ram Narain.It is alleged that he had given shelter to the deceased in his house from where police had arrested him.He is also an eye witness of payment of bribe of Rs. 1000/- to the Station Officer by his brother in law Narain Singh.Parvat Singh (P.W.5) is a tractor driver who had brought the deceased, Bhoopat.Singh, two constables and their cycles to the police station.Narain Singh (P.W.6) is said to have given bribe to the Station Officer Uma Vilas Awasthi (P.W.7), S.D.M. Mehroni had prepared the inquest report and other papers for the postmortem report.Dr. C.N.Shukla (P.W.8) who had conducted the post mortem on the dead body of deceased Virendra Singh.G.P.Misra (P.W.9) second Investigating Officer had proved the order passed by Sri A.K. Tyagi, Sector Officer directing him to investigate the case and prepared the site plan.Constable Mohd. Mustafa (P.W. 10) had brought the dead body for post mortem and he had deposited the sealed bundle of cloth of the deceased and he had filed his affidavit.He had also proved entries of the G.D. dated 7-3-87, 8-3-87 and 9-3-87, which are Exts.Inspector R.K.Sharma (P.W. 12) had proved the sanction accorded by Sri A.K. Rastogi, the then Home Secretary.Sri C.D.Premi, the then D.I.G. (police), Allahabad Region and Sri Sukhdeo Singh the then Superintendent of Police, Lalitpur and these sanctions were marked as Exts.7.A11 the three accused had totally denied the prosecution case.Contables Ghanshyam Sharma and Ram Narain stated that they had accompanied the Station House Officer Sri J.B.Katariya in the search and for the arrest of the deceased who was wanted as an accused.It was also stated by them that some altercation took place between the deceased and constable Shiv Nayak Chauhan on 7-3-87 and case was registered at the police station under Section 307 I.P.C. against the deceased.In pursuance thereof they along with the Station Officer had searched and arrested the deceased from the house of Narain Singh in village Khatka Tikam Garh and from there he was brought to the police station and kept in lock up and they had not assaulted him.They had also stated that they had not detained Bhoopat Singh.The accused had examined Dr. Kusumakar Srivastava (D.W.I)." is not mentioned in his statement.Parvat was the tractor driver and when the tractor reaching towards the police station J.B. Katariya had given two lathi blows to Virendra Singh and took him towards market.In the cross-examination he has stated that he had given the statement regarding lathi blow given by Inspector to Virendra Singh but why it is not mentioned in his statement he cannot tell any reason.He has stated that Narain Singh is his uncle.He has admitted that he had not informed the family members of Virendra Singh, Bhoopat Singh that they were taken to the police station.Narain Singh (P.W.4) has stated that about 81/2 years back Virendra Singh (deceased), had come to his house and informed him that he had some altercation with police personnel.Next morning when he was in his field Inspector J.B.Katariya and two constables came and enquired about Virendra Singh.The inspector brought him to his house where Virendra Singh and his uncle Bhoopat Singh met the inspector and he had ordered their arrest and both were arrested by the constables and their hands were tied with the rope.The inspector had threatened him for sheltering a criminal and took all the three to the house of Jai Pal Singh.Jai Pal Singh had asked the inspector to release him and he had demanded Rs.5000/- for releasing him but ultimately the matter was settled for Rs. 1000/-.At the house of Jai Pal Singh his brother-in-law Narain Singh and Mulayam Singh reached there and Narain Singh arranged for money which was given to the inspector and inspector released him.The inspector took the accused to Sojna and gave lathi blows to Virendra Singh on his leg and chest.In the cross-examination he has stated that his statement was recorded by the inspector after about one month.He has admitted that he has not lodged any report for giving Rs. 1000/- to inspector nor he had made any complaint to the higher authorities.Parvat (P.W.5) who is tractor driver, has stated that in village Sojna inspector Katariya and two constables Ghanshyam Sharma and Ram Narain came along with Virendra Singh and Bhoopat Singh.The hands of Virendra Singh and Bhoopat Singh were tied with the rope.The inspector asked him to take them to the police station and told him that he had to carry stones.The inspector had given a slap and took the arrested persons to the police station.He took them to the house of Narain Singh and asked him to take the tractor to the police station.After some time the inspector, constables, Bhoopat Singh and Virendra Singh reached there and inspector had started assaulting Virendra Singh with lathi and after assaulting him he was kept in the ladies lock up.He had heard the cries of Virendra Singh at about 3.00 p.m. in the cross-examination he had admitted that he knows Dr. Virendra Singh for about 2 years and he also knows Bhoopat Singh and Jujhar Singh and he has good relation with them.He has admitted that he was detained at the police station from 1.00 p.m. to 4.00 p.m.Narain Singh (P.W.6) has stated that in the village he had received information that Virendra Singh and Bhoopat Singh were taken to the police station by inspector J.B. Katariya and constables.He reached at the house of Jai Pal Singh and found there inspector Katariya and two constables, his brother-in-law Narain Singh, Virendra Singh, Bhoopat Singh and Jai Pal Singh.He came to know that inspector demanded Rupees four five thousands for releasing Narain Singh and the matter was settled for Rs. 1000/- He has given Rs. 1000/- to the inspector Katariya.After getting the money the inspector had released Narain Singh and he along with two constables had taken Bhoopat Singh and Virendra Singh to the police station and there he gave lathi blows to Virendra Singh.In the cross-examination he has stated that his statement was recorded after about 8 months.He has admitted that Kishori had informed him about the arrest of the accused persons.He has denied that inspector had demanded money.He has further stated that two lathi blows were given to Virendra Singh by the inspector.Sri Uma Vilash Awasthi (P.W.7), S.D.M. has stated that he had received information for conducting the inquest of the deceased.He had prepared the inquest report and send the dead body for post mortem in sealed cover through constables.He had also conducted the enquiry and submitted his report to the District Magistrate.He has further stated that during the enquiry it was found that deceased had died due to the injuries of lathi blows caused by inspector J.B. Katariya.Sri C.N.Shukla (P.W.8) is the doctor who had conducted the post mortem.He had received all the papers through the constables and found the injuries on the dead body of deceased Virendra Singh as mentioned above.He has further stated that the injuries were caused by lathi and he had died on 8-3-87 between 2.00 p.m. to 2.30 p.m. The injuries were sufficient in the ordinary course of nature to cause death.In the cross-examination he had admitted that injuries No. 1 to 14 were not on vital part and he had not found any fracture.Sri J.RMisra (P.W.9) is the Investigating Officer.He was posted in C.B., C.I.D. Kanpur.On 5-4-87 he had recorded the statements of Bhoopat Singh, Jujhar Singh, Raghvendra Singh, Pahar Singh, Roshan Singh, Raja Bhaiya and Natthu Singh and after that he had recorded the statement of village Pradhan Maigua, Jai Pal Singh, Kundi, Nandu, Narendra Singh, Pratipal Singh, Tulsi Ram, Narain Singh, Jagat Narain and Bhagirath.Udai Singh.He had investigated the case uptill 11-12-87 and after that the case was investigated by Ram Kishore Sharma.In the cross-examination he had stated that Jujhar Singh had not given statement "Do teen sipahiyon ne use (Mritak) Khinchkar hawalat main dal diya tha." He has further stated that Bhoopat had not given the statement that "Darogaji va constable ne aakar kaha ki tumhe band kar denge aur Virendra Ko jan se mar denge." He has further stated that he had not stated "Simpahiyon ne darogaji se kaha tha ki Virendra ko itna maro ki ise pata chal jay aur sab gaon wale dekhate rah jaye."He has further stated that Pahar Singh had not informed him that on Tigadda inspector was standing with a lathi and tractor had reached there.Constable Mohd. Mustafa (P.W.10) has filed an affidavit in which he has stated that S.D.M. prepared the inquest report of Virendra Singh and sealed the dead body.He had taken the dead body and relevant papers for the post mortem along with constable Brahma Singh, Deen Dayal, Balveer and Dhani Ram.He had handed over the dead body and papers to the doctor for the post mortem on 9-3-87 at 3.30 p.m. and after the post mortem he had deposited the sealed envelop and cloth at the police station.Constable Pahar Singh (P.W. 11) was posted as Head Moharrir at police station Sojna.He has further stated that on 7-3-87 report No. 4 at 3.05 p.m. the case under Section 307 I.P.C. was registered against deceased Virendra Singh.In the cross-examination he has stated that J.B.Katariya had brought Virendra Singh (deceased) at the police station in his presence.He has further stated that J.B.Katariya alone had brought Virendra Singh.He has further stated that S.O. had directed him to get the injuries of Virendra Singh treated and the Doctor was called and when he was taken to the hospital he had succumbed to his injuries.He was not sent to Mehrauli for the treatment.JUDGMENT Imtiyaz Murtaza, J.Two appeals have been preferred by three appellants against the judgment and order dated 19-12-97 passed by Special Sessions Judge, Lalitput in S.T.No. 20 of 1993 where by the appellants Ghanshyam Sharma and Ram Narain have been convicted under Sections 323/34, 342 I.P.C. and sentenced to 6 months R.I. on each count and appellant J.B. Katariya has been convicted under settion 302 I.P.C. and sentenced to imprisonment for life and under Section 342 I.P.C. for 6 months rigorous imprisonment.On the way to the police station he was beaten and detained at the police station where he was beaten mercilessly by the Station Officer where he succumbed to his injuries.Dr. C.N. Shukla (P.W.8) and Sr.S.S. Singhal jointly conducted autopsy on the dead body of Virendra Singh on 9-3-87 at 4.00 p.m. According to Dr. Shukla, deceased had following ante mortem injuries on his person.Abraded multiple contusion in an area of 59.0 cm x whole circumference of left leg including overleg and anteromedial aspect of lower part of thigh not possible to measure the size of individual contusion on dissection large amount of blood present in soft tissue underlying the injury.Contusion 10.0 cm x 2.5 cm on anterolateral aspect of left thigh lower part.Contusion 11.0 cm x 4.0 cm on back of left thigh lower part.Contusion 4.5 cm x 3.0 cm on middle part back of left thigh.Contusion 11.0 cm x 3.0 cm on lateral aspect of left buttock.Multiple contusion : in an area of 43.0 cms x whole circumference of right leg including knee lower part of thigh not possible to measure the size of individual contusion.On dissection large amount of blood present in soft tissues.Contusion 10.0 cm x 3.0 cm on back of right thigh upper part.Contusion 10.0 cm x 3.0 cm.On back of right thigh, posterolateral aspect.Contusion 18.0 cm x 10.0 cm on posteromedial aspect of middle of right thigh.Contusion 5.0 cm x 4.0 cm on just behind right anterior superior illiac spine.Abraded multiple contusions in an area of 55.0 cm x whole circumference extending from middle part of right upper arm including elbow, forearm and hand not possible to measure size of individual contusion.On dissection large amount of blood present in soft tissues.Contusion 12.0 cm x 6.0 cm on posterolateral aspect of right shoulder and deltoid region.Abraded multiple contusions in an area of 29.0 cm x whole circumference extending from middle of left upper arm including elbow and forearm, not possible to measure size of individual contusion.On dissection, large amount of blood preseent in soft tissues.Multiple abrated contusion in an area of 26.0 cm x whole circumference.upto fingers not possible to measure size of individual contusion.On dissection large amount of blood present in soft tissues.Multiple abrasions in an area of 7.0 cm x 1.0 cm on right side face, molar and zygomatic region.Multiple abrasion in an area of 3.0 cm x 1.5 cm on left half of chin.Abrasions 4.0 cm x 1.0 cm.Over mucusal surface of upper and lower lips, outer aspect of left side.Abrasions 4.0 cm x 1.0 cm.over mucus surface of upper and lower lips, outer aspect of right side.On internal examination, the doctor had found that there was no blood in left side of the heart but about 200 gms of blood was present in the right side.Semi digested food was present in the small intestine and there were gases and faecal matter in the large intestine.In the opinion of the doctors, death was caused due to shock and haemmorhage resulting from ante mortem injuries.The prosecution in support of its case examined 12 witnesses in all.Jujhar Singh (P.W.I) he was wrongfully arrested by the Investigating Officer and he is also an eye witness of the occurrence.Bhoopat Singh (P.W.2) is maternal uncle of the deceased.He had stated that he was called at police station on 8-7-87 and he had examined the patient at the police station.His condition was not good and he had referred him to Mehroni district hospital.He has also stated that there was no one except police personnel at the police station.Katariya is guilty and convicted him for the offence punishable under Sections 302/342 I.P.C. Accused Ghanshyam Sharma and Ram Narain are also found guilty for the offences,under Sections 323/34 and 342 I.P.C. and convicted them for the same.Sri J.B.Katariya was not found guilty under Sections 7/13 of the Prevention of Corruption Act.P.W. 1, Jujhar Singh stated that about 8 years back Inspector J.B.Katariya had come to his house and enquired about Virendra Singh and he told him that Virendra Singh had some altercation with Shiv Nayak a Pairokar of the police station.Virendra Singh and Bhoopat singh were brought to the police station by Inspector J.B.Katariya along with two constables Ghanshyam Sharma and Ram Narain. ' Virendra Singh was limping and his hands were tied on the back.He had seen that Sri J.B.Katariya had assaulted Virendra Singh with lathi and constables were catching hold of his handstand giving him fist blows.Sri J.B.Katariya had given 8-10 lathi blows to Virendra Singh in the Court yard of the police station and all the three accused had kept him in the lock up of the police station.Bhoopat Singh was kept standing in the police station and Inspector told the constables to keep him on standing position.The Inspector had detained one Tractor driver Parvat.He was hearing the moaning of Virendra Singh about two hours and after that he had stopped and he thought that Virendra Singh has succumbed to his Injuries.It is alleged that Pahalwan and Shiv Nayak came there and abused Virendra Singh.On the next day at about 5.00 a,m.Inspector came and released him and told him that whenever he will be required he will call him but Virendra Singh and Bhoopat Singh had not left the police station and insisted for meeting Virendra Singh.There was silence in the police station and he came to know that Virendra Singh succumbed to his injuries.In the cross-examination he has stated that he was interrogated by the officers of C.I.D. and he had given statement that both the constables had caught hold the hands of Virendra Singh and beating him with feast.It was not mentioned in his statement and he cannot give its reason and he could not tell the reason why the names of the persons who assaulted Virendra Singh is not mentioned.He has also not given any reason that why in his statement that all the accused had threatened, dragged and kept him in the lock up is not mentioned.He has also stated that he had informed the Investigating Officer that Pahalwan and constable Shiv Nayak had abused Virendra Singh at the police station but he cannot give any reason why in this statement it was not mentioned.He had not made any complaint about illegal detention to higher authorities.Bhoopat singh (P.W.2) has stated that Shiv Nayak and Pahalwan had came to his house enquiring about Virendra Singh.He had also stated that Inspector J.B.Katariya along with constables Ghanshyam Sharma and one Ram Narain came to his house and later on he was arrested and brought to the police station.Narain Singh was released by the police officer.Subsequently he has stated that Virendra Singh was assulted by Inspector on the leg and both the constables had given him fist blows.On the way to the police station Inspector had detained one Parvat, Tractor driver and they were brought to the police station.Bhoopat Singh has also stated that Virendra Singh was assaulted near the Chakki of Namdeo.In the police station the Inspector.had given several lathi blows to Virendra Singh.Next day he was released from the police station and subsequently he came to know that Virendra Singh had succumbed to his injuries and he informed the father of Virendra Singh and he has also lodged the report.He has stated that he had informed the CO.that his hands and Virendra Singh's hands were tied but it was not mentioned in his statement and he cannot tell any reason why it is not mentioned.He has also stated that he had informed the Investigating Officer that constables had given fist hlows but why it is not mentioned in his statement he cannot tell any reason.He could not give the reason why "Dono Sipahiyon ne Daroga ko yah kahkar Uksaya ki Virendra ko wahan le chaliye jahan isne sipahi-ko mara tha.He has further stated that he had given this statement to the Investigating Officer." Sipahiyon ne Darogaji se kaha tha ki Virendra ko itna maro ki isko pata chal jay aur sab gaon wale dekhate rahen" why this statement was not written he cannot tell the reason.Pahar Singh (P.W.3) has stated that he was standing on the Tigadda and he saw that J.B.Katariya standing there and after two minutes one Tractor came from which Ram Narain, Ghanshyam Sharma, Bhoopat Singh and Virendra Singh got down.On 9-4-87 he had interrogated the accused J.B.Katariya, Constables Ghanshyam Sharma and Ram Narain and also recorded the statements of Shiv Narain and Pahalwan.On 22-4-87 he had recorded statement of Dr. S.S. Singhal, Dr. C.N.Shukla, Constable Brahma Singh and Head Moharrir Parvat Singh.On 23-4-87 he had recorded the statements of Chhatrapal Singh, Ram Singh, Mahendra Singh,Lal Singh, Gaya Prasad, Bhanu Pratap, Bal Chand and Namdeo.On 22-8-87 he had recorded the statement of tractor driver Parvat Singh On 20-11-87 he had recorded the statements of Narain son of Takat Singh and Uma Vilash Awasthi, S:D.M. On 9-12-87 he had recorded the statement of CO.He has denied about the presence of any other witness at the police station.He has denied that Virendra Singh was assaulted at the police station.On 30-12-91 he had submitted charge sheet against the accused persons.The learned Sessions Judge had convicted and sentenced J.B.Katariya under Section 302 I.P.C. for life imprisonment and under Section 342 I.P.C. for six months and the appellants Ghanshayam Sharma and Ram Narain were convicted and sentenced to undergo R.I. for a period of 6 months on each count of under Section 323/34, 342 I P.C.We have heard learned counsel for the parties and have perused the record.Therefore, when accused Virendra Singh was arrested he was wanted as an accused in a cognizable offence.No specific allegation of assault made by these, accused constables upon Virendra Singh was made in the F.I.R. nor such an allegation could be made by the witnesses in their statements recorded during investigation.Realizing this infirmity in the prosecution case, P.W. 1 Jujhar Singh and P.W.2 Bhoopat Singh tried to embellish for the first time in their deposition before the Court that these constables also participated in the assault made on the deceased Virendra Singh soon after the later was arrested.P.W.2 stated that both these constables has given fists blows to Virendra Singh when he was brought to police station after his arrest but again even this allegation is not found to be contained in his statement recorded under Section 161 Cr.P.C. as admitted by the Investigating officer.It may be relevant to mention here that Pahar Singh, P.W.3, Narain, P.W.4, Parvat P.W.5 and Narain Singh P.W.6 have not stated of any beating on deceased at the hands of these accused constables.It would be too risky to place implicit reliance on this improved version put.forward by these witnesses for the first time in Court.We, therefore, reject the testimony of P.W. 1 and P.W.2 to this extent and extend the benefit of doubt to these appellants who had merely accompanied the Station Officer, Sri Katariya to cause the arrest of deceased, who was wanted as an accused in a cognizable case already registered at the police station.Accordingly benefit of doubt has to be extended to these appellants and they are entitled to be acquitted.Now the case of J.B.Katariya is that he had arrested the deceased Virendra Singh and he had died while he was in custody.A perusal of the F.I.R. indicates that specific allegations are made against the Station House Officer, J.B. Katariya.All the prosecution witnesses are consistent with regard to the role of J.B.Katariya.He had arrested Virendra Singh and assaulted while he was brought to the police station.Jujhar Singh (P.W.I) has stated that J.B.Katariya had given 8-10 lathi blows to Virendra Singh and then he was kept in the lock up.Bhoopat Singh (P.W, 2) has also stated that in the Court yard of the police station the inspector J.B.Katariya had given lathi blow to Virendra Singh.Pahar Singh (P.W.3) has also specifically stated that J.B.Katariya had given lathi blow to Virendra Singh.Narain (P.W.4) has also stated that after the arrest of Virendra Singh inspector had given lathi blow to him.Parvat (P.W.5) has also stated about the role of the inspector.Narain Singh (P.W.6) has also supported the prosecution case as regard the assault by the Inspector is concerned.Thus prosecution witnesses examined clearly stated that J.B.Katariya had assaulted Virendra Singh at Sojna Tigadda as well as inside the police station.The witnesses who are eye witnesses of the incident in question fully supported the prosecution version in unequivocal term that J.B.Katariya gave number of lathi blows to the deceased Virendra Singh.The post mortem report also supports the eye witness account.The doctor who had conducted the post mortem examination had found lathi injuries all over the body of Virendra Singh deceased, Thus prosecution has fully proved its case against J.B.Katariya,Learned Counsel for the appellant, J.B.Katariya submitted before the Court that the post mortem report indicates that all the antemortem injuries were on non- vital part.There was no oozing of blood from any injury nor any fracture was found underneath any ante mortem injury.Each one of the ante mortem injury is a simple injury.Deceased was wearing a full pant when he was assaulted no part thereof was found torn.No blood came out to be visible from outside.Accused, therefore, could not be presumed to be having knowledge of the injuries, which in fact had been sustained by the deceased when he was assaulted with Danda.It was strenuously urged that in these circumstances no case under Section 302 I.P.C. can be said to have been made out and the offence would not travel beyond the ambit of Section 323 I.P.C. We find ourselves unable to accept this submission of learned counsel for the appellant.From the evidence available on record both documentary and oral we are satisfied that J.B.Katariya had caused injuries to deceased Virendra Singh while he was in police custody and even if it is not possible to say that he intended to cause the death of Virendra Singh, but he can certainly be clothed with the knowledge that the injuries which were being caused to the deceased at the police station were likely to cause his death though probably without any intention to cause his death, or even to cause such bodily injuries to him as were likely to cause death.The offence would fall under Section 304- Part II I.P.C. So far offence under Section 342 I.P.C. is concerned it is admitted that deceased was not wrongfully confined.He was arrested in a case under Section 307 I.P.C. His arrest and detention was not illegal.His conviction under Section 342 I.P.C. is set aside.In the result criminal appeal No. 22 of 1998 is allowed.The appellants Ghanshyam Sharma and Ram Narain are acquitted for the offences charged for.They are on bail.They need not surrender.Their bail bonds are cancelled and sureties discharged.Criminal appeal No. 2350 of 1997 is partly allowed.The appellant J.B.Katariya is convicted under Section 304 Part II I.P.C. in place of Section 302 I.P.C. He is sentenced to undergo rigorous imprisonment for two years and a fine of Rs. 25,000/- and in default of payment of fine he shall undergo further imprisonment for six months.He is on bail.State appeal No. 1315 of 1998 is dismissed. | ['Section 342 in The Indian Penal Code', 'Section 307 in The Indian Penal Code', 'Section 302 in The Indian Penal Code', 'Section 34 in The Indian Penal Code', 'Section 323 in The Indian Penal Code', 'Section 304 in The Indian Penal Code'] |
This is repeat (Second) bail application filed on behalf of the applicant under Section 439 of the Code of Criminal Procedure.First bail application of the applicant has been dismissed as withdrawn by order dated 21.12.2017 in M.Cr.The applicant is in custody since 22.10.2017 in connection with Crime No.160/2017 registered at Police Station Gairatganj, District Raisen (M.P.) for the offence punishable under Sections 395, 397, 394, 420 read with Section 34 of IPC.As per prosecution on 20.4.2017, the applicant Pappu @ Kabir called the complainant on mobile phone and said that he discovered a gold brick, which was buried in nearby land and he offered the same to the complainant.Thereafter, complainant met Pappu @ Kabir at Vidisha road and he offered him the said brick, for consideration of Rs. 4,60,000/-.After the said deal, complainant and his brother reached there then Pappu @ Kabir and six other persons took their bag of money and, along with that gold brick, ran away from the spot.Thereafter, on the report of complainant, case for offence punishable under Section of 420 of IPC was registered.During investigation after taking the statement of complainant and other witnesses offence punishable under Section 395, 397 and 394 have been added.Other co-accused who have been arrested have been released on bail.Conclusion of trial will take time.He is a permanent resident of district Raisen and there is no chance of his absconding.He is ready to furnish bail as per the order, abiding with all conditions imposed by the Court.On these grounds, learned counsel for the applicant prays for grant of bail to the applicant.Per-contra, learned Government Advocate for the respondent-State opposes the bail application.Certified copy as per rules.(H.P. SINGH) JUDGE VKV/-Digitally signed by VINAY KUMAR VERMA Date: 2018.03.08 16:53:29 +05'30' | ['Section 394 in The Indian Penal Code', 'Section 395 in The Indian Penal Code', 'Section 34 in The Indian Penal Code', 'Section 397 in The Indian Penal Code'] |
Being an eye-witness, he deposed about his presence on duty at the concerned bus stand when at about 10 : 10 a.m., the bus driven by the petitioner, proceeded very fast and hit a person standing there.ORDER S. Ravindra Bhat, J.In this revision under Sections 397/401, Criminal Procedure Code, the petitioner challenges the concurrent findings of the Courts by which he was convicted of the offences under Sections 279/304-A, Indian Penal Code (IPC) and sentenced to undergo six months' simple imprisonment (for the offence under Section 279) and one year's simple imprisonment (for the offence under Section 304-A).The facts are that according to the prosecution on 13-9-1999 at 10 a.m., at a main 100 ft. road, the petitioner was found ' driving a bus in a rash and negligent manner.This led to an accident in which one Joginder Singh, a by-stander, in the bus stand, was struck and received fatal injuries.In support of its case, the prosecution relied upon the deposition of 12 witnesses.It was alleged that a Constable, one Niranjan (P.W. 11) removed the injured to the hospital.The bus sped away.He identified the bus number and narrated how a PCR van arrived at the spot, how he took the injured to the hospital and later identified the driver of the bus, i.e. the petitioner.This witness as well as all other prosecution witnesses were cross-examined.The trial Court, by its judgment dated 7-8-2006 convicted the petitioner and awarded the sentence impugned.Learned Counsel contended that the judgments of the Courts below are vitiated because they have believed the conjectures and surmises of the prosecution.It was contended that the strongest eye-witness P.W. 11 was a planted witness.The efforts of the defense, i.e. the petitioner to prove that he was in fact not present at the site by production of the duty roster despite an application under Section 311, Cr. P.C., were frustrated.It was contended that if this course had been adopted, the petitioner would have conclusively proved that P.W. 11 was not at the site and could not, therefore, have claimed to be an eye-witness.Learned Counsel claimed that the conduct of P.W. 11, even if the facts alleged by him were assumed to be true were unnatural to say the least as, being charged with enforcement of the law, if indeed P.W. 11 had witnessed the incident, the least expected of him was to give a chase which he admittedly did not.Learned Counsel lastly contended that, taken as a whole, the findings arrived at by the Courts below were unsupported by the evidence which nowhere showed that the petitioner drove the vehicle in a rash and negligent manner.It was submitted that the mere allegation of the bus having been driven at a fast speed did not lead to the inference that it was driven in a rash and negligent manner.The appellate Court, in its impugned judgment, inter alia, held as follows:Having heard arguments from both the sides and after perusal of the record, I do not find any infirmity or illegality in the order as learned MM has carefully scrutinized the evidence in the light of available material on record as regard the identity of the accused driving the erring vehicle.The statement of P.W. 1 Ct.Niranjan Sharma recorded at GTB Hospital, Delhi where injured was removed by him, is worth mentioning.It, inter alia, mentions that on 13-9-1999, he was present at the bus stand of 212 on his duty from 8 a.m. to 8 p.m. at about 10:10 p.m. Bus No. DEP 9770 came from the Seempauri side being driven by bus driver in a fast speed and in a rash and negligent manner and it struck the pedestrains standing at the bus stand waiting for bus and ran towards Durgapuri.In the meanwhile, PCR van baker 13 came.It passed the message through the wireless set.The MLC of the victim shows arrival of victim at 10:35 a.m. on 13-9-1999 and victim was brought by P.W. 11 Ct.Niranjan Sharma whose number is also mentioned as 1496 PS Nand Nagri.It at least goes to show that the victim was brought from the place of accident to the hospital by P.W. 11 Ct.Niranjan Singh.At this stage, it cannot be said that by not proving the duty roster of this Constable, an inference can be reached that he was not on duty at that place on the fateful day.It can be presumed that official duties were performed in normal course of nature and there is no reason as to why just to solve the case, IO will introduce a false witness.Even the statement of TI Brahm Singh P.W. 8 went unrebutted who testified that the accused was on duty in the bus No. DEP 9770 from 4:20 a.m. to 12:20 p.m. on 13-9-1999 at DTC bus route No. 205 from Seempauri to Koriya Pull.Accused was caught on the same bus route by the PCR officials.P.W. 11 was an eye-witness.During the trial, no attempt was made to impeach his version about his presence indeed he was extensively cross-examined.The effort of the petitioner to have the Roznama summoned at the appellate stage, therefore, cannot be viewed as an entirely innocent exercise.It is more in the nature of a desperate attempt to evade and deflect his role.The testimony of P.W. 11 was found to be credulous. | ['Section 304A in The Indian Penal Code', 'Section 279 in The Indian Penal Code'] |
DATE : 02nd JANUARY, 2020 ORAL JUDGMENT [PER : M.G. SEWLIKAR, J.] :By this application, the applicants are seeking quashing of the First Information Report (In short "F.I.R.") in Crime No. 124 of 2019, registered at Police Station, Patoda, District Beed, for the offences punishable under Sections 498-A, 323, 504 and 506 read with Section 34 of the Indian Penal Code (In short 'I.P.C.')2. Facts leading to this application are that the informant Sahabhat/respondent No. 2 herein married Mohammad Ubed Abdul Bashid Kazi on 6.1.2019, according to Muslim rites.that the informant Sahabhat/respondent No. 2::: Uploaded on - 09/01/2020 ::: Downloaded on - 16/03/2020 03:10:30 :::reside at Latur.Applicant No. 5 is the married sister of husband of respondent No. 2, applicant No. 6 is the husband of applicant No. 5 and both of them reside at Solapur.Applicant No. 7 is the uncle of husband of respondent No.It is alleged by the informant that soon after marriage the husband's parents started ill-treating respondent No. 2, saying that she should bring Rs. Ten Lac, to enable them to purchase a Plot and on that count she was subjected to beating.She was also abused in filthy language.She called her relative, Sayyed Sajjid Hamid and her grand-father,::: Uploaded on - 09/01/2020 ::: Downloaded on - 16/03/2020 03:10:30 ::: 5 criapplnno2303-J .19 Sayyed Hamid Sayyed Maheboob and they also tried to convince the applicants and husband's parents to treat the respondent No. 2 well but, the applicants did not budge but kept on demanding amount of Rs. Ten Lacs.::: Uploaded on - 09/01/2020 ::: Downloaded on - 16/03/2020 03:10:30 :::parents had been to her house on 10.3.2019, at 2.00 p.m. They demanded Rs. Ten Lacs to be brought from her parents and subjected her to physical and mental ill-treatment.Thereafter, she lodged complaint against accused persons in Police Station, Patoda, on the basis of which, offence punishable under Sections 498-A, 323, 504 and 506 read with Section 34 of the I.P.C. has been registered.::: Uploaded on - 09/01/2020 ::: Downloaded on - 16/03/2020 03:10:30 :::On perusal of F.I.R., it is noticed that the allegations made against the applicants are vague in nature.No specific act is attributed against any of the applicants.It is vaguely mentioned that all the applicants subjected her to ill-treatment on account of failure to bring Rs. Ten Lacs from her parents.Moreover, the record produced by the applicants i.e. Adhar Cards and Ration Cards show that applicant Nos. 1, 2, 3 and 4 reside at Latur, applicant Nos. 5 and 6 reside at Solapur and applicant Nos. 7, 8 and 9 are reside at Pune.The husband of respondent No. 2 is the resident of Patoda, District; Beed.::: Uploaded on - 09/01/2020 ::: Downloaded on - 16/03/2020 03:10:30 :::(M.G. SEWLIKAR, J.) (T.V. NALAWADE, J.) mahajansb/::: Uploaded on - 09/01/2020 ::: Downloaded on - 16/03/2020 03:10:30 :::::: Uploaded on - 09/01/2020 ::: Downloaded on - 16/03/2020 03:10:30 ::: | ['Section 34 in The Indian Penal Code', 'Section 323 in The Indian Penal Code', 'Section 506 in The Indian Penal Code', 'Section 504 in The Indian Penal Code', 'Section 498A in The Indian Penal Code'] |
None for the victim though served.This appeal for bail is directed against the order dated 5.09.2017 passed by the Court of Special Judge, Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, Jabalpur in Special Case No. 36/2017, whereby the application of accused/appellant Raju @ Raj Kumar under Section 439 of the Code of Criminal Procedure was dismissed.The appellant has been arrested on 30.03.2017 in connection with crime no. 66/2017 registered by P.S. Lakhanwada, District Seoni under Sections 363, 366 (ka), 376 (2) (i), 376 (2) (j), 323, 294, 506/34 of I.P.C. and Section 5/6 of Protection of Children from Sexual Offences Act, 2012, Section 3 (i) (ba) (i) and Section 3 (2) (5) of S.C./S.T.As per the prosecution case, on the date of offence, the prosecutrix was 15 years and 3 months old minor girl belonging to a Scheduled Caste.About an year and half before the date of incident appellant Raju Prajapati enticed her on the promise of marriage and took inside a nullah and raped her.He threatened that if she disclosed the matter to anyone, he would kill her.Thereafter, the appellant established the physical relation with her on four or five occasions.When the prosecutrix became eight months pregnant, she disclosed the matter to her parents.Thereafter, appellant Raju threatened them not to disclose the matter to anyone and took her to his house and kept her as his wife.She gave birth to a male child.Thereafter, the appellant used to consume liquor and harassed and beat up the prosecutrix.The family members of petitioner asked her to leave the house.Learned counsel for the petitioner submits that the element of coercion or enticement were missing in the case.Actually, the petitioner had married the prosecutrix.She lived in his house as his wife and gave birth to the child of the appellant.Ultimately, due to differences with the appellant, she left and now this case of marital discord is converted into one under Section 376 of I.P.C. The appellant has been in custody since 30th March, 2017 and charge-sheet in the matter has been filed; therefore, the appellant is entitled to be released on bail.Learned Government Advocate on the other hand has opposed the bail application.Keeping in view the facts and circumstances of the case, in their entirety, particularly the facts as pointed out by learned counsel for the appellant; in the opinion of this Court, it would be appropriate to allow this appeal and release appellant Raju @ Raj Kumar Prajapati on bail.It is directed that appellant Raju @ Raj Kumar Prajapati shall be released on bail on furnishing a personal bond in the sum of Rs. 40,000/- with one solvent surety in the same amount to the satisfaction of the trial Court for his appearance before that Court on all dates fixed in the case and for complying with the conditions enumerated under Section 437 (3) of the Cr.P.C. Certified copy as per rules.(C V SIRPURKAR) JUDGE vy | ['Section 376 in The Indian Penal Code'] |
The prosecution story in brief is that there was some dispute regarding damage of auto of Sunil Vishwakarma between Sunil (appellant no.1) and deceased Panju alias Santosh on 8.5.2003 around 6:00 O'Clock in the morning, the appellant no.1 Sunil had gone to the house of the deceased and told him that he had damaged his auto, therefore, he demanded money from him.Deceased replied that he did not damage the auto and he would not pay the money.There were heated exchange of words between both the persons in this regard.On the next day, at around 6:30 in the morning when deceased was going to open his shop, appellant Sunil and his sisters co-appellants Sushila and Asha had beaten the deceased by lathis.He fell down.After hearing cry of the deceased, other persons came on the spot.The report of incident was lodged by Neeraj, brother of the 11deceased, at the police station.At that time, I was preparing tea.The deceased told the appellant that he had not damaged the auto, therefore, he would not pay the money.There was a quarrel between them and Sunil had slapped the deceased.Thereafter I went inside the house to take tea.When I came out from the house after taking tea, I heard the sound of Panju and thereafter Neeraj, my father-in-law, Ajay, Vijay had rushed at the spot and we heard cry of the deceased, which was coming from the field of Jagidsh Patel.Then we had seen that the appellant No.1 and his two sisters had been beating 4 Cr.A.No.1504/2004 Sunil & others Vs.the deceased by lathis.Thereafter, we had taken the body of the deceased beneath a mango tree and Neeraj had gone to lodge the report at police station.Neeraj Kumar Pathak (P.W.4), who is the brother of the deceased, deposed that Sunil had dashed the auto with a wall.However, he was demanding money from Santosh.On the next day, at around 6:00 O' Clock appellant Sunil came in his auto, he had told the deceased that he had damaged his auto, hence, he would pay the money.Deceased replied that he had not damaged the auto, hence, he would not pay the money.At that time, he had slapped the deceased and ran away.At around 6-6:30 when deceased was going to open the shop, I heard the cry of deceased.I along with Ram Sunder Verma, Ajay and Vijay went on the spot and we had seen appellants Sunil, Asha and Sushila had been beating the deceased.Thereafter, I went to lodge the report.Dehati Nalishi Ex.P.2, and Dehati Marg Ex.P.3, were registered.I signed the same.Thereafter, I signed Panchanama Ex.Hiralal Patel (P.W.6) deposed that when I was in the house, I had heard the cry of Neeraj.Thereafter, I came out from the house and had seen that the appellants were running towards the field of Jagdish Patel.Sunita Patnaha (P.W.1), Sub-Inspector, deposed that on 8.5.2003 I was posted at City Kotwali, Rewa and Sub- Inspector R.K.Mishra registered a Dehati Nalishi, which was recorded on the basis of report of Neeraj.On the basis of Dehati Nalish, FIR was registered at Police Station, City Kotwali, Rewa vide Ex.I signed the same.Arun Kumar Gautam (P.W.2) deposed that on 8.5.2003 I was posted as Constable at Police Station Civil Lines, Rewa.Dehati Nalish was registered and marg was also recorded.14. R.K.Mishra (P.W.9), who is the Investigating Officer, deposed that on 8.5.2003 I was posted as Sub-Inspector at City Kotwali, Rewa.On the aforesaid date, near about 7:30 in the morning Neeraj S/o Rajendra submitted a report against the appellant.Dehati Nalishi was prepared, which is Ex.I prepared Panchanama of dead-body, which is Ex.P.5 and spot map, which is Ex.I inquired from the appellants about the incident and on their memorandums, Ex.I also seized plain earth and red earth from the spot vide seizure memo, Ex.Accused persons were arrested on 8.5.2003 vide Exs.15. PW-3 Geeta Verma and PW-4 Neeraj Kumar Pathak are eye-witnesses of the case.As per the deposition of PW- 3, she had heard the voice of the deceased and thereafter, she had seen that Sunil and his sisters namely Sushila and Asha had been beating the deceased by lathies.In her cross- examination, she admitted the fact that at the time of incident, marriage of appellant No.1-Sunil was to be performed and the family members had been making arrangements for the marriage.Accused's sisters had come to participate in the marriage.Dehati marg was recorded and on the basis of aforesaid marg, first information report was recorded.The police conducted the investigation and filed the chargesheet against all the three accused persons.The appellants abjured their guilt They pleaded that they have been falsely implicated in the case.The trial court, after trial, held the appellants guilty for commission of offence 3 Cr.A.No.1504/2004 Sunil & others Vs.State of M.P.punishable under section 302 of IPC and awarded the sentence of life.The learned Senior counsel appearing on behalf of the appellants has contended that the trial court has committed an error of law in holding the appellants guilty for commission of offence.In alternate, the learned Senior counsel has submitted that the offence alleged against the appellant Sunil could be under section 304-I of IPC and the offence against appellant nos.2 and 3 could be 323 of IPC.Contrary to this, the learned counsel for State has submitted that the prosecution has produced sufficient evidence to prove the guilt of the appellants beyond reasonable doubt.The trial court has appreciated the evidence properly.Prosecution examined total 9 witnesses and appellants examined 2 witnesses in their defence.Geeta Verma (P.W.3) deposed that Sunil had come to the house of deceased with his auto and he had made a demand of money from the deceased about the damage of auto.I had only seen Sunil along with lathi.I had not seen any other person.Ram Sunder Verma (P.W.7) deposed the same facts that I had heard the sound of Neeraj.I reached on the spot and saw that appellants had been beating the deceased.Thereafter, they ran away from the spot.Deceased was found dead.A.No.1504/2004 Sunil & others Vs.State of M.P.Thereafter, I had taken the report to the City Kotwali and on that basis FIR was registered.Dr. V.K.Sharma (P.W.8) deposed that on 8.5.2003 I was posted as Instructor in the Forensic Department at S.S.Medical College, Rewa.I had performed the post mortem of deceased.I had noticed following injuries on the person of the body of the deceased:-One abrasion 2.5 x 1 cm on the left side of the neck .One abrasion 10 x 8 cm on the left side of the neck.Injuries 10 x 8 cm, 10 x 4 cm and 12 x 4 cm on the below chest.One bruise 1 x 1 cm at upper side of right hand.One bruise 6 . 4 cm on left side of the upper armOne swelling and injury 5 x 4 cm on temporal region."A.No.1504/2004 Sunil & others Vs.State of M.P.On internal examination, I noticed hematoma 5 x 12 cm on the head.There was a fracture of temporal and parietal bone of the head.I had given opinion that the deceased was died due to injuries suffered by him on his head.P.2 and I signed the same.Thereafter I visited the place of incident and a marg intimation, Ex.P.2, was sent.The distance between the residence of the PW-3 and the residence of the accused Sunil is 200 meters.She 7 Cr.A.No.1504/2004 Sunil & others Vs.State of M.P.further admitted that before half an our of the incident, there was a dispute between Sunil and deceased in regard to damage of auto.PW-4 Neeraj Kumar Pathak is the brother of the deceased.As per his evidence, he was going to open his shop and then he had heard the cry of the deceased 'save me.' Thereafter, he reached at the place and he had seen that accused persons had been beating the deceased.The report of the incident was lodged at the police station.In his cross-examination, he admitted the fact that the distance between the houses of Sunil and Panju is about 300 meters.He further admitted the fact that appellant No.2-Sushila used to live at Kharhari and appellant No.3-Asha at Dhanpuri.Both had come to attend the marriage.17. PW-5 Shri Krishna Kori is neighbor of the deceased.He deposed that after hearing the cry, he came out form his house and he had seen that Sunil was running towards his house with lathi and deceased had received injuries.He denied the fact in his cross-examination that he had seen Sushila and Asha running from the spot.18. PW-6 Heeralal Patel deposed that he had seen all the three accused persons running from the spot.Same facts have been deposed by PW-7 Ramsundar Verma.The doctor (PW-8), who performed autopsy of the deceased deposed that he had noticed six injuries on the person of the body of the deceased.There was an injury on the left temporal region of the head and on internal examination, there was hematoma on temporal parietal 8 Cr.A.No.1504/2004 Sunil & others Vs.State of M.P.There was fracture of parietal bone also.He opined that the deceased died due to injuries suffered by him on the head.The evidence of doctor establishes the fact that the deceased was not beaten by three persons namely Sushila, Asha and Sunil.As per the prosecution case, there was a quarrel between the appellant No. 1-Sunil and the deceased because the appellant No. 1 made a demand from the deceased to pay the money because deceased had damaged his auto.It is also a fact that the marriage of the appellant No.1-Sunil was fixed and the appellants No.2 and 3 had come to attend the marriage and preparations of the marriage of the appellant No.1 was going on in the house.It is unbelievable that two female members will accompany a male member with lathies to beat the deceased.The evidence depicts that the appellants No.2 and 3 have been roped in and falsely implicated with the case.The trial Court, in our opinion, has committed an error in holding the appellants No.2 and 3 guilty for the offence.In regard to appellant No.1 there is evidence that he had inflicted one injury on vital part of the person of deceased i.e. on the head and other injuries on non-vital parts.The doctor in his evidence opined that cause of death was the injury which was on the head of the deceased.The Hon'ble Apex Court in the case of Arjun and another vs State of Chhattisgarh, (2017) 3 SCC 247 has 9 Cr.He had come at the residence of the deceased, which is at a distance of near about 300 meters from the residence of the appellant No.1, and asked the deceased that why he had damaged his auto and directed him to pay the money.Thereafter, there was quarrel.That time the appellant No.1-Sunil had given blows of lathi on the person of the body of the deceased.One blow landed on the head of the deceased, which was the cause of death of the deceased.Thus, the incident occurred due to sudden altercation and the appellant No.1 had not taken undue advantage or acted in cruel manner.Hence, in our opinion, in view of the evidence on record, exception 4 of Section 300 of IPC is applicable.Hence, the offence committed by the appellant No.1-Sunil would a be a case of Section 304 part I of IPC.A.No.1504/2004 Sunil & others Vs.State of M.P.Consequently, the appeal filed by the appellants No.2- Sushila Vishwakrma and appellant No.3-Asha Vishwakarma is hereby allowed.They are acquitted form the charge under Section 302 of IPC.They are on bail, their bail bonds are discharged.The Appeal filed by the appellant No.1-Sunil Kumar Vishwakarma is partly allowed.Hence, he has completed actual jail sentence of near about 13 and half years. | ['Section 300 in The Indian Penal Code', 'Section 302 in The Indian Penal Code', 'Section 304 in The Indian Penal Code'] |
acquitted of the offences under Sections 147, 148, 302/149, 323/149, 294, 336, 188 and 395 of the Indian Penal Code ("IPC" for short).Prosecution case, in brief, is that on 10/10/2008, between 3.30 to 4 p.m., communal riots having broken out in the Burhanpur City, complainant Suresh Shukla, a Tampo Driver along with his brother Rakesh Shukla returned to his home and parked the Tampo in front of his house.At that juncture, 10-12 rioters arrived and started pelting stones.When Rakesh came out of the Tampo, 2-3 miscreants, with an intention to cause his death assaulted him leading to injuries on his right hand, shoulder, back and head.Rakesh fell on the spot.As complainant Suresh came forward to rescue Rakesh, he was also beaten by them.He received injuries on his right knee, leg, back and others caused by stone.After beating them, the brawlers, fled from the spot.Amongst them, Gulli, Chhota Baba, Munir, Mannu Mahelwar, Aasif and brother of Mahmood Leader were identified by the complainant.During the incident, the rioters also looted his household articles.The incident was witnessed by Vijay, Kadam, Dilip, Punam Shukla, Kamlesh Shukla etc., who had come on the spot hearing the cries of the complainant.Matter was reported at Police Station Lalbagh and, as during treatment, Rakesh succumbed to the injuries thus sustained, offence under Section 302 of the IPC was also added.After investigation, charge-sheet was filed.Learned Government Advocate submitted that the impugned judgment was passed without proper appreciation of evidence on record and deserves to be set-aside.Having regard to the arguments advanced by learned Government Advocate, we have gone through the impugned judgment and record of the trial Court.Complainant and eye-witness Suresh (PW4) had identified only respondent nos.5,7 namely Aminuddin, Riyazuddin alias Raju, as well as Sabir and Naeem.In the First Information Report (for short "FIR"), it is mentioned that incident had occurred at the house of the complainant, but, as per the evidence led by the prosecution, the offence was committed near Sulabh Shouchalaya, which was situated five houses away from the house of the complainant and, therefore, it was not possible to hear the commotion arising at the spot from the house of the complainant and to ascertain the location of spot, with the consent of both the parties, report of Commissioner N.K.Patel was called by the trial Court.As per the facts mentioned in the FIR, deceased Rakesh was brought to the Hospital in a seriously injured condition in a Tampo, but, Dr. Dilip Patidar (PW1) has testified that Rakesh had himself come for medical aid and this fact is mentioned in MLC report (Ex.P/1) also.In the FIR, it is mentioned that the rioters had veiled their faces.Compliance of Section 157 of the Code was also not done.Presence of human blood could not be ascertained on the sword seized from Sharif.There were material contradictions, omissions and exaggerations in the evidence of witnesses.Dilip (PW8), Devendra Singh (PW12), Rizwan Khan (PW13), Vijay (PW15) were declared hostile.In the aforesaid premises, the trial Court found that the prosecution had failed to prove its case beyond a reasonable doubt.We agree with the findings recorded by the trial Court.It is well settled that the judgment of acquittal should not be disturbed unless the conclusions drawn on the basis of evidence brought on record are found to be grossly unreasonable or manifestly perverse or palpably unsustainable.The application for grant of leave to file appeal, being devoid of merit and substance, stands dismissed. | ['Section 302 in The Indian Penal Code', 'Section 149 in The Indian Penal Code', 'Section 336 in The Indian Penal Code', 'Section 323 in The Indian Penal Code', 'Section 148 in The Indian Penal Code', 'Section 395 in The Indian Penal Code', 'Section 294 in The Indian Penal Code', 'Section 188 in The Indian Penal Code', 'Section 147 in The Indian Penal Code'] |
Anticipatory Bail Application No. 398 of 2020 is rejected.( PRAKASH D. NAIK, J. ) ::: Uploaded on - 21/02/2020 ::: Downloaded on - 10/06/2020 10:54:57 :::::: Uploaded on - 21/02/2020 ::: Downloaded on - 10/06/2020 10:54:57 ::: | ['Section 34 in The Indian Penal Code'] |
Brief facts of the case which are relevant for the disposal of this criminal revision are that Sharad Kumar Patel (who has died during the pendency of this revision), non-applicant No.3 Bhupendra Kumar and non-applicant No.4 Azad Kumar Basant Lal lodged a complaint at police station Majhgawan, Tehsil Sihora averring that they are the partners of firm M/s Radhakishan Narayandas and the firm is engaged in the manufacturing and marketing of Bidis under the 2 CRR.No.1615/2003 trademark "Khargosh".The Bidis that are made by the firm are mainly sent for sale in Uttar Pradesh and the firm has Bidi making units in village Majhgawan, Indrana, Ghughra and Katangi in Jabalpur District.It is further averred that in the past Chandrika Prasad Patel and Govind Singh, used to work in Majhgawan unit of the firm.Reserved on : 13/02/2020 Delivered on : 24/02/2020 This criminal revision has been filed under Section 397/401 of the Code of Criminal Procedure against the order dated 23.08.2003 passed by learned Judicial Magistrate First Class, Sihora, Jabalpur in criminal case No. 290/99 whereby learned JMFC framed charge against the applicants / accused for the offence punishable under Sections 485, 486, 487, 488 read with Section 34 of IPC.Complainants/ respondents expelled them and ten months ago they also expelled applicants Jayantilal Patel and Ramchandra Patel from the partnership of the firm M/s. Radhakishan Narayandas.Thereafter they had no relation with the firm and the trademark of the firm.It is further averred that the information was received that applicants Jayantilal Patel, Ramchandra Patel, Chandrika Prasad Patel and Govind Singh are selling the Bidis by using the firm's name and trademark and are earning illegal profits and also causing loss to the firm, so action be taken against them.On that police inquired about the matter and during the enquiry, police raided the premises located at village Gidurha and seized packets of "Khargosh" brand Bidis and packaging material and found that applicants are illegally doing business of making and selling Bidis in the name of "Khargosh" brand.On that police filed the complaint before the JMFC Sihora against the applicants.On the basis of that complaint Criminal Case No. 290/1999 was registered and learned JMFC, Sihora vide order dated 23.08.2003 framed charge against the applicants for the offence punishable under Sections 485, 486, 487, 488 read with Section 34 of IPC.Being aggrieved from that order applicants filed this criminal revision.3. Learned counsel for the applicants submitted that earlier applicants Jayantilal and Ramchandra were also the partners of the firm M/s Radhakishan Narayandas.Complainant wrongly expelled them from the partnership.Applicants Jayantilal and Ramchandra had filed a Civil Suit No. 18A/2006 against that resolution.That Suit was decreed by VIII ADJ, Jabalpur vide judgment and decree dated 22.10.2008 and declared the resolution void.It was also declared that applicants Jayantilal and Ramchandra are the partners of the firm M/s Radhakrishna Narayandas and are entitled to act as partners of the firm along with the respondent.So no offence under Sections 485, 486, 487, 488 read with Section 34 of IPC is made out against the applicants.Learned 3 CRR.No.1615/2003 trial court without appreciating this fact wrongly framed charges against the applicants.So, applicants be discharged from the aforesaid charges.Learned counsel for the State opposed the prayer and submitted that the implication of the judgment passed by learned Additional District Judge, Jabalpur is to be considered by the trial court after recording the evidence.At this stage, only on the basis of that judgment charges framed by the trial court against applicants cannot be quashed.There is sufficient evidence available on record to frame charges against applicants.In the matter of Sheoraj Singh Ahlawat and others Vs.On merits, materials/ documents filed by accused cannot be considered.The material produced by prosecution alone is to be considered.Complainant wrongly expelled them from the partnership.In that judgment, the court declared that resolution void and it was also declared that applicants Jayantilal and Ramchandra are the partners of the firm M/s Radhakrishna Narayandas and are entitled to act as partners of the firm along with the respondents.It also appears from the record that Sharad Kumar Patel, non-applicant No.3 Bhupendra Kumar and non-applicant No.4 Azad Kumar Basant Lal had filed Civil Suit No. 1A/2000, before District Judge Jabalpur.In that Civil Suit also vide order dated 05/02/2000 District Judge prohibited the applicants Jayanti Lal Patel and Ramchandra from selling, marketing and distributing Bidis Under the trademark 'Khargosh'.The Bidis that are made by the firm are mainly sent for sale in Uttar Pradesh and the firm has a Bidi making units in village Majhgawan, Indrana, Ghughra and Katangi in Jabalpur District.It is further averred that ten months ago they had expelled applicants Jayantilal Patel and Ramchandra Patel from the partnership of the firm M/s. Radhakishan Narayandas, thereafter they had no relation with the firm and the trademark of the firm. | ['Section 34 in The Indian Penal Code'] |
This is an appeal by the Superintendent and Remembrancer of Legal Affairs, Bengal, on behalf of the Provincial Government against an acquittal of two accused Kaloo Khan and Jaisar Khan who were tried on a charge under Section 353, Penal Code by a Magitrate of Suri.The prosecution case was that a watcher constable of the district enforcement branch saw three carts driven by the two accused and another man Salu Khan each carrying six tins of kerosene oil.He asked them if they had permits and as they could produce none he directed them to proceed to Dubrajpur thana, showing his warrant of appointment.The cartmen attempted to bribe him but he refused to be tempted whereupon they in turn threatened to assault him.He then went on his bicycle and brought two chowkidar Nanda Lal and Patal and took the carts to the neighbouring village.Thereafter they proceeded towards the thana.As they reached the junction where the road branched off towards Adampore, the carters ignoring the constable turned their carts down the branch road to escape.The constable endeavoured to unyoke the cattle whereupon Kaloo Khan struck him and the carts began to move again.He was again assaulted by Kaloo and Jaisar.There was a further assault and finally the cartmen left with the carts and went to Adampore.The accused were eventually arrested and were sent up for trial in connection with the possession of the kerosene tins.He was entitled to arrest them and take them to the thana.The accused therefore in endeavouring to escape and in assaulting the constable when he endeavored to prevent them from escaping were guilty of an offence under Section 353, Penal Code. | ['Section 353 in The Indian Penal Code'] |
The extradition was based on four (4) FIRs out of the said thirty-three (33) FIRs and in the subsequent _____________________________________________________________________________________________ WP (Crl.) No.375 of 2007 Page 1 of 36 period during 1995 to 1999 six (6) more FIRs were registered against the petitioner.On 2.1.2002 the Maharashtra Control of Organised Crime Act (MCOCA), 1999 (hereinafter referred to as the said Act) was extended to the National Capital Territory of Delhi vide GSR6(E).Two (2) more FIRs were registered against the petitioner being FIR Nos.33/03 and 125/03 though according to the petitioner they arise out of the same incident.On 29.12.2006, FIR No.104/06 was registered at P.S. Lodhi Road under Section 3 of the said Act against the petitioner and another accused.Commissioner of Police and Others decided on 1.12.2006 were called.LJ 1474 to the effect that once a matter has been considered by the Supreme Court on earlier occasions as a result of which consideration sections have been held to be valid, a new ground of challenge even on the basis of approach made in later decisions of the Supreme Court may not be available before this Court to the petitioner. | ['Section 304B in The Indian Penal Code'] |
On 12-5-84 at about 15.00 hours Jasodabai (PW 1) was going to her work at the ^I;k* near Jawar Jod.She had a bucket in her hand.JUDGMENT P.N.S. Chauhan, J.A metador No. MBI 9072 came from the side of Metwara and after crushing Jasodabai broke down the barbed wire fencing of the road-side plantation damaged the plants and stuck in the ditch.The scene of occurrence being within the jurisdiction of Jawar P.S. in Sehore district the papers were transferrd to that P.S. by Sonkatch police.Inquest was held and post mortem of the dead body was conducted by Dr. Riaz Hussain whose report is Ex.P-4, which is an admitted document.It is not in dispute that Jashodabai died of injuries sustained in the said accident.The respondent-accused denied his presence in the vehicle at the time of the accident though his driving license was amongst the document that were seized from the metador.Therefore he did not consider it necessary to record a finding on the other point of rash and negligent driving and acquitted the accused which has been challenged in this appeal by the State.The learned counsel for the respondent after concluding his arguments sought leave to give a list of citations the next day.Instead of a list of citations he has presented a detailed written arguments.Nor a commendable practice indeed.Shri V.N. Shukla (PW 10) the then station house officer Jawar has stated that he seized registration, fitness certificate, insurance and driving license of the vehicle involved in the accident vide seizure memo Ex.In absence of cross examination on this point the arguments that Ex.P-8 should not be held duly proved because Shri Sanjay Prabhakar from whose possession the documents are alleged to have been seized and the independent witnesses of seizure have not been examined, deserves to be rejected.There is no reason whatsoever to assume that Shri Shukla has prepared this false document.The evidence of police officer has to be judged like evidence of any other witness, on its intrinsic worth on prima facie presumption of his honesty and conscientiousness.There is no reason for presuming him to be a highly interested witness (Khima v. State of Saurashtra, AIR 1956 SC 217 : (1956 Cri LJ 421).Ex. P. 8, therefore is not liable to be assailed as not duly proved which shows that inter alia respondent's driving license was seized from the possession of Shri Sanjay Prabhakar who was present on the spot when Shri Shukla reached there after getting unconfirmed information of the incident.In para 3 of his statement Shri Shukla has clarified that San-jay Prabhakar and Parasmal Sindhi were detained by the crowd on the spot who informed him that the driver had run away.Thus it is clear that though respondent's licence was found alongwith other documents in the possession of Sanjay Prabhakar soon after the incident the respondent himself was not present there.Sanjay Prabhakar was one of the occupants of the vehicle involved in the accident.This is proved by Ex.P-7 showing seizure of the said metador from his possession.From the particulars of Sanjay Prabhakar given in Ex.P.6 and 7 it is clear that he is resident of Nasik.This vehicle also belongs to an industrial unit of Nasik.Therefore, it is clear that Sanjay Prabhakar was one of the occupants of this vehicle.There was no other driving license amongst the papers seized.The respondent as also the vehicle do not come from the area where the accident took place.In these circumstances the fact as to how his driving license came to be amongst the documents of this vehicle in his absence being within the exclusive knowledge of the respondent he was expected to explain the same Under Section 106 of Evidence Act. No such explanation is forthcoming.There is sufficient evidence to show that the driver had run away in the statements of Murlidhar (PW 1) Babulal (PW 2) Moolchand (PW 5) and Madanlal (PW 6), therefore even if the statement of Shri Shukla that this fact was conveyed to him by Sanjay and Parasmal is to be excluded from consideration being hit Under Section 162, Cr.P.C. the fact that the driver of the vehicle managed to escape after the accident stands fully proved.Another crucial document is Ex.The arrest memorandum of respondent proved by Shri D.S. Patil (PW 9) A.S.I. police outpost Metware.He has stated that he arrested the respondent on his voluntary surrender on 21-5-84 vide Ex.P-12 at Metware Police outpost.The fact that the respondent voluntarily surrendered has been assailed on the ground that this fact was not put to him Under Section 313, Cr.P.C. The criticism is misconceived.The respondent has been asked in question No. 24 that he was arrested vide Ex. P-12 and he denied the fact of such arrest.Thus it is seen that on 21-5-84 when the vehicle was to be received back from the police custody the respondent had come along with the said Begool and had surrendered before A.S.I. Shri Patil.There is no conceivable reason to doubt the varacity of Shri Patil in his behalf.The learned trial magistrate rejected this clinching evidence on the erroneous ground that Shri Patil has not disclosed what was stated by the respondent at the time of surrender.Whatever the respondent might have said being self incriminatory, would have amounted to confession and would be inadmissible in view of the bar Under Section 25 of the Evidence Act. Even otherwise the evidence on the point of surrender had no linkage with what the respondent stated before the police at the time of surrender and therefore the abovesaid reason for rejecting the said evidence is wholly untenable.But in this case as shown above the discrepant ocaular evidence notwithstanding the facts and circumstances proved, leave no reasonable doubt that the metador being driven by the respondent.Appreciation of evidence is a difficult art and demands a meticulous analytic eye capable of seeing the parts as also the whole picture in one simultaneous process in absence whereof the most likely casualty in justice.From the evidence of Murlidhar (PW 1) husband of the deceased, Babulal (PW 2), Moolchand (PW 5) and Madanlal (PW 6) the picture that emerges is that deceased Jasoda was going with the bucket in her hand to fetch water.She was on her left side of the road.The metador in question came at a high speed from the side of Motwara and after hitting Jasoda went off the road breaking down the fencing of road-side plantation and got stuck up in the ditch.In result the appeal succeeds. | ['Section 304A in The Indian Penal Code'] |
This petition has been filed to call for the records in Crime No.304 of 2015, on the first respondent.Hence he prayed to quash the same.The learned Additional Public Prosecutor would submit that the investigation is almost completed and the respondent police have only to file final report.Accordingly, this Criminal Original Petition stands dismissed. | ['Section 420 in The Indian Penal Code', 'Section 406 in The Indian Penal Code'] |
This Criminal Original Petition has been filed to quash the proceedings in C.C.No.168 of 2017 on the file of the Judicial Magistrate-1, Poonamallee, in Crime No.38 of 2011 on the file of the respondent police having been taken cognizance for the offences punishable under Sections 406, 420 r/w 34 of IPC as against the petitioner.The learned Counsel appearing for the petitioner would submit that the petitioner is innocent person and she has not committed any offence as alleged by the prosecution.Without any base, the first respondent police registered a case in Crime No.38 of 2011 for the offences under Sections, 406, 420 r/w 34 of IPC, as against the petitioner and filed charge sheet in C.C.No.168 of 2017 before the Judicial Magistrate-1, Poonamallee.Hence he prayed to quash the same.The learned Additional Public Prosecutor would submit that there are specific allegations as against the petitioner to attract the offence under Section 406, 420 r/w 34 of IPC.all the points raised by the petitioner have to be considered only during the trial.Therefore, he prayed to dismiss this petition.Heard Mr.It is seen from the charge there are specific avernments to attract the offences as against the petitioner.Further it is also seen that there are materials to connect the petitioner to the offences.More over all the points raised by the petitioner have to be considered only during the trial.The petitioner at liberty to raise all the points before the Court below during the trial.A.No.255 of 2019 dated 12.02.2019 (Sau.Kamal Shivaji Pokarnekar vs. the State of Maharashtra & ors.) stated in para 4,5, and 9 may be made hereunder.However, considering the petitioner being lady and her age as well as thehttp://www.judis.nic.in 6 G.K.ILANTHIRAIYAN.J., lbm case is of the year 2017, the trial Court is directed to complete the trial proceedings within a period of three months from the date of receipt of copy of this Order.In view of the above, this Criminal Original Petition is dismissed.Consequently, connected miscellaneous petitions are closed.The Sub-Inspector of Police, Investigation Officer, Central Crime Branch, Vepery, Chennai -3.The Public Prosecutor, High Court, Madras.6875 2019 and CRL.M.P.Nos.3783 and 3784 of 2019http://www.judis.nic.in | ['Section 406 in The Indian Penal Code', 'Section 420 in The Indian Penal Code'] |
The father of the informant died about a year prior to the lodging of the complaint.Gangarani Bagdi.But very often Sasth tried to have illicit relation with Gangarani forcibly.On the date of incident in the evening Sasthi and his elder brother Ananda being highly excited entered into the house of the informant and tried to lift Gangarani.The informant with his brothers resisted and Ananda with the help of 'kencha' and Sasthi with the help of dagger (chora) attacked the informant and his brothers.The informant somehow managed to escape and took shelter in the house of one Ghosh.JUDGMENT Kalidas Mukherjee, J.This appeal is directed against the judgment of conviction and sentence passed by learned Additional Sessions Judge.2nd Court, Bankura convicting Sasthi Bagdi and Ananda Bagdi and sentencing them to suffer imprisonment for life and to pay fine of Rs. 5.000/- each in default S.I. for six months under Section 302/34, I.P.C. One Dilip Bagdi lodged complaint with the O.C. of Patrasayer P.S. alleging that on 25-2-1995 at about 6.00 p.m. his brother Bhagya Bagdi alias Ajit Bagdi was stabbed to death by Sasthi Bagdi.The second brother of the informant could not escape and he was assaulted in his back and neck by means of dagger.The aunt of the informant tried to resist but she was assaulted on her leg by Ananda Bagdi by means of 'kencha'.After the receipt of the complaint the P.S. case was started under Section 302/324, I.P.C. After completion of investigation charge sheet was submitted.The learned trial Judge on perusal of the materials on record framed charge under Section 302/34, I.P.C. and 324/34,I. P.C., against both the accused persons to which they pleaded not guilty and claimed for trial.In this case the prosecution examined as many as 20 P. Ws, including the persons of the neighborhood, the witnesses of seizure, Autopsy Surgeon and I. O. P.W. 1 Falguni Ghosh.P.W. 2 Kalidasi Delut, P.W. 9 Yudhisthir Ghosh, P.W. 11 Swapan Ghosh.P.W. 15 Dilip Bagdi (de facto complainant) were declared hostile.The learned Trial Judge upon consideration of the materials on record was pleased to pass the Judgment of conviction and sentence holding that both the accused persons committed the murder of Bhagya Bagdi in the manner as stated by the prosecution but, the charge under Section 324, I.P.C. against the Ananda Bagdi was not proved as the injured Kalidasi was declared hostile and did not make any allegation against accused Ananda Bagdi.The learned Trial Judge observed that in the result the charge under Section 302/34, I, P.C. as framed against both the accused persons was proved beyond any manner of doubt, but, the charge under Section 324 I.P.C. against Ananda Bagdi failed.The learned Trial Judge ultimately convicted Sasthi Bagdi and Ananda Bagdi under Section 302/34, I.P.C. and passed the sentence as aforesaid.The learned Judge acquitted Ananda Bagdi of the charge under Section 324, I.P.C.Mr. Kumar contends that the another son of Gangarani was not examined and there is no explanation for such non-examination.It is further contended that the offence was committed at 18.00 hours on 25-2-1995 and it was reported to the P.S. on 26-2-1995 at 7.15 hours and there is evidence to show that Madanbabu and Pranab got sufficient time for fabrication in the matter of lodging of the complaint.Mr, Kumar submits that the place of occurrence is doubtful, Mr, Kumar contends that in view of the evidence on record the learned Trial Judge was not justified in recording the order of conviction and sentence.It is contended that the evidence of P.. Ws. remains unchallenged on material points.It is contended that from the evidence of PW 10 it would appear that both the accused persons Ananda and Sasthi ran after the Bhagya and stabbed him by means of a knife three times.Mr. Mukherjee contends that although it is not in the evidence of other P. Ws.that Ananda also chased Bhagya and caught hold of him, it is in the evidence that Ananda was present with Sasthi from the very beginning till the infliction of assault by Sasthi on Bhagya and this goes to show that there was active participation on the part of Ananda and the learned Trial Judge was justified in convicting Ananda under Section 302, I.P.C. with the aid of Section 34, I.P.C.Mr. Mukherjee contends that the offending weapon was recovered under Section 27 of the Evidence Act in pursuance of the statement made by the accused and there was no suggestion from the defence that the weapon allegedly recovered was not the same with which the assault was allegedly inflicted on Bhagya.Mr. Mukherjee thus contends that having regard to the evidence on record the learned trial Judge was justified in convicting both the accused persons under Section 302/34, I.P.C. and there is no ground to interfere with the findings of the learned trial Judge.As regards the assault by accused Sasthi upon Bhagya it is in the F.I.R. that on 25-2-1995 at about 6.00 p.m. Sasthi and Ananda being highly excited entered into the house of the informant and they wanted to lift the mother of the informant.It is also in the F.I.R. that being resisted, Sasthi by means of dagger assaulted Bhagya on the back and the neck.It has also been mentioned in the F.I.R. that several blows were dealt on Bhagya by accused Sasthi.From the ocular version of the prosecution case as stated by p. W. 3, P.W. 10, P.W. 13, P.W. 14, P.W. 17 and P.W. 18 it appears that on the date of incident at about 5.30/6.00 p.m. Sasthi and Ananda went to the house of Ganga and being resisted by the sons of Ganga Sasthi assaulted Bhagya by means of dagger on the verandah of Shankar Ghosh (P.W. 3).From the evidence of these P. Ws.it is clear that Sasthi dealt the blow on Bhagya as a result of which Bhagya succumbed to the injuries.The evidence of the P. Ws.remained unshaken after undergoing the test of cross-examination.Nothing has been elicited in the cross-examination of these P. Ws.so as to cast any shadow of doubt upon the veracity of their testimony.There is also no doubt as to the place of occurrence which is the verandah of Shankar Ghosh (PW 3).Another important aspect of the prosecution case is the recovery of the offending weapon pursuant to the statement made by the accused under Section 27 of the Evidence Act. Mr. Mukherjee has drawn our attention to the evidence of P.W. 5, P.W. 6, P.W. 10 and P.W. 17 regarding the recovery of the offending weapon.It is in the evidence of P.W. 5, P.W. 6 and P.W. 17 that Sasthi led the police to his house wherefrom he brought out the dagger and handed over it to the police in their presence and the.seizure list was also prepared on the spot wherein they signed.Nothing has been elicited in the cross-examination of the P. Ws.so as to cast any shadow of doubt on the said recovery of the offending weapon.Mr. Kumar in this regard submits that the offending weapon has not been sent to the F.S.L. for examination and report.The I. O. (P.W. 20) has stated that he did not send the seized articles for chemical expert's report to ascertain whether there was any human blood with the seized articles or not.as to the infliction of assault on Bhagya and the recovery of offending weapon pursuant to the statement of accused Sasthi, the non-examination of the weapon by the F.S.L. would not in any way shake the veracity of the prosecution case.As regards the medical evidence, the doctor (P.W. 7) has noted the following injuries on the dead body of Bhagya Bagdi aged 17 years:a) One sharp cutting very deep extending up to cervical vertebrae injury at near right side of neck of sterno clavicular Joint measuring 1 1/2" x 1/2 with deep cutting all cervical vessels on right side.b) There is 1" x 1/2" sharp cutting incised wound over the manubrium sterni.c) There is 2 1/2" x 1 1/2" incised muscles deep injury at right scapular region with bleeding.In my opinion cause of death is due to shock and haemorrhage of following above injuries by sharp cutting instrument like knife or dagger of ante mortem and homicidal in nature.All the injuries are sufficient to cause death in ordinary course of nature.In the cross-examination P.W. 7 has stated this type of injury can be caused if anyone is stabbed by a knife.We find that the ocular version of the prosecution case finds ample corroboration from the evidence of the Autopsy Surgeon.So having regard to the evidence of the P. Ws.The learned Trial Judge therefore, was justified in convicting the accused Sasthi and passing the sentencing as aforesaid.We do not find any ground to interfere with the order of conviction and sentence as recorded by the learned Trial Judge in respect of appellant Sasthi.As regards the conviction and sentence in respect of appellant Ananda it in the evidence of P.W. 10 that Ananda and Sasthi ran after Bhagya and caught hold of Bhagya by the side of their 'baithakkhana' and then Sasthi stabbed by a knife three times on the person of Bhagya.From the materials on record we find that only PW 10 has stated that Ananda also chased and caught hold of Bhagya.Excepting P.W. 10 no other P. Ws. stated that Ananda ran after Bhagya and caught hold of him.Moreover, in the F.I.R. there is no mention that Ananda ran after Bhagya and took active part in the matter of infliction of assault upon Bhagya.The allegation against Ananda as stated in the F.I.R. is that he inflicted assault on Kalidasi on her leg by means of 'kancha' and as Kalidasi (P.W. 2) did not support the infliction of injury upon her, the accused Ananda was acquitted by the learned Trial Judge.In order to convict Ananda under Section 302, I.P.C. for causing death of Bhagya with the aid of Section 34 of the I.P.C., the prosecution has to prove that there was prior concert or pre-arranged plan.From the evidence on record we do not find that there was prior meeting of minds amongst the appellants for inflicting assault on Sasthi to cause his death.From the evidence on record we find that both the appellants came to the house of Ganga with the intent to lift Ganga as Sasthi had illicit relation with Ganga and on being resisted, Sasthi dealt the fatal blow on Bhagya as a result of which he succumbed to the injuries.The lone testimony of P.W. 10 that Ananda also chased and caught hold of Bhagya is not sufficient to warrant conviction of appellant Ananda with the aid of Section 34 of the I.P.C.Let a copy of this order along with the L.C.R. be sent to the learned Trial Court immediately.Urgent xerox certified copy, if applied for, be handed over to the parties as early as possible.Alok Kumar Basu, J.I agree. | ['Section 34 in The Indian Penal Code', 'Section 302 in The Indian Penal Code', 'Section 324 in The Indian Penal Code'] |
It is alleged that he exhorted other co-accused persons.It would be apparent that the applicant is falsely implicated in the matter.As many as 6 accused persons are implicated by the victim.No common intention or object of the applicant is established with other co- accused persons.Heard the learned counsel for the parties.The applicant has an apprehension of his arrest relating to crime No.276/2014 registered at Police Station Pathariya, District Damoh for offence punishable under Sections 147, 148, 149, 323, 307 of IPC.Learned counsel for the applicant submits that the applicant is a youth of 22 years of age, who has no criminal past alleged against him.Except of offence punishable under Section 307 of IPC, remaining offences are bailable.The victim Madan had sustained 9 injuries.Out of such injuries, no injury was found fatal or grave.There is no allegation against the applicant that he assaulted the victim by any weapon.Prima facie no offence punishable M.Cr.C.No.17178/2014 under Section 307 of IPC is made out against the applicant either directly or with help of Section 34 or 149 of IPC.The police is unnecessarily harassing the applicant for bailable offences.Under such circumstances, the applicant prays for bail.Learned Panel Lawyer for the State opposes the application.The applicant shall make himself available for interrogation by a police officer as and when required.C.No.17178/2014 This order shall remain in force for a period of 60 days and in the meanwhile, if the applicant so desires, may move an application for regular bail before the competent Court.Certified copy as per rules.(N.K.GUPTA) JUDGE Pushpendra | ['Section 307 in The Indian Penal Code', 'Section 34 in The Indian Penal Code', 'Section 148 in The Indian Penal Code', 'Section 438 in The Indian Penal Code', 'Section 323 in The Indian Penal Code', 'Section 147 in The Indian Penal Code', 'Section 149 in The Indian Penal Code'] |
(Under Article 32 of the Constitution of India).R.K. Jain, R.P. Singh and Rakesh Khanna for the petitioners.S.C. Mahanto, C.V.S. Rao and Mahabir Singh for theRespondents.The Judgment of the Court was delivered by B.C. RAY, J. The petitioners who are life convicts inthis writ petition have assailed a D.O. Letter No.4665/1983-GI/G4/R.10-84 dated 24.4.1985 issued by the re-spondent No. 3, Inspector General of Prisons, Haryana,Chandigarh intimating to the Superintendent of Jail thatconvicts who are on bail and whose sentences are suspended,are excluded from the remissions systems in view of theprovisions of Section 637 of the Punjab Jail Manual on theground that the aforesaid letter purports to deprive thepetitioners from the benefit of remissions of 19 months and12 days granted to them during the period they were on bail,while counting the total period of sentence including remis-sions undergone by them in order to consider their cases ofpre-mature release from imprisonment.The petitioner No. 1, Jai Prakash was convicted by theDistrict and Sessions Judge, Bhiwani, on December 4, 1975under Section 302 of the Indian Penal Code and he was award-ed life imprisonment.Against this judgment and order of theSessions Judge he preferred an appeal before the High Courtof Punjab and Haryana and he was granted bail on 12.1.1976.This appeal, however, was dismissed on 28.9.1978 and he wasarrested on 29.1.1979 while he was going to the Court tosurrender himself to serve out the remaining part of thesentence as stated by him.The petitioner has stated thatduring the period he was on bail he earned remission of 19months and 12 days.Similarly, the petitioner Nos. 2 to 5 were also convict-ed by the District and Sessions Judge, Bhiwani, on 23.3.1976 in a case under Section 302 of the Indian Penal Codeand they were awarded life imprisonment.1979 for serving out theirremaining part of sentence.The petitioner Nos. 2 to 5 werealso given remissions of 19 months and 12 days during theperiod they remained on bail.It has been stated that though all the petitioners weregiven remissions of 19 months and 12 days and they wereunder the impression that the period of remission earned bythem would be taken into consideration under para 637 ofPunjab Jail Manual while computing their sentence under Para516-B of the Punjab Jail Manual.They have now been informedby the respondent No. 3 as per his letter dated 24.4.1985addressed to the Superintendent, District Jail, Bhiwani,respondent No. 2, that the convicts who were on bail andwhose sentences were suspended would be excluded from theremissions purported to be earned by them while they were onbail.The petitioners have submitted that a number of pris-oners to whom remissions were given during the period whenthey were on bail were also released by the State Governmentafter taking into consideration the remissions granted tothem during the period when they were on bail or that theirsentence had been suspended.Names of six persons werementioned in the petition who were pre-maturely released.The petitioners have also stated that since they surrenderedthemselves before the jail authority after dismissal oftheir appeals by the High Court they are entitled to havethe period of remissions earned by them to be counted whileconsidering the total period of sentence undergone for theirpremature release.A counter-affidavit affirmed by the Superintendent ofDistrict Jail, Bhiwani has been filed.The petitioners are not entitled to thebenefit claimed as they had not surrendered in the jail forundergoing the remaining period of the sentence.The appealof petitioner No. 1 had been dismissed on 28.9.1978 but hedid not surrender for several months.According to the petitioners' own averments in para 2of the petition, the other four writ petitioners remainedout of jail for more than two months after the dismissal oftheir appeal.It is evident that they had not surrendered inthe jail for undergoing the remaining period of sentenceimmediately after dismissal of their appeals.It has also been stated that similar cases of remissionearned during the period of bail came up before the HighCourt of Punjab and Haryana and it was held by the HighCourt that special remissions were not available to theconvicts who had not surrendered voluntarily on the expiryof the bail period.It has been stated further that non-surrender of the convict for1112several months after dismissal of appeal by itself showedthat the surrender was not voluntary and such a convict didnot merit the remission and an interpretation different fromthat would defeat the administration of justice.It has beenaverred that petitioners could not avail of the remissionsordered erroneously and inadvertently not in accordance withthe relevant rules.As regards the six specific cases men-tioned, it has been stated that the benefit was given toTuhi Ram and Dig Ram only but not in the cases of the otherfour convicts referred to in the petition.They were deniedthe benefit as it is being done to the petitioners."MANUAL FOR THE SUPERINTENDENCE AND MANAGEMENT OF JAILS IN THE PUNJABThe submission thatthe petitioners who were temporarily released on bail areentitled to get the remission earned during the period theywere under bail, is not at all sustainable.As such theremissions that were inadvertently given to these petition-ers cannot be taken into account in considering the total 1113period of sentence undergone by them while considering theirpremature release from imprisonment under paragraph 637 ofthe Punjab Jail Manual.It also appears from the order ofthe Governor of Haryana dated 14th August, 1977 annexed asAnnexure 'R1' to the writ petition that the special remis-sion was granted by the Governor of Haryana to only thoseprisoners who were in confinement on 14th August, 1977 onthe occasion of the first visit of the Chief Minister ofHaryana to jail and who had been subsequently released onbail.It is pertinent to set out paragraph 2 of the saidorder:-"All those prisoners who have been convicted before the 14th August, 1977 but subsequently released on bail shall be enti- tled to the remission only if they surrender in the jail for undergoing the unexpired portion of their sentence."The petitioners though convicted prior to 14th August,1977 that is the date of visit of the Hon'ble Minister tothe Jail were granted bail before the said date.Secondly, all thesepetitioners did not surrender in the jail for undergoing theunexpired portion of their sentences immediately after theirappeals were dismissed by the High Court.1979 in pursuance of the warrantissued by the court.1979 to serve outthe remaining part of their sentence.1977referred to hereinbefore.1985 to allSuperintendents of Jails including the Superintendent ofDistrict Jail, Bhiwani, drawing their attention to paragraph2 of the letter dated 11/14-1-1985 from the State Governmentto the Jail Department which is to the following effect:-"Attention of all Superintendents of Jails is drawn to para 4 of the Government letter under which Government have affirmed that convicts who are on bail and whose sentences have been suspended are excluded from the remissions systems in.This D.O. letter has been annexed as Annexure 'A' to the writ petition.The letter dated 11/14 January, 1985 issued by the Gover- nor of Haryana to the respondent No. 3 is an- nexed as Annexure 'R5' to the writ petition.The relevant excerpt of it is set out herein below:-It is clear and evident from this letter that convictswho were on parole from jail on the date and time of thevisit of the Chief Minister to the Jail will be grantedremissions on condition that they surrender at the jail onthe due date after expiry of parole period for undergoingthe unexpired period of their sentence.This means that aconvict in order to get the benefit of remission as directedby the said order issued under Article 16 1 of the Constitu-tion of India has to surrender voluntarily at the Jail afterexpiry of bail.In the instant case, petitioner No. 1 didnot surrender in jail or before the Magistrate after hisappeal was dismissed by the High Court and the petitionerNo. 1 had been 1115arrested under warrant of arrest as he did not surrender injail after his appeal was dismissed.Petitioners who were onbail also did not surrender immediately after dismissal oftheir appeal but they surrendered themselves after twomonths of dismissal of their appeal.The letter of the respondent No. 3 theInspector General of Prisons, Haryana, Chandigarh i.e.D.O.Letter No. 4665/1983-GI/G4/R10-84 dated 24.4.1985 is quitein accordance with the Government order made on 11/14 Janu-ary, 1985 and the respondent No. 3 in fact quoted paragraph2 of the said letter which contains the necessary requisitefor grant of remissions from sentence.The said D.O. letterof the respondent No. 3 cannot therefore be challenged as inviolation of paragraph 637 of the Punjab Jail Manual nor itis contrary to the directions contained in the aforesaidorder.In the premises aforesaid, this writ petition is dis-missed.There will be no order as to costs. | ['Section 302 in The Indian Penal Code'] |
2.1 Meenakshi (D1) married the appellant/Thirupathi and they were blessed with two daughters, viz. Divya (P.W.6) and Karthika (P.W.7) and one son Dinesh (D2).The appellant suspected his wife’s fidelity and frequently quarrelled with her.The family was residing in Door No.2352, Housing Board Colony, Anupanadi West, Madurai.Meenakshi’s (D1’s) sister Karpagavalli (P.W.3) was residing in Door No.2318 in the same colony.The appellant’s parents were also residing nearby.The parents of Meenakshi (D1), viz. Perumal (P.W.1) and Kamakshi (P.W.2) were residing in Sayalkudi in Ramanathapuram District, which is about 200 kilometres away from Madurai.2.2 Four days prior to Deepavali in 2011, Kamakshi (P.W.2), the mother of Meenakshi (D1), tried to speak to her daughter, but, was not able to get her on line.So, she contacted her younger daughter Karpagavalli (P.W.3) and asked her to find out the whereabouts of Meenakshi (D1).Karpagavalli (P.W.3) went to Meenakshi’s (D1’s) house and found that it was locked.Since there was no news from Meenakshi (D1), her parents suspected foul play and came to Madurai in thehttp://www.judis.nic.in 3 evening of 22.10.2011 and went to Karpagavalli’s (P.W.3’s) house.Then, they all came to Meenakshi’s (D1’s) house and found that the door was locked.They staved in through the rear door of the house and to their shock, they found the dead bodies of Meenakshi (D1) and Dinesh (D2) with injuries.2.3 On the written complaint given by Perumal (P.W.1), Uma Shankar (P.W.18), Inspector of Police (hereinafter referred to as “the Investigating Officer”) registered a case in Crime No.535 of 2011 on 22.10.2011 at 22.30 hrs.under Section 174 Cr.P.C. and prepared the printed FIR (Ex.P.31), which reached the jurisdictional Magistrate on 24.10.2011 at 05.00 p.m., as could be seen from the endorsement thereon.2.4 The Investigating Officer (P.W.18) came to the place of occurrence and despatched the two bodies through Mahendran, HC 1785 (P.W.16) to the mortuary in the Government Hospital, Madurai.On 23.10.2011, at the place of occurrence, the Investigating Officer prepared the Observation Mahazar (Ex.P.18) and Rough Sketch (Ex.P.19), in the presence of witnesses Azhagarsami (P.W.5) and Mahendran (P.W.15).At the place of occurrence, the Investigating Officer (P.W.18) seized the following items:http://www.judis.nic.in 4 ∀ A screw driver measuring 12 inches (M.O.3);∀ A sharp edged metal comb specially used by women for untangling the knots in the tress (M.O.4) and ∀ A 100ml.box of Endosulfan (pesticide) (M.O.5).2.5 On 23.10.2011, the Investigating Officer (P.W.18) went to the mortuary and conducted inquest over the body of Meenakshi (D1) and the Inquest Report qua Meenakshi (D1) was marked as Ex.After inquest, he despatched the body of Meenakshi (D1) for post-mortem.They have further stated that the appellant suspected his wife's fidelity and believed that she was of loose morals and therefore, quarrelled with her frequently and assaulted her.Thereafter, he conducted inquest over the body of Dinesh (D2) and the Inquest Report qua Dinesh (D2) was marked as Ex.After the inquest, he despatched the body of Dinesh (D2) for post-mortem.2.6 Dr.Rajavelu (P.W.11) performed autopsy on the body of Dinesh (D2) and issued the post-mortem certificate (Ex.P.6).After obtaining the Viscera Report (Ex.P.7), he gave the final opinion (Ex.P.8).In his evidence as well in the post-mortem certificate (Ex.P.6), he has stated as follows:“Appearances found at the post-mortem Decomposed body of a male child aged about 10 years.Finger & toe nails are blue.The following ante-mortem injuries are noted on the body On dissection of scalp, skull & dura :Contusion of 4cm x 3cm seen on the left temporal region.Contusion of 4cm x 2cm seen on the right mastoid region.Diffused subdural haemorrhage & Subarachnoid haemorrhage noted over both the cerebral hemispheres.http://www.judis.nic.in 5 OTHER FINDINGS :Peritoneal cavity - contains 10ml of decomposed fluid, Pleural cavities - contains 20ml of decomposed fluid, Pericardium - contains 10ml of decomposed fluid; Heart - flabby; Lungs - cut section decomposed; Larynx & trachea - normal; Hyoid bone intact; Stomach - contains 100 gms of partially digested semi solid food materials with smell of decomposition, mucosa - decomposed; Liver, Spleen & Kidneys - cut section decomposed; Small intestine - contains 10ml decomposed fluid with smell of decomposition, mucosa - decomposed; Bladder - empty; Brain - described.” In the final opinion (Ex.P.8), he has stated as follows:“The deceased would have appear to have died of head injury 24-36 hours prior to post-mortem.”http://www.judis.nic.in 6 2.7 Dr.Rajavelu (P.W.11) performed autopsy on the body of Meenakshi (D1) and issued the post-mortem certificate (Ex.P.9).After obtaining the Viscera Report (Ex.P.10), he gave the final opinion (Ex.P.11).In his evidence as well in the post-mortem certificate, he has stated as follows :“Appearances found at the post-mortem Decomposed body of a female aged about 33 years.Face, chest, abdomen are blotted.Finger & toe nails are pale.The following antemortem injuries are noted on the body.Following injuries seen on the front of the left side chest around the nipples1.A circular punctured wound of 0.5cm size cavity depth noted 3cm below and lateral to the nipple in the 5th intercoastal space.On dissection : The wound margin is irregular and inverted directed inward and upward direction pass through the skin, underlying tissue and muscles enter the pleural cavity, the lung, the pericardium, pierce the cavity of left ventricle of the heart.2.A circular punctured wound of 0.5cm size, cavity depth 6cm lateral and below to the nipple on the 4th intercoastal space.On dissection : The wound margin is irregular and inverted, directed horizontally inwards and pass through the skin, underlying tissue pleural cavity and pierce the lung.3.A punctured wound of 0.5cm x muscle depth seen 5cm above and lateral to the nipple.On dissection : The wound pass through the skin and underlying tissue.4.A punctured wound of 0.5cm x muscle deep seen 3cm below and medial to the nipple in the 4th intercoastal space.On dissection : Wound margin irregular and inverted pass through the skin underlying tissue and muscle.5.A punctured wound of 0.5cm x muscle deep noted 4cm above and medial to the nipple in the 2nd intercoastal space.http://www.judis.nic.in 7 On dissection : Wound margin irregular and inverted pass through the skin, underlying tissue and muscle.6.A punctured wound of 0.5cm x bone deep noted 5cm above and medial to the nipple.’ On dissection : Wound margin irregular and pass through the skin and underlying tissue.OTHER FINDINGS :Peritoneal cavity - empty, Pleural cavities - left side 1500ml of blood with clots, right side empty, Pericardium - contains 100ml of fluid blood with clots seen, Heart - both chambers empty, Coronaries - patent, Lungs - cut section pale, Larynx & trachea - normal, Hyoid bone - intact, Stomach - contains 100gms of partially digested food, nil specific smell, mucosa - normal, Liver, Spleen & Kidneys - cut section pale, Small intestine - contains 20ml of bile stained fluid, nil specific smell, mucosa - pale, Bladder - empty, Uterus - normal, cut section empty, Brain - surface pale, cut section pale.” No poison was detected in the visceral examination of the internal organs of Meenakshi (D1) vide Viscera Report (Ex.P.10).In the final opinion (Ex.P.11), Dr.Rajavelu (P.W.11) has stated as follows:“The deceased would appear to have died of external injury No.1 and its corresponding internal injuries along with cumulative effect of all other injuries, sustained by her 24-36 hours prior to post-mortem.http://www.judis.nic.in 8 2.9 During the course of investigation, the Investigating Officer (P.W.18) came to know that the appellant had taken away his two children, viz., Divya (P.W.6) and Karthika (P.W.7) and absconded and therefore, the case was altered to one under Section 302 r/w 363 IPC and the Alteration Report (Ex.P.24) was prepared and sent to the jurisdictional Magistrate on 27.02.2012, as could be seen from the endorsement thereon.2.10 Meanwhile, Perumal (P.W.1) filed H.C.P.(MD) No.40 of 2012 on 09.01.2012 alleging that his two grandchildren Divya (P.W.6) aged 15 years and Karthika (P.W.7) aged 12 years, are in the illegal custody of the appellant, who has committed the murder of Meenakshi (D1) and has absconded with his two children.2.11 A Division Bench of this Court entertained the habeas corpus petition and issued notice to the police.The Investigating Officer (P.W.18) formed a special team to nab the appellant and rescue the children.On 14.06.2012, the appellant surrendered before the Judicial Magistrate, Aruppukkottai, which was not the jurisdictional Court.However, strangely, the order that is said to have been passed by this Court was not marked before the Trial Court.Therefore, we are marking the certified copy of the order dated 15.06.2012 in H.C.P. (MD) No.40 of 2012 as Ex.C.1, in exercise of the powers under Section 391 Cr.P.C. No prejudice will be caused to the appellant, because, even in the cross-examination of the Investigating Officer, it has been suggested that he has deliberately suppressed the order passed in H.C.P. (MD) No.40 of 2012, which, of course, he has denied.Therefore, the defence also wanted the order to be brought on record.∀ The children were enquired by this Court and at their request, were handed over to their paternal grandparents and not to their maternal grandfather, Perumal (P.W.1).2.13 Now, reverting to the narration of facts, the Investigating Officer (P.W.18) took custody of the appellant on 20.06.2012 for three days and interrogated him.He recorded his confession statement, based on which, he recovered a gold thali (M.O.1) and a pair of gold stud (M.O.2) belonging to Meenakshi (D1) from Muthoot Finance in Kerala, under the cover of mahazar (Ex.P.26).From the confession statement of the appellant, the Investigating Officer (P.W.18) came to know about one Ameen (P.W.9) and recorded his statement.2.14 The material objects, viz. screw driver (M.O.3) and iron tress untangler (M.O.4) were sent through the Court to the Tamil Nadu Forensic Science Laboratory for examination.The articles were examined and blood was detected in the screw driver (M.O.3) and tress untangler (M.O.4) vide Biology Report (Ex.P.29).However, the Serology Report (Ex.P.30) states that the blood found in the tress untangler (M.O.4) was human blood, but the result of grouping test was inconclusive.2.15 After examining the witnesses and obtaining various reports, the Investigating Officer (P.W.18) completed the investigation and filedhttp://www.judis.nic.in 11 final report in P.R.C.No.11 of 2012 before the Judicial Magistrate No.VI, Madurai, under Section 301 (2 counts) and 404 IPC against the appellant.2.16 On the appearance of the appellant, the provisions of Section 207 Cr.P.C. were complied with and the case was committed to the Court of Session in S.C.No.62 of 2014 and was tried by the Principal District and Sessions Judge, Madurai.The trial Court framed charges under Section 302 (2 counts) and 404 IPC against the appellant and when questioned, the appellant pleaded “not guilty”.2.17 To prove the case, the prosecution examined 18 witnesses and marked 31 exhibits and 6 material objects.2.18 When the appellant was questioned under Section 313 Cr.P.C. about the incriminating circumstances appearing against him, he denied the same and gave a written explanation which will be discussed later.2.19 After hearing both sides and considering the evidence on record, the trial Court, by judgment dated 19.07.2017 in S.C.No.62 of 2014, convicted and sentenced the appellant as under:Section 302 (2 counts) Imprisonment for life and fine of Rs.2.20 The aforesaid sentences were ordered to run concurrently.Challenging the conviction and sentence, the accused has filed the present appeal.3 Heard Mr.They have also stated that on accounthttp://www.judis.nic.in 14 of torture given by the appellant, Meenakshi (D1) went to her natal home in Ramanathapuram District and a police complaint was also lodged in A.W.P.S., Madurai Town and the police advised the couple to live away from each other for six months.7 To corroborate this, the prosecution examined Kameswari (P.W.17), the then Sub Inspector of Police, A.W.P.S., Madurai, who has stated that on 06.10.2007, Meenakshi, W/o.She has further stated that she (P.W.17) called Meenakshi (D1) and her husband for enquiry and in the enquiry, Meenakshi (D1) agreed to re-join her husband in the interests of her children.In the cross-examination, it was suggested to her that the A.W.P.S., Madurai, does not have jurisdiction to deal with the complaint from a person who lives in Anupanadi West area and only the A.W.P.S., Thirupparankundram will have jurisdiction, for which, she stated that, for conducting a petition enquiry on the complaint given by a woman, territorial jurisdiction is not relevant and only if a regular FIR is registered, the aspect of territorial jurisdiction will be examined by the police.It was further suggested to her that the petition No.254 of 2011 relates to some other person and not to the complaint of Meenakshi (D1), which, she denied.http://www.judis.nic.in 15 8 Thus, on an overall reading of the evidence of Perumal (P.W.1), Kamakshi (P.W.2), Karpagavalli (P.W.3) and Kameswari (P.W.17), we find that the prosecution has proved the alleged motive satisfactorily.The most powerful circumstance against the appellant is that, after the incident, he had absconded with his two daughters viz. Divya (P.W.6) and Karthika (P.W.7) and did not even attend the funeral of his wife (Meenakshi-D1) and son (Dinesh-D2).9 Mr.ARL.Sundaresan, learned Senior Counsel, took this Court through the written explanation given by the appellant under Section 313 Cr.P.C., wherein, he has stated that he had a very cordial relationship with his wife; there was no dispute between them; they had purchased a house in Door No.2352, Housing Board Colony, Anupanadi West in their joint names in the year 2008 and were living happily; his job is to make steel almirah, for which, he would go frequently to various places and remain there for two to three months continuously; he informed his wife and children and went to Ganga Bureau Company in Tuticorin, where, he was employed, during which time, the unfortunate incident had taken place; his parents-in-law had taken a loan of Rs. 2,00,000/- from him; when he asked them to return the amount, they developed ill feeling towards him and that is why, they have falsely implicated him in this case; he came to know that the police were on thehttp://www.judis.nic.in 16 hunt for him and fearing that, he will be tortured, he remained in Tuticorin itself; he did not take with him Divya (P.W.6) and Karthika (P.W.7); he did not go to Kerala; since his parents-in-law wanted to usurp the property, this case has been foisted on him.10 Relying upon the above statement of the appellant, Mr.In this case, the deceased were none other than the appellant’s wife and son.The appellant may have many a grievance against his wife and therefore, he would have decided to remain away from her funeral.But, there is no plausible explanation, as to why, he did not even come to see the dead body of his son Dinesh (D2).Yet another powerful circumstance against the appellant is that, 1 (2011) 11 SCC 754http://www.judis.nic.in 17 after the incident, his two daughters Divya (P.W.6) and Karthika (P.W.7), who were school-going children had also gone missing.No doubt, Divya (P.W.6) and Karthika (P.W.7) turned hostile.Karthika (P.W.7), who was 14 years old, when she was examined on 02.06.2014, has stated that on the night when her mother and brother died, she and her elder sister were sleeping in the house of her paternal grandfather, which is three houses away.In the charge that was framed against the appellant, it is clearly stated that on 21.10.2011, while the appellant and his two daughters were sleeping in the house of the appellant’s father, around 12.30 midnight, he saw light burning in the house, where his wife Meenakshi (D1) was staying and suspecting her, he went there and held her by her tresses and assaulted her; at that time, when Dinesh (D2) intervened, he (appellant) pushed Dinesh (D2) with such force that hehttp://www.judis.nic.in 18 dashed against the wall and fell dead; thereafter, the appellant took the iron tress untangler (M.O.4) and stabbed Meenakshi (D2) around her chest, resulting in her death.13 According to Karthika (P.W.7), her father was not there with them on that night and that, he did not take them with him.14 Divya (P.W.6) and Karthika (P.W.7) have stated in their evidence that there was no misunderstanding between their parents.Even in the Section 313 Cr.P.C. statement of the appellant, he had stated so.Had that been true, he would not have stayed away from the funeralhttp://www.judis.nic.in 19 of his wife and son.His explanation that he had given Rs.2,00,000/- to his parents-in-law and when he asked them to return the amount, they developed animosity towards him and therefore, they had foisted this case against him appears incredible, because, in the cross-examination of Perumal (P.W.1), no such suggestion has been put.The story of the appellant extending loan of Rs.2,00,000/- to his parents-in-law surfaced for the first time only in the Section 313 Cr.P.C. statement.The appellant has not denied the fact that he voluntarily surrendered before the Judicial Magistrate, Aruppukkottai on 14.06.2012, which is not the jurisdictional Court and the children were produced by the police before this Court on 15.06.2012, one day after his surrender.Hence, we are in complete agreement with the following finding of the trial Court returned in paragraph 57:“The reason for P.W.6 and P.W.7 for not attending the funeral of their brother and mother though they were in Madurai is also doubtful.If they have attended the funeral, there might not be any necessity for P.W.1 to file the Habeas Corpus Petition before the High Court.From the evidence of P.W.9, P.W.10, P.W.18, it is clear that the accused has left the place of occurrence immediately 2 (2002) 7 SCC 157http://www.judis.nic.in 20 after the occurrence.” 15 As regards the recovery of gold jewels from Muthoot Finance, Mr.AR.L.Sundaresan, learned Senior Counsel contended that Ganesh (P.W.10), Manager of Muthoot Finance, has not stated that it was the appellant who had pledged the jewels (M.Os.1 and 2), but, has stated that it was one Ameen (P.W.9).Ameen (P.W.9) has stated that he is a native of Shencottah and works for a steel almirah company in Kollam, Kerala; he knows the appellant, who is also an almirah craftsman; the appellant approached him for a job and he got him a job in his company;the appellant approached him with his two daughters and asked to arrange an accommodation for him and that, he got him a place to stay in Kollam; the appellant gave him a pair of ear rings (M.O.2) and a gold thali (M.O.1) and wanted a loan; he pledged those items with Muthoot Finance and obtained loan and gave him.16 Assuming for a moment that the prosecution was not able to satisfactorily prove the fact of the appellant giving two jewels to Ameen (P.W.9) for pledging them with Muthoot Finance, yet, the evidence of Ameen (P.W.9) that he is an almirah craftsman and that, he knows the appellant who is also an almirah craftsman and that, the appellant came with his two daughters in search of a job to Kollam in Kerala, where, hehttp://www.judis.nic.in 21 got him a job and also accommodation, cannot be disbelieved.17 As regards the conviction of the appellant under Section 404 IPC, except the police confession of the appellant, there is no other material to establish the charge.Under such circumstances, the conviction and sentence slapped on the appellant for the charge under Section 404 IPC cannot be sustained and accordingly, he is acquitted of the said charge.In support of this contention, the learned Senior Counsel drew the attention of this Court to the police confession of the appellant.In our opinion, the police confession whichhttp://www.judis.nic.in 22 came into being after registration of the FIR and during investigation cannot be looked into, even in favour of the accused, save as provided under Section 27 of the Indian Evidence Act, in the light of the judgment of a Division Bench of this Court in Sudalaimani vs. State, represented by the Inspector of Police, Chromepet Police Station, Chennai3, wherein, one of us (PNPJ) was a member.That apart, there are six stab injuries around the chest portion of Meenakshi (D1), which shows the intensity with which the offence was committed.The act of the appellant qua Dinesh (D2) would fall within the third limb of Section 299 IPC and would not graduate to Section 300 IPC.However, the same cannot be said qua the death of Meenakshi (D1), which will clearly fall within Section 300 Thirdly or Fourthly and there being no way to invoke any of the five exceptions, the appellant's conviction under Section 302 IPC for the death of Meenakshi (D1) cannot be unsettled.19 In the result, this appeal is partly allowed.The conviction and sentence slapped on the appellant under Section 404 IPC are set 3 2014 (4) CTC 593http://www.judis.nic.in 23 aside.Further, the conviction and sentence of the appellant under Section 302 IPC for causing the death of Dinesh (D2) are also set aside and in lieu of that, the appellant is convicted under Section 304(II) IPC and sentenced to undergo seven years rigorous imprisonment and pay a fine of Rs.1,000/-.The conviction and sentence imposed on the appellant under Section 302 IPC for the murder of Meenakshi (D1) stand affirmed.The sentences shall run concurrently. | ['Section 302 in The Indian Penal Code', 'Section 363 in The Indian Penal Code', 'Section 300 in The Indian Penal Code', 'Section 304 in The Indian Penal Code', 'Section 299 in The Indian Penal Code'] |
sdas allowed C.R.M. No. 3455 of 2018 In Re.: An application under Section 438 of the Code of Criminal Procedure filed on 06.06.2018 in connection with Dankuni Police Station Case No. 399 of 2017 dated 06.11.2017 under Sections 498A/325/354B/376/307/34 of the Indian Penal Code.And In Re: Gita Debi & Ors.......... petitioners Mr. Mahammad Mahmud, Mr. Mahfuzus Salam Mollah, Mr. Biswajit Bhattacharya ...for the petitioners Mr. Narayan Prasad Agarwala .... for the State It is submitted by the learned Counsel appearing for the petitioners that there was a family dispute and they have been falsely implicated in the instant case.Accordingly, we direct that in the event of arrest the petitioners shall be released on bail upon furnishing a bond of Rs.10,000/- each, with two sureties of like amount each, to the satisfaction of the arresting officer and also subject to the conditions as laid down under Section 438(2) of the Code of Criminal Procedure, 1973 and on further 2 condition that they shall appear before the Court below within a period of fortnight from date and shall pray for regular bail.This application for anticipatory bail is, thus, disposed of.(Ravi Krishan Kapur, J.) (Joymalya Bagchi, J.) | ['Section 325 in The Indian Penal Code', 'Section 498A in The Indian Penal Code', 'Section 307 in The Indian Penal Code', 'Section 376 in The Indian Penal Code', 'Section 34 in The Indian Penal Code'] |
The detenu came to adverse notice in the following cases:The ground case alleged against the detenu is registered by the Sub-Inspector of Police, Ganesh Nagar Police Station in Crime No.219 of 2013 foroffences under Sections 341, 294(b), 387 and 506(ii) I.P.C. Aggrieved by theorder of detention, the present petition has been filed.Besides several grounds raised by the learned counsel for thepetitioner to interfere with the order of detention, he questioned the detentionorder as there is no real possibility of the detenu coming out on bail, when hisbail application was already dismissed and in the absence of any material tosupport, either in the ground case or in a similar cases, regarding thelikelihood of the detenu coming out on bail, the detaining authority has notarrived at any subjective satisfaction to pass the impugned order and therefore,the order is vitiated in law.We have heard the learned Additional Public Prosecutor also on theabove submission and perused the records.Accordingly, the impugned detention order passed by the 2nd respondent,detaining the detenu, Jerin Joseph @ Diwan, aged 25 years, S/o.John Bosco, madein P.D.O.No.15/2013 dated 03.06.2013, is quashed and the Habeas Corpus Petitionis allowed.3.The Superintendent of Prison, Trichy Central Prison, Trichy District.4.The Public Prosecutor, Madurai Bench of Madras High Court, Madurai. | ['Section 294(b) in The Indian Penal Code', 'Section 341 in The Indian Penal Code', 'Section 506 in The Indian Penal Code', 'Section 392 in The Indian Penal Code'] |
M.C. No.2877/2014 & Connected Matters Page 1 of 42 of the Indian Penal Code (IPC for short).M.C. No.2877/2014 & Connected Matters Page 1 of 42Since all these thirteen petitions have arisen out of different charge sheets in respect of different first information reports registered pursuant to the complaints of investors, who have invested in the Housing Projects launched by M/s. A.J.S. Builders Pvt. Ltd. (herein after referred to as accused company) and involves identical question of law, they are being disposed of by this common order.3. Crl.M.C. 2877/2014 pertains to FIR No. 88/2010 registered at P.S. E.O.W, Crl.M.C. 2932/2014 pertains to FIR No. 25/2010 registered at P.S. E.O.W, Crl.M.C. 2938/2014 pertains to FIR No. 110/2009 registered at P.S. Mandir Marg, Crl.M.C. 2977/2014 pertains to FIR No. 87/2010 registered at P.S. E.O.W, Crl.M.C. 2979/2014 pertains to FIR No. 86/2010 registered at P.S. E.O.W, Crl.M.C. 2995/2014 pertains to FIR No. 24/2010 registered at P.S. E.O.W, Crl.M.C. 3002/2014 pertains to FIR No. 89/2010 registered at P.S. E.O.W, Crl.M.C. 3006/2014 pertains to FIR No. 75/2010 registered at P.S. E.O.W, Crl.M.C. 3015/2014 pertains to FIR No. 03/2010 registered at P.S. Mandir Marg, Crl.M.C. 3023/2014 pertains to FIR No. 50/2010 registered at P.S. E.O.W, Crl.M.C. 3025/2014 pertains to FIR No. 109/2009 registered at P.S. Mandir Marg, Crl.M.C. 3031/2014 pertains to FIR No. 169/2009 registered at P.S. Mandir Marg and Crl.M.C. 3037/2014 pertains to FIR No. 74/2010 registered at P.S. E.O.W.The concise facts of the case as borne out from the charge-sheet are that a number of investors filed their complaints against accused Crl.M.C. No.2877/2014 & Connected Matters Page 2 of 42 company which were clubbed under different First Information Reports.All the complainants came up with identical allegations of inducements, misrepresentations etc. by the Directors of the accused company.The accused company gave an advertisement on 18.03.2006 in the newspaper The Hindustan Times to induce the general public for investment in their project at Gannaur, Sonepat.However, the accused company and its Directors were found to be engaged in cheating innocent customers by way of misrepresentation of facts through their various advertisements in print as well as electronic media.M.C. No.2877/2014 & Connected Matters Page 2 of 42As per the charge sheets Ms. Madhu Singh (Managing Director of accused company) along with others induced innocent investors for investment in aforementioned residential project of the accused company, in defiance of rules and regulations embedded in their agreement.Further, the company and its Directors neither obtained necessary permissions / land use change/ approved building plans, nor acquired the project land for the proposed project, but collected investments from a large number of investors, running into hundreds of crores.Investigating agency claimed that accused company and its Directors amassed funds running in several crores of rupees by cheating innocent customers with misrepresentation of facts while advertising the project of Gannuar, District Sonepat, Haryana as a township of 300 acres with 60% of the land dedicated to greenery, whereas, till the charge sheet was filed, the accused company had executed sale deeds in respect of 83 acres of land only and that too without making full payments to the land Crl.M.C. No.2877/2014 & Connected Matters Page 3 of 42 owners.Further, the accused company started collecting funds from the innocent investors for its aforesaid township, even when the accused company had only 2 acres of land in their possession.M.C. No.2877/2014 & Connected Matters Page 3 of 42During investigation, it was observed that the accused company and its Directors misused the funds between the years 2005-2008, ranging to hundreds of crores of rupees which have been collected from a large number of investors for various residential projects of the company and utilization of which could not be proved, thus investigating agency concluded that the same have been used for the lavish living of the Directors of the accused company.Investigation revealed that the accused company has a Board of Directors, comprising of three Directors namely Ms. Madhu Singh (CMD), Ms. Kailash Rani (mother of accused Madhu Singh) & Ms. Geeta Singh (Sister-in-Law of Madhu Singh).Initially Economic Offences Wing registered a case F.I.R. No. 56/09, under sections 406,420 read with section 120-B IPC, against the accused company and its Directors.Further, during the pendency of investigation various investors filed complaints against the accused company and its Directors.It was further revealed during investigation that the Corporate office of the accused company situated at 8, Shaheed Bhagat Singh Marg, First Floor, Gole Market, New Delhi was purchased by the accused company through its Director Smt. Madhu Singh from one Smt. Suman Lata Singla W/o Sh.S.K. Singla vide Sale Deed dated 21.07.2006, for a total consideration of Rs.45,00,000/- (Rupees Forty Crl.M.C. No.2877/2014 & Connected Matters Page 4 of 42 five lakhs only).Since the booking of projects started w.e.f. 2005 onwards, investigating agency suspected that the payments which were made to the vendor were done out of the cheated funds which were collected from investors.Investigation further revealed that the original title documents of the said property were mortgaged with Allahabad Bank, Parliament Street, New Delhi for seeking loan by the accused company, wherein overdraft limit of Rs.200 lakhs (Rupees Two hundred lakhs) and bank guarantee limit of Rs.3.91 crores (Rupees Three crores and ninety one lakhs) was sanctioned.As per the investigation, following properties were mortgaged against the loan A/c of the accused company:M.C. No.2877/2014 & Connected Matters Page 4 of 42I. Office of the accused company i.e. Property no. 8, Shaheed Bhagat Singh Marg, New Delhi.Two Fixed Deposit Nos.124225 for Rs.18,60,375/- (Rupees Eighteen lakh sixty thousand three hundred and seventy five) dated 29.02.2008 and 124226 for Rs.79,07,250/- (Rupees Seventy nine lakh seven thousand two hundred and fifty) dated 29.02.2008 were also kept as security against Bank Guarantee.M.C. No.2877/2014 & Connected Matters Page 5 of 42By way of these thirteen petitions filed under Section 482 of the Code of Criminal Procedure 1973 (hereinafter referred to as Cr.P.C.), the petitioner seeks to set aside the order dated 03.06.2013, passed by learned Additional Chief Metropolitan Magistrate-II, Patiala House Court, New Delhi, as well as quashing of charge sheets for the offences punishable under sections 406/ 409/ 420/ 201 read with section 120-B Crl.During investigation, it was also revealed that the said Corporate office of the accused company at 8, Shaheed Bhagat Singh Marg, Gole Market, New Delhi was sold to the petitioner by accused company through its Director/Authorised Representative, Ms. Madhu Singh vide registered Sale Deed dated 15.12.2009 against a total sale consideration of Rs.2.25 crore (Rupees Two crore and twenty five lakhs).Investigation further revealed that on 12.09.2010, petitioner, individually as well as through his Company M/s. Habitat Buildtech Pvt. Ltd. purchased 50 % equity of the accused company by paying a sum of Rs.4,35,35,200/- (Rupees Four crores thirty five lakhs thirty five thousand and two hundred).Based upon its investigation, investigating agency concluded as under:-"From the investigation conducted so far, evidence collected (oral as well as documentary), it is crystal clear and proved that accused Madhu Singh, Director of M/s AJS Builders Pvt. Ltd. in collusion and connivance with other associates i.e. Smt. Geeta Singh (sister in law) and Smt. Kailash Rani (mother), hatched a criminal conspiracy, with the common intention and sole object to cheat the innocent public right from the very beginning.Accused Harvinder Singh had also joined the accused Ms. Madhu Singh & others during the alleged period for the commission of the offences."Investigating agency arrived at a conclusion that the Sale Deed dated 15.12.2009, in respect of the property of the accused company at 8, Shaheed Bhagat Singh Marg, New Delhi, is a sham transaction, purportedly executed by accused Ms. Madhu Singh to avoid its attachment.In order to sustain its conclusion, investigating agency has primarily relied upon following circumstances:-M.C. No.2877/2014 & Connected Matters Page 6 of 42(a) The property has been purchased by the petitioner without due diligence and no bona fide purchaser would buy a property without originals of the previous chain, whereas stipulations 5 and 6 of the Sale Deed dated 15.12.2009, make it clear that original chain of the title documents was not furnished by the Vendor, which makes the Sale a sham transaction.(b) The property has been sold at a much cheaper price than its actual market price.To arrive at this conclusion, investigating agency is making reference of valuation of the said property at the time of seeking loan, when it was assessed as approximately Rs.7.57 Crore (Rupees Seven crore and fifty seven lakhs) in the year 2007 whereas, petitioner purchased the same in the year 2009 at a much less value of Rs.2.25 Crore (Rupees Two crore twenty five lakhs) only.(c) The payments which have been made to the Vendor by the Vendee have been reflected and corresponding debit / credit entries have been checked.After examination, Chartered Accountant (CA) stated that these transactions are sham transactions.(d) Statement of co-accused Ms. Madhu Singh, who subsequently claimed that the property in question was sold by her to the petitioner.The investigating agency is Crl.M.C. No.2877/2014 & Connected Matters Page 7 of 42 of the opinion that the property in question has been transferred with the apprehension that the said property could be attached by the investigating agency in order to recover the cheated funds collected from the investors.M.C. No.2877/2014 & Connected Matters Page 7 of 42Further Investigating agency imputed the petitioner for witnessing the Agreement dated 05.02.2011, executed between M/s. Best Realtech (India) Pvt. Ltd. and accused company, in respect of development of the project of accused company at Gurgaon, Haryana, which as per the investigating agency was detrimental to the interest of the investors.In order to sustain its claim that the petitioner was incharge for day to day functioning of the accused company, investigating agency has relied upon statement of one Mr. Harjit Singh, Director of M/s. Best Realtech (India) Pvt. Ltd. in addition to the statements of witnesses recorded under section 161 of Cr.P.C.During the course of proceedings before this Court, the complainants Mr. Keshav Sethi (in Crl.M.C.2977/2014), Ms. Kusum Jain (in Crl. M.C.2995/2014), Mr. Dev Raj (in Crl.M.C.3037/2014) and Mr. Vipul Kochar (in Crl.M.C.3023/2014) were impleaded as respondent No.2 on their respective applications.On 17.09.2014 learned counsel for the complainants Mr. Mohit Mathur, on instructions from Mr. Akhil Mittal, Advocate submitted before this Crl.M.C. No.2877/2014 & Connected Matters Page 8 of 42 Court that he will move an appropriate application on behalf of the complainants for impleadement in all the respective petitions.However, on 23.09.2014 Mr. Akhil Mittal, Advocate submitted that all the remaining complainants were not interested in moving impleadement applications.Thereafter, respondent No.2/ complainant filed reply.M.C. No.2877/2014 & Connected Matters Page 8 of 42While impugning the conclusion of the investigating agency regarding culpability of the petitioner, Mr. Kohli, learned counsel for the petitioner submitted that under the influence of Ms. Madhu Singh and a few well connected investors, the petitioner has been falsely implicated in the present case by the investigating agency.It was argued by the counsel for the petitioner that in order to sustain conjectural hypothesis about culpability of the petitioner, investigating officer has deliberately concealed vital facts and infact, has arbitrarily given deaf ears to the representations/ complaints of the petitioner, wherein the petitioner has unfolded various illegal acts of Ms. Madhu Singh, Mr. Tejwant Singh, Mr. Harjit Singh, etc. and his victimization by accused Ms. Madhu Singh and others.It was argued that induced with the various projections of the accused company and its functionaries, petitioner and his family members also invested in Gurgaon Project of the accused company during the period 2007 to 2009, but despite specific complaints by the petitioner, none of his complaints have been considered by the investigating agency, whereas similarly circumstanced other investors have been arrayed as complainants / witnesses in the cases registered against the accused company.M.C. No.2877/2014 & Connected Matters Page 9 of 42It is case of the petitioner that like other investors, petitioner had visited the corporate office of the accused company for refund of his and his family members investments in the beginning of the year 2009, where he was trapped by accused Ms. Madhu Singh, Tejwant Singh and others to purchase property bearing no. 8, Shaheed Bhagat Singh Marg, New Delhi, under the pretext that the accused company had invested its substantial liquidity towards purchase of major landholdings and thus is finding shortage of liquidity and the rumours about the bankruptcy of the accused company has caused damage to the extent that despite sound position, owing to the slump in realty sector, the Company was unable to fetch finances to meet out unprecedented demand of refund by investors.Per contra to the finding of the investigating agency that the petitioner did not conduct any due diligence before purchase of the property, it was contended by the counsel for the petitioner that before execution of the Sale Deed, petitioner had duly conducted due diligence of the property (both physical and title search) and had also obtained duly certified copies of the complete chain of title documents of the property which clearly reflected a clean title in favour of the accused company and since there was no encumbrance on the property, petitioner purchased the said property.To fortify his contentions, Mr. Daman Kohli has shown certified copies of the previous chain of title documents, copies of which have already placed on record.It was further contended on behalf of the petitioner that in terms of the Sale Deed, petitioner took possession of the First Floor of the property whereas built up structure on the 2nd floor of the property was retained by the sister concern of the Crl.M.C. No.2877/2014 & Connected Matters Page 10 of 42 accused company, from where even the accused company started operation of its business activities.It was also submitted that the delay in furnishing original title documents by the seller is clearly stipulated in the Sale Deed and it is with full caution that the petitioner got the complete chain of previous title documents duly stamped and signed by the seller on each and every page.Mr. Kohli also submitted that the nephew of Ms. Madhu Singh who is also a shareholder of the seller/ accused company is also a witness to the duly registered sale deed.M.C. No.2877/2014 & Connected Matters Page 10 of 42It was also submitted by Mr. Kohli that victimization of petitioner subsisted when petitioner was further lured to part with substantial sum of Rs.4,35,35,200/- (Rupees Four crore thirty five lakhs thirty five thousand and two hundred), towards 50% equity of the accused company in favour of the petitioner and his company M/s. Habitat Buildtech Pvt. Ltd.It was further submitted that on 05.02.2011, being the 50% equity holder of the accused company, petitioner also became witness to the execution of the Agreement executed inter se accused company and M/s. Best Realtech (India) Pvt. Ltd.. Mr. Kohli has drawn my attention towards relevant clauses of the said Agreement, whereby M/s. Best Realtech (India) Pvt. Ltd. undertook to bear all costs and expenses for developing Housing Project of the accused company in Gurgaon, on the same terms on which the accused company has invited investments from different investors, besides undertaking to refund, if any of the investor in the said project of the accused company so desired.However, when the perpetuating dishonest and fraudulent intent of accused Ms. Madhu Singh and her associates became apparent to the petitioner, he made various representations disclosing their illegal acts and also his victimization.Attention has been drawn to various complaints/representations, addressed at all levels ranging from S.H.O. Mandir Marg, New Delhi to Commissioner of Delhi Police, but despite complaints/ representations disclosing commission of cognizable offence, no action has been taken by the investigating agency.M.C. No.2877/2014 & Connected Matters Page 11 of 42It was further submitted by the counsel for the petitioner that endeavour of the investigating agency to array the petitioner as a conspirator with accused Ms. Madhu Singh, against whom the petitioner is fighting in different courts and forums, is liable to be deprecated.On mention by the counsel for the petitioner this fact is also not disputed that there are multiple complaints filed by the petitioner Crl.M.C. No.2877/2014 & Connected Matters Page 12 of 42 against the threat to life extended to the petitioner by accused Ms. Madhu Singh and her men.M.C. No.2877/2014 & Connected Matters Page 12 of 42M.C. 3031/2014 Crl.M.A. No.10529/2014 in Crl.M.C. 3037/2014 The above applications are dismissed as infructuous.(VED PRAKASH VAISH) JUDGE FEBRUARY 3rd, 2015 hs Crl. | ['Section 420 in The Indian Penal Code', 'Section 201 in The Indian Penal Code', 'Section 120B in The Indian Penal Code', 'Section 34 in The Indian Penal Code'] |
It is lastly submitted that petitioner has clean antecedents and he is a permanent resident of Delhi.His mother and sister are also building pressure for marriage.Bail appl no. 303/2020 Page 3 of 5BRIJESH SETHI, J (ORAL)Vide this order, I shall dispose of a bail application filed under section 439 Cr.P.C on behalf of the petitioner Gulshan in FIR No. 141/2019 u/s. 376/506 IPC & 4 POCSO Act, PS Sarai Rohilla.Counsel for the petitioner has prayed for bail on the ground that petitioner is innocent and has been falsely implicated.It is submitted that investigation has already been completed and charge-sheet has also been filed and petitioner is not required for any investigation.It is submitted that one Monu had good friendly relations with Bail appl no. 303/2020 Page 1 of 5 family of prosecutrix 'K' and her mother.Resultant thereof, the prosecutrix and her mother have developed the malice, ill will, personal vendetta and grudge against the petitioner and due to which a false case was lodged against the petitioner by misusing and abusing the statutory provisions of Section 376/506 IPC and Section 4 of POSCO Act to create a pressure, force and coercion upon the petitioner so that real sister of the petitioner may not pursue her criminal case against said Monu.Bail appl no. 303/2020 Page 1 of 5It is submitted that the entire case of the prosecution is based upon the statement of the complainant i.e. mother of victim and victim herself and there is no chance of tampering with the prosecution evidence in any manner whatsoever.It is, therefore, prayed that petitioner be released on bail.APP for the State has opposed the bail application on the Bail appl no. 303/2020 Page 2 of 5 ground that the allegations against the petitioner are serious in nature.Petitioner has made sexual intercourse with the victim who was minor ie.about 14 years old at the time of commission of offence without her consent.He has, therefore, prayed for dismissal of bail application.Bail appl no. 303/2020 Page 2 of 5I have considered the rival submissions.The present case was registered on the complaint of complainant 'S', who is the mother of the prosecutrix 'K' wherein she alleged that her neighbour Gulshan i.e. the petitioner took her daughter to the room of his friend co- accused Firoz in July 2018 where he forcefully made physical relations with her daughter and threatened to kill her brother, if she tells anyone about the incident.When she came to know about the incident that has happened with her daughter, she filed the complaint.Statement of the complainant i.e. mother of the victim u/s 164 Cr.PC was recorded wherein she corroborated the FIR and also stated that the mother and sister of the petitioner were well conversant of what the petitioner had done to the victim.In her statement recorded u/s. 164 CrPC, the victim has categorically stated that petitioner had taken her to his friend's Bail appl no. 303/2020 Page 3 of 5 house (Firoz) at Daya Basti.The petitioner had taken the keys from Firoz who had thereafter left the house.Thereafter, the petitioner had removed her Salwar and committed sexual intercourse with her.Thereafter petitioner threatened the victim that if she discloses anything to anyone, her brother would be killed and she would be defamed.The victim had stopped going to the school and revealed everything to her mother.The victim has submitted that petitioner is still threatening her on phone and also compelling her for marriage.The authenticity of the conversation recorded in CD can only be judged at the appropriate stage i.e. during the course of trial.However, there is another CD on record regarding conversation dated 26.04.2019 between petitioner and prosecutrix.Transcription of the Bail appl no. 303/2020 Page 4 of 5 same reveals that on second page of the second recording it is stated by the petitioner that he has done everything.Of course, the authenticity of this conversation will also be judged during the course of trial.Bail appl no. 303/2020 Page 4 of 5Keeping in view the above facts and the allegations leveled against the petitioner which are very grave in nature and further keeping in mind the age of the victim/ prosecutrix and further in view of the fact that even threat was extended to the victim, no grounds for bail are made out at this stage.The bail application is, therefore, dismissed and stands disposed of accordingly.BRIJESH SETHI, J MARCH 4, 2020 Amit Bail appl no. 303/2020 Page 5 of 5Bail appl no. 303/2020 Page 5 of 5 | ['Section 376 in The Indian Penal Code', 'Section 354 in The Indian Penal Code', 'Section 323 in The Indian Penal Code', 'Section 506 in The Indian Penal Code'] |
The appellant was the complainant before the trial Court namely, theCourt of Judicial Magistrate No.II, Madurai and Calender Case No.1123 of 1997came to be instituted on a complaint preferred by the appellant/complainantherein alleging that the respondents herein committed an offence punishableunder Section 494 of the Indian Penal Code.The trial ended in conviction ofboth the respondents herein who figured as accused Nos.1 and 2 for theoffence of bigamy punishable under Section 494 IPC and both of them weresentenced to undergo three years rigorous imprisonment and to pay a fine ofRs.100/- with a direction to undergo rigorous imprisonment for one week incase of default in payment of fine.On an appeal preferred before theSessions Court in C.A.No.48 of 2002, the learned Appellate Judge (IIIAdditional District and Sessions Judge) Madurai set aside the conviction andacquitted the respondents herein holding that the appellant herein had notproved that the respondents had committed the offence punishable underSection 494 IPC.2.As against the judgment of the lower appellate Court reversingjudgment of conviction passed by the trial Court and acquitting therespondents herein, the appellant herein (complainant) has preferred thepresent Criminal Appeal under Section 378 (4) of the Code of CriminalProcedure, 1973 along with a petition under Section 378(5) of Cr.P.C seekingspecial leave to prefer such an appeal.The said petition filed under Section378 (5) Cr.P.C, which was numbered as Crl.O.P.(MD)No.205 of 2004, standsallowed and the numbering of the appeal even before the grant of specialleave stands ratified by the order granting special leave under Section378(5) of the Criminal Procedure Code.3.The case of the appellant/complainant is that she is the legallywedded wife of the first respondent-Thirupathi (A-1) and that the firstrespondent, during the subsistence of his marriage with theappellant/complainant, married the second respondent-Dhanalakhsmi on18.06.1997 and thereby committed an offence punishable under Section 494 IPC.The further case of the appellant/complainant is that the second respondent-Dhanalakshmi (A2) did marry the first respondent knowing fully well that thefirst respondent was already married and the appellant herein/complainant washis legally wedded wife and that the marriage between theappellant/complainant and the first respondent was subsisting at the time ofher marriage with the first respondent and that thereby she also hadcommitted the offence punishable under Section 494 IPC.The respondents, who appeared on summons before the trial Court,denied having committed any offence, pursuant to which a charge was framedagainst the respondents 1 and 2 herein for an offence punishable underSection 494 IPC.After having a charge read over and explained, they deniedhaving committed the offence and they wanted the case to be tried.Accordingly, a trial was conducted in which including the appellantherein/complainant three witnesses were examined as P.Ws.1 to 3 and onedocument was marked as Ex.P.1 in order to prove the charge framed against therespondents herein.On the side of the respondents herein, who faced thetrial as accused persons, no witness was examined and no document was marked.After affording them an opportunity under Section 313(1)(b) of theCode of Criminal Procedure, to explain the incriminating materials found inthe evidence adduced on the side of the appellant herein/complainant,arguments were heard by the trial Court.Keeping in mind the points canvassedin the arguments advanced on both sides, the learned trial Judge consideredthe evidence and after such consideration, pronounced a judgment, holding therespondents herein accused Nos. 1 and 2 guilty of the offence punishableunder Section 494 IPC with which they stood charged and convicted them forthe said offences.After giving an opportunity under Section 248(2) Cr.P.C tomake their representation regarding the punishment to be imposed, the learnedtrial Judge imposed a punishment on each one of the respondents herein toundergo rigorous imprisonment for three years and to pay a fine of Rs.100/-with a further direction that in default of payment of fine, he/she shouldundergo rigorous imprisonment for one week as a default sentence.The findingof the trial Court is based on the oral testimonies of P.Ws.1 to 3 and thedocumentary evidence, namely Ex.The finding of the trial Court holding the respondentsherein/accused 1 and 2 guilty of the offence punishable under Section 494 IPCwas found fault with by the lower appellate Judge, on the sole ground thatthere was no direct evidence as to the marriage between the first respondentand the second respondent, which is said to be bigamous.The learned lowerappellate Judge also disbelieved the oral testimony of P.W.2, who wasexamined as the sole eye witness to have seen the marriage performed at theentrance of Samayapuram Mariyamman Temple.The judgments ofthe Courts below and the materials available on record summoned from theCourts below for reference in this appeal are also perused and taken intoconsideration.10.The respondents 1 and 2 herein were prosecuted for having committedan alleged offence punishable under Section 494 IPC in the Court of JudicialMagistrate No.II, Madurai in Calender Case No.1123 of 1997, a case wasinstituted on complaint.14.Here is a case in which the order of acquittal impugned in thisappeal was passed by the learned Sessions Judge in an appeal.Hence, it is anappellate order of acquittal which is made appealable to the High Court underSection 378 of Cr.P.C. The case having been instituted on complaint,attracts sub-section (4) and the only condition for entertaining the appealis that a special leave should be granted on an application filed within thetime stipulated in sub-section (5).It is not in dispute that such anapplication was filed within the time stipulated in sub-section (5) and theappeal has also been preferred within such time, even though the appeal couldhave been preferred within 30 days from the date of grant of special leave toappeal.15.It is an admitted fact that and it has also been proved beyondreasonable doubt that the first respondent is the husband of theappellant/complaint and their marriage took place on 18.06.1972 in accordancewith the provisions of the Hindu Marriage Act, 1955 as applicable to TamilNadu.P.W.1 has given a categorical statement in her chief examination thather marriage with the first respondent was solemnised at RamalingaSowdambigai Sannathi within Panjavarnaswamy Temple, Uraiyoor, Trichy andthat due to the cohabitation they were gifted with three daughters by names,Akilandeeswari, Priya and Prema and a son by name, Shanmugam.These factsspoken to by P.W.1 in her evidence was not challenged by therespondents/accused in their cross examination.It has also been stated inclear terms by P.W.1 that the marriage was not dissolved as on the date ofalleged occurrence and also as on the date of her examination before thetrial Court.16.When the incriminating parts of the evidence adduced on the side ofthe complainant were culled out and formulated as a questionnaire underSection 313(1)(b) of Cr.P.C, the respondents did not deny the same and on theother hand they simply stated that they were not guilty of the offence.Therefore, the factthat the marriage between the appellant herein/complainant and the firstrespondent/first accused was subsisting as on the date of the allegedoccurrence, namely on 18.06.1997, stands proved beyond reasonable doubt.17.Then the next question that arises for consideration is whether themarriage alleged to have been performed on 18.06.1997 stands proved by theappellant/complainant.In this regard, though P.W.1's evidence is not adirect evidence regarding the factum of marriage, she has given a clear andcogent evidence to the effect that she was informed of the marriage of herhusband namely, the first respondent with the second respondent and that thesaid marriage came to be registered on the very same day in the Office of theRegistrar situated near the Court in Trichy.The same has beenmarked as Ex.The said copy is a certified xerox copy of the document andhence, it contains the signatures of the first respondent as well as thesecond respondent.It is pertinent to note that the same is not a marriagecertificate evidencing the registration of marriage under any of the lawsrelating to the registration of the marriage.It was titled and styledas an agreement of a domestic relationship to live together (thH;f;ifcld;gof;if gj;jpuk;).The execution of the said document and registration ofthe said document have not been denied or disputed, on the other hand standadmitted by the respondents/accused persons.It contains a recital that theygot married to each other on the date of the document itself in SamayapuramMariyamman Temple.18.Apart from the production and proof of the above said document as anevidence to prove the case of the appellant/complainant herein regarding theperformance of the alleged marriage between the respondents herein on18.06.1997 at Samayapuram Mariyamman Temple, one Sivaji was examined as awitness to the said marriage.According to his version,on 18.06.1997, he along with one Ravikumar, had gone to Samayapuram MariammanTemple near Trichy to offer worship to the deity therein and at that point oftime, at about 7.00 to 7.30 a.m, he saw the respondents with garlands at theentrance of the temple.He has further stated that he also saw the firstrespondent tying a Thali to the second respondent and the respondentsexchanging garlands.It is his furtherevidence that when the appellant/complainant approached the police, theyasked her to approach the Court.19.P.W.2, during cross examination, has asserted that he was an eyewitness to the marriage of the first respondent with the second respondentand he actually saw the first respondent tying a Thali around the neck of thesecond respondent at the entrance of the above said temple.It is also hisevidence during the cross examination that there were about 15 to 20 persons,who attended the marriage, but he did not inform those persons that the firstrespondent was already married and that however, he asked the firstrespondent as to how he could venture to marry the second respondent when hisfirst wife Saraswathi was alive, for which the first respondent replied thathis second marriage with the second respondent was performed with the consentof his first wife.The section also provides for validation of marriages performedprior to the introduction of Section 7-A of the Hindu Marriage Act, 1955 andseveral such marriages were saved from being held void for non observance ofany of the customary rituals provided the conditions found in Section 7-Awere present.After the amendment in Tamil Nadu, for convicting a personprofessing Hindu religion for bigamy, it shall be enough to show that heunderwent a form of marriage which complies with the above condition namely,acknowledgment by words or symbolic representation of acknowledgement byexchanging garlands or exchanging of rings or tying of thali provided themarriage is with a woman professing Hindu religion.P1 isstyled as an agreement for having a domestic relationship.But the same hasbeen used for proving an admission made therein that the respondentsunderwent a form of marriage in the morning on the date on which the saidagreement came to be executed and registered.Here is a case in which the marriage has taken place andhence, if the second respondent is proved to have got the knowledge of thefirst marriage of the first respondent with the appellant/complainant, thenshe shall be liable to be punished with the punishment prescribed underSection 494 IPC.However, when a person is to be punished for abetment of anoffence, separate charge stating that she is prosecuted for abetting such anoffence and that the act abetted has been committed should have been framed.The charge against the second respondent ought to have been framed as one foran offence punishable under Section 494 IPC read with Section 109 IPC.27.P.W.1, in her evidence in chief examination, has not asserted thatthe second respondent did have the knowledge of the subsistence of themarriage between the appellant/complainant and the first respondent.On theother hand, she has simply stated that one Banumathi, younger sister of thefirst respondent and one Subbu @ Subbulakshmi, the elder sister of the secondrespondent had attested Ex.P.1 document and that both of them knew thesubsistence of marriage between the appellant/complainant and the firstrespondent.However, learned counsel for the appellant drew the attention ofthe Court to the other part of her evidence wherein she has stated that thesecond respondent resided in the street next to the street in which P.W.1 wasliving in Trichy and that hence, she knew the marriage of the firstrespondent with the appellant/complainant.A person living in the next streetin a town cannot be said to have direct knowledge regarding the maritalstatus of a person living in the other street.Regarding the sentence, the submissions made on both sides are alsotaken into consideration.The maximum punishment prescribed under the saidpenal provision, namely 494 IPC is imprisonment of either description for 7years and also fine.The trial Judge seems to have imposed a sentence ofrigorous imprisonment for three years and a fine of Rs.100/- with a defaultsentence of rigorous imprisonment for one week.So far as the fine amount isconcerned, the trial Court seems to have shown leniency.Theexcess fine amount shall be collected from the first respondent and the firstrespondent shall surrender before the trial Court within two weeks, whereuponhe shall be committed to jail for undergoing the unexpired portion of thesentence.The trial Magistrate shall issue necessary warrant.Theimprisonment, if any, already undergone shall be set off under Section 248Cr.1.The III Additional District and Sessions Court, Madurai.2.The Judicial Magistrate No.2 Madurai | ['Section 494 in The Indian Penal Code', 'Section 109 in The Indian Penal Code'] |
This family is the solitary Brahmin family living in that little village and against them the entire wrath of the Kisans and their fellow travellers, the Communists, seems to have broken because they were the landlords and secondly they belonged to a community which is the special target of attack in these parts.The evidence is clear that they were subjected to systematic intimidation of murder, looting and arson.In this task of attacking this family the Kisans and their fellow traveller Communist opponents were encouraged by the fact that some other leading Mirasdars were on inimical terms with this family apparently trying to curry favour with these violent people by posing as their sympathisers and friends.The net result of this was that this family of Jagannathachariar concerned like rats, was systematically bombarding the authorities, Police and the Magistracy, to take action against these trouble-makers.The evidence of D.W. 1 is :"At that time meetings under Section 144 Cr. P. C. were banned, under an order in K. C. No. 5 of 1950 by Sub-divisional Magistrate, Pattukottai.The order was promulgated.Ail the Sub Inspectors in the jurisdiction of the Sub-divisional Magistrate including myself received copies of that prohibitory order & copies were said to have been sent to ail V.Ms.I sent constables to publish the order, and caused publication by heat of tom-tom in all the villages within my station limits.I sent the order to the village of Alagiyanayagipuram.I remember to have received the acknowledgment from the Nadar V. M. There is also an Ayyar V. M. At about 3 P.M. I went in a friend's car to Alagiyanayagipuram.When 1 reached there I saw about 100 or 150 persons crowded in a public street in front of the house of one Vaithilingam in that village.They were about to create disturbance shouting slogans.At the sight of the Police, many of them dispersed.The plaintiff and Vaithilingam and Peristhambi continued to stand there.In order to prevent further trouble and disturbance, I had to arrest them and take them to the Police station under Section 157, Cr.Ex. B-3 is my report.At the time of the arrests, Communist Kisan trouble was going on, on a large scale in Pattukottai, Mannargudi and Tirutturaipundi.The eldest of them the 1st defendant was bombarding the authorities Police Magistracy, State Government etc. to book these patent and potential mischief mongers.These agitators were known to intend to put on a special display to mar the Republic Day Celebrations.JUDGMENT Ramaswami, J.In 1950 the District of Tanjore and especially the area of the Sub-Divisional Magistracy of Pattukottai was the seat of continuous trouble between the landlords and the Kisans.This Kisan movement was being fully exploited by the Communists and their fellow travellers on the foot that every trouble was welcome for fomenting agitations against the Government and for promoting forces of disorder and violence.The net result was that the Government took stringent measures to restrain the activities of these Communists.Special Police officers were posted and the Sub-Divisional Magistrate, Pattukottai, directed all the Taluk Magistrates of Pattukottai and Arantangi to promulgate prohibitory orders under Section 144, Cr. P.O. in all the villages under their jurisdiction and especially as the Communists were for instance trying to mar the celebrations of the Republic Day and threatening to commit acts of violence and disturb peace and tranquillity.It is evident from a perusal of the order that it was passed on the reports of the Police Officers P.Ws. 1 Sri V. S. Subramaniam and D.W. 1 Sri M. K. Panikkar.Sri V. S. Subramaniam was then acting as the Circle Inspector of Police, Thiruthuraipoondi and Sri M. K. Panikkar w,is then the Sub-Inspector of Police, Adirampatnam.It is established in the evidence that the Sub Divisional Magistrate's direction to all Taluk Magistrate to publish this order in all their villages in their taluks by heat of tom-tom was carried out.The respondent in this second appeal Sri Jagannathachariar is a Mirasdar of Pattukottai Taluk, owing lands in the village of Alagiyanayakipuram.The other members of his family are his brothers impleaded as defendants 2 and 3 in the suit.P. C. I took them at about 8 P.M. or 9 P.M. It was too late that night at Pattukottai.So they were remanded the next day.Ex. 15-11 is one of the reports in connection with that incident which I sent.The endorsement on my report is made by the Deputy Superintendent of Police, Pattukottai Sri C. S. Subbiah Pillai, forwarding that report to the District Superintendent of Police.Ex. B-12 contains the endorsements of the Deputy Superintendent of Police and District Superintendent of Police with regard to their arrests.I submitted a first information report and the case-diary of the case to the Deputy Superintendent of Police through the Inspector of Police ...... The Sub-divisional Magistrate returned the first information report.So I submitted a second report on the order of the Deputy Superintendent of Police ..... under Section 188 I.P.C. The Sub-divisional Magistrate, verified my report and sent the file to the Sub-magistrate, Pattukottai, to take cognizance.The Deputy Superintendent of Police wanted to know the result of action taken.There was one Kisan Deputy Superintendent of Police at Tanjore, one Inspector at Pattukottai, three Sub-Inspectors at Tanjore, Pattukottai aria Tiruturaipundi and several C.I.D. personnel were posted for the Kisan trouble.Mirasdars were put to great difficulty.The action I took against plaintiff, I did only on order of my officer.Ex. B-8 is my report in reply to the Deputy Superintendent of Police's queries, Ex. B-7."The learned ' Stationary Sub Magistrate, Pattukottai, before whom the plaintiff Chinnamuthu Ambalam and two others Vaithilinga Tevar and Periathambi Ambalam were charged for an offence under Section 188 I. P. G. were acquitted after twelve witnesses were examined on behalf of the prosecution of whom only three witnesses spoke in support of the complainant On the ground that "on the whole, the case seems to have been magnified out of small incidents on account of ill-feelings as already indicated.Unfortunately the Sub Inspector has too willingly lent a helping hand and over enthusiastically booked a case.The prosecution witnesses have not come out with a correct version....... The only other evidence is that of the Sub Inspector; it has been made clear how exaggerated his evidence is in regard to the occurrence."Thereupon in 1953 tbe plaintitf, one of the acquitted accused, filed the suit out of which this second appeal arises, for recovery of Rs. 100/- as damages for malicious prosecution.The defendants to the suit were Jagannatha-chariar and his two brothers.The learned District Munsif came to the conclusion that the plaintiff had made out his case and decreed the suit against the first defendant and dismissed defendants 2 and 3 out of the suit on the ground that there was no proof that defendants 2 and 3 beyond merely giving evidence in C. C. No. 450 of 1950 had done anything further and cannot be considered as prosecutors of the plaintiff.There was an appeal therefrom and the learned Subordinate Judge came to the conclusion that the first defendant was the real prosecutor but that he (first defendant) did not act maliciously and without reasonable and probable cause and that the plaintiff is not entitled to damages.On a careful analysis of the evidence and after giving due weight to the fact the trial court had the advantage of hearing the witnesses, and seeing them in the box he came to the conclusion : "I accept the evidence of D.W. 1 that there was a meeting of the Communists on 11-2-50 and that plaintiff took part in such a meeting and that he was arrested by D.W. 1 at such a meeting" (page 24).Again "I hold D. 1 acted with malice but did rot act without reasonable and probable cause". "(Para 26)".He allowed the appeal and dismissed the suit.Hence this Second Appeal by the defeated plaintiff. | ['Section 188 in The Indian Penal Code'] |
i) Criminal Bail Application No. 2878 of 2019 is allowed;ii) The applicant is directed to be released on bail in::: Uploaded on - 22/11/2019 ::: Downloaded on - 22/11/2019 21:14:12 ::: Sajakali Jamadar 3 of 3 11-BA-2878-19.doc connection with C. R. No. 527 of 2019 registered with Bhosari Police Station, Pune on furnishing P.R. bond for the sum of Rs. 25,000/- with one or more sureties in the like amount;::: Uploaded on - 22/11/2019 ::: Downloaded on - 22/11/2019 21:14:12 :::iii) The applicant shall report concerned police station once in a month on every first Saturday between 10.00 am.to 12.00 noon, till further order.iv) Bail Application stands disposed of accordingly.(PRAKASH D. NAIK, J.)::: Uploaded on - 22/11/2019 ::: Downloaded on - 22/11/2019 21:14:12 :::::: Uploaded on - 22/11/2019 ::: Downloaded on - 22/11/2019 21:14:12 ::: | ['Section 323 in The Indian Penal Code', 'Section 498 in The Indian Penal Code', 'Section 306 in The Indian Penal Code', 'Section 304 in The Indian Penal Code', 'Section 504 in The Indian Penal Code'] |
JUDGMENT J.D. Jain, J.(1) The petitioner is employed as an Inspector in Delhi Police.In July 1976 he v-'as posted as an Inspector in AntiCorruption Branch of Delhi Police.On 1st July, 1976, he lad a trap against one Raj Singh on the complaint of one Ram Chander for demanding illegal gratification.It is a complaint for not registering the case."(2) On coming to know of it, the respondent then posted as Additional District Sessions Judge at Delhi instituted a complaint.against the .petitioner in December 1977 under sectin 500, Indian Penal Code, for defamation.He inter alia .averred that the petitioner was posted as Station House.On 30th.July, 1975, he tortured to.death on Harnam Singh, a retired School teacher of Kingsway Camp even though there was no FIR.against,.him, An.attempt was made to dispose of.the dead body without postmortem examination.The respondent intervened and.State v. Raj Singh in the Court of Shri D.C. Aggarwal, Special Judge, on 18th November, 1977 the petitioner was examined as a prosecution witness being the investigating Officer.During the course of his cross-examination.he, inter alia, deposed that : "TWOcases for damages against me, Union of India S. D. M. were filed by Shri H.K. S. Malik through his brother and mother sinise I had not obliged him in forcibly occupying plot No. C-5, Rana Pratap Bagh.There is a complaint case against me pending regarding the same plot since I did noi oblige Sh.H. K. S. Malik for convening a civil case into a criminal case regarding the same plot.postmortem examination had to be carried out.Consequently, an inquiry under the Punjab Police, Rules was instituted and the respondent was examined as a witness in that inquiry on 14th June, 1976, by the S. D. M. Kingsway Camp..The S.D.M found the accused prima facie guilty of murder and submitted his report I accordingly.Eventually, acase under Section 302, Indiain penal Code, being F.I.R. No. 1009 was registered against the petitioner on 9th September, 1977 and the respondent was mentioned therein as the prime mover.The respondent further alleged that the petitioner had been trying to prevent him from appearing as a witness against him in the said case since July 1976 and he had conveyed even.threats.Further, the petitioner met the respondent personally three or four times with a request not to depose as a witness against him but the respondent was not disuaded from doing his dirty.So, the petitioner considers the respondent as his enemy.On 31st October, 1977, the respondent learnt of a plan to murder him at night and he took immediate precautions.However, one SatpalSharma,who was an eye witness in the aforesaid murder case, was brutally stabbed on that night.Thus, the contention of the respondent in the complaint was that the petitioner harboured a grudge against him and, therefore, he made the aforesaid statement in the Court of the Special Judge with a view to harm the reputation of the respondent.He asserted that the aforesaid statement carried, inter alia, an imputation that the respondent was a person of depraved moral character as to commit acts' which constituted offences punishable under the Indian Penal Code.While denying each and every imputation made against him by the petitioner, he asserted that the same had been made intentionally and knowingly to lower the moral character of the respondent in the estimation of others.In order to substantiate his contention he extracted the following passage from the judgment dated 26th November, 1977, of Shri D. C. Aggarwal, Special Judge, in the above mentioned case : "INthese circumstances it has to be taken notice of that as against Inspector .Shamsher Singh, admittedly a murder case was registered at Police Station Kingsway Camp although according to him it was a false case.Of course, I would not attach importance to the case of damages filed against him by Shri H. K. S. Malik (now Additional District Judge) as derogatory to his credibility as police officer, as he explained that that case had been filed only because he had not allowed Shri H. K, S. Malik and his mother to ford' bly Occupy a plot No. C-5 Rana Pratap Bagh." .On the same day the learned Magistrate passed an order summoning the petitioner for trial under section 500, Indian Penal Code.In the meanwhile, he entered appearance before the Metropolitan Magistrate.The substance of the accusation was read over and explained to him on 13th January, 1978, as required by Section 251, Code of Criminal Procedure (for short the Code), and he was asked to show cause why he should not be punished for an offence punishable under Section 500, Indian Penal Code.Feeling aggrieved, the petitioner has come up in revision against the said order. | ['Section 200 in The Indian Penal Code'] |
Counsel for the State submits that the case diary is available with him.T his is the first appeal filed under Section 14-A of the S.C./S.T (Prevention of Atrocities) Act against the impugned order dated 29.07.2020 passed by the Special Judge (Atrocities), District Balaghat, whereby the court below has dismissed the application filed by the appellant under Section 439 of the Cr.P.C.The appellant is in custody since 28.01.2020 in connection with Crime No.08/2020 registered by Police Station - Rampayli District-Balaghat for having committed offence under Sections 456, 354, 354-A of IPC and Section 3(2)(5-A), 3(1)(W)(1) of SC/ST (POA) Act & 7/8 of POCSO Act.Learned counsel for the appellant has submitted that the appellant is innocent and has been falsely implicated.The Trial will take a long time to conclude.The appellant is permanent resident of the district and there is no likelihood of his absconding or tampering with the prosecution case.On these grounds prayer is made to enlarge the appellant on bail.Learned counsel appearing on behalf of the State has opposed the appeal and prayed for it's rejection.(1) The appellant will comply with all the terms and conditions of the bond executed by him;(2) The appellant will cooperate in the trial; (3) The appellant will not indulge himself in extending inducement, threat or promise to any person acquainted with the fact of the case so as to dissuade him from disclosing such facts to the Court or to the Police Officer;(4) The appellant shall not commit any offence during the entire period of bail;(5) The appellant will not seek unnecessary adjournments during the trial;(6) The appellant will not leave India without previous permission of the trial Court;(7) The appellant shall inform the Investigating Officer/Court about Signature Not Verified SAN his/her address and residence in case the applicant moves out from his/her Digitally signed by NEETI TIWARI Date: 2020.10.23 10:59:08 IST 3 CRA-4467-2020 permanent address for any point of time; and (8) The appellant shall not contact any of the other accused persons in this case in any manner whatsoever.It is made clear that if the appellant interferes in recording of the evidence in any manner whatsoever and pressurize witnesses while doing so, State & the complainant will be at liberty to move an application for cancellation of bail.This order shall remain effective till the end of the trial but in case of bail jump and breach of any of the pre-condition of bail, it shall become ineffective and cancelled without reference to this Bench.Certified copy as per rules.(AKHIL KUMAR SRIVASTAVA) JUDGE nd Signature Not Verified SAN Digitally signed by NEETI TIWARI Date: 2020.10.23 10:59:08 IST | ['Section 3 in The Indian Penal Code', 'Section 354 in The Indian Penal Code'] |
(Order of the Court was made by M.CHOCKALINGAM,J) Challenge is made to the order of the second respondent, dated23.07.2008, made in No.61/BDFGISSV/2008, whereby the order of detention was madeagainst the petitioner under the provisions of the Tamil Nadu Act 14 of 1982,terming him as 'Goonda'.2.Affidavit in support of the application along with the grounds ofattack and also the counter affidavit are perused.Added further,the learned counsel for the petitioner would submit that there was an inordinateand unexplainable delay in consideration of the representation made by thedetenu.The learned counsel for the petitioner would submit that on the abovegrounds the order under challenge has got to be set aside.The Court paid its anxious consideration on the abovecontentions. | ['Section 341 in The Indian Penal Code', 'Section 307 in The Indian Penal Code'] |
JUDGMENT Samvatsar, J.The accused were on inimical terms with one Jaganath now deceased & there were some disputes going on between them before the Revenue Courts.On 13-7-1952 the deceased Jaganath was working in a field which belonged to the accused Keshya and was taken by the deceased in lieu of his debt.The deceased was working in the field since mid-day assisted by his servant one Shankar Chamar.When both of them were returning from the field in the evening and were crossing a nala on the way they were attacked by the three accused with lathies.Shankar ran away but Jaganath was mercilessly beaten and sustained .12 injuries which included a compound depressed, fracture of the left temporal bone.Jaganath died as a result of these injuries on the following day.Upon these facts the three accused along with two other persons were put up for trial under Sections 302/149/147, I.P.C. The Additional Sessions Judge Dewas acquitted the other two persons but convicted the three appellants under Section 325, I.P.C. and sentenced each of them to rigorous imprisonment for 7 years.Aggrieved by this, the accused have preferred this appeal against their conviction and sentence.Mr. Rege, the learned Counsel for the appellants urged that the lower Court has found that there was a mutual fight between the two parties, but the learned Judge has failed, to determine which party had commenced the assault.The learned Counsel contended that the injuries on the body of the deceased were not those of rod marks but were such as could be caused by fall.P. W. 2 Shankar and P. W. 20 Amara have stated that the deceased Jaganath was beaten by sticks.The story given out by the prosecution witnesses was thus not correct.The learned Counsel also submitted that there was no charge under Section 34, I.P.C. though the learned Judge had made use of this section in determining the guilt of the accused.The accused No. 1 Dewa has denied the offence but has admitted that there was a fight but according to him it was due to an attack upon him by Jaganath and Shankar and that it was he who was the sufferer in that.Shankar's presence on the scene is thus directly admitted.According to Shankar while they were going through the nala, the three accused attacked Jaganath with sticks.The witness himself was also attacked but he escaped and ran away.From a distance, ho looked back, and saw the three accused hammering Jaganath.P. W. 20 Amara, who was some distance behind Jaganath and Shankar corroborated Shankar.He saw the three accused beating Jaganath.Amara is the person who reported the incident at the Police Station and has lodged the first information report which contained the names of the three accused.The accused were arrested the same day and on medical examination found to have injuries on their bodies.That Jaganath sustained injuries at the place of occurrence and was found lying there unconscious is no longer in dispute.In my opinion there is thus enough material on record to hold that the accused beat the deceased Jaganath.The next question for determination is under what section should the accused be convicted.Mr. Rege, the learned Counsel for the appellants, urged that the accused were, charged under Section 149 for participating in beating with the common object but there was nothing in the charge-sheet to suggest that the accused were being charged for common intention which is a material ingredient Of Section 34, I.P.C. He also criticised the finding of the Additional Sessions Judge regarding common intention and pointed out that all the accused had not assaulted Jaganath together and had reached the spot one after the other.The last argument does not appeal to me. | ['Section 34 in The Indian Penal Code', 'Section 149 in The Indian Penal Code', 'Section 323 in The Indian Penal Code', 'Section 147 in The Indian Penal Code', 'Section 325 in The Indian Penal Code'] |
Shri Ashok Kumar Pali, learned counsel for the appellant.Shri S.K. Kashyap, learned P.L. for the State.The appeal is admitted for hearing.Heard on I.A. No.4913/2016, an application on behalf of the appellant-applicant, T.S. Sengar, for suspension of sentence and grant of bail, who has been convicted under section 467/471 IPC to undergo R.I. for 3 years and fine of Rs.25000/-; under Section 468/471 IPC to undergo R.I. for 2 years and fine of Rs.10,000/-; and under Section 120-B IPC to undergo R.I. for 1 year and fine of Rs.5000/-, and in default to undergo further R.I. for six months on each count.Fine amount has been deposited and the accused- appellant has been released on bail till today.Keeping in view totality of the circumstances, I.A. No.4913/2016 is allowed and it is directed that the jail sentence of the appellant-applicant shall remain suspended and he shall be enlarged on bail on his furnishing a personal bond in the sum of Rs.1,00,000/- (Rs.One lakh) with one surety in the like amount to the satisfaction of the trial Court for his appearance before the Registry of this Court on 01-12-2016 and on such other dates as may be directed in that behalf.As the appellant has been acquitted of the charges under the Prevention of Corruption Act and he has been convicted under the Indian Penal Code, Office to examine as to whether this matter has to be listed before the Division Bench or not.Accordingly, I.A. No.4913/2016 is allowed and stands disposed of.Call for the record of the Court below.List along with the record for hearing. | ['Section 471 in The Indian Penal Code', 'Section 468 in The Indian Penal Code', 'Section 120B in The Indian Penal Code', 'Section 467 in The Indian Penal Code'] |
JUDGMENT Usha Mehra, J.(1) This revision petition has been filed by one Shri Daulat Ram assailing the order passed by the Additional Sessions Judge dated 18th February, 1991 thereby discharging the accused Rajinder Motwani and dismissing the complaint of the petitioner under Section 211/500 Indian Penal Code .(2) In brief, the facts of this case are that the petitioner is a landlord/owner of property bearing No. 3493, Gali Lallu Nissar, Qutub Road, Sadar Bazar, Delhi, and one Shri Sajjan Dass of Narain Market, was a tenant under him in respect of one room used as a godown on a monthly rent of Rs. 25.00 .The respondent and his father in order to blackmail the petitioners, started claiming the tenancy in the name of their firm M/s. Popular Stores.This they claimed because once upon a time Sajjan Dass was a partner in the said concern.Since the petitioner refused to recognise them as a tenant, the respondent and his father filed a civil suit on which a local commissioner was appointed to ascertain the possession of the party in the suit premises.The local commissioner found that the respondent was not in possession of the alleged godown.Having failed in their object, the respondent tried to dispossess the petitioner through illegal help and backing of the police and also tried to implicate falsely the petitioner in criminal cases.(3) The police officers visited the petitioner on 25/26th October, 1986 and informed him that there is a police report lodged against him for dispossessing the respondent and theft of articles and that he should report to the police station.The police official while contesting the bail application brought on record the report filed by the on the day when he applied his mind and passed the order of summoning.Therefore, the complaint which was filed by the petitioner dated 28t October, 1986 is hit by the Provisions of 195(l)(b), Criminal Procedure Code .Anticipatory bail was sought on 31.10.1986 because of the complaint filed by the respondent against the petitioner regarding the theft.Since the Magistrate exceeded his jurisdiction hence the Additional Sessions Judge was justified in quashing the order.Since the complaint itself was not maintainable, hence the revision is also not maintainable.(4) On the other hand, Mr. G.D. Gandhi appearing for the petitioner contended that Magistrate took cognizance on the day the petitioner filed the complaint i.e. 28th October, 1986 when the complaint was taken on record, it amounted to taking of the cognizance.Hence on 28th October, 1986, when the Magistrate took the cognizance no proceedings were pending.His complaint dated 23rd October, 1986 had been concealed by the police throughout.It this regard I am also supported by catena of judgments of the Supreme Court and High Court, reference can be had to the following authorities:1.Gopal Dass Sindhi and others Vs.2.Kamlapati Trivedi Vs.State of West Bengal .3.State of Punjab Vs.Brij Lal Palta .Allbert Accused No.1 Vs.5.Rejeshwar Prasad Misra Vs.6.Baijnath Vs.State of Madhya Pradesh .7.State of Himachal Pradesh Vs.Krishan Lal Pardhan and others 1987 Crl.8.State of West Bengal Vs.Bejoy Kumar Bose . | ['Section 500 in The Indian Penal Code'] |
The liberty was granted by the Division Bench to dispose of the above-mentioned application being IA No.9770/2011 without being influenced by the impugned order.8.2 Being aggrieved by the illegal and criminal actions of the office bearers of the Society, defendant no. 3 made representations at the office of the Registrar of Cooperative Societies but there was no effective action.Thereafter defendant no.3 had sent a representation to the Lt. Governor of Delhi requesting his intervention also requesting Lt. Governor to direct the Society to continue him as regular and bonafide member.Hence defendant no. 3 filed an arbitration petition being 37/JR1/CH/92-93 before the Registrar Cooperative Societies Act claiming that he had not resigned from membership of the Society and he did not have any disqualification under any provision of law and thereby he is a regular and bonafide member of the Society.8.7 Defendant no. 3 also contends that the office bearers have played fraud on him.The office bearers have also put up a false case that Paras Nath Pathak is not the one and the same person and that the real Paras Nath Pathak had resigned from membership.Allegations are also made that Mr. Shekhar Vashisht played an instrumental role in the sale proceedings for some ulterior motive as the purchaser was his mother in law, the plaintiff herein.8.20 The Society wrote a letter bearing No. UCGHS/GK/08-01/05 dated 31.08.2005 to DDA knowing about the status of the Flat No. B-Thereafter Society took possession of the said flat vide its letter dated 14.02.2006 and intimated certain information to DDA.By this order, I propose to decide the third application filed by the plaintiff, bearing I.A. No.9770/2011 filed under Section 94 read with Order XXXIX, Rules 1, 2 & 3 CPC.It is the admitted position that the plaintiffs earlier applications, both under Order XXXIX, Rules 1 & 2 CPC bearing I.A. No.4897/2007 & I.A. No.7083/2008 were dismissed vide order dated 20.09.2010 and the ex-parte injunction order granted on 11.08.2008 was vacated.The said order was passed by the Court after hearing both the parties.Thereafter, the plaintiff filed an appeal against the said order, bearing FAO(OS) No.117-18/2011 before the Division Bench, which was dismissed as withdrawn.The parties were also granted liberty to raise their all respective contentions.Thus, the learned counsel for the plaintiff states that the present application is maintainable on the grounds of fresh cause of action and the same be disposed of.The Plaintiff's CaseThe plaintiff filed the present suit under Sections 31, 33 & 34 of the Specific Relief Act, 1963 for declaration, and in the alternative, claiming a compensation to the tune of Rs.82,16,000/- from the defendants apart from other reliefs.4.2 The plaintiff submits that the defendant No. 2 had issued a No Objection Certificate dated 29.12.2003 in favour of defendant No.1 and consequently, the said flat was allotted in her favour.Thereafter, the defendant No.1 got the said flat registered in her favour.The said I.A. No.9770/2011 in CS(OS) No.774/2007 Page No.2 of 21 property was then converted from lease-hold to free-hold vide registered deed dated 24.08.2004 making the defendant No.1 the absolute owner.4.3 Defendant No.1 now being the absolute owner of the said property and being in possession thereof entered into a sale agreement with the plaintiff and executed a Sale Deed dated 09.05.2005 and by virtue of the same, the plaintiff became the absolute owner of the property.Thereafter defendant No. 1 & 2 started claiming that defendant No.1 had, in fact, ceased to be a member of the Society and hence not entitled to the said flat.The plaintiff states that there is absolutely no relationship between the plaintiff and the defendants.The defendant No.1 had conveyed a deed in favour of plaintiff, by the title paramount and 4.5 There were no proceedings initiated qua cancellation of the said Sale Deed and a duly registered document cannot be superseded or become non-existence by an executive action/order and in the absence of a registered document.4.6 The plaintiff also submits that the communication dated 16.3.2007 on the face of it is null and void and is any event an outcome of connivance of defendant No. 1 & 2 as the flat in question continues to be vested upon the plaintiff as she is the lawful/legal owner as she had got the flat legally and with proper procedure.4.7 Alongwith the suit, the plaintiff also filed an application for interim relief.Ex-parte order granted on 11.08.2008 and was vacated vide order dated 20.09.2010 after hearing the parties.While dismissing the interim applications filed by the plaintiff, the Court has dealt with submission of the parties and given its findings in paragraphs-15 to 20 of the order which are against the plaintiff.The same read as under:-In other words, the entire thrust of the plaint of the plaintiff is that the defendant no.1 did not have the title to the property and yet she sold the same in favour of the plaintiff and consequently, she became a victim of fraud and yet she wants to be declared as bonafide purchaser.In view of the order passed by the Division Bench, now the plaintiff is insisting for an interim order in the second application being IA No.9770/2011 i.e. for same relief.I.A. No.9770/2011 in CS(OS) No.774/2007 Page No.6 of 21It is argued by the plaintiff that the documents executed in his favour would show that the Registrar of Cooperative Societies is not vested with any jurisdiction to allow allotment of the said flat.It is stated that under the garb of the communication, no third party right can be created of the said flat depriving the rights of the plaintiff.The plaintiff also submits that if defendant No.2 acts on the basis of the communication dated 13.05.2011, then the plaintiff would suffer irreparable loss and hence prayed for status quo.The matter was assigned to the Assistant Registrar Cooperatives Society.Defendant no. 3 filed an appeal against the order of Assistant Registrar before the Presiding Officer of Delhi Cooperative Tribunal.The same was dismissed on the ground that the writ petition was filed on disputed question of facts.8.8 With regard to that Paras Nath Pathak submitted a representation at the concerned police station and asked the police officials to register a F.I.R. but the police officials refused to register an F.I.R. Defendant No.3 claims that the police officials were under the influence from the office bearers.On 14.12.2002 Sri Paras Nath Pathak gave a written complaint to the Commissioner of Police, Police Head Quarter, I.P. Extension requesting them to register a complaint against the office bearers of the Society for fabrication of documents, criminal breach of trust and falsification of accounts.I.A. No.9770/2011 in CS(OS) No.774/2007 Page No.9 of 21 8.9 Despite the representations no complaint/F.I.R was registered by the police or the CBI.Hence defendant no. 3 approached the High Court and filed a Writ Petition being W.P (Crl) No. 26/2005 for issuance of a direction to the State to register and F.I.R. in this regard.8.10 Pursuant to the directions of the High Court, an enquiry u/s 55 of the Delhi Cooperative Societies Act was initiated and Shri S.M. Agarwal, ADJ (Retired) was appointed as Enquiry Officer.The High Court vide its order dated 21.03.2006 in W.P. (Crl) No. 26/2005, directed the DCP, EOW Cell Delhi Police to take up enquiry and file report within four weeks.8.11 Pursuant to the orders dated 21.03.2006 by the High Court a F.I.R. was registered being No. 133 dated 19.04.2006 under sections 420, 468, 471 and 120B of the Indian Penal Code and investigation was conducted by Insp.S.S. Gill and the Writ Petition was disposed of.8.12 Thereafter, defendant no. 3 approached the Registrar of the Cooperatives Society and wanted to opt for his legitimate claim on a flat in the housing society.8.13 Defendant no. 3 again approached the Court for clarification of the order dated 26.04.2001 and the Court vide order dated 17.08.2007 passed in C.M. No. 10539/2007 in W.P. (C ) No. 2614 of 2001 has observed "having considered the materials on record I am of the opinion that no clarification is required to be made; the events relied on are all subsequent to the dismissal of the petition and therefore if the petitioner has any remedies available in law it is open for him to pursue the same.the order dated 26.04.2001 was on the basis of that adjudication in the writ petition entails investigation into the disputed questions of facts; there was no decision on merits of the case"8.14 Hence defendant no. 3 approached the Registrar of Cooperative Society for confirmation of his membership and allotment of his flat B- 47, the only vacant flat.A detailed proceedings went on at the office of the Registrar who vide order 16.04.2008 approved the report of Enquiry Office Shri S.M. Aggarwal and membership of defendant no. 3 was approved.8.15 It is also alleged that a Writ Petition being W.P. (C) No. 4324/2008 titled as Seema Bijlani Vs.Registrar Cooperative Societies & Ors was filed before this Court to frustrate the claim of defendant no. 3 and he was not made a party.I.A. No.9770/2011 in CS(OS) No.774/2007 Page No.11 of 21 8.16 A publication was made in the two daily newspapers namely Statesman, Rashtriya Sahara dated 23rd July 2008 for draw of a flat (B-47) any persons having any objections may submit representation to Assistant Registrar within 15 days of the said publication.In the meanwhile a suit was filed by the plaintiff against Smt. Gayatri Kukreja.Thereafter DDA vide letter dated 16.03.2007 that the Deed of Conveyance dated 24.08.2004 stands cancelled by the L.G. of Delhi.Reply of Defendant No.2 SocietyDefendant No. 2 has also filed reply to the application, stating therein that the plaintiff is not the owner of the flat as alleged.The flat in fact was allotted to Smt. Gayatri Kukreja who through proceedings initiated against her, submitted her resignation and the same was accepted by the Registrar Cooperative Societies.9.1 After knowing of this fact, Mr. Shekhar Vashist, son in law of the plaintiff and a member of the society manipulated the documents for getting flat done to free hold as DDA organized a Riverside camp in Mayur Vihar Phase I and converted the said flat from lease hold to I.A. No.9770/2011 in CS(OS) No.774/2007 Page No.13 of 21 freehold.It is alleged that a manipulation was done by Mr. Vashist and the flat was sold at a throw away price for a consideration of Rs. 7.90 lac as against the proper market value of 30 lac who was fully aware of the fact that defendant No. 2 Smt. Gayatri Kukreja had already resigned from the membership.9.2 The plaintiff had intentionally not stated all the facts in the matter despite of having knowledge of all the facts.The alleged NOC dated 29.12.2003 was never issued by defendant no. 2 but a mere manipulation of documents by Mr. Vashist who also witnessed the conveyance deed.9.3 The defendant no. 1 gave her resignation from the membership of the Society and hence had no title to the said flat.Defendant no. 2 till date is the owner of the flat and plaintiff has no right whatsoever.The defendant No. 2 states that Mr. Shekhar Vashist is the owner of flat no. D-139 in the society and his wife (daughter of the plaintiff) is residing in flat no. C-92, both in the society.Infact there was collusion between plaintiff and Mr. Shekhar Vashist and the documents were manipulated.The plaintiff got a stay in CS (OS) No. 774 of 2007 but after detailed arguments the stay was vacated.The plaintiff also filed a review application but the same was also dismissed.The plaintiff I.A. No.9770/2011 in CS(OS) No.774/2007 Page No.14 of 21 also filed an appeal against the vacating of stay order but that too was dismissed.The same read as under:-The plaintiffs preferred an appeal being FAO (OS) No.281/2008 against the dismissal of first application for interim relief. | ['Section 468 in The Indian Penal Code', 'Section 420 in The Indian Penal Code', 'Section 471 in The Indian Penal Code', 'Section 120B in The Indian Penal Code'] |
Heard learned counsel for the applicants and learned A.G.A.It is contended by the learned counsel for the applicants that this casemay be sent to Mediation Centre for the purpose of settlement betweenthe parties for which the applicants are ready to deposit the cost.Considering the submission made by the learned counsel for theapplicants, it is directed that applicants shall deposit Rs. 10,000/- withintwo weeks from today in the account head of Registrar General,Mediation and Conciliation Centre, Allahabad High Court,Allahabad.In case, the aforesaid amount is deposited the notice shall beissued to O.P. No.2 returnable within a period of four weeks.The threefourth of the above mentioned deposited amount shall be paid to O.P. No.2 as expenses.This case shall be sent to Mediation Centre for furtherproceedings.After proceedings of the Mediation Centre, list this case before this Courton 1.4.2010.Till then no coercive step shall be taken against theapplicants in Case No. 806 of 2009 under sections 98-A, 323 I.P.C. andsection ¾ of D.P. Act pending in the court of Judicial Magistrate Rampurin case the receipt of the aforesaid deposited amount is filed beforethe court concerned.List on 1.4.2010 for orders.Order Date :- 21.1.2010N.A. | ['Section 323 in The Indian Penal Code'] |
Heard learned counsel for the applicant as well as learned A.G.A for the State and perused the record.By means of this application, the applicant who is involved in case crime no.147 of 2018, under Section 376 IPC Police Station-Phephna, District-Ballia is seeking enlargement on bail during the trial.Submission made by learned counsel for the applicant is that the FIR was lodged by the victim herself against as many as four persons including the applicant.The allegation is that after extending promise to marry, the applicant has established physical relationship with the victim at the pre-marital stage.She understands the far-reaching repercussions of pre-marital sex with unknown persons and now, when the applicant has wriggled out from his promise, she has lodged the present FIR.Learned A.G.A opposed the prayer for bail but could not dispute the aforesaid facts and the legal submissions as argued by the learned counsel for the applicant.Let the applicant-Manoj Kumar, involved in case crime no.147 of 2018, under Section 376 IPC Police Station-Phephna, District-Ballia be released on bail on furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned with the following conditions which are being imposed in the interest of justice:-(i) THE APPLICANT SHALL FILE AN UNDERTAKING TO THE EFFECT THAT HE SHALL NOT SEEK ANY ADJOURNMENT ON THE DATE FIXED FOR EVIDENCE WHEN THE WITNESSES ARE PRESENT IN COURT.IN CASE OF DEFAULT OF THIS CONDITION, IT SHALL BE OPEN FOR THE TRIAL COURT TO TREAT IT AS ABUSE OF LIBERTY OF BAIL AND PASS ORDERS IN ACCORDANCE WITH LAW.(ii) THE APPLICANT SHALL REMAIN PRESENT BEFORE THE TRIAL COURT ON EACH DATE FIXED, EITHER PERSONALLY OR THROUGH HIS COUNSEL.IN CASE OF HIS ABSENCE, WITHOUT SUFFICIENT CAUSE, THE TRIAL COURT MAY PROCEED AGAINST HIM UNDER SECTION 229-A IPC.(iii) IN CASE, THE APPLICANT MISUSES THE LIBERTY OF BAIL DURING TRIAL AND IN ORDER TO SECURE HIS PRESENCE PROCLAMATION UNDER SECTION 82 CR.P.C., MAY BE ISSUED AND IF APPLICANT FAILS TO APPEAR BEFORE THE COURT ON THE DATE FIXED IN SUCH PROCLAMATION, THEN, THE TRIAL COURT SHALL INITIATE PROCEEDINGS AGAINST HIM, IN ACCORDANCE WITH LAW, UNDER SECTION 174-A IPC.(iv) THE APPLICANT SHALL REMAIN PRESENT, IN PERSON, BEFORE THE TRIAL COURT ON DATES FIXED FOR (1) OPENING OF THE CASE, (2) FRAMING OF CHARGE AND (3) RECORDING OF STATEMENT UNDER SECTION 313 CR.P.C. IF IN THE OPINION OF THE TRIAL COURT ABSENCE OF THE APPLICANT IS DELIBERATE OR WITHOUT SUFFICIENT CAUSE, THEN IT SHALL BE OPEN FOR THE TRIAL COURT TO TREAT SUCH DEFAULT AS ABUSE OF LIBERTY OF BAIL AND PROCEED AGAINST HIM IN ACCORDANCE WITH LAW. | ['Section 376 in The Indian Penal Code'] |
mso-para-margin-bottom:.0001pt;mso-pagination:widow-orphan;font-size:10.0pt;case diary.</span></p> <p class="MsoNormal" style="text-align:justify;line-height:150%"><span style="font-family:"Bookman Old Style"" lang="EN-GB"><span style="mso-spacerun:yes"> </span><span style="mso-tab-count:2"> </span>Heard.</span></p> <p class="MsoNormal" style="text-align:justify;line-height:150%"><span style="font-family:"Bookman Old Style";mso-bidi-font-family:"Courier New"" lang="EN-GB"><span style="mso-spacerun:yes"> </span><span style="mso-tab-count:2"> </span>This is repeat (Third) application u/s. 439 of Cr.P.C. for grant of bail in connection with Crime No.89/2013 registered at Police Station-Singhpur, District-Satna for the offences punishable u/s. 302, 376 (2-G), 201, 34 of IPC.Accordingly, this repeat application stands rejected and closed.</span></p> <p class="MsoNormal" style="text-align:justify;line-height:150%"><span style="font-family:"Bookman Old Style";color:black" lang="EN-GB"><span style="mso-tab-count:2"> </span>M.Cr.C. stands disposed off.</span><span style="font-family:"Bookman Old Style"" lang="EN-GB"><span style="mso-tab-count: 3"> </span><span style="mso-spacerun:yes"> </span></span><span style="font-size:14.0pt;line-height:150%" lang="EN-GB"><span style="mso-tab-count: 2"> </span></span><span style="font-size:15.0pt;line-height: 150%;font-family:"Courier 10 Pitch";mso-bidi-font-family:"Courier New"" lang="EN-GB"></span></p> <p class="MsoNormal" style="margin-left:3.0in;text-align:justify;text-indent: .5in;mso-line-height-alt:5.0pt"><span style="font-family:"Bookman Old Style"; mso-bidi-font-family:"Courier New"" lang="EN-GB"><span style="mso-spacerun:yes"> </span>( S.K. SETH)</span></p> <p class="MsoNormal" style="margin-left:2.5in;text-align:justify;text-indent: .5in;mso-line-height-alt:5.0pt"><span style="font-family:"Bookman Old Style"; mso-bidi-font-family:"Courier New"" lang="EN-GB"><span style="mso-spacerun:yes"> </span><span style="mso-tab-count:2"> </span>Judge</span></p> <p class="MsoNormal" style="margin-left:2.5in;text-align:justify;text-indent: .5in;mso-line-height-alt:5.0pt"><b style="mso-bidi-font-weight:normal"><span style="font-size:15.0pt;font-family:"Courier 10 Pitch";mso-bidi-font-family: "Courier New"" lang="EN-GB"> </span></b></p> <p class="MsoNormal" style="margin-left:-73.5pt;text-align:justify;mso-line-height-alt: 5.0pt"><i style="mso-bidi-font-style:normal"><u><span style="font-size:9.0pt;mso-bidi-font-size:13.0pt;font-family:"Courier 10 Pitch"; mso-bidi-font-family:"Courier New";mso-bidi-font-weight:bold" lang="EN-GB">Irfan</span></u></i><i style="mso-bidi-font-style:normal"><u><span style="font-size:11.0pt; mso-bidi-font-size:13.0pt;font-family:"Courier 10 Pitch";mso-bidi-font-family: "Courier New";mso-bidi-font-weight:bold" lang="EN-GB">/</span></u></i><span style="font-size:10.0pt;mso-bidi-font-size:12.0pt" lang="EN-GB"></span></p> <!--[if gte mso 9]><xml> <w:LatentStyles DefLockedState="false" LatentStyleCount="156"> </w:LatentStyles> </xml><![endif]--><!--[if !mso]><object classid="clsid:38481807-CA0E-42D2-BF39-B33AF135CC4D" id=ieooui></object> <style> st1\:*{behavior:url(#ieooui) } </style> <![endif]--><!--[if gte mso 10]> <style> /* Style Definitions */ table.MsoNormalTable {mso-style-name:"Table Normal";mso-tstyle-rowband-size:0;mso-tstyle-colband-size:0;mso-style-noshow:yes;mso-style-parent:"";mso-padding-alt:0in 5.4pt 0in 5.4pt;mso-para-margin:0in;font-family:"Times New Roman";mso-ansi-language:#0400;mso-fareast-language:#0400;mso-bidi-language:#0400;} </style> <![endif]--> <!--<object type="application/pdf" data="../../MPHCJB/2014/SA/125/SA_125_2014_Order_03-Jul-2014.pdf" id="ggg_object" style="display: none"></object>--> <object type="application/pdf" id="ggg_object" style="display: none"></object> <!--<iframe src="../../MPHCJB/SA_125_2014_Order_03-Jul-2014.pdf" id='ggg_object' width="800px" height="600px" >--> </div> </font> | ['Section 376 in The Indian Penal Code'] |
I. Fracture 17 cm long right and left parietal bone region;Fracture Left zygomatic arch;{11/01/2018 } Per J.P.Gupta, J :This appeal has been filed assailing the judgment dated 16/10/2006 passed by the 2 nd Additional Sessions Judge, Khandwa, in Sessions Trial No.103/2006 whereby the appellant has been convicted under section 302 of IPC for committing murder of Lakhan and sentenced him to undergo R.I. for life imprisonment as mentioned in the impugned judgment.It is undisputed in the case that Pintu (PW-5) is son of the deceased, Sulochna Bai (PW-4) is wife of the deceased and Ranju Bai (PW-1) and Manda (PW-6) are daughters of the deceased and house of the deceased and the appellant are situated in the same vicinity.In brief, the facts of the case emerge from the findings of the learned trial court and evidence on record are that one day before the incident altercation were taken place between the deceased and the appellant on account of throwing of live electric wire towards the house of Lakhan.On 21/03/2016 near about 6.30 PM Lakhan went towards the betel shop and his son Pintu (PW-5) was coming towards his house, he saw that the appellant was beating his father Lakhan with the stick.Then Pintu (PW-5) got frightened came to his house and informed to his mother and sisters, then he along with his mother Sulochan Bai (PW-4) and his sisters Ranju Bai (PW-1) and Manda (PW-6) went towards the place of the incident and they found Lakhan lying in the front of the house of the appellant.He was injured and dead.Then Sulochan Bai (PW-4) called for Shivlal (PW-7) and Rameshchand (PW-8).They came on the spot and Sulochan Bai (PW-4) informed that Pintu (PW-5) had narrated that appellant assaulted the deceased with the stick and caused his death.Thereafter Rameshchand (PW-8) telephonically informed to the police station Piplod.Thereafter police party reached on the spot near about 11 PM where Dehati Nalish (Ex.P-5) and Marg Intimation (Ex.P-7) was recorded on the basis of information given by Sulochan Bai (PW-4) and thereafter FIR (Ex.P-13) was registered at Police station Piplod, Tehsil Khandwa as Crime No.80/2006 under sections 302 of the IPC.During the investigation the dead body of the deceased was examined by Dr. Anil Kumar (PW-2) and after completing the other formalities of the investigation, the charge sheet for commission of offence punishable under section 302 of IPC against the appellant was filed before the Chief Judicial Magistrate Khandwa, who in turn committed the case to the court of Session Khandwa from where it was received on transfer by the 3rd Additional Session Judge (Fast Track Court) Khandwa who conducted the trial.During trial against the appellant/accused charge for the offence punishable under sections 302 of the IPC was framed.He abjured his guilt and claimed to be tried.His defence is that he has been falsely implicated in this case and in his defence no witness has been adduced.Learned Trial court after completion of the trial, convicted and sentenced the appellant for commission of the offence punishable under section 302 of IPC on the basis of evidence of Pintu (PW-5) finding his testimony creditable and getting corroboration from the statements of Sulochan Bai (PW-4), Ranju Bai (PW-1) and Manda (PW-6) as well as Shivlal (PW-7) and Rameshchand (PW-8) and further getting corroboration from the statement of Dr. Anil Kumar (PW-2).Apart from it, there is no compliance of section 157 of Cr.P.C. The FIR is antedated with a view to falsely implicate the appellant.Further contended that Dr. Anil Kumar (PW-2) has not opined that any single or all injuries in cumulative effect was sufficient to cause death in ordinary course of nature.In such circumstances, looking to the alleged motive, nature of weapon, it cant be said that the appellant assaulted the deceased with the intention to kill him or caused injuries intentionally which were sufficient to cause his death in ordinary course of nature.The same was caused on account of assaulting by other person.Therefore, the nature of the death was homicidal.As per Ex.P-1 according to Dr. Anil Kumar (PW-2) following injuries were found on the body of the deceased:-i. Lacerated wound 2 X1X1 cm over lateral end of left eyebrow;Contusion 15X2 cm over chest extended from just above left nipple to down ward to Right nipple region; iii.Contusion 17 X2 cm over chest extend from below 3 cm from Left nipple to right nipple;Contusion 16 X2 cm over left hypchorid region and Epigestric region extend from near mid axillary line lower chest left to downward epigestric region; v. Abrasion 1 X1 cm lateral to 2 cm from No.1 On dissection following injuries were found:-Fracture Left 5th rib near sterrium bone region;Sub dural and extra dural haemorrhage present and large haemorrhage present;He opined that cause of death was excessive haemorriage and shock due to multiple fracture of body and chest injury.Leading to cardio respiratory arrest.Injuries are homicidal in nature and duration of injuries were within 24 hours.Now the question is that whether the aforesaid injuries was caused by the appellant with the stick.In this regard Pintu (PW-5), who is son of the deceased has categorically stated that on the date of incident near about 7 pm when he was coming to his house in the front of the house of appellant, he saw appellant was beating his father with the stick.Seeing this incident, he was frightened and go home from the way of back side and told his mother that the appellant is beating his father.Thereafter he along with his mother and sisters went towards the appellants house and saw his father was lying dead and there were injuries on forehead, chest and stomach of his father.Sulochan Bai (PW-4), Ranju Bai (PW-1) and Manda (PW-6) have also stated the same thing in their statements.As per statement of Sulochan Bai (PW-4) she called for Shivlal (PW-7) and Rameshchand (PW-8) and told them the facts of the incident and then Rameshchand (PW-8) informed to the police.Shivlal (PW-7) and Rameshchand (PW-8) have supported this story and Investigating Officer, N.P Dhada (PW-11) have also stated that near about 10 PM Rameshchand (PW-8) telephoned to the police station Piplod and informed that one person is killed in his village and thereafter he sent police force to the village.Sulochan Bai (PW-4) also stated that in the night police force came, she informed to them about the incident and Dehati Nalish (Ex.P-5) and Marg Intimation (Ex.P-7) was recorded by the police.In the statement of the aforesaid witnesses, there is no material contradiction and omission.Shivlal (PW-7) and Rameshchand (PW-8) are independent witnesses and they have reached on the spot very soon where Sulochan Bai (PW-4) have categorically disclosed them that his son Pintu (PW-5) saw the incident and the deceased was beaten by the appellant with stick. | ['Section 302 in The Indian Penal Code', 'Section 304 in The Indian Penal Code'] |
The complainant was not in picture at all.As far as the sale deed is concerned, he was neither vendor nor vendee nor middle man or attesting witness of the instrument.He is completely a stranger to the aforesaid disputed sale deed.Two of them are related to vendee and two are said to be middle man in the deal but their roles have not been delineated at all.One Subodh Kumar Jain, respondent no. 2/complainant lodged an FIR despite the fact that he was not the party to the said transaction in any manner.This FIR was registered on 1.11.2011 at P.S. Kotwali Muzaffar Nagar vide Case Crime No. 1149 of 2011, under Sections 420,467,468,471,379 IPC and 120-B IPC.The matter was investigated and the Investigating Officer initially submitted the final report in the matter on the premise that the dispute relates to the evasion of stamp duty for which proceedings were already pending before the competent authority but subsequently the investigation was transferred, legal opinion obtained from the senior prosecutor and charge sheet under Section 420 IPC was filed against five accused including vendee Padma Jain, her husband Sunil Kumar Jain, her son Sarad Jain, alleged middle man V. K. Jain and his son Anmol Jain.The matter was adjudicated by the competent authorities.Remaining stamp duty was ordered to be paid and further a penalty of Rs. 40,990/- was also imposed. | ['Section 420 in The Indian Penal Code', 'Section 467 in The Indian Penal Code', 'Section 379 in The Indian Penal Code', 'Section 468 in The Indian Penal Code', 'Section 471 in The Indian Penal Code'] |
The brief facts leading to the filing of this petition as disclosed in the F.I.R are thus :- On 5.5.2016, complainant Yatendra Singh Chauhan, who is respondent no.5 herein, lodged the written complaint with police station Maharajpura Gwalior stating that he is the owner of the M/s Yatendra Chauhan Contractors and Suppliers.brother Dinesh Valecha are the Directors of the Valecha Engineering Pvt. Ltd Co. (for short "the company").Kapil Valecha and Karan Valecha are the sons of the petitioner.M.H.Mehta is the General Manager of the company.On 10.10.2014, on behalf of the company, M.H.Mehta had entered into a written agreement with him in his residence at DH 89 DD Nagar Gwalior.According to the agreement, he had to supply 2,50,000/- metric tons "crushed stones aggregate" at the work site of the company as it has got the contract of construction of four lane road of Etawah-Mainpuri Purawali at that time.The company paid him only 10,00,000/- (ten lac) rupees against the aforesaid amount.Both the cheques were dishonored by the drawee bank of the company.The directors and the employees of the company fled away from the work site.Bajaj also lodged an FIR at Police Station Jhansi Road Gwalior for the similar type of the offences having been committed by them.3. Learned Counsel for the petitioner submitted that as per the F.I.R, M.H.Mehta had entered into an agreement on behalf of the company for the supply of crushed stones.The police have not made him an accused of the case, whereas he is the main accused.he was being brought by the police, he escaped from the custody of police at Railway-Station Bina.learned Public Prosecutor.For respondent No.5 :- Shri Awdhesh Singh Bhadoria learned counsel._______________________________________ O R D E R.(Passed on the 4th day of January, 2018) The petitioner has filed this petition under Section 482 of the CrPC seeking quashment of the First Information Report in respect of him registered at Crime No.155 of 2016 in Police Station Maharajpura Gwalior against him and three other accused persons for the offences punishable under Sections 420, 406, 506, 294 and 34 of the I.P.C.In that case, the police arrested Dinesh Valecha from Mumbai.When he was being brought to Gwalior, he escaped from the custody of the police at Railway-Station Bina.Now, the aforestated persons would hurl at him various kinds of filthy abuses and would give him death threats on phones.Upon the complaint, Police Mahajarajpura Gwalior registered the FIR at Crime No.155 of 2016 and have made the petitioner, Dinesh Valecha, Kapil Valecha and Karan Valecha the accused persons of the case for committing the offences punishable under Sections 420, 406, 506, 294 and 34 I.P.C.cheques towards the outstanding amount.But, he had mentioned in the FIR only cheque numbers without the dates on which the cheques are issued, amount of each of the two cheques, the name(s) of drawee bank(s), the name(s) of signatory(s) of the cheques and the date(s) of dishonour of the cheques.He further submitted that Kapil Valecha and Karan Valecha are neither directors of the company nor the employees of the company.He further submitted that the complainant has made general and vague allegations against them for giving abuses and life threats to him because in the FIR the dates, timings of the telephone calls, telephone number(s) through which they would give him abuses and death threats and the telephone number(s) on which he had received the same are not given.He further submitted that the complainant has made Kapil Valecha and Karan Valecha accused of the case with an ulterior motive to bring pressure upon the petitioner and Dinesh Valecha for payment of the outstanding amount.the petitioner and Dinesh Valecha had intention to cheat him or commit breach of trust against him before the execution of the agreement.He further submitted that the real dispute between the company and the complainant is that he had supplied the crushed stones of poor quality to the company resulting in non-payment of the amount as demanded by him.Thus, the dispute between the complainant on one side and the accused persons and the company on the other is of purely monetary dispute of civil nature.Thus, no offence against the petitioner under Sections 420 (for cheating), 406 (for breach of trust), 294 (giving filthy abuses) and 506 (for giving life threats) I.P.C are made out.Therefore, the FIR be quashed in respect of the petitioner.In support of the submissions, he placed reliance on the decisions rendered in the case of State Of Haryana And Ors Vs Ch.Bhajan Lal And Ors, AIR 1992 SC 604, International Advanced Research Centre for Powder Metallurgy and new Materials (ARCI) & Others Vs.1 SCC 348, M.Cr.C.No.1942 of 2004 and M.Cr.C.No.2005 of 2004, cause-title Wolfang Rein & ORS Vs.State and ANR, date of orders dated 2.7.2012 passed by the Delhi High Court and a few orders passed by this High Court and the Bombay High Court under Section 482 CrPC in unreported cases.In all these cases, gravamen of accusations against them are that they had entered into agreements with the complainants for supply of crushed stones and thereafter they did not make payments and they and their employees fled away from the work site.He further submitted that the police of police station University arrested Dinesh Valecha in said Crime No.98 of 2016 at Mumbai.Thereupon, Crime No.355/2015 against him is registered at G.R.P police station Bina under Section 224 I.P.C. He further submitted that the registrations of the aforesaid cases upon the complaints of the different complainants in the aforestated police stations are prima facie proofs that the petitioner and the three other accused of the present case had intention to cheat the complainant or commit criminal breach of trust against the complainant at the time of execution of the written agreement which had been entered into with him on behalf of the company by its General Manager M.H.Mehta.He further submitted that the petitioner had also filed M.Cr.C.No.8307 of 2016 for the quashment of the FIR registered against him and others in Crime No.98 of 2016 at police station University Gwalior. | ['Section 420 in The Indian Penal Code', 'Section 406 in The Indian Penal Code', 'Section 294 in The Indian Penal Code', 'Section 506 in The Indian Penal Code', 'Section 34 in The Indian Penal Code', 'Section 415 in The Indian Penal Code'] |
HON'BLE MS.JUSTICE MUKTA GUPTA BAIL APPLN.1113/2017 & Crl.M.A.No.244/2018 BAIL APPLN.Represented by: Mr. Sanjeev Narula, CGSC, Mr. Amit Mahajan, CGSC, Mr. Nitesh Rana, SPP and Ms. Anumita Chandra, Advocate.Represented by: Mr. Sanjeev Narula, CGSC, Mr. Amit Mahajan, CGSC, Mr. Nitesh Rana, SPP and Ms. Anumita Chandra, Advocate.BAIL APPLN.1113/2017 & 1114/2017 Page 1 of 81114/2017 & Crl.By way of the present applications, petitioners Virendra Jain and Surender Kumar Jain, the two brothers seek regular bail in ECIR/01/DLZO- II/2017 dated 11th February, 2017 under Sections 3 and 4 of the Prevention of Money Laundering Act, 2002 (in short 'PMLA').The above-noted complaint was lodged after an order dated 28th October, 2013 was passed by the Ministry of Corporate Affairs directing investigation by Serious Fraud Investigating Officer (in short 'SFIO') into affairs of the various companies.On the basis of the investigation report a Criminal Complaint No. 57463/2016 dated 29 th November, 2016 was filed by SFIO against 31 accused persons including the two petitioners for violation of the provisions under Sections 233/628 read with Sections 211/240 (3) of the Companies Act and under Sections 420/468/477-A/120B IPC before the learned Additional Chief Metropolitan Magistrate (Central) Special Acts, Tis Hazari Courts, Delhi.These bail applications came up before this Court earlier and vide order dated 20th September, 2017, this Court dismissed the two bail applications.Aggrieved by the order dated 20th September, 2017 dismissing the bail applications, the petitioners preferred Special Leave Petition before the Hon'ble Supreme Court and vide order dated 23 rd November, 2017 in a batch of writ petitions and criminal appeals, the Hon'ble Supreme Court declared the two further conditions imposed for release on bail in Section 45 BAIL APPLN.1113/2017 & 1114/2017 Page 2 of 8 (1) of PMLA to be unconstitutional, violative of Articles 14 and 21 of the Constitution of India and remanded back the matter to the respective Courts which denied the bail, to be heard on merits without application of the twin conditions mentioned in Section 45 of the PMLA.Thus in both the petitions additional applications challenging the order dated 8 th December, 2017 passed by the learned Special Judge have also been filed.BAIL APPLN.1113/2017 & 1114/2017 Page 2 of 8Appeals filed before the Commissioner, Income Tax were dismissed however, the challenge before the Income Tax Appellate Tribunal succeeded and both the orders of the Assessing Authority and CIT (Appeals) were set aside and the matter remanded back with directions to provide adequate opportunity to the petitioners after confronting them with the entire material.BAIL APPLN.1113/2017 & 1114/2017 Page 3 of 8This Court during the course of arguments repeatedly inquired from the learned counsel for the respondent that even if assuming there was rotation of entries to the tune of approximately 8,000 crores and since substantial investigation has been carried out, what was the financial stability of the companies and the amount available with the companies however, no clear figure could be given by learned counsel for the respondent.It is not disputed by learned counsel for the respondent that a complaint and a supplementary complaint have already been filed in the case.The case of the prosecution rests primarily on the documentary BAIL APPLN.1113/2017 & 1114/2017 Page 7 of 8 address the same will be duly informed to the court by way of an affidavit and in case the petitioners are found interfering in the process of further investigation or tampering with the evidence or violating the conditions imposed, the respondent will be at liberty to take appropriate remedies in accordance with law.Petitions and applications are disposed of.Order dasti.(MUKTA GUPTA) JUDGE JANUARY 25, 2018 'vn' BAIL APPLN.1113/2017 & 1114/2017 Page 8 of 8BAIL APPLN.1113/2017 & 1114/2017 Page 8 of 8 | ['Section 420 in The Indian Penal Code', 'Section 120B in The Indian Penal Code', 'Section 468 in The Indian Penal Code'] |
Case diary perused.This is first application filed by the applicant / accused under section 438 of Cr.P.C. for grant of anticipatory bail, apprehending his arrest in connection with Crime No.400/16, Police Station Kotar, District Satna (MP), offences registered under Section 326, 294, 323, 506-B & 34 of I.P.C.So far as the other co-accused Mahendra Singh and Gyan Singh are concerned, in the said incident their role was different from the applicant and the applicant cannot get relief on the ground of parity.Hence, the applicant is not entitled to be released on anticipatory bail.Hence, the bail application is rejected.(J. P. GUPTA) JUDGE vj | ['Section 294 in The Indian Penal Code', 'Section 323 in The Indian Penal Code', 'Section 34 in The Indian Penal Code', 'Section 326 in The Indian Penal Code'] |
The sentences imposed on the accused were directed to run concurrently.Challenging the said conviction and sentence, the appellants have come forward with the present appeal.The case of the prosecution is that the deceased Rajeshkanna, A1 and P.W.2 were doing business in sago under the name and style of J.S.R, in which they were all partners.Subsequently, since some dispute arose between them, the deceased and P.W.2 left A1 and started their own business.A1 and A2 alone were doing the said business .When the deceased and P.W.2 urged A1 to settle the accounts, A1 asked them to come on 26.4.2001 so that the accounts could be settled.On 26.4.2001 at 9.30 p.m., when P.W.1 went to the shop of A1, the deceased, P.W.2 and A1 were present.When they demanded A1 to settle the amount, A1 took patta knife from the drawer and attacked the deceased.A2 also attacked the deceased and P.W.2 with knife.P.W.2 was taken to Hospital by P.W.5 one Kannan.The deceased was taken to Gokulam Hospital by P.W.1 and then the deceased was taken to Government Hosptial, where the Doctor declared the deceased Rajeshkhanna dead.Thereafter P.W.1 gave a complaint to the Chevvapet Police Station.P.W.11 Sub Inspector of Police registered a case in Cr.No.340 /2001 under Sections 302, 307 IPC and prepared Ex.P15 FIR.On receipt of the copy of the FIR, P.W.12 the Inspector of Police, took up investigation, proceeded to the scene of occurrence at 2 a.m. and prepared an observation mahazar Ex.P3 and a rough sketch Ex.He completed the investigation and laid the charge sheet against the accused under Sections 302 and 307 read with 34 IPC.Before the trial court on the side of the prosecution P.Ws.1 to 12 were examined, Exs.P1 to P17 were filed and M.Os. 1 to 18 were marked.On the side of the defence, D.Ws 1 to 4 were examined, Exs.D1 to D16 were filed and M.Os. 1 and 2 were marked.When the accused was questioned under Section 313 Cr.P.C. in respect of the incriminating materials appearing against them through the evidence adduced by the prosecution, the accused denied their complicity.The trial court on consideration of the oral and documentary evidence convicted the appellants and sentenced them as stated above.As there was no representation on behalf of the appellants, notice was issued to the learned counsel for the appellant who reported no instructions.Even though notice was taken to the accused, there was no representation for the appellants.Hence Mr.Parthiban was appointed as legal aid counsel and he has appeared in this matter.The learned Government Advocate (Criminal Side ) has no objections for the same.From the records it is seen that during the incident, the deceased and other persons attacked the accused and in this regard no investigation was made.P.W.2 Jai Ganesh has given dying declaration before D.W.1 Judicial Magistrate,.D.W.4 Doctor in his evidence would state that A1 sustained fracture on his nose, which was grievous in nature and A1 also sustained simple injuries.D.W.4 Doctor in his evidence would state that A1 sustained fracture on his nose, which was grievous in nature and A1 also sustained simple injuries.He would further state that as A1 complained of pain, he sent him for taking X ray.D.W.4 would also state that A2 also sustained simple injuries.D.W.2 Doctor in his evidence would state that A1 sustained nose injury and he took X ray of the nose injury and gave Ex.D5 report .From the above materials, I am of the view that the investigation has not been properly made and the injury caused on the accused has also not been considered.Without considering this aspect, the trial court has convicted the accused for the offence under Sections 304 Part II read with 34 IPC and 326 read with 34 and sentenced them to undergo 10 years rigorous imprisonment under Section 304 Part II IPC read with 34 and two years under Section 326 read with 34 IPC.I am of the view that the sentence of ten years rigorous imprisonment under Section 304 Part II IPC is on the higher side.Considering the fact that the A1 also suffered grievous injuries and further the accused have to maintain their families, I am of the view that in order to meet the ends of justice, the sentence imposed by the trial court under Section 304 Part II read with 34 IPC could be reduced to seven years and accordingly sentence is modified into seven years of rigorous imprisonment instead of 10 years.In other respects the conviction and sentence imposed by the trial court under Section 326 read with 34 IPC is confirmed.With the above modification, the appeal stands dismissed.The counsel appearing for the accused is entitled to get remuneration from the Tamil Nadu Legal Services Authority, Chennai.I Additional Sessions Judge cum Chief Judicial Magistrate, SalemThe Public Prosecutor High Court, Chennai | ['Section 302 in The Indian Penal Code', 'Section 326 in The Indian Penal Code', 'Section 307 in The Indian Penal Code', 'Section 304 in The Indian Penal Code'] |
The complaint proceeds that A1 to A14 have executed three power of attorneys in favour of the second respondent defacto complainant vide document nos.178/1998, 297/2007 and 1787/2008 and on the strength of the same, the power of attorney mortgaged the property for Rs.1 lakh.In pursuance of the same, the power of attorney entered into an agreement for purchase of the property and put up compound wall and grill gate and obtained service connection and conducted three cases before the Court at Chengalpet and thereafter, executed a sale deed in favour of one Shanthi on 13.7.2011 vide document no.7424/2011 and the defacto complainant has been insisting A1 to A14 to receive the balance sale consideration, but the accused have been postponing the same.While so, the defacto complainant on behalf of Shanthi applied for patta and they come to know that the property was already sold to one Jinnah, who is the petitioner herein.The complaint further proceeds that the sale deed in favour of Jinnah is not valid and the same is executed by his principals without the knowledge of the power of attorney, after obtaining part of the sale consideration and thereafter creating encumbrance to cheat the purchaser who is the power of attorney holder and without handing over the original documents, which are in the custody of the power of attorney holder.Thus, the principals of the defacto complainant i.e., A1 to A14, in order to cheat their power of attorney, have created illegal sale deed and committed an act of land grabbing.The complaint was lodged on 31.3.2011 and was registered as FIR in Cr.No.100/2013 on 24.12.2013 against the principals and the petitioner herein.3.The petitioner/A15 has come forward with the present petition to quash the proceedings on the ground that the allegations raised in the FIR failed to make out any offence in law, much less offence of cheating and none of the ingredients of the offences as referred to above is made out and the complaint came to be lodged only to wreck vengeance against the petitioner herein and to counter blast the complaint and the civil suit filed by the petitioner herein and that, the dispute raised herein is more of civil in nature and there is no element of crime involved in it and the criminal jurisdiction invoked is an abuse of process of law.It is further stated herein that A1 to A14, being the owners of the property, executed sale deed in favour of the petitioner as well as in favour of the second respondent's wife and the sale deed in favour of the petitioner was earlier in point of time and the sale deed in favour of his wife executed by the second respondent by using the power of attorney, which is said to have been executed by A1 to A14, was much after the sale of the property to the petitioner with the knowledge of the sale transaction in favour of the petitioner and it is only the complainant along with the second respondent's wife trying to dispossess the petitioner of the property by using the power of attorney and the sale deed and the complaint filed by the second respondent is hence tainted with malafide and with ulterior motive and the same is registered as FIR without any enquiry.It is also his case that the allegations raised in the FIR disclose cognizable offences and make out a prima facie case.According to the second respondent, the property was offered for sale by the owners and he agreed to purchase the same for more than Rs.20 lakhs as sale price and obtained registered deed of power of attorney in his favour, authorising him to deal with the property and thereafter he constructed compound wall in and around the property and put up grill date and obtained electricity connection and defended three civil suits filed against the principals and thereafter sold and executed registered sale deed in favour of his wife Shanthi.Only on making application for patta, he came to know about execution of sham and nominal sale deed in favour of the petitioner by the principals without any right to do so and A1 to A15 have thus defrauded the second respondent and A1 to A14 committed criminal breach of trust by falsification of records along with A15 and pendency of the civil suit cannot absolve them from the criminal prosecution and FIR was registered only after holding detailed enquiry.It is further submitted that the petitioner committed fraud on his vendors by creating two forged documents i.e. one for Rs.1,20,00,000/- and another for Rs.25,07,000/- and the same requires thorough probe.5.Heard the rival submissions made on both sides and perused the records.6.It is not in dispute that the property belongs to one Raghavan and A1 to A14 are his sons and grand sons through the deceased son and A1 to A14 have executed registered power of attorneys in favour of the second respondent defacto complainant and during the currency of the same, A1 to A14/owners of the property executed a sale deed in favour of the petitioner vide Document No.3529 of 2011 dated 31.3.2011 without reference to the power of attorney and after execution of the sale deed in favour of the petitioner, the power of attorney holder executed a sale deed in favour of his wife on 13.7.2011 on the strength of such power of attorney.The second respondent has come forward with the present complaint stating that the sale deed executed in favour of the petitioner herein, after agreeing to sell the property to the second respondent and after obtaining Rs.20 lakhs as part of the sale consideration and after allowing the defacto complainant to mortgage the property and to execute a sale deed and to defend three civil suits and without obtaining the original title deeds from the power of attorney holder and without verifying the encumbrance on the property, is dishonest and fraudulent act and is outcome of the collusion between A1 to A14/owners on one hand and A15/purchaser on other hand to create encumbrance on the property in order to harass the power of attorney and his purchaser.Insofar as the petitioner is concerned, he also lodged a complaint against the second respondent and others in this regard.The petitioner has also filed the civil suit in OS No.349/2013 against the purchaser Shanthi, defacto complainant and A1 to A14 for various reliefs, i.e., to declare the power of attorneys dated 15.4.1998, 24.1.2007 and 13.9.2008 in favour of the second respondent herein vide Doc.Nos.179 of 1998, 292/2007 and 1787/2008 on the file of SRO, Guduvancheri as null and void and not binding on the plaintiff; to declare the sale deeds dated 13.7.2011 executed by the second respondent herein in capacity of power agent of the Principals in favour of his wife, which was registered as Doc.No.7424 of 2011 on the file of SRO, Guduvancheri as null and void and not binding on the plaintiff; and for permanent injunction restraining the first defendant/purchaser from in any manner dealing with the suit schedule property in pursuance of the sale deed dated 13.7.2011 executed in her favour by the power of attorney.The suit was filed along with IA.No.1707/2013 for interim relief.A1 to A14 as the respondents/defendants 2 to 16 therein, have filed their counter and written statement in I.A.1707/2013 and the wife of the second respondent defacto complainant and the second respondent as defendants 1 and 17, filed their detailed written statement in the suit and counter in the application.8.The perusal of the avements raised in the FIR would reveal that A1 to A14 as different set of defendants in the suit filed two different counters and written statements in the same.As far as the Second respondent is concerned, he has come forward with improved but different version at every stage.9.It may be true that the second respondent has by way of typed set and additional typed set, produced the copies of the documents in support of his theory regarding execution of mortgage, pendency of civil suit against the principals and cash receipts for payment of part of the sale consideration etc. The fact that the deed of power of attorney was executed in his favour by the principals and he mortgaged the property on the strength of the same and he defended the suits on behalf of the principals, may be evident from the documents as referred to above.However, other documents filed on his behalf by way of agreement of sale and cash receipts and statement of accounts are more in the nature of self serving documents and are the matters for appreciation of evidence.Till date, the second respondent, who have allegedly paid huge amount by way of sale consideration, has not come forward with any civil suit to declare the earlier sale deed executed by the owners, not binding on him.His principals i.e., A1 to A14 being the owners of the property, the validity of the sale deed executed by them cannot be seriously attacked herein. | ['Section 420 in The Indian Penal Code'] |
% (ORAL) Quashing of Criminal Complaint No.8/2013 for the offences under Sections 323/379/392/411/509/34 of IPC and Sections 25/54/59 of the Arms Act is sought on the basis of Settlement arrived between the parties before the Counselling Cell, Family Courts, New Delhi. | ['Section 482 in The Indian Penal Code', 'Section 34 in The Indian Penal Code', 'Section 509 in The Indian Penal Code', 'Section 411 in The Indian Penal Code', 'Section 323 in The Indian Penal Code', 'Section 320 in The Indian Penal Code', 'Section 392 in The Indian Penal Code', 'Section 379 in The Indian Penal Code'] |
In Re: - An application for anticipatory bail under Section 438 of the Code of Criminal Procedure filed on 19/06/2019 in connection with Chakdha P.S. Case No. 203 of 2019 dated 06/05/2019 under Section 448/325/326/354B/34 of the Indian Penal Code.And In the matter of: Abtab Sk. @ Atabiddin Sekh @ Atabuddin Sekh & Ors.....petitioners.The application for anticipatory bail is, thus, disposed of.(Manojit Mandal, J.) (Joymalya Bagchi, J.) | ['Section 326 in The Indian Penal Code', 'Section 34 in The Indian Penal Code', 'Section 448 in The Indian Penal Code', 'Section 325 in The Indian Penal Code'] |
a) A-1 and A-2 are cousin brothers.P.W.2-Mariamma is the wife of the deceased Thiruvannamalaiyan.Both the accused family and the deceased family were living at Melpattu village.A-2 owned 1 acre 40 cents of land in the said village.This land was leased out to the deceased for Rs.3,000/- for a period of five years.He also allowed the deceased to possess and enjoy the said land and take the yield arising therefrom.After five years period was over, the deceased demanded for the return of the lease amount.But, A-2 refused to make the payment.Due to this, there was a frequent quarrel between A-2 and the deceased.P.W.2 was often sent by the deceased to the house of A-2 asking for the return of the payment.b) On the day of occurrence, i.e. on 16.05.1994 at about 5.30 p.m, while the wordy quarrel was going on between the deceased and his wife P.W.2 near the land of A-1, she pleaded with A-1, who was passing that way, to save her by his intervention.Then, A-1 asked the deceased not to beat P.W.2 anymore and he tried to pacify both of them.But, the deceased scolded A-1, stating that he was supporting P.W.2, because he was having illegal relationship with her.Efforts taken by A-1 to separate them failed.Therefore, he took a wooden log found near a tree and beat the deceased on his head.At that time, A-2 also instigated A-1 to attack the deceased.The incident was witnessed by P.Ws.3 to 5, who are the villagers.Both of the accused on seeing them, sped away from the scene.c) Next day i.e., on 17.05.1994 at about 10.00 p.m, A-1 went to Village Administrative Officer-P.W.1 and gave an Extra-Judicial Confession, confessing that he attacked the deceased with the wooden log due to the quarrel and also handed over the said wooden log-M.O.1 to the Village Administrative Officer.d) Then P.W.1 and P.W.6 proceeded to the scene of occurrence along with A-1 to see the dead body.Since the dead body was not found at the spot, they went to the house of the deceased where the body was kept and saw the dead body with the injuries.e) Thereafter, they went to the police station on 18.05.1994 at about 9.00 a.m. P.W.1 prepared Ex.P-2 report and produced the accused as well as M.O.1 wooden log and also handed over the report Ex.P-1 to P.W.15, the Sub Inspector of Police, on the basis of which, P.W.15 then registered a case for an offence under Section 302 and 302 r/w 109 IPC.He sent the complaint and the First Information Report to the Court and the superior officers.f) P.W.16 the Inspector of Police went to the spot at 12.30 p.m. He observed all the formalities by preparing the Observation Mahazar and the Rough Sketch and he conducted inquest over the body of the deceased.On the same day, he examined P.Ws.2 to 5 and the panchayatdars.The dead body was then sent for postmortem.g) P.W.11, the Doctor conducted postmortem on 19.05.1994 at about 9.00 a.m. He found as many as three injuries on the body of the deceased and gave opinion that the deceased would appear to have died of shock and hemorrhage due to the injuries on the head.JUDGMENT M. Karpagavinayagam, J.The appellant Arunachalam was tried and convicted for an offence under Section 302 IPC, for having caused the death of one Thiruvannamalaiyan.Originally, the appellant Arunachalam and another accused, namely Subramani (A-2) were tried for offence under Sections 302 and 302 r/w 109 IPC, of whom, A-2 has been acquitted, and the appellant alone has been convicted as referred to above.Ex.P-8 is the postmortem certificate issued by him.He then arranged for sending the material objects for chemical analysis.After completion of the investigation, he filed the charge sheet against the accused.In the trial Court, on the side of the prosecution, P.Ws.1 to P.W.16 were examined, Exs.P-1 to P-20 were filed and M.Os. 1 to 4 were marked.Both the accused while being questioned under Section 313 Cr.P.C denied their complicity in crime in question.Ultimately, the trial Court acquitted A-2 and convicted A-1 alone for the offence under Section 302 IPC.Challenging the conviction, Mr. V. Murali, the counsel appearing for the appellant, would contend that though eye witnesses were examined, those witnesses turned hostile and as such, there is no sufficient evidence to convict the accused and the only piece of evidence is the Extra-Judicial Confession, which would suffer from various infirmities and as such, this is a case of no evidence and consequently, the accused is entitled to be acquitted.We have heard the learned Additional Public Prosecutor in respect of these aspects.We have carefully considered the submissions made by the respective parties.We have also gone through the records.According to the prosecution, on 16.05.1994 at about 5.30 p.m, when the wordy quarrel was going on between the deceased and his wife P.W.2, A-1 and A-2 intervened and at that time, the deceased uttered abusive words against A-1, as if he was having illegal relationship with his wife P.W.2 and this made him to take a wooden log found nearby and attack the deceased.In that process, A-2 also attacked the deceased with the hands.As referred to above, A-2 was acquitted as there is no evidence against him.Now, to connect the appellant (A-1) with the crime, the only piece of evidence that is available is the Extra-Judicial Confession made by the first accused to P.W.1, the Village Administrative Officer.All the other eye witnesses, namely, P.Ws.2 to 5 turned hostile.The recording of Extra Judicial Confession has been spoken to by P.W.1, the Village Administrative Officer and P.W.6, the Village Menial.It is settled law that even though there is no other evidence except the Extra-Judicial Confession, if the same is taken to be a reliable piece of evidence, then the conviction can be based.According to the prosecution, the occurrence took place on 16.05.1994 at about 5.30 p.m. P.W.1 recorded the Extra-Judicial Confession on 17.05.1994 at about 10.00 p.m. Only next day, the Village Administrative Officer (P.W.1) produced the accused along with the complaint and the report to the Sub Inspector of police P.W.15 at about 9.00 a.m.Though it is the case of the prosecution that the Extra-Judicial Confession has been made by A-1 to P.W.1 before the commencement of the investigation, the evidence of P.W.6 and P.W.7 would make it clear that the statement was given by the accused to P.W.1, the Village Administrative Officer at the spot in the presence of the police officer.They also admit the same in the cross examination.Thus it is obvious that the Extra-Judicial Confession cannot be said to be a voluntary one and as such, it loses its value.Further, it is noticed that the Doctor P.W.11 would state in his evidence and Ex.P-8-Post Mortem Certificate that the deceased would have died 96-100 hours prior to the commencement of postmortem.A according to the prosecution, the death had occurred only on 16.05.1994 about 5.30 p.m as per Ex.P-1, Extra-Judicial Confession.Therefore, the time of death as opined by Doctor P.W.11 also would not tally with the case of the prosecution.Consequently, this Court is constrained to hold that the prosecution has miserably failed to prove its case beyond reasonable doubt against the appellant.Under those circumstances, we are unable to sustain the conviction imposed by the trial Court and therefore, the conviction and sentence imposed on the first accused are set aside and he is acquitted of the charge.The bail bond executed by the first accused shall stand cancelled.The appeal is allowed accordingly. | ['Section 302 in The Indian Penal Code'] |
The prosecution case briefly stated is as under :(i) That Mahendra Mehta, then aged about 30 years, was residing with his parents, wife Surabhi and a year old son Amit in Flat No.309, Ravi Kiran Building, Carter Road No.3, Borivali (E), Mumbai.He was one of the partners in Riddhi Jewellers situated at 285/305, Krishna Niwas, Office No.22/A, URS 4 of 60 ::: Downloaded on - 24/04/2015 00:00:34 ::: 5 CrAppeal 415.10.Gr.doc Zaveri Bazar.PW 3 Rakesh Jain, his brother Manojkumar Jain and Vimal Mehta, brother of Mahendra Mehta, were the other partners of Riddhi Jewellers.PW 1 Mukesh Mehta, brother of Mahendra Mehta, was residing intervening 6-7 buildings from Ravi Kiran building, Borivali (E), Mumbai where Mahendra Mehta was residing with his family and parents.::: Downloaded on - 24/04/2015 00:00:34 :::(ii) On 21/03/2007 morning, Mahendra Mehta was to travel to Gujarat.At about 4.30 a.m., PW 3 Rakesh Jain returned to Bombay from Baroda.He went to the house of Mahendra Mehta in Ravi Kiran building.PW 3 Rakesh delivered two samples of gold to Mahendra.Those samples were to be taken to Gujarat by Mahendra.That time, Rakesh also handed over a mobile phone to Mahendra which was being used by them in Gujarat.At 5.30 a.m., PW 3 Rakesh went to Ganesh temple which was situated in the compound of the same building.Rakesh was one of the partners of Riddhi Jewellers.According to him on 21/03/2007 at around 4.30 a.m., he returned to Bombay from Baroda and straight way went to the house of Mahendra Mehta as Mahendra was to go to Gujarat at around 6.30 a.m. on the same day.Rakesh URS 16 of 60 ::: Downloaded on - 24/04/2015 00:00:34 ::: 17 CrAppeal 415.10.Gr.doc handed over two samples of gold to Mahendra and a cell phone which was being used for transaction in Gujarat.After handing over gold samples, Rakesh left the house of Mahendra at around 5.30 a.m. and went to Ganesh temple situated in the compound of Ravi Kiran building.On his way to temple, PW 3 Rakesh saw a lady and a man at the gate of the building.He proceeded ahead.He then saw two motorbikes near Saibaba temple.Two persons were sitting on each motor bike.Thereafter PW 3 Rakesh reached his residence.::: Downloaded on - 24/04/2015 00:00:34 :::At 6.30 a.m., Rakesh received phone call from Vimal Mehta informing him that some persons attempted to snatch away the bag and assaulted Mahendra.He was also informed that Mahendra was being carried to Bhagwati Hospital by PW 1 Mukesh and his father Devichand.On receiving information, PW 3 Rakesh went to Bhagwati Hospital.Medical Officer declared Mahendra as dead.SEO Ismail Khan conducted the identification parade.During identification parade, PW 3 Rakesh identified accused no.1 James and accused no.5 Rakesh Bachchawat.ig PW 3 Rakesh misidentified accused no.4 Shabbir who was not in the TIP.(iii) It is further stated by PW 3 Rakesh that on the same day i.e. on 08/05/2007, he was taken to Byculla prison.During TIP conducted in Byculla prison, he identified accused no.6 Swapnali as the same lady to whom he saw at the gate of Ravi Kiran building.Thereafter on 05/06/2007, TIP was held at Arthur Road jail.In that TIP, PW 3 Rakesh identified accused no.7 Vishal as the person sitting on motorbike.He stated that victim did not leave the bag.Thus, we do not find any reason to disbelieve their evidence on incident.(xi) So far as TIP is concerned, it is a matter of record that the eye witnesses have mis-identified some of the accused as discussed above.PW 4 Mahesh identified accused no.3 Raju @ Dheknya on 05/06/2007 during the TIP.(xii) The star witness on TIP is PW 17 SEO Ismail Khan.He stated that PI Darekar called him at Crime Branch office, Dahisar, and requested to hold identification parade in Crime No.11/2007 of Crime Branch.Accordingly letter was issued to him.It is stated by PW 17 SEO Khan that in the TIP held on 08/05/2007, Sukhdeo Shinde and Nagesh Jangam were the two panch witnesses.ASI Deshmane introduced PW 17 SEO Khan to Jailor.The identifying witnesses i.e. PW 3 Rakesh Jain, PW 4 Mahesh Vyas and PW 6 Mitesh Shah were made to sit in a separate room.This TIP was in respect to accused no.1 John, accused no.2 Vishal and accused no.5 Rakesh Bachchawat.PW 17 SEO Khan selected 18 dummies.Out of 18, he asked 12 dummies to stand in a line.He took care to see that place of identification parade was not visible to outsiders and particularly to the identifying witnesses.Initially accused no.1 James and accused no.2 Vishal were called.They were given idea of conducting identification parade.Accused were given a choice to select their own place, change the clothes if they desired and take the position in the line as per their wish.Accused declined to URS 23 of 60 ::: Downloaded on - 24/04/2015 00:00:34 ::: 24 CrAppeal 415.10.Gr.doc change the clothes.Thereafter panch witness Sukhdeo was sent to bring identifying witness PW 3 Rakesh Jain.PW 3 Rakesh identified accused James and Vishal by touching them with finger.(xiii) Another panch was sent to call PW 6 Mitesh Shah.He was asked to identify the culprits.PW 6 Mitesh identified accused James and Vishal by touching their bodies.The proceedings were accordingly recorded by PW 17 SEO Khan.The same procedure was followed in respect to the third identifying witness PW 4 Mahesh Vyas.He too identified accused James and Vishal.Memorandum of TIP was drawn.(xiv) In the process of identification, PW 17 SEO Khan selected six dummies.Accused no.5 Rakesh Bachchawat was then called.He was identified by PW 3 Rakesh Jain during TIP.Memorandum of identification was drawn by SEO URS 24 of 60 ::: Downloaded on - 24/04/2015 00:00:34 ::: 25 CrAppeal 415.10.Gr.doc Khan.Witness identified article 9 - Jeans Pant, article 10 - Banyan and article 11 - Mobile hand set.He could not identify accused Jambo before the URS 34 of 60 ::: Downloaded on - 24/04/2015 00:00:34 ::: 35 CrAppeal 415.10.Gr.doc Court.PW-23 - P.I. Darekar identified him in the dock.It is pertinent to note that accused No.1 Jambo was acquainted with accused No.6 Swapnali.PW-14 - Radheshyam Amrutlal Bind was running a Mechanic Shop of repairing motor bikes.He stated that motor bike bearing No. MH-02/HA-1715 was sold by him to accused No.2 Vishal Chauhan for Rs. 20,000/-.He identified accused No. 2 - Vishal Chauhan in the dock.::: Downloaded on - 24/04/2015 00:00:34 :::JUDGMENT (PER SMT.I. K. JAIN, J,) :-By the said Judgment and Order, the trial Court convicted the Appellants/original accused nos.1 to 7 under Section 396 read with 34 of the Indian Penal Code and sentenced each of them to life imprisonment and fine of Rs.10,000/- (Rupees Ten Thousand Only); in default R.I. for two years.For the sake of convenience, we shall refer the Respondents as accused as they were referred before the trial Court.(iii) At around 6.00 a.m., Mahendra left the house and walked down to catch train for Surat which was scheduled at URS 5 of 60 ::: Downloaded on - 24/04/2015 00:00:34 ::: 6 CrAppeal 415.10.Gr.doc 6.30 a.m. On the way, at some distance from his house in front of Jain Milk Dairy, four persons came on two motorcycles and snatched the bag which was being carried by Mahendra.Mahendra resisted the same, so those persons assaulted Mahendra by means of choppers over the head and wrist.That time, one male and one female were loitering at the gate of Ravi Kiran building.After assault, assailants ran away on the motorcycles.Mahendra was severely injured and lying in a pool of blood.PW 3 Mukesh, elder brother of Mahendra, was informed about the incident.He rushed to the spot.Devichand, father of Mahendra, also came to know and he too came to the spot.They shifted Mahendra to Bhagwati Hospital.Medical Officer at Bhagwati Hospital declared Mahendra dead at around 7.45 a.m. Matter was reported to Kasturba Marg Police Station.::: Downloaded on - 24/04/2015 00:00:34 :::He received a telephonic message at around 7.05 a.m. on 21/03/2007 that Mahendra was admitted to hospital as MLC URS 6 of 60 ::: Downloaded on - 24/04/2015 00:00:34 ::: 7 CrAppeal 415.10.Gr.doc case.He communicated information to PI Dalvi and proceeded to hospital.Mahendra was admitted in ICU.He was not in a condition to give statement.On the death of Mahendra at 7.45 a.m., PSI Mandavkar recorded report of Mukesh.He returned to police station and registered C.R.No.55 of 2007 under Sections 393, 397 and 302 of IPC.::: Downloaded on - 24/04/2015 00:00:34 :::It appears that ADR entry no.22/2007 was also registered on the basis of report lodged by Mukesh.Investigation was set into motion.During investigation, it was revealed that accused no.7 Vishal Jain was serving in Sejal Jewellers.He was knowing Mahendra Mehta.This information was passed on by accused no.7 Vishal to accused no.5 Rakesh who, with the help of accused nos.1 to 4 and 6, executed the plan to rob Mahendra.It was also revealed that on 21/03/2007 when Mahendra was on the way, accused nos.1 to 4 snatched away the bag which was being carried by Mahendra and URS 7 of 60 ::: Downloaded on - 24/04/2015 00:00:34 ::: 8 CrAppeal 415.10.Gr.doc when Mahendra resisted, they assaulted him and caused his death.Then accused were arrested.On completion of investigation, charge-sheet came to be filed.::: Downloaded on - 24/04/2015 00:00:34 :::In due course, case was committed to the Court of Sessions.The Appellants/accused pleaded not guilty to the charge and claimed to be tried.Their defence was of total denial and false implication.On going through the evidence of 26 witnesses examined in the case, the learned Additional Sessions Judge convicted and sentenced the Appellants as stated in para 1 above.Hence these Appeals.We have heard the learned Advocates for the Appellants and the learned APP for State.After giving our anxious consideration to the facts and circumstances of the case, arguments advanced by the learned Advocates for the parties, the Judgment delivered by the learned Additional URS 8 of 60 ::: Downloaded on - 24/04/2015 00:00:34 ::: 9 CrAppeal 415.10.Gr.doc Sessions Judge and the evidence on record, for the reasons stated below, we are of the opinion that on facts prosecution succeeded but for want of proper compliance of Section 313 of the Code of Criminal Procedure, trial vitiates and judgment and order of conviction and sentence needs to be quashed and set aside.::: Downloaded on - 24/04/2015 00:00:34 :::The fact of homicidal death is seriously in dispute.As such, exclusive burden lies on the prosecution to not only overrule the possibility of natural, accidental or suicidal death but also to prove homicidal death beyond reasonable doubt by reliable and convincing evidence.To establish the factum of homicidal death, prosecution has relied upon -(i) Inquest panchanama,(ii) Medical evidence and(iii) Circumstantial evidence.(i) Inquest panchanama -Accused have not disputed genuineness of inquest URS 9 of 60 ::: Downloaded on - 24/04/2015 00:00:34 ::: 10 CrAppeal 415.10.Gr.doc panchanama (Exh.52).It was drawn on 21/03/2007 between 8.40 to 9.30 hours at Bhagwati Hospital dead house, Borivali (West).It can be seen from the panchanama that several injuries were noticed on the head, forehead, right hand, right wrist and right arm.These injuries clearly indicate that the death in question was unnatural.::: Downloaded on - 24/04/2015 00:00:34 :::(ii) Medical evidence -After inquest panchanama was drawn, dead body was sent for post-mortem examination.PW 13 Dr.On 21/03/2007, Dr.Sanap received the dead body of Mahendra Devichand Mehta through Kasturba Marg Police Station for post-mortem.On the same day he conducted post-mortem between 1.30 p.m. and 2.30 p.m. He noticed the following external injuries on the dead body -i) Incised wounds over left hand, index finger 1 st phalgnx posteriorly, size 4cm X 2 cm X bone URS 10 of 60 ::: Downloaded on - 24/04/2015 00:00:34 ::: 11 CrAppeal 415.10.Gr.doc deep, over ring finger, size 2cm X 2cm X 1cm, over wrist, size 4cm X 3cm X bone deep and over thumb, size 3cm X 1cm X bone deep.::: Downloaded on - 24/04/2015 00:00:34 :::ii) Incised wound over left arm size 7cm X 6cm X muscle deep.iii) Incised wound over scalp, forehead 3cm X 1cm X 1cm and 5.3cm X 1cm X bone deep and over occipital area 3cm X 1cm X bone deep.iv) Incised wound over right shoulder 3cm X 1cm X muscle deep, over right arm 6cm X 2cm X muscle deep, over right wrist 7cm X 3cm X muscle deep and 6cm X 3cm X bone deep, over right dorsam of hand, thumb cut completely of SBC, size 6.3cm X 5cm X bone deep.On internal examination, Dr.Sanap noticed the following injuries -::: Downloaded on - 24/04/2015 00:00:34 :::According to PW 13 Dr.Sanap, all the injuries were ante-mortem and caused by sharp and hard cutting object like chopper, sword, etc. The probable cause of death opined by PW 13 Dr.Sanap was haemorrhage and shock due to multiple injuries.PW 13 Dr.Sanap opined that it was an unnatural death.Post-mortem report was proved at Exh.59A.Sanap stated that such injuries could be possible by assault with weapon like chopper and spear (Arts.1 and 2).In this connection, it was vehemently contended by Mr. Chitnis, learned Senior Advocate for Appellants, that deceased met with an accidental death.Referring to the nature of injuries stated by PW 13 Dr.Mr. Chitnis pointed that ADR entry was deliberately suppressed as the death was due to accident.He submitted that had ADR entry been produced, the truth would have come to the light.In view of the submissions advanced on behalf of the Appellants, relevant ADR entry No.22/2007 was called by URS 12 of 60 ::: Downloaded on - 24/04/2015 00:00:34 ::: 13 CrAppeal 415.10.Gr.doc us and verified.The learned APP has produced its true copy on record which shows the history of homicidal death and not an accidental death, as submitted by the learned Senior Advocate for Appellants.::: Downloaded on - 24/04/2015 00:00:34 :::On ADR, evidence of PW 19 PSI Chandrakant Mandavkar is important.On 21/03/2007, he received a telephonic message at around 7.05 a.m. that Mahendra was admitted to the hospital for treatment and it was a MLC case.He communicated the information to PW 22 PI Dalvi and proceeded to the hospital.He found Mahendra in ICU undergoing treatment.He stated that Mahendra was not in a condition to make statement and expired at 7.45 a.m. His brother PW 1 Mukesh was in the hospital.PSI Mandavkar inquired from Mukesh.On inquiry, he recorded the report (Exh.47) as per the say of Mukesh.In view of the evidence of PW 19 PSI Mandavkar and true copy of ADR entry No.22/2007 which came to be URS 13 of 60 ::: Downloaded on - 24/04/2015 00:00:34 ::: 14 CrAppeal 415.10.Gr.doc verified from the original register, we do not find merit in the contention raised by the learned Senior Advocate for the Appellants that the death in question was an accidental death.::: Downloaded on - 24/04/2015 00:00:34 :::Further it is significant to note that before the trial Court, factum of homicidal death was not seriously in dispute.The defence set up in cross-examination of PW-13 Dr.Sanap was that injuries which were found during post-mortem could be caused by fall from any height on hard and blunt object.It indicates that there is no consistency in the defence raised by the accused.On the other hand, we find overwhelming evidence in the form of inquest panchanama, post-mortem report supported by testimony of PW 13 Dr.Sanap which exclusively tilts in favour of homicidal death overruling the complete possibility of natural, accidental or suicidal death.We, therefore, do not find any reason to take a view different then taken by the trial Court on the mode and cause of death of Mahendra Mehta.::: Downloaded on - 24/04/2015 00:00:34 :::(iii) Circumstantial evidence -In addition to uncontroverted inquest panchanama (Exh.52), post-mortem report (Exh.59A) and Cause of Death Certificate (Exh.83), prosecution has placed strong reliance on the following circumstances -Oral dying declaration to PW 1 Mukesh.(D) Discovery of the incriminating articles.circumstances would be necessary at an appropriate stage.Suffice it to state that prosecution could establish the above circumstances through the evidence of PW1 Mukesh Mehta, PW3 Rakesh Jain, PW4 Mahesh Vyas, PW6 Mitesh Shah, PW8, Kishor Nikam, PW11 Manoj Shah, PW-14 Radheshyam Bind, PW15 Sultan Siddhiqui, PW16 Sandeep Jain, PW17 Ismail Khan, PW18 Sanjay Jain, PW20 Ankush Chavan, PW22 PI URS 15 of 60 ::: Downloaded on - 24/04/2015 00:00:34 ::: 16 CrAppeal 415.10.Gr.doc Raghunath Dalvi, PW23 PI Sunil Darekar and PW26 PI Ramakant Pimple.These circumstances too indicate that the death in question was a homicidal death.::: Downloaded on - 24/04/2015 00:00:34 :::To prove the authorship of the accused and to attribute the specific role to each of them in commission of act also prosecution relied upon the aforesaid circumstances.After two days, PW 3 Rakesh had been to Dahisar Police Station and informed police that he saw a lady and a man at the gate of Ravi Kiran building and also two persons each on two URS 17 of 60 ::: Downloaded on - 24/04/2015 00:00:34 ::: 18 CrAppeal 415.10.Gr.doc motor bikes.::: Downloaded on - 24/04/2015 00:00:34 :::(ii) On 08/05/2007, PW 3 Rakesh was called at Thane prison for identification parade.(iv) On 25/06/2007, TIP was held in Arthur Road prison in respect to accused no.4 Shabbir.PW 3 Rakesh could not URS 18 of 60 ::: Downloaded on - 24/04/2015 00:00:34 ::: 19 CrAppeal 415.10.Gr.doc identify accused no.4 Shabbir in TIP and mis-identified accused no.3 Raju @ Dheknya during the parade.::: Downloaded on - 24/04/2015 00:00:34 :::(v) From the entire evidence of PW 3 Rakesh, it is apparent that he had seen accused nos.5 and 6 at the gate of Ravi Kiran building and accused no.1 sitting on the motorbike.(vi) The next eye witness examined by the prosecution is PW 4 Mahesh Vyas.He used to go to Jain Milk Dairy early in the morning for bringing milk.He stated that on 21/03/2007 at about 6.00 a.m., he was returning home after purchasing milk.Near Maru General Store, he heard shouts.He looked to the direction of shouts and saw four persons snatching away a bag from the hands of one person.He stated that the person holding the bag was resisting.According to PW 4 Mahesh, out of four persons, two assaulted the person with sharp edged weapons and remaining two caught hold the victim.He saw two motorbikes parked to the left side of place of incident.He URS 19 of 60 ::: Downloaded on - 24/04/2015 00:00:34 ::: 20 CrAppeal 415.10.Gr.doc stated that after assault, assailants ran away with their motorbikes in the Southern direction.However in the Court, he identified accused no.5 Rakesh Bachchawat holding the victim and accused no.2 Vishal assaulting the victim.So far as accused no.3 Raju @ Dheknya is concerned, PW 4 Mahesh identified him in the TIP as well as in Court.However in the TIP conducted on 25/06/2007, PW 4 Mahesh identified accused no.4 Shabbir, he could not name the accused in Court.In respect to accused no.2 Vishal and accused no.3 Raju @ Dheknya, his evidence is consistent.::: Downloaded on - 24/04/2015 00:00:34 :::(vii) Another eye witness is PW6 Mitesh Shah, who was going to National Park for morning walk.When he reached the main road, he heard shouts "Bachao, Bachao".PW 6 Mitesh turned back and saw two persons holding the victim and two snatching bag from the victim.The assailants assaulted the URS 20 of 60 ::: Downloaded on - 24/04/2015 00:00:34 ::: 21 CrAppeal 415.10.Gr.doc victim with sharp edged weapons.After assault, all four went away on two motorbikes parked near the place of incident.::: Downloaded on - 24/04/2015 00:00:34 :::Thereafter PW 6 Mitesh went near the victim lying in pool of blood.After two days, he informed Dahisar police about the incident.(viii) In the TIP held on 08/05/2007, PW 6 Mitesh identified accused no.1 James, on 25/06/2007 he identified accused no.4 Shabbir during TIP.(ix) The evidence of PW 3 Rakesh, PW 4 Mahesh and PW 6 Mitesh is assailed by the defence on several grounds.Those are -(i) Vimal Mehta who informed PW 3 Rakesh, not examined.(ii) PW 4 Mahesh Vyas introduced a new story that injured person went to Jain Milk Dairy and made phone call to his house.(iii) Delay in recording statements of these witnesses not explained.In support, reliance is placed on Lahu Kamlakar Patil and Another V/s.State of Maharashtra1(iv) Their evidence on identification of the accused is confusing, concocted and forged.1 (2013) 6 Supreme Court Cases 417 URS 21 of 60 ::: Downloaded on - 24/04/2015 00:00:34 ::: 22 CrAppeal 415.10.Gr.doc::: Downloaded on - 24/04/2015 00:00:34 :::(v) The testimonies of PW 3 Rakesh, PW 4 Mahesh and PW 6 Mitesh are not consistent and cannot be relied.(x) On going through the entire evidence of PW 3 Rakesh, PW 4 Mahesh and PW 6 Mitesh, it can be seen that their evidence in respect to manner of occurrence of incident is cogent and consistent.Except a minor contradiction in the evidence of PW 6 Mitesh, nothing substantial could be elicited in the piercing cross-examination of the eye witnesses.::: Downloaded on - 24/04/2015 00:00:34 :::The proceedings were noted by PW 17 SEO Khan.Then PW 3 Rakesh was sent to different room.::: Downloaded on - 24/04/2015 00:00:34 :::Then dummies, accused and panchanama of TIP were handed over to the Investigating Officer.::: Downloaded on - 24/04/2015 00:00:34 :::(xv) On the same day, PW 17 SEO Khan conducted identification parade in Arthur Road prison.In the parade, PW 3 Rakesh Jain identified accused no.6 Swapnali as the lady standing at the gate of Ravi Kiran building.Its separate memorandum was drawn by PW 17 SEO Khan.(xvi) At the time of second parade held on 05/06/2007, accused Raju @ Dheknya Thakre was subjected to identification parade.Shaku Qureshi and Ramsagar were the panch witnesses.PW 17 SEO Khan stated that 3 identifying witnesses Rakesh Jain, Mahesh Vyas and Mitesh Shah were called at Arthur Road prison.He selected six dummies.Accused no.3 Raju stood in between dummy nos.3 and 4 as per his wish.Then identifying witnesses were called one by one.They identified accused no.3 Raju in the identification parade.Memorandum of identification parade (Exh.90) was accordingly drawn.::: Downloaded on - 24/04/2015 00:00:34 :::same procedure as followed in the earlier parades, this identification parade was held.Identifying witnesses PW 3 Rakesh Jain, PW 4 Mahesh Vyas and PW 6 Mitesh Shah identified accused no.4 Shabbir @ Khadda in the TIP.There is no reason to disbelieve the same.There was no animosity between identifying witnesses, SEO who conducted TIPs on one hand and the accused on the other.In our view, the evidence of eye witnesses and PW 17 SEO Khan inspires confidence and clearly establishes the manner of incident of assault on Mahendra and the role played by each of the accused in occurrence of incident.::: Downloaded on - 24/04/2015 00:00:34 :::(C) Oral dying declaration to PW 1 Mukesh -To prove oral dying declaration, prosecution examined PW-1 Mukesh Mehta.He is the real brother of deceased Mahendra.It is stated by Mukesh that on 21.3.2007, in the morning at around 6.30 a.m. when he was sleeping in the house, his wife Mamta received a phone call of Veena Mehta, wife of his real brother Vimal Mehta asking her to send Mukesh immediately as Mahendra met with an accident.Therefore, his wife woke him up and informed the message of Veena.Immediately, Mukesh rushed to the house of Mahendra.On the way,he saw Mahendra lying in URS 27 of 60 ::: Downloaded on - 24/04/2015 00:00:34 ::: 28 CrAppeal 415.10.Gr.doc injured condition on the road near his house.At the same time, his father arrived there.Mukesh inquired from Mahendra what had happened.On that, Mahendra told him that four persons arrived on two motor bikes.They were snatching his bag and he resisted the same.Those persons then assaulted him.When Mukesh asked him about identity of those four persons Mahendra told that they were unknown to him.Thereafter, Mahendra fell semi-unconscious and he was taken to Bhagwati Hospital in a rickshaw.He was declared as dead by Medical Officer.Mukesh proved Exh. 47 report lodged by him after Mahendra was declared dead.::: Downloaded on - 24/04/2015 00:00:34 :::On going through the evidence of Mukesh, it is apparent that Mahendra did not name accused persons.From the evidence of Mukesh, at the most it can be said that Mahendra met with homicidal death.So far as authorship of the accused to cause death of Mahendra is concerned, evidence of Mukesh is not helpful to the prosecution as deceased had not implicated the appellants/accused in the commission of alleged act.(D) Discovery of incriminating articles -::: Downloaded on - 24/04/2015 00:00:34 :::On discovery under Section 27 of the Evidence Act the learned Senior Counsel for accused Nos. 1,3 and 4 relied upon Prabhoo V/s.State of Uttar Pradesh2 in which it has been held that -The main difficulty in the case is that the evidence regarding the recovery of blood stained axe and blood stained shirt and dhoti is not very satisfactory and the courts below were wrong in admitting certain statements alleged to have been made by the appellant in connection with that recovery.According to the recovery memo the two witnesses who were present when the aforesaid articles were produced by the appellant were Lal Bahadur Singh and Wali Mohammad.He did give evidence about the production of blood stained articles from his house by the appellant.The witness said that the appellant produced the articles from a tub on the eastern side of the house.The witness did not, however, say that the appellant made any statements relating to the recovery.Wali Mohammad was not examined at all.This witness said that a little before the recovery the Sub- Inspector of Police took the appellant into custody and interrogated him; then the appellant gave out that the axe with which the murder had been committed and his blood stained shirt and dhoti were in the house and the appellant was prepared to produce them.These statements to which Dobi Baksh (PW 3) deposed were not admissible in evidence.::: Downloaded on - 24/04/2015 00:00:34 :::Section 27 provides that when any fact is deposed to and discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovery may be URS 30 of 60 ::: Downloaded on - 24/04/2015 00:00:34 ::: 31 CrAppeal 415.10.Gr.doc proved.In Pulukuri Kotayya v. King Emperor the Privy Council considered the true interpretation of Section 27 and said :::: Downloaded on - 24/04/2015 00:00:34 :::::: Downloaded on - 24/04/2015 00:00:34 :::On going through the evidence of PW-8 Kishor Nikam, it can be seen that he was called by Police Officer Darekar to act as a Panch.Accused No.4 Shabbir was in police custody that time.It is stated by PW-8 Kishor that accused Shabbir made a statement to discover chopper and pant, which was thrown by him near Naigaon.The statement of Shabbir was accordingly recorded.It is further stated by PW-8 Kishor that after memorandum was drawn, Shabbir led them to Naigaon.He discovered a pant and chopper which were lying between the trees.He proved memorandum and recovery panchanama accordingly.Nothing substantial could be elicited in the cross-23, Investigating Officer - Sunil Darekar.On 12.6.2007, he voluntarily gave a memorandum URS 32 of 60 ::: Downloaded on - 24/04/2015 00:00:34 ::: 33 CrAppeal 415.10.Gr.doc in the presence of Panch witnesses to discover chopper and pant.He stated that chopper and pant were recovered at the instance of Shabbir near a field at Naigaon.::: Downloaded on - 24/04/2015 00:00:34 :::Memorandum and Panchanama exhibits 69 and 70 are duly proved by the Investigating Officer and Panch Witnesses.There is no reason to disbelieve their testimonies.Trial Court has properly appreciated the evidence on discovery and there is no reason for us to interfere with the same.So far as accused No.3 Raju @ Dheknya is concerned, evidence of PW-18 will have to be looked into.One Police Officer requested him to act as Panch.So he accompanied the Officer to Police Station.Accused Raju gave memorandum in his presence to discover a chopper and a pant.It is stated by PW-18 Sanjay that after memorandum, accused Raju discovered chopper and clothes in their presence.None of the accused persons except accused No.3 cross-examined this witness.Nothing otherwise could be brought by accused No.3 in the cross-examination to discard the URS 33 of 60 ::: Downloaded on - 24/04/2015 00:00:34 ::: 34 CrAppeal 415.10.Gr.doc testimony of Panch Witness Sanjay.His evidence is fully corroborated by PW-23 PI Darekar.We are, therefore, not inclined to take a view different than one taken by the trial court in this regard.::: Downloaded on - 24/04/2015 00:00:34 :::(E) Recovery of clothes at the instance of accused no.1 from the flat of accused no.6 -On 28.4.2007, he was called at Unit No XII of DCB, CID.Accordingly, he went there.He stated that one person in custody of police gave his name as Jambo.He made a statement to discover his Shirt, Banyan, Pant and a Mobile.According to PW-11 Manoj, after memorandum, Jambo led them in a jeep to a flat in Udisha Apartment, Room No. 501, owned by accused No.6 - Swapnali.A person by name Sharad Mahadik was present there.Jambo made discovery of Jeans Pant, Banyan and a Mobile Phone of Nokia Company.These articles were seized and Seizure Panchanama Exhibit 78 was drawn.No plausible explanation was given by accused No.1 Jambo and accused No.6 Swapnali in respect of recovery of clothes from the house of accused No.6 - Swapnali.This is the most clinching circumstance against accused No.1 Jambo and accused No.6 Swapnali.We find no reason to disbelieve the same.::: Downloaded on - 24/04/2015 00:00:34 :::(F) Recovery of motor bikes -This motor bike was recovered at the instance of accused No.2 Vishal Chauhan.In this connection, PW-20 ASI Ankush Chavan stated that on 24.4.2007, the abovesaid motor bike was recovered at the instance of accused Vishal Chauhan.::: Downloaded on - 24/04/2015 00:00:34 :::Another motor bike bearing No. MH-01/HA-802 was sold by PW-15 Sultan Siddiqui, who runs a Shop "City Motors".PW-15 deals in sales and purchases of old motor bikes.He identified accused No.1 Jambo in the dock.This motor bike was recovered at the instance of accused by PW-22 P.I.Raghunath Dalvi.Memorandum Exhibit 108 given by accused No.1 to discover the said motor bike and discovery panchanama of the motor bike Exhibit 109 are proved by PW-22 - P.I. Raghunath Dalvi.Accused No.1 Jambo and accused No.2 Vishal Chauhan could not elicit anything adverse in the cross-examination of these witnesses.According to prosecution, deceased Mahendra Mehta was known to accused No. 7 - Vishal Jain.On 19.3.2007, PW-16 - Sandip Jain alongwith Mahendra Mehta had been to Zaveri Bazar, Mumbai for purchasing gold chain.At around 4.00 p.m. when they were proceeding to Zaveri URS 36 of 60 ::: Downloaded on - 24/04/2015 00:00:34 ::: 37 CrAppeal 415.10.Gr.doc Bazar, accused No.7 Vishal Jain met them near the shop where he was working.It is alleged that accused No.7 - Vishal Jain passed on this information to accused No.5 Rakesh Bacchawat, who then, with the help of other accused planned to rob Mahendra and accordingly, the plan was executed on 21.3.2007 when Mahendra was proceeding towards railway-station to catch the train.::: Downloaded on - 24/04/2015 00:00:34 :::The trial court has relied upon the confessional statement of Vishal Jain recorded by learned Magistrate Mr. Agrawal.It is apparent from confessional statement Exhibit 106 that the same is exculpatory.Accused Vishal Jain does not implicate him in the entire confession made before URS 37 of 60 ::: Downloaded on - 24/04/2015 00:00:34 ::: 38 CrAppeal 415.10.Gr.doc PW-21 Mr. Agrawal.::: Downloaded on - 24/04/2015 00:00:34 :::There is no evidence to show that he passed on the information to accused No.5 Rakesh Bacchawat.In the absence of such link, we find that evidence against accused No.7 is not sufficient to convict him.::: Downloaded on - 24/04/2015 00:00:34 :::Even so, there must be material to show that the overt act or acts of one or more of the accused was or were done in furtherance of the common intention of all the accused or in prosecution of the common object of the members of the unlawful assembly.In this case, such evidence is lacking and hence the appellants cannot be held liable for the individual act of A-16."4 (1989) 3 Supreme Court Cases 605 URS 39 of 60 ::: Downloaded on - 24/04/2015 00:00:34 ::: 40 CrAppeal 415.10.Gr.doc::: Downloaded on - 24/04/2015 00:00:34 :::In the light of the above, on facts, in fact, URS 45 of 60 ::: Downloaded on - 24/04/2015 00:00:35 ::: 46 CrAppeal 415.10.Gr.doc conviction of accused Nos. 1 to 6 was required to be maintained.We could notice that 66 identical questions were put to each of the accused by the learned Additional Sessions Judge though entirely different incriminating circumstances against each of them were brought on record.It is pertinent to note that role played by accused Nos. 5,6 and 7 even according to prosecution was limited, as accused Nos. 5 and 6 were guarding at the gate of the building and accused No.7 passed on the information to accused No.5, who, executed the plan.The statements under Section 313 of the Code URS 58 of 60 ::: Downloaded on - 24/04/2015 00:00:35 ::: 59 CrAppeal 415.10.Gr.doc were recorded just by cut-copy-paste.Most of the questions put to each of the accused were irrelevant and misleading.::: Downloaded on - 24/04/2015 00:00:35 :::The accused have demonstrated from the questions put to them that serious prejudice has occasioned to them as statements were recorded in the total disregard of the provisions of Section 313 of the Cr.P.C. In this premise we are not inclined to order retrial from the stage at which provisions of Section 313 of the Cr.P.C. were not complied with.In the result, appeals succeed.Accordingly, we pass the following order :-[a] The impugned judgment and order of conviction and sentence in Sessions Case No. 642 of 2007, passed by the learned Additional Sessions Judge, Greater Bombay, is hereby quashed and set aside ;[b] The accused are acquitted of the offence punishable under Section 396 read with Section 34 of the Indian Penal Code.[c] Accused Nos.1 to 5 and 7 who are in jail shall be released forthwith, if not otherwise required in any URS 59 of 60 ::: Downloaded on - 24/04/2015 00:00:35 ::: 60 CrAppeal 415.10.Gr.doc other case.::: Downloaded on - 24/04/2015 00:00:35 :::[e] Registry to communicate this order to the accused in jail through the concerned jail authorities.[f] We quantify fees to be paid by the High Court Legal Services Committee to the appointed Advocate Mr. A.V. Bedekar at Rs. 5000/-.[SMT.I.K. JAIN, J] [SMT.V.K.TAHILRAMANI,J] grt/-::: Downloaded on - 24/04/2015 00:00:35 ::: | ['Section 34 in The Indian Penal Code', 'Section 149 in The Indian Penal Code', 'Section 397 in The Indian Penal Code', 'Section 302 in The Indian Penal Code'] |
Prosecution case, as alleged, against the appellant is to the effect that a matrimonial dispute was pending between him and his wife, Rakhi Singha, the deceased.Maintenance proceeding was instituted by Rakhi against the appellant.Appellant failed and/or neglected to pay maintenance dues and was taken into custody.Out of grudge, in the night between 25/26th July, 2008 while Rakhi was sleeping with her sister Sikha Singha, P.W.1 at the Paikpara residence, the appellant attacked her.Hearing the shouts of her sister, Sikha woke up and found her sister with a deep cut injury on her neck.She saw the appellant running away with a 'batali' (a sharp cutting weapon) in his hand.Sikha chased him but he succeeded to flee away.She sent information about the unfortunate incident to her mother Dulali Singha, P.W.2 through a taxi driver.Dulali and other relations who were residing in a nearby house rushed to the spot.The victim was taken to hospital but was declared dead.From the analysis of the evidence on record, it appears that P.W.1, Sikha Singha is the most vital witness in the instant case.She deposed she was sleeping with her sister Rakhi Singha on the fateful night.After dinner they had gone off to sleep around 12.30 a.m. Suddenly, she woke up hearing shouts of her sister and found Rakhi bleeding from her neck.She also noted Ananda, her brother-in-law trying to flee away with a batali.She chased him but he succeeded in escaping.She informed the matter to her mother through a taxi driver.Her mother and other sisters arrived at the spot.The victim was taken to Beniagram Hospital where the doctor declared her dead.She further deposed Ananda, her brother-in-law had been taken into custody for non-payment of maintenance dues in connection with a maintenance case.He had threatened to kill his wife, Rakhi if the case was not withdrawn.She was extensively cross-examined with regard to a dispute over land between themselves and their uncle Haripada.However, cross-examination of the witness did not dislodge her from her stance that she was present at the place of occurrence when her sister was assaulted on the neck and that she had seen the appellant run away from the place of occurrence.Evidence of P.W.1 is corroborated by her mother P.W.2, Dulali Singha and other sisters, viz., P.W.3, Sanju Singh, P.W.8, Anuradha Singha and P.W.10, Priyanka Singha.These witnesses deposed upon hearing the incident they rushed to the spot and found Rakhi in bleeding condition.Cut injury in the Larynx, blood in the traks.Both the Larynx congested and cut injury in the cardiatic vessels (Lt. Side)."He opined that death was due to hemorrhage, shock and hypoxia and ante-mortem in nature.P.W.13, Manik Lal Dey, is the investigating officer in the instant case.He proved the formal first information report.He went to the hospital at 5.45 a.m. in the morning.AS/SS & PA Item No.221 IN THE HIGH COURT AT CALCUTTA CRIMINAL APPELLATE JURISDICTION Present:The Hon'ble Justice Joymalya Bagchi and The Hon'ble Justice Tirthankar Ghosh C.R.A.287 of 2011 Ananda SinghaState of West Bengal.For the Appellant : Mr. Shataroop Purkayastha, Adv.The appeal is directed against the judgment and order dated 28.7.2010 and 29.7.2010 passed by the learned Additional Sessions Judge, 4th Fast Track Court, Jangipur, Murshidabad in Sessions Trial No.206/June/09 arising out of Sessions Sl.No.05/09 convicting the appellant for commission of offence punishable under Sections 302 of the Indian Penal Code and sentencing him to suffer rigorous imprisonment for life and to pay fine of Rs.5,000/- in default to suffer further rigorous imprisonment for six months more.On the next day, Sikha lodged written complaint scribed by P.W.9 at the police station resulting in registration of Farraka P.S. Case No.107 of 2008 dated 26.7.2008 under Section 302 of the Indian Penal Code.In the course of investigation, police seized the weapon of offence and other articles.The appellant was arrested.In conclusion of investigation, charge sheet was filed and charge was framed against the appellant under Section 302 of the Indian Penal Code.The appellant pleaded not guilty and claimed to be tried.In the course of trial, prosecution examined 13 witnesses and exhibited a number of documents.In conclusion of trial, trial judge by impugned judgement and order dated 28.7.2010 and 29.7.2010 convicted and sentenced the appellant, as aforesaid.Taxi driver who informed the other witnesses has not been examined.Name of the appellant did not transpire before the doctor to whom the victim had been taken and was declared dead.There was enmity between the family of the deceased and one Haripada Singha, their paternal uncle.Hence, possibility of murder committed at the behest of Haripada cannot be ruled out.Hence, it is argued that the appellant may be acquitted.On the other hand, Mr. Arun Kumar Maity, learned Additional Public Prosecutor submitted that P.W.1 a natural witness to the incident who woke up and saw the appellant running away from the spot with a batali.Immediately after the incident, first information report was registered and post mortem doctor corroborated the evidence of P.W.1 with regard to the nature of injury caused on the deceased.Weapon of offence was also recovered from the place of occurrence probabilising the prosecution case.Hence, the appeal is liable to be dismissed.She was removed to hospital where she was declared dead.P.W.4, Dr. Sajal Pandit, Medical Officer at Beniagram B.P.H.C. deposed Rakhi was brought to the Health Centre by her mother and others where she was declared dead.P.W.7, Dr. Md. Hamid Ali, post mortem doctor found the following injuries on her person:-"cut injury on the left side of the neck, 1 " X 1"X 3", below the Angle of the mandible, slightly oblique.He held inquest over the dead body of Rakhi.He examined witnesses and seized articles including weapon of offence from place of occurrence.He seized wearing apparels of Rakhi (P.W.12).He handed over the investigation to S.I., Surajit Sadhukhan who sent the seized articles for F.S.L. examination and submitted charge sheet.Evidence of P.W.1 is, therefore, corroborated not only by her relations viz., P.W.3, P.W.8 and P.W.10 who rushed to the place of occurrence soon after the incident but also by P.W.7, post mortem doctor who noted a cut injury on the left side of the neck.Hence, ocular version of P.W.1 appears to find support from the medical evidence with regard to the manner of assault on the deceased resulting in her death.Her version is criticised by the learned Advocate appearing for the appellant on the score there was no light in the room.It is also argued that it is unnatural that P.W.1 did not sustain any injury on her person during the assault.I am unable to accept such contention.P.W.1 has categorically stated in the FIR that light was burning in the room at the time of occurrence.Her presence in the room along with her sister at night is most natural.P.W. 1 woke up upon hearing cries of her sister and saw the appellant running away with a batali.Faint plea with regard to animosity between the victim's family and their uncle is of little relevance.Motive of the appellant to commit crime has clearly been established.He had been detained for non-payment of maintenance dues and had threatened his wife.Thereafter he came to her residence and assaulted her.In the light of the aforesaid discussion, I am of the opinion that the prosecution case against the appellant is proved beyond reasonable doubt.Copy of the judgment along with L.C.R.s be sent down to the trial court at once.Urgent Photostat Certified copy of this order, if applied for, be supplied expeditiously after complying with all necessary legal formalities.I agree. | ['Section 302 in The Indian Penal Code'] |
2.The prosecution case is that the appellant/Murugan had physical intimacy with the victim on the promise that he will marry her.But he went back on his words.As a result of the appellant's conduct, the marriage that was scheduled to be performed between the victim and her relative was also stopped.In this regard, victim lodged Ex.The learned counsel for the appellant also submitted that having regard to the evidence on record, he would not challenge the conviction imposed on the appellant under Section 417 of I.P.C. He only wants leniency to be shown in the matter of punishment.The appellant appears to have spent 45 days in prison.The appellant also comes forward to pay a sum of Rs.30,000/- as compensation to the victim.The appellant also undertakes to execute an affidavit conveying his unconditional apology to the victim for what he has done.The appellant was tried along with three others in Spl.The appellant was convicted for the offence under Section 417 of I.P.C. and Section 3(1)(xii) of Scheduled Caste and Scheduled Tribe (Prevention of Atrocities Act), 1989 and sentenced to undergo one year rigorous imprisonment for each offence.He was also sentenced to pay a sum of Rs.10,000/- as fine.The other accused were acquitted.Questioning the same, this criminal appeal has been filed.P.1/complaint.Since the offences under Scheduled Caste and Scheduled Tribe were also involved, the investigation was done by the Deputy Superintendent of Police, Samayanallur.Final report was filed before the learned Judicial Magistrate No.VI, Maduari.The case committed to Sessions Court in P.R.C.No.116 of 2006 and was taken up for trial in Spl.S.C.No.147 of 2008, on the file of the learned III Additional Sessions Judge (PCR), Madurai.Charges were framed against all the accused as follows:-“1st charge : Cheating by the 1st accused by false representations that he would marry the complainant and thereby punishable u/s 417 IPC against 1st accused, 2nd charge : Committing rape of the complainant by 1st accused u/s 376 IPC against the 1st accused, 3rd charge : Committing criminal breach of trust by selling 4gm gold stud belonging to the complainant, punishable u/s 406 IPC against 1st accused, 4th charge : Committed an offence of cheating by misrepresenting the complainanthttp://www.judis.nic.in 4 regarding causing miscarriage punishable u/s 417 IPC against A1 to A4, 5th charge : Against A2 to A4 committed an offence causing miscarriage to the complainant punishable u/s 312 IPC, 6th charge : Against A1 to A4 intentionally insulted a member of Scheduled Caste/Scheduled Tribe and the complainant being a woman belonging to the Scheduled Caste/Scheduled Tribe, exploited her sexually to which she would not have agreed punishable u/s 3(1)(x) and 3(1)(xii) of SC/ST(PA) Act.” Accused pleaded not guilty and claimed to be tried.On the side of the accused no evidence was adduced.4.The learned Trial Judge after a detailed consideration of the evidence on record acquitted A2 to A4 but convicted and sentenced the appellant herein as mentioned above.Her testimony evokes the confidence ofhttp://www.judis.nic.in 5 this Court.The victim belongs to a notified Scheduled Caste community.The appellant belongs to Kallar community.The victim was working in the field of the appellant's father.Section 3(1)(xii) of Scheduled Caste and Scheduled Tribe (Prevention of Atrocities Act), 1989, reads as under:-“Being in a position to dominate the will of a woman belonging to a Scheduled Caste or a Scheduled Tribe and uses that position to exploit her sexually to which she would not have other agreed;”5.The learned counsel appearing for the appellant brings it to my notice that apart from Section 3(1)(xii) of Scheduled Caste and Scheduled Tribe (Prevention of Atrocities Act), 1989, the appellant was charged for offence of rape.The appellant was also acquitted of the charge under Section 376 of I.P.C. He therefore contends that when once the appellant is acquitted of the charge of rape, the charge under Section 3(1)(xii) of Scheduled Caste and Scheduled Tribe (Prevention of Atrocities Act), 1989, also has to go as a natural corollary.In this regard, the learned counsel forhttp://www.judis.nic.in 6 the appellant drew my attention to a decision of the Honourable Kerala High Court made in Crl.A.No.865 of 2006, (Thomas Kashy Vs.State of Kerala) dated 06.03.2013 in paragraphs 10 and 13 of the said decision, the Honourable High Court held that when the finding is to the effect that there was no rape or forceble sexual assault, it becomes difficult to understand how the victim can be sexually exploited.6.Now comes the question as to whether the conviction imposed on the appellant under Section 417 of I.P.C. will have to be maintained.The appellant is directed to deposit a sum of Rs.30,000/- to the credit of Spl.S.C.No.147 of 2008, on the file of the learned III Additional Sessions Judge (PCR), Madurai, within a period of four weeks from the date of receipt of a copy of this judgment.The Court below shall hand over the compensation amount of Rs.30,000/- to the victim along with a copy of affidavit of apology to be executed by the appellant.This Court condemns the appellant for having taken a false defence before the Court below that he never had any relationship with the victim.That is why a direction to executehttp://www.judis.nic.in 8 an affidavit of apology has been issued.If the appellant fails to comply with the direction now given namely., deposit of compensation of Rs.30,000/- within a period of four weeks from the date of receipt of a copy of this judgment and execution of the affidavit of apology, the sentence imposed by the Court below for the offence under Section 417 of I.P.C. will stand restored.Criminal Appeal is partly allowed.1.The III Additional Sessions Judge (PCR), Madurai.2.The Deputy Superintendent of Police, Samayanallur, Nagamalai Pudukkottai Police Station, Madurai District.http://www.judis.nic.in 9 G.R.SWAMINATHAN,J.ias Crl.A.(MD)No.62 of 2011 19.07.2019http://www.judis.nic.in | ['Section 417 in The Indian Penal Code', 'Section 376 in The Indian Penal Code'] |
C.R.R. 3137 of 2006 SB Ct. No. 34 + C.R.A.N. 1650 of 2006 In Re : Mr. Shyamal Dey None appears for the parties.No accommodation is sought for.I find from the records of the case that C.R.A.N. 1650 of 2006 was filed by way of a joint compromise petition at the instance of both the petitioner and the opposite parties for withdrawal of criminal case being C.G.R. No. 2173/2003 arising out of Bhowanipore P.S. Case No. 182 dated 04.08.2003 under sections 120B/420/467/468/471/477a/408 of the Indian Penal Code.The application so filed was not pursued.The revisional application being C.R.R. 3137 of 2006 along with C.R.A.N. 1650 of 2006 as such is dismissed.(Tirthankar Ghosh, J.) | ['Section 467 in The Indian Penal Code', 'Section 120B in The Indian Penal Code', 'Section 420 in The Indian Penal Code', 'Section 471 in The Indian Penal Code', 'Section 468 in The Indian Penal Code'] |
Heard, Case-diary perused.As per prosecution story, 04/01/2020 complainant/prosecutix lodged an F.LR.against the present applicant that applicant is working with heruncle namely Manoj Meena, they are working in home loan business.On 03/11/2019 applicant came to house of prosecutix to collect the loan file, when prosecutix open the door, after that applicant collect the loan file and committed rape with her, on same day she informed to her father and mother but they did not lodged the FIR, again on 03/01/2020 applicant came to house of prosectix and try to commited rape with her, but due to shouting applicant run away from spot.She informed to her father and mother thereafter they lodged the FIR.Learned counsel for the applicant submitted that the applicant is innocent and he has falsely been implicated in the present crime.Even then, they have not taken any action against the applicant nor an FIR was lodge.There is no criminal antecedents against the applicant.Now the investigation is over and charge-sheet has been filed.Conclusion of trial will take considerable time.Under these circumstances, learned counsel for the applicant prays for grant of bail to the applicant.Learned Public Prosecutor as well as learned counsel for the complainant/objector submits that no sufficient ground is made out for releasing the applicant on bail, hence the application filed by the applicant be dismissed.Considering the facts and circumstances of the case and the arguments advanced by learned counsel for the parties, but without commenting on the merits of the case, the application filed by the applicant is allowed.The applicant is directed to be released on bail on his furnishing a personal bond in the sum of Rs.50,000/- (Rupees Fifty Thousand only) with one solvent surety of the like amount to the satisfaction of the trial Court for his regular appearance before the trial Court during trial with a condition that he shall remain present before the court concerned during trial and shall also abide by the conditions enumerated under Section 437(3) Cr.P.C. In case of bail jump this order shall become ineffective.Certified copy as per rules.(S.K. AWASTHI) JUDGE Vibha Vibha Pachori 2020.09.08 10:35:52 +05'30' | ['Section 3 in The Indian Penal Code', 'Section 323 in The Indian Penal Code', 'Section 450 in The Indian Penal Code', 'Section 376 in The Indian Penal Code'] |
Both the appeals arising out of a common judgment have been argued together and are being disposed of by a common judgment.Present appeals have been instituted under Section 374 of the Code of Criminal Procedure, 1973 (Cr.P.C.) against the judgment dated 10.11.2014 and order on sentence dated 13.11.2014 passed by the Additional Sessions Judge (Trial Court) in Sessions Case 08/2014 arising from FIR 17/2013 Police Station Ambedkar Nagar, by virtue of which both the appellants have been convicted under Section Crl.A. 1702/2014 & 158/2015 Page 1 of 42 302/34 of the Indian Penal Code (hereinafter referred to as IPC) and sentenced to undergo simple imprisonment for life with a fine of Rs.20,000/- each and in default of payment of fine, to further undergo simple imprisonment for one year.A. 1702/2014 & 158/2015 Page 1 of 42The present case pertains to the murder of one Rohit (deceased) at the hands of the appellants and one Asif (declared juvenile in conflict with law JCL)."1. DD No.51-A regarding stabbing of a person near the bus stop of Bus Route No. 521, Sector 5, Ambedkar Nagar, was received in Police Station Ambedkar Nagar on 14.01.2013 and the said DD was marked to ASI Mam Chand for necessary action.After receiving the DD No.51- A, ASI Mam Chand along with Ct.Ram Avtar reached near bus stand 521, the road dividing C and D Block, Dakshin Puri, but could not find any public witness there.Police officials came to know that injured has been taken to hospital in PCR Van.In the meanwhile, staff of the beat also reached the spot.ASI Mam Chand left beat HC Ratan Lal and Ct.Vineet at the spot and proceeded to Trauma Centre, AIIMS with HC Ram Avtar and in the hospital collected the MLC of Rohit Gupta s/o Sh.Rakesh Kumar Gupta, The injured was declared dead in the hospital by the concerned Doctor and no public witness was found at the hospital.ASI Mam Chand came at the spot and found lot of blood there.No public witness was found at the spot.Hence, an FIR u/s. 302 IPC, PS Ambedkar Nagar was Crl.A. 1702/2014 & 158/2015 Page 2 of 42 lodged and investigation was marked to the SHO PS Ambedkar Nagar Inspector Abhay Singh Yadav, the then SHO PS Ambedkar Nagar.The spot was got inspected by the crime team, photographs were taken.Investigating Officer prepared the site plan of the spot.Investigating Officer collected the chappals of the deceased, earth control and blood samples from the spot and got them sealed in sealed pullanda and deposited the same in the police station.Thereafter Himanshu, brother of the deceased, came to the spot and Investigating Officer recorded the statement of Himanshu.Himanshu in his statement u/s 161 Cr.PC stated that he is running a dhaba at Bus Stand Route No. 521, Dakshin Puri and his brother Rohit used to come to his dhaba occasionally to assist him.On 14.01.2013, at about 11 pm when Himanshu and deceased Rohit were in the process of closing the dhaba, accused Raj Kumar @ Lala, Rahul @ Bhuri and Asif, who were known to Himanshu came to the dhaba and demanded food from Rohit.Rohit told them that dhaba has been closed and food is not available.On hearing this accused Raj Kumar and his associates started abusing Rohit.Himanshu intervened and rescued his brother and accused Raj Kumar @ Lala, Rahul @ Bhuri and Asif left the dhaba.After sometime, Himanshu and Rohit closed the dhaba and started going to their house.Himanshu was 20-25 steps ahead of Rohit, when all of a sudden Rohit cried and when Himanshu turned back, he found that Raj Kumar, Rahul and Asif were fighting with Rohit.Himanshu was terribly scared.After sometime, PCR Van came to the spot and took Rohit to Trauma Centre.Himanshu reached Trauma Centre after sometime and found that Rohit was unable to speak and Rohit was declared dead by the Doctor.Himanshu was highly perturbed and stayed outside the hospital for one and half hour.After sometime, when Himanshu became normal, he went to his house and from the house he went to the spot.Himanshu specifically stated in his statement u/s 161 Cr.PC that accused Raj Kumar, Rahul and Crl.Thereafter, Investigating Officer searched for the accused but the accused could not be found.The dead body was got identified by relatives.On 17.01.2013, Investigating Officer received a wireless message that three boys have been apprehended in case FIR No.18/13 and one of those boys is juvenile and those three boys have disclosed their involvement in the present case.On receiving this information, Investigating Officer along with his staff reached big park at H-Block, Dakshin Puri and Inspector Investigation presented the three boys to the Investigating Officer and told him that these three boys have admitted their involvement in the present case.The names of those boys came to be known as Asif, Raj Kumar and Rahul.Asif was found to be juvenile and separate proceedings were conducted with respect to Asif as per the directions of the Juvenile Justice Board.Accused Rahul @ Bhuri and Raj Kumar @ Lala were interrogated by the Investigating Officer and they were arrested in the present case.Accused Raj Kumar got recovered a knife used in the commission of the crime from the H-Block park, Dakshin Puri.chief deposed that his family consists of parents and three brothers including him.Rahul is the eldest brother, the deceased was the middle one, while he is the youngest.On 14.01.2013 at about 11:00 PM, he alongwith his elder brother/deceased were present in their dhaba and were closing down for the day.Three persons, being the appellants and Asif (JCL), came to his dhaba and demanded food to be served, to which his deceased brother declined and told that the Crl.A. 1702/2014 & 158/2015 Page 14 of 42 dhaba had closed for the day.They then started using abusive language and grappled with the deceased.He intervened and rescued his brother.Thereafter, all the three persons left.After 5-10 minutes of their leaving, they closed their shop and started walking towards their home.Somewhere before the park, he heard the cries of his deceased brother.On looking behind, he saw the appellant Raj Kumar stabbing the deceased 4-5 times on his thighs.The other two persons including appellant Rahul were holding his deceased brother.He started shouting due to which the appellants and Asif (JCL) fled away from the spot.He rushed towards the deceased, who was bleeding extensively and had fallen infront of the shop of PW-1 Sharwan.Thereafter, his neighbouring shopkeeper PW-1 Sharwan, who sells flowers, informed PCR officials.PCR vehicle came and took the deceased to Trauma Centre.PW-2 followed them to the Trauma Centre by an auto rickshaw.He was informed by the doctor that his brother had died.He became highly perturbed for 1-1 hour.Thereafter, he returned home and informed his parents as he was not carrying his phone at that time.He alongwith his family returned to the hospital at about 2:30/3:00 AM.His statement was recorded by the police in the hospital.A. 1702/2014 & 158/2015 Page 14 of 42The witness was thoroughly cross-examined, where he stated that he had left the dhaba first and was followed by the deceased.At the time of the incident, there was no public witness around.He had tried to lift his brother up.The deceased had moved in the direction of their shop and had come near the flower shop of PW-1 Sharwan.All other shops in the area were closed and only the flower shop of PW-1 Sharwan was open, who was the first person to come near Crl.A. 1702/2014 & 158/2015 Page 15 of 42 them.The deceased had not stated anything to PW-1 at the time.He remained with the deceased till the PCR vehicle reached the spot and remained at the spot for about 25-30 minutes after PCR van left the spot.Police officials had started investigation when he left for the Trauma Centre.He further stated that he had first taken a lift on motorcycle from a passerby till the corner, from where he had taken an auto rickshaw.He categorically denied the suggestion that he had any conversation with the police officials who had come to the spot before he left for the Trauma Centre.Upon reaching the Trauma Centre, he first saw his brother and on seeing him, became perturbed and came out.He was unable to gather his senses for one and a half hour.It was only later that the doctor had informed him that his brother had died.At the stage, the PCR officials were still in the hospital.His statement was recorded by the PCR officer when he had returned to the hospital after visiting his house.From the hospital, he was taken to the scene of incident and later to the police station.A. 1702/2014 & 158/2015 Page 15 of 42The only other public witness is PW-1 Sharwan Kumar who deposed that he is engaged in the business of selling flowers and has a shop opposite bus stop of route no.521 in the area of Dakshin Puri, New Delhi.A dhaba is run close to his shop by two brothers, namely Himanshu and Rahul along with their father who used to come off and on.On 14.01.2013 at about 11-11.30 PM, he saw deceased Rahul to have come and fallen in front of his flower shop with bleeding injuries.He informed the police on 100 number from his mobile 9716078703 and informed the Police officials.The deceased was drenched in blood.Thereafter, Police reached the spot.His statement was recorded by Police after a week or 10 days.A. 1702/2014 & 158/2015 Page 16 of 42During cross-examination, he denied the suggestion that he had disclosed the name of the deceased to the police officials.He had known Rahul and his brother for over 2-2 years prior to the incident.He stated that he had left for home after the police had arrived at the spot.On the day, he was neither questioned by the police nor did he volunteer to make any statement to the police.He had informed PW-2 Himanshu using the same mobile phone.PW-2 Himanshu had arrived at the spot within 5-7 minutes of the telephone call.Thereafter, PW-1 left for his home.He had later enquired from PW-2 Himanshu and learnt that the Rahul had died.This conversation had been picked up by the elder brother Rohit and had taken place at about 1:30 AM.He further stated that the PCR officials had removed the injured/deceased to hospital in their official vehicle and PW-2 Himanshu had followed them in some other conveyance.He further stated that when he had called PW-2 Himanshu, he seemed perturbed and told that he was coming in his direction only.The information was received by PW-20 ASI Rameshwar, who was posted at K-55, PCR Van, who deposed that at about 11:35 PM, a call was received from the Control Room to the effect that one person had been stabbed near Bus Stand of Bus Route No.521 near Baba Street, Dakshin Puri.He along with his staff members reached the spot in the PCR Van where one person had sustained stab injuries on both thighs near groin region was lying there.They removed him to Trauma Centre, AIIMS.They came to know that the name of the injured was Rohit Gupta.During cross- examination, he stated that besides him, there was one driver and gunman in the PCR and no relative or friend of the injured was present.He stated that he cannot comment if the relatives or friends of the injured were present in the hospital as he did not know them.He further stated that when they were removing the injured in the van to the hospital, they were told by some person that his name was Rohit Gupta and he was running a dhaba in the vicinity.PW-20 had passed on the particulars at the time of preparation of MLC.PW-13 Ct.Jagbir was posted in Police Station Safdarjung Enclave and was on duty in the Trauma Centre, AIIMS.He deposed that sometime after midnight, PCR Van No.K-55, of which PW-20 ASI Rameshwar was the in-charge had brought an injured person, whose name was probably Rakesh and again said Rohit.He was examined by the doctor and declared brought dead.He had conveyed the information to PS Ambedkar Nagar on telephone.In his cross- examination, he stated that he had collected the name and address of the deceased person from the MLC.A. 1702/2014 & 158/2015 Page 18 of 42PW-7 ASI Mam Chand deposed that on 14-15.01.2013 at about 11:50 PM, he had received the information through DD 51-A (Ex.PW-7/A), which was handed over by PW-15 HC Rattan Lal.Thereafter, he along with PW-9 Ct.Ram Avtar reached the spot and noticed that blood was lying on the road.The injured was removed to the hospital.No eyewitness was available and in the meantime, PW-15 HC Rattan Lal and Ct.Vineet also came there.On his direction, PW-15 HC Rattan Lal and Ct.Vineet remained at the spot in order to guard the same; PW-7 proceeded with PW-9 Ct.Ram Avtar to the Trauma Centre, AIIMS.The deceased was found admitted in an injured condition.He was declared dead by the doctor.He did not find any eyewitness in the hospital.He received the MLC and returned to the spot.But again, no eyewitness was present there.The copy of the FIR was brought by PW-9 Ct.Ram Avtar at about 3 AM and handed over to the SHO.At that stage, one public witness PW-2 Himanshu in highly perturbed state came to the spot and told the facts about the incident to the SHO.PW-2 disclosed that he is the brother of the deceased and narrated the incident in detail also disclosing the names of the assailants.The SHO (PW-22) then took over the investigation and prepared the site plan, which had been signed by PW-7 as a witness.During cross-examination, PW-7 stated that when he had received DD 55-A, he was outside the police station and around the place of Crl.A. 1702/2014 & 158/2015 Page 19 of 42 Mahila Mandal.PW-15 HC Rattan Lal was with him when he went to the spot.He had made enquiry to find out if anyone connected with the victim was present in the hospital or not, but no one could be found there.When he returned to the spot from the hospital, only PW-15 HC Rattan Lal and Ct.Vineet were present at the spot.He had arrived there at about 1:15 AM and prepared the rukka while sitting on his motorcycle at the spot.No other police official or public witness had arrived before the rukka was sent.PW-9 Ct.Ram Avtar had returned to the spot after the SHO had arrived at the spot.He further stated that he had not seen PW-2 Himanshu arriving and therefore, could not comment on the mode of transportation used by him; he went on to voluntarily state that he only saw him coming to the SHO.He was unaware of the facts disclosed to the SHO by PW- 2 Himanshu.He further stated that he had assisted the SHO in preparing the site plan (Ex.PW-7/C) by pointing out the place where the blood had been found and chappals were lying.A. 1702/2014 & 158/2015 Page 19 of 42PW-15 ASI Rattan Lal deposed that on 14.01.2013, he was posted as Head Constable in police station Ambedkar Nagar and at 11:40 PM, ASI Liyakat Ali handed over DD 55-A to him.He took the DD entry to the bus stand on Route 521 in Dakshin Puri, where he met PW-7 ASI Mam Chand and PW-9 Ct.Ram Avtar and handed over the DD entry to him.There was blood lying on the road at the said place.PW-7 ASI Mam Chand made efforts but could not find any eyewitness.It was learnt that the injured had been taken to Trauma Centre, AIIMS by PCR vehicle.PW-7 ASI Mam Chand left him at the spot and proceeded to Trauma Centre.He returned at about 1:15 AM on 15.01.2013 from the hospital.PW-7 ASI Mam Chand made further enquiries, however he was unable to locate any eyewitness Crl.A. 1702/2014 & 158/2015 Page 20 of 42 even at that stage.Around the same time, PW-22 SHO Abhey Singh had also arrived at the scene.The tehrir was sent by PW-7 ASI Mam Chand at about 2:25 AM.The SHO had inspected the scene.The site plan (Ex.PW-7/C) was prepared at the instance of PW-7 ASI Mam Chand.Around the time of proceedings, PW-9 Ct.During cross-examination, PW-15 stated that he had reached the spot at about 11:50 PM and left the spot at about 3:45 AM the next morning.Public persons were standing at a small distance from the place of occurance and upon enquiry by PW-7 ASI Mam Chand, they informed that one person had been stabbed and after a call to 100, he has been taken to Trauma Centre.In his presence, PW-7 ASI Mam Chand did not record the name and address of those persons and voluntarily stated that in his presence, PW-7 ASI Mam Chand was conducting enquiries from public persons.PW-7 ASI Mam Chand left the spot at about 12:15 AM and returned at about 1:15 AM.The SHO reached the spot after the rukka was prepared and sent.In his presence, the SHO had recorded the statement of one public witness, namely PW-2 Himanshu, who had reached the spot.He stated that he did not know the mode of transport used by PW-2 Himanshu and voluntarily stated that he had seen him coming on foot.The site plan was prepared by the SHO in his presence and he had signed the site plan.PW-9 Ct.Ram Avtar had accompanied PW-7 ASI Mam Chand, who deposed that on the intervening night of 14-15.01.2013, he was on Crl.After receiving DD 51-A, he had proceeded with PW-7 ASI Mam Chand to the spot.Blood was lying there and no eyewitness was found.PW-15 HC Rattan Lal and Ct.Vineet had also reached the spot.They were left at the scene of incident, while PW-9 and PW-7 ASI Mam Chand went to the Trauma Centre, AIIMS.One injured person named Gupta was found in the hospital and he had been declared dead.PW-7 ASI Mam Chand collected the MLC; no eyewitness was present in the hospital.They returned to the spot.Again, no eyewitness was found.PW-7 ASI Mam Chand had given him the rukka at 2:25 AM on 15.01.2013, which was taken by him to the police station where FIR was registered.PW-9 brought the copy of FIR and rukka back to the spot.PW-22 Ins.Abhey Singh was also present there and he took over the investigation.During cross- examination, PW-9 stated that they had learnt from a public person that the victim had been taken by PCR vehicle to Trauma Centre AIIMS.He further stated that he did not know the particulars of the public person.They stayed at the Trauma Centre from about an hour and had reached there about 12:30 AM or so.A. 1702/2014 & 158/2015 Page 21 of 42The investigation in the matter was undertaken by PW-22 Ins.PW-7 ASI Mam Chand, PW-15 HC Rattan Lal, Ct.Vineet and PW-9 Ram Avtar were present at the place and PW-7 was in the process of preparing his rukka.He informed the entire sequence of events and sent his rukka through PW-9 Ram Avtar, on which the FIR 17/2013 (Ex.PW-10/A) was registered.PW-22 further deposed Crl.A. 1702/2014 & 158/2015 Page 22 of 42 that he had prepared the site plan (Ex.PW-7/C) at the instance of PW-7 ASI Mam Chand.PW-22 was thoroughly cross-examined, wherein he stated that on 15.01.2013 at 1:15 AM, he had received the information of the incident.He returned at 5 AM after conducting the proceedings.The distance between the place of occurrence and the dhaba of the deceased is about 25-30 steps.When he had prepared the site plan PW-1 and PW-2 were not present at the spot and immediately said that only one witness PW-2 Himanshu came at the spot.He voluntarily stated that PW-1 was involved afterwards in the investigation.PW-2 Himanshu had come to the spot after the exhibits were collected and had come at about 3 AM.The site plan (Ex.PW-7/C) was not prepared in the presence of PW-2 Himanshu; again said that the final site plan was prepared in the presence of PW-2 Himanshu.The site plan was signed by PW-2 Himanshu and PW-7 ASI Mam Chand.The site plan was prepared on the pointing out of PW-7 ASI Mam Chand.No specific location was indicated separately by PW-2 Himanshu.The exact location of point A and B in the site plan (Ex.PW-7/C) were described to PW- 22 by PW-7 ASI Mam Chand and voluntarily stated that the same was also confirmed by PW-2 Himanshu.He further stated that he went for the search of the accused at different places.A. 1702/2014 & 158/2015 Page 23 of 42 person was accompanying him.He did not visit the house of the accused in the course of the search.Coming back to the story unfolding from ocular evidence on record.The deceased was stabbed on two occasions between point A and B when appellant Rahul and Asif (JCL) tried to immobilize the deceased and appellant Raj Kumar gave stab blows.As per Ex.PW-1 Sharwan had called the Police Control Room; which was inturn relayed to Kite 55 PCR Van under the charge of PW-20 ASI Rameshwar.The PCR Van rushed to the spot, where someone had informed PW-20 of the name of the deceased.Indubitably, the information sent by Kite 55 at about 1 AM states that "ghar wale saath hain" (relatives are along) and the same remains in clear contradiction with the ocular account, however it cannot shake the otherwise consistent ocular account supported by medical evidence.PW-20 has stated that no relative or friend of the injured was present.The deceased was received at the Trauma Centre by the PW-13 duty officer.The PCR Van reached the Trauma Centre sometime after midnight and declared by the doctor to be brought dead.The MLC (Ex.PW-6/A) was prepared wherein the particulars of the deceased are given, though in the column of relative name, the name of Rameshwar, i.e. PW-20, is written.This is once again in tune with the testimony of PW-20 that he, as Crl.A. 1702/2014 & 158/2015 Page 26 of 42 the in-charge of Kite 55, had taken the deceased to the Trauma Centre.The information was also relayed by the control room to the police station, where DD 51-A was recorded and allotted to PW-7 ASI Mam Chand.Accordingly, PW-7 along with PW-9 reached the spot where they were joined by PW-15 HC Rattan Lal and Ct.There was no eyewitness there.Upon coming to know that the injured had been removed to the Trauma Centre, PW-7 proceeded with PW-9 Ct.Ram Avtar to the Trauma Centre, AIIMS at about 12:15 AM.The deceased was found and he was declared dead by the doctor.Again, no eyewitness was found.They returned to the spot at about 1:15 AM and investigation ensued.Abhey Singh have deposed that on 17.01.2013, during the course of investigation of another FIR 18/2013, Asif (JCL) had pointed to the appellants herein as his accomplices and thereafter, pursuant to his disclosure statements (Ex.PW-15/A and Ex.The appellant Raj Kumar @ Lala was also convicted under Section 27 of Arms Act, 1959 and was sentenced to undergo simple imprisonment for a period of three years with a fine of Rs.10,000/- and in default of payment of fine, to further undergo simple imprisonment for a period of six months.Both the sentences awarded to the appellant Raj Kumar @ Lala were ordered to run concurrently.Himanshu run [sic: ran] to save his brother and found that accused Rahul @ Bhuri and Asif have caught hold of Rohit and Raj Kumar @ Lala attacked Rohit on his thigh with a knife a number of times.When Himanshu cried for help, accused Raj Kumar @ lala and Rahul @ Bhuri alongwith Asif (juvenile in-conflict with law) ran away.Someone called 100 number.A. 1702/2014 & 158/2015 Page 3 of 42 Asif (juvenile) have killed his brother in pursuance of a conspiracy.A. 1702/2014 & 158/2015 Page 2 of 42The knife was seized and kept in a pullanda.The place of incident was identified by both the accused persons."After completion of the investigation chargesheet was filed against both the appellants.Charge under Section 302 read with Section 34 of IPC was framed against both the appellants.A charge under Section 27 of Arms Act was also framed against the appellant Raj Kumar.To bring home the guilt of the appellants, prosecution examined 23 witnesses in all.The statement of the appellant Rahul was recorded under Section 313 Cr.P.C wherein he pleaded innocence and stated that he was picked up from his home and falsely implicated in the present case.In his statement under Section 313 Cr.P.C., the appellant Raj Kumar stated that on 15.01.2013, he had gone to Karkardooma Court Complex to attend the proceedings of his case; his father was forced to call him to the Police Station and Crl.A. 1702/2014 & 158/2015 Page 4 of 42 after attending the case at Karkardooma Court, he went to the Police Station where he was falsely implicated.The appellants examined three witnesses in their defence.A. 1702/2014 & 158/2015 Page 4 of 42The Trial Court found that the testimonies of PW-2 Himanshu and PW-1 Sharwan Kumar coupled with the medical evidence if properly appreciated, without taking into consideration the defects in the investigation, it could safely be concluded that the accused/appellants had committed the murder of the deceased and convicted the appellants as noticed in paragraph 2 aforegoing.Mr. Jitender Sethi, learned counsel appearing for the appellant Rahul submits that the judgment of the Trial Court is based on surmises and conjectures.The Trial Court has failed to take into consideration that PW-2 Himanshu was in fact not an eyewitness as he was not present at the time of the crime, which is evident from the fact that PW-2 did not accompany his injured brother from the place of the incident to the hospital.Moreover, his name does not find mentioned in the MLC prepared by the doctor and further from the testimony of PW-7 ASI Mam Chand, it has emerged that there was no eyewitness at the spot.Elaborating his arguments further, Mr. Sethi contends that the statement of PW-2 Himanshu who is real brother of the deceased cannot be believed as having been present at the place of the incident he would have tried to save his brother or at least made a call to police officials or his own family members.It is, thus, contended that the testimony of PW-2 is unreliable and cannot be trusted.Reliance is placed on the judgments in the cases of State (Govt. Of NCT of Delhi) v. Naresh & Anr, 2012 (2) JCC 830 (paragraph 8) and Balraj Singh v. The State of Punjab, 1976 Crl.LJ 1471 (P&H) (paragraphs 13 and 20).A. 1702/2014 & 158/2015 Page 5 of 42Relying on the testimony of PW-7 ASI Mam Chand, it is further contended that this witness has deposed that he received a call at 11:50 PM on the intervening night of 14-15.01.2013 and thereafter he came at the spot and found no eyewitness either at the spot or in the hospital.Reliance was placed on the rukka to show even at that stage no person was named and PW-2 appeared only around 03:00 AM.i.e. after three and half hours of the incident.Mr. Sethi contends that a phone call was made to the Police by PW-1 Sharwan Kumar from his mobile phone No.9716078703 who is running a flower shop near the place of the incident.This witness has also testified that he had informed Himanshu (brother of the deceased) about the incident.PW-1 also deposed that Himanshu arrived at the spot within 5-7 minutes of the telephone call.It is also contended that had Himanshu been at the spot there was no occasion for PW-1 Sharwan Kumar to inform PW-2 Himanshu.The attention of this Court has been drawn to the PCR form, wherein the name of Himanshu also does not find mention though it is stated that at 01:00 AM family members were present at the hospital but how the deceased was stabbed was not known.This is in direct contravention to the testimony of PW-2 that after the incident he went home to get his family members while according to the PCR form, his family members were already present at 01:00 AM at the hospital.Mr. Sethi, learned counsel for the appellant Rahul further goes on to submit that PW-2 Himanshu being an eyewitness, the site plan should have been prepared at his instance while the testimony of PW-22 Insp.Abhay Singh would show that the site plan was prepared by him at the instance of PW-7 ASI Mam Chand.It is Crl.A. 1702/2014 & 158/2015 Page 6 of 42 strenuously argued before us that PW-2 has been introduced as an eyewitness which is evinced by a careful examination of serial number of witnesses at the site plan, which would show that initially PW-2 was not shown as a witness, but as a mere cover up his name was added by renumbering the witnesses.A. 1702/2014 & 158/2015 Page 6 of 42Learned counsel for the appellant submitted that on a careful examination of the site plan placed on record would show that there were three places where the incident took place; firstly, where the deceased was stabbed; secondly, where the deceased was stabbed again; and thirdly, where the deceased dropped while no such description was given by PW-2, who claims to be an eyewitness, which casts a serious doubt with regard to his presence.by the Investigating Officer and sent to the Doctor with a request to conduct post-mortem does not show the name of either PW-2 Himanshu as an eyewitness or the name of the appellants.No question was put for recording of the statement at the hospital or at the place of the incident.Sheikh Israr Ahmed, learned counsel appearing for the appellant Raj Kumar, additionally contended that the testimony of PW-2 would show that he knew all the accused persons and appellant Raj Kumar resides at a distance of 250-300 meters from the place of Crl.A. 1702/2014 & 158/2015 Page 8 of 42 incident and 30 meters from the dhaba of PW-2 Himanshu and deceased and in case, PW-2 would have disclosed the names of the appellants, then his house would have been raided, but no such raid had taken place.The deceased and his brother were known to the appellant Raj Kumar as they had been tenants for two years in the house of appellant Raj Kumar and they would have raided the house of appellant Raj Kumar within hours of the incident which was not done.A. 1702/2014 & 158/2015 Page 8 of 42The incident took place in the heat of moment, when the deceased had refused to serve food to the appellants claiming that the dhaba had been closed.It is also contended that the appellant Raj Kumar stabbed the deceased not on a vital part of the body but only on the thigh.If there was an intention to kill the deceased, he would have attacked one of the vital parts of the body and not only on the thighs.The post-mortem report and the opinion of the doctor does not state that any blow which was inflicted on the deceased could have resulted in his death.Learned counsel submits that much should not be read into where the statement of PW-2 was recorded as PW-2 in his testimony has stated that after the incident, he went to the Hospital from where he went to the place of the incident and was then taken to the Police Station and in such a situation, his answer could have been misunderstood and in any case no prejudice would have been caused to the appellants herein.A. 1702/2014 & 158/2015 Page 9 of 42A. 1702/2014 & 158/2015 Page 12 of 42We have heard the learned counsel for the parties, considered their rival submissions and given thoughtful consideration to the matter.The prime prosecution witness remains the brother of the deceased PW-2 Himanshu.(v) The factum that PW-1 had to call PW-2 and inform about the incident proves the absence of PW-2;A. 1702/2014 & 158/2015 Page 13 of 42(vi) The name of PW-2 is absent in the PCR Form, though it is mentioned that the family members were present though how the deceased was stabbed was unknown;Since numerous contentions have been raised regarding the evidence and the inconsistencies in the sequence of events, we proceed to analyse the testimonies of the police witnesses.PW-18 L/Ct.The information was passed on to the network/PCR van/Police Station at 23:35:15 hours.PCR Form Crl.A. 1702/2014 & 158/2015 Page 17 of 42 (Ex.PW-18/A) also reads "ek admi ko chaku mar diya hai" (one person has been stabbed with a knife).Thereafter, PW-7 prepared the rukka on the above information and handed it over to PW-9 Ct.Ram Avtar at 02:25 AM on 15.01.2013 with a direction to take it to the police station for getting FIR registered.PW-22 SHO Abhey Singh Yadav had also arrived at the spot.Ram Avtar had returned with copy of FIR and the original tehrir.During the proceedings at the spot, PW-2 Himanshu (brother of the deceased) had also joined.SHO recorded his statement and thereafter, efforts were made to trace the assailants, but no one could be found on the day.A. 1702/2014 & 158/2015 Page 20 of 42PW-9 had returned with a copy of FIR and handed over the same to him/SHO with the original tehrir.Then the witness tried to trace the assailants.A. 1702/2014 & 158/2015 Page 22 of 42When he reached, PW-7 ASI Mam Chand was writing the rukka.A. 1702/2014 & 158/2015 Page 23 of 42We may also notice the medical evidence, which corroborates the ocular testimony on record.Both the MLC (Ex.PW-6/A) and the postmortem report (Ex.PW-17/A) show two stab wound on the inner aspect of the right thigh of the deceased.Though at first blush, the contentions of the learned counsel for appellants seem persuasive, however, on a careful analysis of the ocular evidence of the aforegoing witnesses, we find that a complete sequence of the chain of events is established.On the fateful night intervening 14-15.01.2013, the deceased and PW-2 Himanshu were in the process of closing down their dhaba, when three persons including the appellants and Asif (JCL) came and demanded food.The deceased declined by informing that the dhaba had been closed for the day.This did not please the accused, who started abusing and grappling.The PW-2 Himanshu intervened and saved his elder brother.Then they closed the shop and started walking towards their home.PW-2 Himanshu was 22-25 paces ahead of the deceased when the accused returned and stabbed the deceased.The appellant Rahul and Asif (JCL) tried to hold the deceased, while the appellant Raj Kumar gave two stab blows on his thighs.The shrieks of his brother drew the attention of PW-2, who looked behind to witness the incident.PW-2 Himanshu started shouting and rushed towards the deceased, however, the accused were able to flee.The deceased was extensively bleeding and fell infront of shop of PW-1 Sharwan.This was witnessed by PW-1 Sharwan, who called the Police Control Room (PCR) at 23:33:23 (Ex.PW-18/A) from his Crl.A. 1702/2014 & 158/2015 Page 24 of 42 mobile number 9716078703 and informed that "ek admi ko chaku mar diya hai" (one person has been stabbed with a knife).A. 1702/2014 & 158/2015 Page 24 of 42We stop here to note as to which place the appellant was actually stabbed.PW-2 Himanshu had specifically stated in his cross-examination that his brother "had moved in the direction of our [their] shop and had come near the shop of Sharwan." Similarly, PW-1 Sharwan deposed that he saw the deceased "to have come and fallen" infront of his shop.PW-7 ASI Mam Chand, PW-15 ASI Rattan Lal and PW-22 Ins.Abhey Singh had consistently testified that the site plan (Ex.PW-7/C) was prepared by PW-22 at the instance/pointing out of PW-7 ASI Mam Chand, who had pointed based on the blood and the chappal.PW-2 Himanshu had come at about 3 AM, when the site plan (Ex.PW-7/C) was being prepared and had confirmed the points.His name was, accordingly, added and probably because there was no space to add the name of a witness at the bottom of the page, the name of PW-2 Himanshu was added at serial number 1 after renumbering the witnesses.The same can, by no means, lead to the conclusion that the document was tampered as the same remains in consonance with the ocular testimony.We have also gone through the photographs (Ex.PW-5/1 to Ex.PW-5/15) placed on record and particularly Ex.PW-5/10, Ex.PW-5/11, Ex.PW-5/14 and Ex.PW-5/15, which clearly show the Crl.A. 1702/2014 & 158/2015 Page 25 of 42 presence of blood at points A and B infront of shop Om Sai Service in the background in consonance with the site plan (Ex.PW-7/C) and the scaled site plan (Ex.PW- 3/A, the distance between points A and B is 730 cms (about 24 ft) and from B to C, where the deceased finally collapsed infront of shop of PW-1 Sharwan is 2490 cms (about 82 ft).We proceed to the events after the stabbing.Rukka was prepared and sent through PW-9 Ct.Ram Avtar at about 2:25 AM for the registration of FIR.In the meantime, PW-22 Ins.Abhey Singh arrived at the spot and took over the investigation.At about 3 AM, PW-2 Himanshu came to the spot on foot and his statement was recorded.In this sequence of events, there was no question of the name of the eyewitness, i.e. PW-2 Himanshu, or of the assailants being present in the rukka or the PCR Form.The question then is where was PW- 2 Himanshu after witnessing the murder of his brother? The answer is found in the testimony of PW-2 only.He had deposed that when he had heard the cry for help of his brother, he had turned around to witness the stabbing of the deceased.He started shouting and rushed to his brother, however, the assailants ran away.He tried to lift his brother.He became extremely perturbed and went into a state of trance.PW-2 Himanshu waited till the PCR Van (Kite 55) Crl.A. 1702/2014 & 158/2015 Page 27 of 42 took his brother.His perplexed state did not allow him to approach the police.Both PW-1 Sharwan and PW-7 ASI Mam Chand have confirmed that they found PW-2 in a highly perturbed state.We find no reason to disbelieve the same as it is not unusual for one to get disturbed after witnessing the death of his own brother first hand.After the PCR van left, PW-2 took a lift on motorcycle from a passerby till the corner, from where he had taken an auto rickshaw.He reached the Trauma Centre and was informed by the doctor about the death of his brother.A coordinate bench of this Court was faced with a similar situation in Noor Mohd. v. State NCT of Delhi, 2012 Cri LJ 28: 2011 SCC OnLine Del 3604 wherein the appellant had alleged that the brother of the deceased, an alleged eyewitness, was unreliable as the MLC was silent about the name of the injured and recorded that the police had brought the body.The same was rejected by the Bench while observing as under:A. 1702/2014 & 158/2015 Page 27 of 42It is urged by learned counsel for Dalip that PW-3 could not be believed because there was no corroborative material in support of his assertion about having accompanied his brother to the hospital.Reliance was placed upon the MLC (Ex. PW-15/A), which is silent about the name of the injured; besides it recorded that the police had taken the body.Learned counsel argued that if indeed Rahisuddin had witnessed the incident and had either accompanied the PCR or had gone with it, there was no reason for the hospital authorities to exclude the mention of his name. ... ...Often the relatives who accompany the injured Crl.It might well have been that when he was admitted, PW-3 had not reached or having reached, was searching for the place where his brother had been taken."A. 1702/2014 & 158/2015 Page 28 of 42(Emphasis Supplied)The details in the MLC, infact, show that PW-2 had approached the doctor, though he missed the police officials.The knowledge of the death of his brother, further worsened the mental condition of PW-2, who came out from the Trauma Centre and lost senses for 1 and a half hours.Since PW-2 had already left the Trauma Centre, there was no question of him being found by the police officials (PW-15 or PW-9).It was only when he regained his senses did he return home and came back with his family.Now, there is a contradiction as to the place where the statement of PW-2 was recorded, but considering the state of PW-2 Himanshu, not much can be made from such a minor contradiction.Similarly, we do not find that the inconsistency of PW-2 and PW-1 regarding the phone call and the possession of mobile phone by PW-2 Himanshu is sufficient to discredit their testimonies in toto, which otherwise are reliable and consistent.Such inter-se discrepancies are normal and can be attributed to errors of observation and lapses of memory [See Asha v. State of Rajasthan, 1997 SCC (Cri) 712 (paragraph 9); Leela Crl.A. 1702/2014 & 158/2015 Page 29 of 42 Ram (Supra) (paragraphs 9, 10, 12 and 13); and Sukhdev Yadav (Supra) (paragraphs 1 to 3)].This erupted into a sudden fight, which was pacified by PW-2 Himanshu.Thereafter, the deceased and PW- 2 closed their dhaba and within a couple of minutes, the appellants and Asif (JCL) returned and appellant Raj Kumar stabbed the deceased while the other two held him.There was no cooling off period and the tempers continued to run high [See Jite (Supra) (paragraphs 38-43) and Arjun v. The State (Govt. of NCT of Delhi), Crl.A. 1702/2014 & 158/2015 Page 40 of 42 Crl.A. 983/2015 dated 14.07.2017 (paragraph 35)].Accordingly, the conviction of the appellant is modified from Section 302 to one under Section 304 Part II of the Indian Penal Code.A. 1702/2014 & 158/2015 Page 40 of 42We had also called for the fresh nominal rolls of the appellants, as per which, appellant Raj Kumar has undergone about 5 years 5 months imprisonment including remission, while appellant Rahul has undergone 5 years 1 month imprisonment including remission.The order of the Trial Court with regard to fine under Section 302 shall be read as for one under Section 304 Part II and remains the same.The appeals stand disposed of. | ['Section 300 in The Indian Penal Code', 'Section 302 in The Indian Penal Code', 'Section 34 in The Indian Penal Code', 'Section 304 in The Indian Penal Code'] |
His first wife was one Mrs.Sharmila.They had no issue.3.P.W.1 was not at his house at that time.He was on duty.He received a message that both the children (D.1 & D.2) were lying dead in the water tank.He found the dead bodies of the children (D.1 & D.2).The Post mortem Doctor has opined that both the children (D.1 & D.2) were died not due to drowning but due to smothering.6.When the investigation was in progress, it is stated that the accused appeared before P.W.13, the then Village Administrative Officer on 14.02.2010 around 8.00 am and made a voluntary confession.It is stated that she told that she had the feeling that the children born to her and her husband would be affected in future, if, the deceased were alive.Because of the said motive, according to her confession, she killed both the children (D.1 & D.2) by smothering and threw the dead bodies into water tank.(Judgment of the Court was delivered by S.NAGAMUTHU, J.) The appellant is the sole accused in S.C.No.44/2011 on the file of the learned Additional District and Sessions Judge, Namakkal.She stood charged for offences under Sections 302 (2 counts) & 201 I.P.C. By judgment dated 30.01.2012, the trial Court convicted the accused under both the charges and sentenced her to undergo imprisonment for life and to pay a fine of Rs.500/- for each count in default to undergo rigorous imprisonment for one month, for offence under section 302 I.P.C., and to undergo rigorous imprisonment for five years and to pay a fine of Rs.250/- in default to undergo rigorous imprisonment for six months for the offence under Section 201 I.P.C. Challenging the said conviction and sentence, the appellant is before this Court with this Criminal Appeal.2.The case of the prosecution, in brief, is as follows:-P.W.1 Mr.Nehru is a resident of Namakkal.He was a Driver working in a Transport Corporation.They had taken one Shakthivel in adoption (hereinafter referred to as D.1).After some time, Mrs.sharmila passed away.Therefore, he married one Ms.Rasia as his second wife.Through his second wife, he had a daughter by name Shalini (hereinafter referred to as D.2).After 25 days of the birth of Shalini, Mrs.Rasia died.Thereafter, with a view to bring up both the children viz., adopted son Sakthivel & Shalini, P.W.1 married the accused.Out of the said wedlock, there are two children born to them.Thus, all the four children were in the care and custody of P.W.1 and the accused.It is alleged that on 14.02.2010, around 5.00 am, the accused killed both the children (D.1 & D.2) by smothering them by pushing a pillow against their faces and killed them.Thereafter, she threw the dead bodies into a water tank to make it as though, the children died due to drowning.The accused did not disclose anything about the occurrence.P.24 is the complaint and Ex.P.25 is the F.I.R. Then both the documents were sent to the Court.5.The Investigation was taken up by P.W.16, the then Inspector of Police.He went to the place of occurrence, conducted inquest on the body of both the deceased and forwarded the same to Doctor for post mortem.P.W.13, reduced the said extra judicial confession in writing and then he took the accused to P.W.16 and produced her.P.W.16 arrested the accused and forwarded her to Court for judicial remand.On completing investigation, he laid charge sheet against the accused.7.P.W.6 - Dr.Parameswari, conducted autopsy on the body of Sakthivel (D.1) and found the following injuries:-External Examination No visible external injuries.White frothy fluids comes out from the nose.Eye lids closed.Mouth & lips closed Tongue: inside the oral cavity.P.7 is the post mortem certificate.She opined that D.1 would have died due to smothering and not because of drowning.8.P.W.7 - Dr.Mohan, conducted autopsy on the body of Shalini (D.2) and found the following injuries:-Could not make out.Frothing in the both the nostrils.Internal examination: Opening skull no fracture of skull bone.Brain: Pale.Thorax: No fractured Ribs.Lungs: Odematus, Pale Heart: Partly filled with blood.Hyoid Bone sternum preserved for the Forensic Analysis. Ex.P.12 is the post mortem certificate.He opined that D.2 would have died due to smothering and not because of drowning.9.Based on the above materials, the trial Court framed charges as stated in the first paragraph of this judgment.The accused denied the same.Material Objects were marked.10.Out of the said witnesses, P.W.1, the father of the deceased (D.1 & D.2) and the husband of the accused has turned hostile and he has not supported the case of the prosecution in any manner.P.W.2, the neighbour has stated that he heard about the death of the children (D.1 & D.2), he came to the place of occurrence and found the dead bodies.P.W.3 is yet another neighbour of the deceased.He has also stated about the same facts.P.W.4 is yet another neighbour has turned hostile and he has not supported the case of the prosecution in any manner.P.W.5 has spoken about the preparation of observation mahazar, rough sketch and the recovery of material objects at the place of occurrence.P.W.6 has spoken about the post mortem conducted on D.1 and her final opinion regarding the cause of death.P.W.7 has spoken about the post mortem conducted on D.2 and his final opinion regarding the cause of death.P.W.8 is yet another neighbour.However, she has also not spoken anything incriminating against the accused.P.W.9, a Constable has stated that he handed over the dead bodies to Doctors for post mortem.P.W.10 has also spoken about the same facts.P.W.12, the Head Clerk of the Magistrate Court has stated that he sent the material objects for chemical analysis as per the order passed by the learned Magistrate.11.P.W.13, the then village Administrative Officer has spoken about the extra judicial confession made by the accused, recorded by him.P.W.14 has spoken about the registration of the case.P.W.15 has spoken about the investigation done and the final report filed in this case.12.When the above incriminating materials were put to the accused under Section 313 Cr.P.C., she denied the same as false.However, she did not choose to examine any witness nor did she mark any document on her side.Her defence was a total denial.13.Having considered all the above materials, the trial Court convicted the appellant/accused as stated in the first paragraph of this judgment.14.We have heard the learned counsel for the appellant and the learned Additional Public Prosecutor appearing for the State and we have also perused the records carefully.15.As we have already stated, there is no denial of the fact that both the deceased (D.1 & D.2) were living with P.W.1 and the accused.It is also in evidence that the children were lying dead in the water tank.The medical evidence would clearly go to establish that the death of the deceased (D.1 & D.2) were not due to drowning but due to smothering.Thus, the prosecution has established that the death of the deceased (D.1 & D.2) were due to homicidal violence.But, the learned counsel for the appellant would submit that the evidence of P.W.13 cannot be believed for more than one reason.He would point out the evidence of P.W.3, the neighbour of the deceased that when the Police arrived at the place of occurrence on 14.02.2010 at 9.00 am, the accused was very much available and she was interrogated by the Police and the accused told them that the children were accidentally jumped into the water and died.P.W.8, yet another neighbour has also stated that when the Police came to the place of occurrence, the accused remained there and faced the enquiry.She did not abscond.She was thus, very much in the custody of the Police on 14.02.2010 around 9.00 am.When that be so, it is highly unbelievable that on 14.02.2010 at 8.00 am, the accused had gone to P.W.13, the then Village Administrative Officer and made the extra judicial confession.We find force in the said argument.17.Above all, it is highly unbelievable that the accused would have chosen the then Village Administrative Officer, who is a total stranger to make the voluntary confession.For these reasons, we find it difficult to act solely based upon the said extra judicial confession made by the accused.Further, as per the settled law, since, an extra judicial confession is a very weak piece of evidence, unless, the same inspires the fullest confidence of the Court and there are evidences from other sources to corroborate the said extra judicial confession, it is not safe to rely on the doubtful extra judicial confession and to convict the maker of the confession.Since, there is no corroboration from any other independent source, on material particulars, then, we cannot convict the accused solely based on the said extra judicial confession.Thus, the appellant/accused is entitled for acquittal. | ['Section 302 in The Indian Penal Code', 'Section 201 in The Indian Penal Code'] |
These appeals are directed against the judgment dated 21 st December 2013 passed by the learned Special Judge, NDPS in SC No. 82 of 2008 convicting Jagdeo Singh @ Jagga (Accused No.1) (A-1) (Appellant in Crl.A. No. 527 of 2014) for the offences under Section 21 (c) and 29 of the Narcotics Drugs Psychotropic Substance Act (NDPS), Section 489 C and 120 B of the Indian Penal Code (IPC) and Section 25 of the Arms Act; Gurdeep Singh (A-2) (Appellant in Crl.529 of 2014) for the offences under Section 21(c) and 29 of the NDPS Act, 489 C and 120 B IPC; and Sukhwinder Singh @ Sukhi (A-3) (Appellant in Crl.A. No.607/2014) for the offences under Section 21(c) and 29 of the NDPS Act and 489-C and 120- B IPC.The appeals are also directed against the order on sentence dated 30th January 2014, sentencing A-1 to undergo twelve years of rigorous imprisonment (RI) with fine of Rs. 1.5 lakh for each of the offences under Sections 21 and 29 of the NDPS Act and in default to undergo simple imprisonment (SI) for six months, and imprisonment for three years with fine of Rs.10,000 and in default to undergo SI for one month Criminal Appeal Nos. 527 of 2014, 529 of 2014 & 607 of 2014 Page 2 of 57 for each of the offences under Sections 489-C and 120-B IPC and further seven years RI and fine of Rs.50,000 and in default to undergo SI for three months for the offence under Section 25 of the Arms Act. All three sentences were directed to run concurrently.A-2 was sentenced to RI for ten years with fine of Rs.1 lakh and in default to undergo SI for three months for each of the offences under Sections 21 and 29 of the NDPS Act, RI for three years and fine of Rs.10,000 and in default to undergo SI for one month for each of the offences under Section 489-C and 120-B IPC; further A-3 was sentenced to RI for fifteen years and fine of Rs.1.5 lakh and in default to undergo SI for six months for the offence under Section 29 and 21(c) of the NDPS Act and three years RI and fine of Rs.10,000 and in default to undergo SI for one month and for the offence under Section 489-C and 120-B IPC.PW-16 endorsed the said information and discussed it with the ACP of the Special Cell.He then constituted a raiding team comprising of himself, Sub-Inspector (SI) Harbir Singh (PW-1), SI Ramesh Sharma, SI Ranbir Singh (PW-4), SI Criminal Appeal Nos. 527 of 2014, 529 of 2014 & 607 of 2014 Page 3 of 57 Kishan Lal, Head Constable (HC) Suresh Chand, HC Ramesh Kumar, Constable Anil Kumar, Constable Ajay Kumar, Constable Hawa Singh and Constable Om Prakash.They left the office of the Special Cell in a government vehicle and reached the spot.On the way, as well as at the spot, the police asked two or three passersby to join the raiding team, but none agreed.Criminal Appeal Nos. 527 of 2014, 529 of 2014 & 607 of 2014 Page 3 of 57At around 7.30 pm, a Pulsar motorcycle No. DL 7SAZ 2142 stopped near the public toilet at Patparganj Road, Ganesh Nagar crossing.It was driven by Gurdeep Singh (A-2) who was carrying a black colour bag on his shoulder and on the pillion was Jagdeo Singh (A-1).A-2 took out a polythene bag from the black colour bag he was carrying and handed it over to A-1. A-2 remained on the motorcycle and A-1 stood at the Ganesh Nagar crossing.Both of them were served with notices under Section 50 of the NDPS Act. They were apprised of their legal right to be examined in front of the Gazetted Officer or Magistrate.Both refused to exercise such right.Their refusal was signed by them on the notices issued to them.From the polythene bag carried by A-1, two packets wrapped in yellow colour tape were recovered.They were weighed at 1 kg each.Upon opening they were found to contain light skin colour powder which A-1 revealed to be heroin.The samples were drawn out of the substance and the remaining substance was sealed in a separate pullanda.The seizure memo was prepared and FSL form was filled.Criminal Appeal Nos. 527 of 2014, 529 of 2014 & 607 of 2014 Page 4 of 57A cursory search of A-1 conducted by PW-1 revealed a pistol, one magazine and eight live cartridges.They were sealed in a separate cloth pullanda and a separate memo and FSL form was prepared.The black bag carried by A-2 was checked.It contained two packets wrapped in yellow colour tape weighing 1 kg each.They too contained skin colour powder which A-2 revealed to be heroin.Again samples were drawn and the remaining substances were sealed in separate pullanda.The seizure memo was prepared and the FSL form was formed.The case then was registered and investigation was handed over to Inspector Upendra Solanki (PW-17).Their disclosure statements were recorded.Both purportedly disclosed that the currency notes were counterfeit; that they were in the business of drugs, arms and ammunitions as well as fake currency along with Sukhwinder @ Sukhi (A-3).Twenty seven currency notes of Rs.1000 denomination were seized from the amount recovered from A-1, and two currency notes of Rs.1000 denomination were seized from the amount recovered from A-2, and a FSL form was prepared in respect of the said seizures.Investigation and chargeThe call detail records of the mobile phones recovered from A-1 and A-2 Criminal Appeal Nos. 527 of 2014, 529 of 2014 & 607 of 2014 Page 5 of 57 were obtained.The statements of witnesses were recorded.The recovered pistol, eight cartridges, samples of heroin was sent to the FSL, Rohini.The report of the FSL confirmed that the currency notes were counterfeit and the samples contained high percentage of diacetylmorphine (DAM).Criminal Appeal Nos. 527 of 2014, 529 of 2014 & 607 of 2014 Page 5 of 57The disclosure statement of A-3 in that case, and the intercepted calls on electronic surveillance in the said case revealed that A-3 was dealing in drugs, illegal arms and fake currency in conspiracy with A-1 and A-2. A-3 had been in continuous touch with A-1 and A-2. A-3 was thereafter produced and arrested in the present case.An application was also filed for taking the voice sample of A-1 and A-2 for comparison with the voice appearing in the intercepted mobile conversations.However, both A-1 and A-2 declined to give their voice samples.On 20th January 2009, a supplementary charge sheet was filed against A-3 for being in conspiracy with A-1 and A-2, for supply of drugs, arms and fake currency in Delhi.On 13th July 2009, charges were framed against three accused for having conspired to deal in drug trafficking and having been found in possession of commercial quantity of heroin and fake currency and thus Criminal Appeal Nos. 527 of 2014, 529 of 2014 & 607 of 2014 Page 6 of 57 having committed offences punishable under Section 21 read with Section 29 of the NDPS Act, Section 120-B and Section 489- C IPC.14. A-1 denied having come to the spot on the motorcycle or even knowing A-2 before the arrest in the present case.He stated that on 23rd March 2007 at 5.30 pm, he was forcibly picked up by the police in Faridabad and the contraband and arms were planted on him by the police officials.He stated that he was residing in rented premises E-874, Dabau Colony, Faridabad.While he was in the market with his wife and eight years old daughter, PW-1 and other police officials stopped him and asked him to accompany them in their gypsy vehicle.PW-1 is stated to have told A-1 that "Sahib" wants to inquire something from him and that A-1 should accompany them and when A-1 declined, PW-1 and other police officials pushed him into the gypsy and tied his hands with rope and covered his face with the cloth.The vehicle was taken to Dhaula Kuan and thereafter to Laxmi Nagar.Further, in his presence, no site plan was prepared by PW-17 and no motorcycle was taken into possession.As regards notice under Section 50 of the NDPS Act he admitted that "I did tear it off as I was very tense and troubled on my false implication".He denied that any counterfeit currency, arms and ammunitions were recovered from him.He had shifted to outside Delhi after his release from jail and he wished to lead his life afresh.PW-1 (SI Harbir Singh) is related to SI Ombir Singh as they are cousins.Statement of A-2 under Section 313 Cr PCIn his statement, A-2 claimed that he was never a member of KZF.Although he had been arrested in two bomb blast cases, he had been acquitted.He denied having come to the spot on a motorcycle.He claimed that he did not know A-1 before his arrest.Though the motorcycle belonged to him, he was forcibly picked up by the police on 23 rd March 2007 at around 2:30 pm outside Gurudwara Sheesh Ganj.20. A-2 stated that one police official, SI Ramesh Sharma, Special Cell kept visiting him and inquired about his activities after his acquittal.Thereafter, he started working as a Sewadar in Gurudwara Sheesh Ganj and SI Ramesh Sharma used to visit him and also asked him to appear before the Special Cell.This continued for till two years, and when A-2 got fed up, he told SI that if he continued to harass him, he would file a petition in the Court.After about 1 months of his telling him that, SI Ramesh Sharma came at around 2:30 pm on 23rd March 2007 and asked A-2 to accompany him.At that time, A-2 was standing near the STD booth near Gurudwara.SI Ramesh Sharma spoke very politely to A-2 and told him that it was last time "Sahab" wanted to talk to him and, therefore, A-2 agreed to go along with him to the Special Cell.Along with him, Gurlal, another sewadar was standing.A-2 gave the key of his motorcycle to Gurlal.He told Gurlal that the motorcycle was parked in the parking lot of Gurudwara.21. A-2 stated that he was not apprehended in the manner stated by the prosecution; nor was he apprised of his legal rights to get himself searched before a Magistrate or a gazetted officer.He was mercilessly beaten and was forced to write the words on Section 50 notice.Before he wrote the words, the document was blank.He denied that any contraband was recovered from him.He denied recovery of any mobile phone.He stated that only a SIM card bearing No. 9999579926 was recovered from his possession.No mobile phones were recovered from A-1 in his presence.No site plan was prepared by PW-17 and no motorcycle was taken into possession in his presence.He claimed that the police had planted a notice on him and when he received the said notice pursuant to the order of the Court, he tore it off as he was very tense and troubled due to his false implication.He claimed that no currency was recovered nor did he give any disclosure that the currency was fake.He claimed that the entire proceedings were false and manipulated.No arms or ammunitions were recovered from him.22. A-2 stated that he knew A-3 because on a few occasions he had come to Gurudwara Sheesh Ganj and being a sewadar, one room had been allotted to him.Once or twice A- 3 had called him to confirm about the availability of the room in the Gurudwara.He had nothing to do with the intercepted calls.25. A-3 stated that he had no knowledge of the interception of the mobile phone conversations.He stated that he did not even know A1 before his arrest in this case.He claimed that he had been falsely implicated and nothing had been recovered from him - neither any contraband nor pistol nor mobile phone.He claimed that even in FIR No. 77/2007 he had been falsely arrested.He claimed that he never had any conversation with A-1 or A-2 regarding heroine and that the intercepted calls did not pertain to him.He claimed that DVDs and CDs did not contain any calls made by him.He claimed that his signatures were taken on many blank and written documents forcibly and that the police officials used to beat him if he refused to sign.He claimed that the voice or conversation which he had heard in Court did not pertain to him and that "though the said voice sounds similar to my voice, the CDs and the DVDs have been tampered."The first witness for the defence was Dr. Anand Kumar (DW-1), Medical Officer attached with CJ-4 dispensary at Tihar Jail.A-2 had complained that Criminal Appeal Nos. 527 of 2014, 529 of 2014 & 607 of 2014 Page 13 of 57 he had been beaten by the police.On examination "pattern bruises were found present over the left side of the back and he was prescribed medication for the pain." Apart from the suggestions to him that the document wrongly recorded that bruises were found and that A-2 had been seen by Dr. Rakesh, who prepared the report, nothing much was elicited in the cross-examination of this witness by the learned APP.Criminal Appeal Nos. 527 of 2014, 529 of 2014 & 607 of 2014 Page 13 of 57He was standing with A-2 and other sewadar Gurlal at the STD booth situated near the entrance of Gurudwara at around 2:30 pm on 23 rd March 2007 when a person of medium height and slightly dark complexioned told A-2 "sahib bula rahe hain." A-2 addressed the said person as Mr. Sharma and asked him what happened but the said person merely repeated the statement made earlier. A-2 then told Gurlal that his bike was parked in front of the museum opposite Gurudwara and that he should bring the bike inside the Gurudwara premises and park it.The next day when he came to the Gurudwara, Gurlal told him that he had handed over the keys of the motorbike to the brother and father of A-2, who had come to the Gurudwara after coming to know of his arrest.It was found that A-2 had been taken away by the police and his bike was also taken away by the police after breaking its lock.Director, CFSL, Chandigarh (DW-3).DW-3 clarified that although in reply to the RTI application of A-1 (Ex. DW-3/B), it had been stated that no official from the CFSL, Chandigarh had attended the trial Court, he stated that he had appeared in the trial Court on 12th January 2009 to record the voice sample.He also brought an attested copy of the office movement register showing his movement from Chandigarh to Delhi (Ex. DW-3/E).The 4th defence witness was Mr. Deepak DW-4), the Nodal Officer who brought the summoned record (Ex. DW-4/A and 4/B respectively).It was not functional thereafter.DW-4 also brought the records pertaining to mobile No.9873836607 (Ex. PW-4/C) which showed that the phone was functional till 23rd March 2007 in the Delhi circle.The last call in the said phone received was at about 19:38:08 hours.Thereafter, it was not in network in Delhi circle.As per the cell chart ID, the location of the mobile at that time was Nangla Rai at Delhi Cantt., and at about 18:00:50 one outgoing call was made from the same cell tower.At about 18:07:10, an incoming call was received from the same tower.At about 18:18:15, an outgoing call was made from the same mobile tower.Another outgoing call was made at about 19:06:18 from the tower at Lajpat Nagar, Part-II.(i) Although A-2 had contended that his motorcycle had been forcibly taken by the police from the parking lot after breaking open the lock, in an application filed by him before the learned Special Judge on 7th June 2007 (Mark R-1), he took a very different stand.He stated that at around 6-6:30 pm, when he was standing with his friend near the STD booth near the Gurudwara, SI Ramesh Sharma had come there and asked him to accompany him to his Criminal Appeal Nos. 527 of 2014, 529 of 2014 & 607 of 2014 Page 17 of 57 office for some inquiry; that A-2 followed the SI on his own motorcycle and that only after he and the vehicle of SI passed the Lal Qila red light, SI Ramesh Sharma asked him to leave his bike and accompany in his vehicle since he had received a message that a senior officer was leaving and would return only after 9:00 pm and SI Sharma did not want A-2 to spoil his whole night.(iii) The intercepted mobile conversations proved on record by the prosecution totally corroborated the version put forth by the prosecution with respect to the manner of apprehending the accused persons.The intercepted mobile conversations proved that A-1 and A-2 were known to each other, much before 23rd March 2007 and were together involved in some business.Even on 23rd March 2007, A-1 and A-2 were in continuous touch with each other till 7:30 pm.The mobile conversations were played in Court and the transcripts were also filed in the judicial record.It showed that at around 4:45 pm, A-1 called up A-2 and both of them decided to meet near a tea vendors shop.The learned trial Court also adverted to the further Criminal Appeal Nos. 527 of 2014, 529 of 2014 & 607 of 2014 Page 18 of 57 conversation that took place between the two at 5:13 pm, 7:05 pm and 7:35 pm.At around 7:35 pm in the conversation between A-1 and A-2, A-1 informed A-2 that he was able to reach the designated spot by taking a lift and told A-2 that he was standing near a banana vendor.Two minutes thereafter, A-2 made a call to a person, whom he addressed as Raju stating that the said person Raju should be able to spot him and tried to tell him where A-1 was standing.Criminal Appeal Nos. 527 of 2014, 529 of 2014 & 607 of 2014 Page 18 of 57(iv) The intercepted mobile conversations were of unimpeachable quality and could not be doubted merely because they were produced belatedly.The prosecution was able to satisfactorily explain the delay.The depositions of PW-s 1, 17 and 30 revealed that the four mobile phone Nos. 9876933745, 9317534945, 9811328172 and 9817060613 were under the surveillance of the Special Cell, much before the apprehension of A-1 and A-2 and the conversations that took place on the said mobile phones were automatically saved in the server of the Special Cell.The call related information was automatically recorded at the time the calls were made and thereafter transferred to the server of the Special Cell using a software application.The allegation that the signatures of A-1 on various documents was forged was false as the evidence of the handwriting expert did not conclusively prove that the signatures of A-1 were forged.Right from the supply to them of the chargesheet and documents, they were taking the plea that no contraband had been recovered them.The percentage of diacetylmorphine in the four samples, i.e., S-1, S-3, S-5 and S-7 showed that these were of commercial quantity.An attempt had been made to remove number 3 (from 31.6%) and 41 (from 41.2%) which was noticed by the learned trial Court.The deposition of PW-14 put to rest any doubt as to the discrepancy that resulted as a consequence of such tampering.(x) Even in the absence of the public witnesses, the prosecution has been able to prove recovery of 4 kg.While PW-1 deposed that A-1 had approached the spot from the Laxmi Nagar side, PW-4 deposed that he approached from the Seelampur side; PW-10 stated that he approached from Patparganj side and PW-16 stated that he approached from Seelampur side.It is pointed out that the site plan is not prepared and the identification by PW-16 is different from the site plan filed by the IO (PW-17).(ii) PW-1 deposed that there was a goal chakkar at the place of arrest, whereas the site plan did not show any such goal chakkar.In fact, it was a red light crossing.(iii) Even as regards the time of arrest, there were inconsistencies.The journey on the motorcycle from Sarai Kale Khan to the place of arrest takes at least 20-30 minutes in peak hours.The prosecution story that A-1 was at goal chakkar on 23rd March 2007 was, therefore, false and fabricated.The Nodal Officer (PW-29) confirmed that the said mobile number was at Laxmi Nagar Chowk at 7:30 pm, which was 2 kms.There was no explanation as to why the said mobile conversations were not part of the original charge sheet.The alleged information that A-3 was using from the mobile No.9876933745 for contacting KLF was not part of the original charge sheet.There was no evidence to show that any of the mobile phones pertained to A-3 or how the phones were intercepted.The technology used in the system was capable of being manipulated.The procedure for interception was full of loopholes and Section 65B of the Evidence Act has not been complied with.The report of Dr. Rajender Singh (PW-28) regarding matching of the voice samples of A-3 on the taped conversations with the sample voice was doubtful and has not been proved in accordance with law.Mr. Jain submitted that the prosecution had failed to prove that A-3, at any time, either subscribed to or owned mobile Nos. 9876933745 and 9317534945 and, therefore, he could not have been convicted under Section 20 NDPS Act. The tampering of the CDs containing the taped conversations cannot be ruled out.At around 6.10 pm information was received by PW-16 that A- 1 and A-2 would come near Pandav Nagar Mother Diary around 7.30 pm for supply of smack to one Negro and the said information was passed on ACP Ravi Shankar who instructed PW-16 to conduct a raid.In any event since the secret information was not in respect of the contraband being in some house, the provision of Section 42 NDPS Act was not attracted.As regards the occurrence at Pandav Nagar, Mother Diary, Mr. Katyal pointed out that although notices were in fact issued under Section 50 NDPS Act to each of accused, i.e., A-1 and A-2 separately, both of them had destroyed the copies of the notices served upon them.In any event, contraband was recovered from the polythene bag of A-1 and from bag of A-2 and thus the contraband was not present on their person.The contraband was sealed with the seal of HS and handed over to PW-16 along with FSL forms and PW-16 left the spot at around 10.20 pm.It was taken to PS Lodhi Colony at about 11.15 pm and handed over to SHO Paras Nath (PW-13) who affixed his seal of PNS on all the parcels and FSL forms and deposited the same in the malkhana.Turing to the facts in the present case, there is a whole chain of events that has taken prior to the interception orders of the mobile phones.The interception orders were in respect of the mobile phones (Ex.PW20/A, Ex.PW20/B, Ex.PW26/A, Ex.PW26/B and Ex.PW26/C).PW-1 stated that after the after the bomb blasts that took place in 2005 at Liberty and Satyam Cinemas the mobile phones of the suspects were kept under surveillance.PW-1 had been deputed to listen to those conversations.He learnt that A-3 was in constant touch with Daya Singh Loharia, a Member of KLF.There was a specific instruction from senior officers that the surveillance of the mobile phones had to be kept secret.PW-17 explained that after hearing the conversations of all the calls, he copied all of them in DVD and CDs (Ex.P-29, P-36 and P-38).The computer system installed in the Special Cell was under the supervision and control of PW- 30 and the password of the same remained with him.It was stated that during the relevant period there was no problem in the operation of the computer system while recoding the calls nor was there any break down.58. PW-17 clarified that it was PW-1 who downloaded and handed over the transcripts to him for observation.He had opened the file in the office computer giving it the name of Upender.He spoke of the preparation of the transcripts of all mobile phone calls.As far as A-1 Jagdeo Singh and A-2 Gurdeep Singh are concerned the case of the prosecution has to be considered de hors the electronic evidence produced i.e., the CDRs of the mobile phones stated to have been used by each of them.The specific case of the prosecution is that at around 7.30 pm on 23 rd March 2007 both the accused came near the public toilet Patparganj Road at Ganesh Nagar Crossing.According to the prosecution, the motorcycle was driven by Gurdeep Singh (A-2) who was carrying a black colour bag on his shoulder.Jagdeo Singh (A-1) was the pillion rider.A-2 took out a polythene bag from the black colour bag that he was carrying and handed it over to A-1. A-2 remained near the motorcycle and A-1 stood at the Ganesh Nagar Crossing.At that point of time, both were apprehended." This is purely a surmise since the burden was entirely on the prosecution to show that the signatures on the seizure memo, recovery memo and the inspection memo etc., were in fact only of A-1 and no one else.On his part A-1 has probablised his defence that those signatures were not his.The evidence of CW-1 is more than sufficient to probablise that defence.Evidence of torture of A-1 and A-2The plea of A-2 is that he was picked up from Gurudwara Sheesh Ganj forcibly and his motorcycle was also picked up from the parking area.He examined Pargat Singh (DW-2) to prove this plea.He also has alleged as being tortured by the police while in custody.In respect of that plea he examined Dr. Anand Kumar (DW-1).The relevant pages of the said register has been brought by me today and are Ex.DW1/B".He produced the medical record of A-1 (Ex. DW5/A).He deposed that "As per the said medical record, the accused Jagdeo was first examined on his admission to jail on 4 th April 2007 and had complained that he had been beaten by police on 2 nd April 2007 and that he had pain over his whole back.On examination, pattern bruises were found present over the whole back, left arm upper and lower, left thigh, and the legs and he was prescribed medication for the pain".(emphasis supplied)The aforementioned sentences were directed to run concurrently with the sentences already imposed upon A-1 in FIR No.164 of 2007 at Police Station (PS) Sidhwabet.Criminal Appeal Nos. 527 of 2014, 529 of 2014 & 607 of 2014 Page 2 of 57Case of the prosecutionAdditionally, A-1 was charged with having been found in possession of one pistol along with eight live cartridges and thereby committing an offence under Section 25 of the Arms Act. All the accused pleaded not guilty and claimed trial.Criminal Appeal Nos. 527 of 2014, 529 of 2014 & 607 of 2014 Page 6 of 57The prosecution examined twenty nine witnesses.When the evidence was put to the three accused under Section 313 of the Code of Criminal Procedure (Cr PC), each of them denied it and claimed to have been falsely implicated.In Laxmi Nagar under the railway bridge Criminal Appeal Nos. 527 of 2014, 529 of 2014 & 607 of 2014 Page 7 of 57 the vehicle was stopped.The police officials then tried to shift him to a private Wagon R in which A-2 and PW-17 were already sitting.When A- 1 raised hue and cry a lot of people gathered at the spot and questioned the police as to why they were taking A-1 away.Criminal Appeal Nos. 527 of 2014, 529 of 2014 & 607 of 2014 Page 7 of 5715. A-1 denied having been apprised of any legal right under Section 50 of the NDPS Act. He was beaten by the police officials who forced him to write on the notice.He denied that any contraband or pistol was recovered from him.He also claimed not to know A-3 prior to his arrest in the present case.In respect to the transcript of the intercepted calls, A-1 denied having been part of this conversation or having made the conversation shown in that transcript.He stated that it was correct that on 2nd January 2009 he had agreed to give his voice sample but he had specifically requested that he should be taken to CFSL Chandigarh since he was apprehensive that in Delhi the police officials would manipulate his voice samples.Although the trial Court had permitted this but A-1 was not taken to CFSL Criminal Appeal Nos. 527 of 2014, 529 of 2014 & 607 of 2014 Page 8 of 57 Chandigarh.On 12th January 2009 he refused to give the voice sample in Court apprehending that it would not be taken properly and would be manipulated.Criminal Appeal Nos. 527 of 2014, 529 of 2014 & 607 of 2014 Page 8 of 57When asked if he wished to say anything else, A-1 stated that he had been falsely implicated in the case.He stated that he has been in judicial custody from 2001 to 15th August 2006 since more than 21 cases has been registered against him in various police station and that he has been acquitted in most of them.In six cases he has been convicted and in two cases he has filed appeals which are pending in the High Court.A-1 alleged that consequently PW-1 had been responsible for A-1 being falsely implicated in the present case.He denied that the conversations recorded on the CDs and DVD between him and the other co-accused persons were in his voice.Criminal Appeal Nos. 527 of 2014, 529 of 2014 & 607 of 2014 Page 9 of 57He denied the intercepted calls.Criminal Appeal Nos. 527 of 2014, 529 of 2014 & 607 of 2014 Page 11 of 57As regards voice samples, A-2 stated that he did agree on 2nd January 2009 to give his voice sample but requested that he should be taken to CFSL, Chandigarh for that purpose.However, they were not taken there.On 12 th January 2009, he had refused to give the voice sample in the Court as he was apprehensive that it would be manipulated.An additional statement was recorded of A-2 on 11th July 2013 when he denied all the intercepted calls.Statement of A-3 under Section 313 Cr PCIn his statement, A-3 stated that he used to go and meet Daya Singh Lahoria while he was lodged in Nabha jail as he was a good friend of his.He stated that he used the mobile No.9876933745 but thereafter stated that he had never used the said mobile phone and that he was not dealing in fake currency notes, drugs, arms and ammunition.He stated that he did not know A-1 but knew A-2 who was a sewadar in Gurdwara Sheesh Ganj, New Delhi.He had got in touch with A-2 when he had come to Delhi for pairvi of cases of Daya Singh Lahoria in the Supreme Court and in Jaipur courts.He claimed that no mobile phone was recovered from his Criminal Appeal Nos. 527 of 2014, 529 of 2014 & 607 of 2014 Page 12 of 57 possession.Criminal Appeal Nos. 527 of 2014, 529 of 2014 & 607 of 2014 Page 12 of 57Gurlal had since left the services of the Gurudwara and was presently residing in Punjab.In his cross-examination, DW-2 stated that neither he nor Gurlal made any complaint to the police about the motorcycle of A-2 being taken by some police officials.He also did not complain to the police after coming Criminal Appeal Nos. 527 of 2014, 529 of 2014 & 607 of 2014 Page 14 of 57 to know from his father and brother that A-2 had been picked up by the police.Criminal Appeal Nos. 527 of 2014, 529 of 2014 & 607 of 2014 Page 14 of 57The third defence witness was Mr. S.K. Jain, Dy.At about 17:58:44 an outgoing call was made from that mobile for 61 Criminal Appeal Nos. 527 of 2014, 529 of 2014 & 607 of 2014 Page 15 of 57 seconds.At around 19:32:15 an outgoing call for 29 seconds was made from the same cell tower at Sarai Kale Khan.At about 19:32:47 an incoming call was received for 16 seconds from the cell ID tower of Bhairon Marg, Pragati Maidan.The mobile phone was used with IMEI No.354540018396220 for all the aforementioned calls.Criminal Appeal Nos. 527 of 2014, 529 of 2014 & 607 of 2014 Page 15 of 57An attested copy of the first medical examination of A-1 was (DW-5/A) was brought on record.A-1 had complained that he was beaten by the police on 2nd April 2007 and had pain over his whole back.On examination, pattern bruises were found present over the whole back, left arm upper and lower left thigh and the legs.A-1 was prescribed medication for the pain.He was unable to speculate how A-1 could have received the injuries.Head Constable Sanjeev (DW-6) attached to PS Special Cell, Lodhi Criminal Appeal Nos. 527 of 2014, 529 of 2014 & 607 of 2014 Page 16 of 57 Colony was examined next.He brought the malkhana register No.19 for the year 2007 and the daily diary register for the same year.He pointed out that the register with respect to the duty roster of the year 2007 had been destroyed within a period of two years.He stated that there was no entry as to PW-17 (Inspector Upendra Solanki) receiving any case property from malkhana.He further stated that PW-17 had made the said entry at NR Rohini where he was then posted.Criminal Appeal Nos. 527 of 2014, 529 of 2014 & 607 of 2014 Page 16 of 57The trial Court judgmentBy the impugned judgment dated 21st December 2013, the learned trial Court found the three Appellants to be guilty of the offences under Section 21(c) and 29 of the NDPS Act, Section 489(c) and 129-B IPC and Section 25 of the Arms Act. By the order on sentence dated 30th January 2014, the learned trial Court sentenced the A-1, A-2 and A-3 in the manner indicated hereinbefore.Therefore, A-2 sat in the vehicle with SI Sharma and his bike was driven by a police official.Since this application was filed three months after his arrest, the answers given under Section 313 Cr PC was false.Criminal Appeal Nos. 527 of 2014, 529 of 2014 & 607 of 2014 Page 17 of 57Three minutes thereafter, A-2 again called Raju and while talking, he screams, telling him to run away.Consequently, both A-1 and A-2 had taken a false defence before this Court.As per the deposition of PW-17, after listening the calls in the DVD, he copied them in the CDs (Exs. P-29, 36 and 38).Thus, the conditions laid down under Section 65-B of the Evidence Criminal Appeal Nos. 527 of 2014, 529 of 2014 & 607 of 2014 Page 19 of 57 Act had been complied with.Since there was no manual intervention, it could not have been tampered with.When the CDs were played in Court, the call related information was reflected on the computer screen along with the graphs of the voice patterns.The details showed that the calls in question were made during the period February 2007 and March 2007, i.e., before the arrest of the accused.(vi) The contention of the accused was that the mobile transcripts showed that A-1 and A-2 were having conversation around 7:45 pm was contrary to the stand of the prosecution that they were arrested at around 7:30 pm.The members of the raiding party deposed that Criminal Appeal Nos. 527 of 2014, 529 of 2014 & 607 of 2014 Page 20 of 57 the time of apprehension of accused persons "was about 7:30 pm." and this did not mean exactly 7:30 pm.Further, the cell tower catches the frequency of a mobile phone if the location of the said mobile is within 1-2 km range.Therefore, there was no discrepancy if the cell tower at Pragati Maidan was able to catch the frequency of mobile phone used by A-1 when he was near Ganesh Nagar.The said spot was within 2 km. of Pragati Maidan.The evidence of Dr. Rajender Singh (PW-28), who was the head of the Foreign Voice Identification Unit, CFSL proved that the questioned voice of A-3 in the taped conversations tallied with his specimen voice.Criminal Appeal Nos. 527 of 2014, 529 of 2014 & 607 of 2014 Page 20 of 57(vii) Dr. S.K. Jain, Dy.(DW-3) had come to the Court on 12th January 2009 to record the voice sample of A-1 and A-2 but they had refused.An adverse inference, therefore, was drawn against them.They did not take the plea that no mobile phone had been recovered from them, although the recovery memos were duly supplied to them with the chargesheet.(viii) Since the recoveries in the present case had not been effected from the persons of the accused, but from the bags carried by them, hence Section 50 NDPS Act was not applicable.Criminal Appeal Nos. 527 of 2014, 529 of 2014 & 607 of 2014 Page 21 of 57(ix) Dr. Madhulika Sharma (PW-14), the FSL expert, explained that the colour of the samples which were received for analysis, which were of cream colour, could change to brown colour due to moisturization.PW-14 was not examined on this aspect.After A-1 and A-2 were apprehended, A-3 spoke about the arrest to at least three persons from his mobile.After the arrest of A-1 and A-2, the conspiracy in question had come to an end and, therefore, the statements made by A-3 thereafter could not be read against his co- conspirators under Section 10 of the Evidence Act, but they could be read against A-3 himself under Section 8 of the Evidence Act.Consequently, all the three accused were held guilty for the offences with which they were charged and sentenced in the manner indicated Criminal Appeal Nos. 527 of 2014, 529 of 2014 & 607 of 2014 Page 22 of 57 hereinbefore.Criminal Appeal Nos. 527 of 2014, 529 of 2014 & 607 of 2014 Page 22 of 57Submissions of counsel for the AppellantsOn behalf of A-1, Mr. Rana made the following submissions:(i) The prosecution story regarding the arrest of A-1 was totally false.While PW-4 stated that A-1 is arrested at 7:30 pm on 23rd March 2009, the CDR and the call locations contradict the whole story.The CDR and the call locations filed by the prosecution for mobile nos. 9811328172 and 9873836607 allegedly recovered from A-1 shows that the said mobile was at Sarai Kale Khan at 7:32 pm and at Bhairon Marg on 7:32:47 pm, which is approximately 6-7 kms.Criminal Appeal Nos. 527 of 2014, 529 of 2014 & 607 of 2014 Page 23 of 57from the place of arrest shown by the prosecution.from the place of arrest and 8-10 kms.from Sarai Kale Khan.(v) Although the place of arrest was a busy public place with many markets, shops etc. being there, PW-17 did not bother to involve any public witness.(vi) The signature of A-1 on the different memos and notice under Section 50 NDPS Act were forged by the IO.Reliance has been placed on the decisions in Vijaysinh Chandubha Jadeja v. State of Gujarat (2011) 1 SCC 609, Rakesh @ Shanker v. State (decision dated 8th January 2014 in Crl.PW-17 uploaded the said transcripts in his computer on 24th January 2008, i.e. after 2 months and 22 days.The voice samples along with the said CD and DVD made from the said copies were sent to CFSL on 6th October 2008, i.e., 8 months after taking the sample, but it had not been verified by the FSL Lab as to whether the CD was an original one or a fake one.(ix) The recoveries were planted on the accused.There was discrepancy in the depositions of PWs 13 and 16 as to whether the case property was deposited in the Malkhana or MHMC Malkhana was called to the office handed over the properties recovered.(x) PW-17 stated that he had opened the sealed pulanda on 4th April 2007 without permission of the Court, and then took out Rs. 27,000, while keeping Rs. 1,740 there.A question arose as to how Criminal Appeal Nos. 527 of 2014, 529 of 2014 & 607 of 2014 Page 25 of 57 he knew that Rs. 27,000 were fake currency, whereas Rs. 1,740 were genuine.Moreover, Ms. Deepa Sharma (PW-12), the FSL expert deposed that she received Rs. 27,000 in loose condition.Criminal Appeal Nos. 527 of 2014, 529 of 2014 & 607 of 2014 Page 25 of 57(xi) The linking evidence regarding chain of events of the source from which the contraband was produced and its final destination was not proved.(xiii) As per judicial as well as other records, the time of arrest of A-1 on 23rd March 2007, was 7:30 pm the CDR for mobile number 9873836607 showed that A-1 was still making calls to A-2 at around 19:41:07 pm to 19:41:35 pm (call No.8629).Further, DW-4 deposed that at around 19:32:47 pm he was in Bhairon Marg and not Ganesh Nagar.If, as per DW-4, the said mobile remained switched off w.e.f. 12:03 noon on 15th March 2007, there was no need to obtain any sanction for interception of such call.The circumstance in which A-3 was arrested was also doubtful.He was arrested on 26th July 2008 while he had already been arrested Criminal Appeal Nos. 527 of 2014, 529 of 2014 & 607 of 2014 Page 26 of 57 in FIR No. 77/07 with the same Special Cell.This happened after the report of the handwriting expert was received by the learned trial Court on 5th May 2008, which showed that the signature of A-1 on various documents were forged whereupon the prosecution panicked and to do damage control, made A-3 an accused in the cases.Criminal Appeal Nos. 527 of 2014, 529 of 2014 & 607 of 2014 Page 26 of 57He had complained against ASI Ombir Singh, who was then dismissed from service after a departmental inquiry.Apart from reiterating many of the above submissions, Mr. Gautam, learned counsel for A-2 pointed out inconsistencies in the prosecution witnesses as to the time and place of arrest and the steps taken thereafter.It was pointed out that the mobile phone remained with the IO for a long time.Therefore, his statement could not be said to be voluntary.Mr. Gautam submitted that inasmuch as the case property was taken to the office and not deposited at the nearest PS, an adverse inference ought Criminal Appeal Nos. 527 of 2014, 529 of 2014 & 607 of 2014 Page 27 of 57 to be drawn against the police.There was no evidence to prove that A-2 was a member of the KZF.The mobile phone seized from A-2, i.e., 9821060613 was not in his name.It was not shown to him either.Criminal Appeal Nos. 527 of 2014, 529 of 2014 & 607 of 2014 Page 27 of 57Mr. Anurag Jain, learned counsel appearing for A-3, submitted that he was falsely implicated in this case.The mobile conversations which allegedly took place between the accused persons were false, and concocted.Criminal Appeal Nos. 527 of 2014, 529 of 2014 & 607 of 2014 Page 28 of 573 were missing.There was no evidence to show that A-3 had entered into a criminal conspiracy with the other accused to deal in trafficking of fake currency, arms and ammunition and heroine.He further stated that he handed over the parcels to MHC (M) HC Mahavir Singh (PW-5) who affirmed the same.As regards the deposit of parcels and FSL forms, PW-Criminal Appeal Nos. 527 of 2014, 529 of 2014 & 607 of 2014 Page 29 of 578 stated that four samples sealed with the seal of HS and PNS along with FSL forms were handed over to PW-11 by a road certificate.PW-11 affirmed the same and stated that he deposited the samples with FSL Rohini.PW-14 affirmed that she received the four sealed parcels along with FSL form and specimen seal impression as HS and PNC for chemical examination.According to Mr. Katyal, the site plan (PW-17/A) when read in consonance with the evidence of the witnesses shows that there was no discrepancy as regards the place of apprehension at the spot.The reports under Section 57 NDPS Act (Ex.PW-6/C) & Ex.PW-6/E) having the receiving of office of ACP, Special Cell, NR were also proved by Ex.PW6/D and F.As regards the mobile phones used by A-2, Mr. Katyal pointed out that from the CDR of Mobile No. 9871060613 it was apparent that it was being used on both the mobile phones i.e., Nokia 2300 (IMEI 355361003085245) having a SIM of Airtel and Nokia 8310 (IMEI 350700106948921) having SIM of Hutch.The mobile Phone No. 9999579926 was admittedly in the name of A-2 himself that was used on Nokia 8310 as evidenced from the CDR.As regards A-1, the mobile instrument is Motorola 5960 (IMEI 358612004213070) with the SIM of Criminal Appeal Nos. 527 of 2014, 529 of 2014 & 607 of 2014 Page 30 of 57 Hutch.The second phone was recovered from A-1 was Nokia 1110 with IMEI 354540018396 as 6223) with the SIM of Hutch.On these mobile instruments the mobile numbers of 9888979849 and 9811328172 were used.The third was Sony Eriksson with the IMEI 354244013209750 having a SIM of Hutch.Till placing on record the intercepted conversations, A-2 took the stand that the mobiles were not recovered from them.The intercepted conversations showed that A-1 and A-2 knew each other very well and were involved in some clandestine activity.Neither the CDRs nor the voice interceptions could be manipulated with the mobile phone.Criminal Appeal Nos. 527 of 2014, 529 of 2014 & 607 of 2014 Page 30 of 57As regards the beatings given to A-1 and A-2, Mr. Katyal pointed out that during police custody of A-1 and A-2, they were produced before doctors for their medical check-up and in none of the reports there was any complaint made regarding the alleged beatings.Criminal Appeal Nos. 527 of 2014, 529 of 2014 & 607 of 2014 Page 31 of 57It was pointed out that the retraction statements of A-2 showed that when he was produced before the Court, he did not complain of any torture.The plea that they were kept standing outside the Court of the learned MM, when remand was sought, was not substantiated.Inspector Preetam Singh (PW-24), SHO, PS Sidhwa Bet confirmed that A-3 had been arrested in FIR No. 164 of 2007 and mobile phones and other materials had been recovered from him.Mr. Katyal took the Court through the various interception orders.The intercepted calls were copied on DVD/CD and were seized by seizure memo.He Criminal Appeal Nos. 527 of 2014, 529 of 2014 & 607 of 2014 Page 32 of 57 submitted that the trial Court had extensively dealt with the evidence on record and had rightly convicted them in the manner indicated hereinabove Electronic evidence and Section 65-B of the Evidence ActCriminal Appeal Nos. 527 of 2014, 529 of 2014 & 607 of 2014 Page 32 of 57Among the critical pieces of evidence the intercepted conversations on the mobile phones allegedly used by the three accused and the call detail records (CDRs) of those phones.PW-1 revealed some facts to PW-16 by keeping his operation to be secret.Criminal Appeal Nos. 527 of 2014, 529 of 2014 & 607 of 2014 Page 34 of 57PW-1 stated that he was given permission only on 2nd April 2008 to hand over the intercepted phone conversations transcriptions in a pen drive to SI Upender Solanki (PW-17).The conversations between the accused persons were intercepted and provided to the office of the Special Cell.They were translated into Hindi.Since A-3 knew only Gurumukhi, the calls pertaining to him were translated.Criminal Appeal Nos. 527 of 2014, 529 of 2014 & 607 of 2014 Page 35 of 57When the DVD prepared by PW-17 (Ex.P-26) for reference was produced, defence counsel objected to it in view of Section 65B EA.They also objected to marking of CD (Ex.PW-29) containing the questioned conversation with the specimen voice sample taken of A-3 during investigation.The transcripts of those conversations were also exhibited as Ex.P30 to Ex.Likewise, the CD containing the selected calls of each of the other accused were tendered in evidence.They too were objected to by the defence counsel.Those conversations were nevertheless played in Court and transcripts thereof also produced.In his cross-examination PW-17 stated as under:"The original device on which the intercepted call records pertaining to this case was not sent for examination to the FSL.I was only given the pen drive in which the said intercepted call details were copied by SI Harbir Singh.I did not see from where these call details were copied.PW-17 further stated as under:Criminal Appeal Nos. 527 of 2014, 529 of 2014 & 607 of 2014 Page 36 of 57An application was filed by the prosecution before the trial Court under Section 311 Cr PC.In the further examination-in-chief, PW-17 stated as under:"After SI Harbir Singh handed over the said pen drive to me at about 7 pm and I copied the data from the same in the hard disk of the computer system that I was using at that time.Since the calls ran into thousands, it took me almost three months to hear all the calls and thereafter, I copied all the calls in DVD Ex.P26 and the relevant calls in the CDs Ex.P29, P36, and P38 (the CDs and the DVD will be heard by this Court during the final arguments).I had returned the pen drive to SI Harbir Singh on 2 nd April 2008 itself and after copying the data in the computer system.I had copied the data in a file which could only be accessed by using the password which was known to me only.Nobody could have accessed to file made by me without my knowledge.During the three months period, no fault occurred in the computer system in which the relevant file was stored and neither was the said file corrupted in any manner.I state that the calls recorded in the CDs and the DVDs Ex.I have no personal knowledge whether Harbir Singh could have tampered or manipulated the data in the pen drive.I did not Criminal Appeal Nos. 527 of 2014, 529 of 2014 & 607 of 2014 Page 37 of 57 at any time hear the original intercepted calls.I did not seize the hard disk of the original computer system from which the intercepted calls were copied."I did not have access to any such record.A separate folder was prepared.In effect what was happening in the process was that electronic data was copied from one device to a pen drive.When he was examined in detail it became apparent that what was being spoken of was the making of further copies of those copies.The original remained on a server which none of the other persons had occasion to access.No such person was examined in the present case.It has also come in the evidence of PW-17 himself that "I did not at any time make an enquiry whether the original computer monitoring system which was recording the intercepted call had a breakdown or not."Criminal Appeal Nos. 527 of 2014, 529 of 2014 & 607 of 2014 Page 41 of 57The other piece of electronic evidence is the intercepted mobile conversations.PW-28 Dr. Rajinder Singh, the CFSL expert, who analysed the voice samples stated in his cross-examination: "The intercepting machine was not sent to us and the questioned sample was sent in a cassette." As far as Inspector Sandip Malhotra (PW-30) is concerned, his evidence is to the effect that he was the administrative head of the system which was used for monitoring the calls.The password of the said system remained with him.He opened the system using the password and in his presence PW-1 copied the relevant calls." In his cross-examination by counsel for A-1, he stated "I was throughout present with SI Harbir Singh when he copied the data from the monitoring system.It took about 8-9 hours to copy the data.It further declared:Case against A-3As far as the case of A-3 Sukhwinder Singh @ Sukhi (the Appellant in Crl.A. No. 607 of 2014) is concerned, the entire case of the prosecution against him is based on electronic records.It may be recalled that Sukhwinder was already arrested in some other case when the investigation of the present case was underway.Initially, the FIR did not include the name of Sukhwinder.Therefore, as far as A-3, Sukhwinder @ Sukhi is concerned, the entire electronic records have to be kept out of consideration.There is no dispute that as far as A-3 is concerned, there is absolutely no other evidence to connect him to the two accused, i.e., A-1 and A-2 and to bring home the charges framed against him after the filing of the supplementary chargesheet.In the view of the matter, the impugned judgment of the trial Court convicting A-3, Sukhwinder @ Sukhi for the offences with which he was charged with cannot be sustained.Criminal Appeal Nos. 527 of 2014, 529 of 2014 & 607 of 2014 Page 45 of 57Case against A-1 and A-2The members of the raiding team who were present at the spot and have deposed in this behalf are SI Harbir Singh (PW-1), SI Ramvir (PW-4), HC Ajay Kumar (PW-10) and Inspector Anil Dureja (PW-16) who was heading the raiding team.Criminal Appeal Nos. 527 of 2014, 529 of 2014 & 607 of 2014 Page 46 of 57The case of the prosecution is that from the polythene bag carried by A-1, two packets of 1 kg each of heroin was seized.Also from the personal search of A-1, PW-1 recovered one pistol, 1 magazine and 18 live cartridges.From the back bag carried by A-2, two packets of 1 kg each of heroin were recovered.Thereafter, PW-17 conducted personal search of both the accused, wherein he recovered from A-1, Rs. 28,740 consisting of 27 currency notes of Rs. 1,000 denomination and from A-2 Rs. 2,025 consisting of two currency notes of Rs. 1,000 denomination.The third set of recoveries were made from the personal search of both the accused.A perusal of the trial Court judgment shows that extensive reliance has been placed on the intercepted telephone conversations which were produced by the police with the supplementary chargesheet.The trial Court reproduced the intercepted conversations in paras 43 and 44 and also relied upon the evidence gathered from the intercepted conversations which were recorded in the CDs in paras 46 toOn the aspect of arrest of A-1 and A-2, the genesis of the case assumes significance.Compliance with Section 42 NDPS is thrown into doubt on account of the fact that in the supplementary charge sheet the Criminal Appeal Nos. 527 of 2014, 529 of 2014 & 607 of 2014 Page 47 of 57 prosecution has come up with the theory that the information regarding the possible handing over of narcotics by A-1 and A-2 to a Nigerian was chanced upon while tapping the mobile conversations.This is very different from the secret informer giving that information to Anil Dureja.Criminal Appeal Nos. 527 of 2014, 529 of 2014 & 607 of 2014 Page 47 of 57Compliance with Section 50 and the evidence of the handwriting expertCriminal Appeal Nos. 527 of 2014, 529 of 2014 & 607 of 2014 Page 48 of 57Para 54 of the trial Court judgment deals with evidence of the handwriting expert Mr. T. Joshi of CFSL, Chandigarh examined as CW-1. A-1's specimen writings and signatures were collected and sent to CW-1 for examination.As such, it is not been possible to link the authorship of the mark Q-1 to Q-11 with the standard writing S-1 to S-4, AS-1 and AS-2."CW-1 further categorical stated "I could not link the authorship of questioned writing Mark Q-1 to Q-11 with the standard writing Mark S-1 to S-4, AS-1 and AS-2".In his further cross-examination he stated that "the writing features that were observed in the questioned writings were not observed in the standard writing as we consider the strokes, curvatures, alignment and other parameters were different in the questioned and standard writings but one of the parameter, i.e., pressure could not studied from the questioned signature and meaning thereby the writing features of questioned documents and standard writing could not be linked." When asked to elaborate what was the parameter which was lacking, he clarified "The parameter was the greater pressure in the Criminal Appeal Nos. 527 of 2014, 529 of 2014 & 607 of 2014 Page 49 of 57 questioned writing not in the standard writing and the same cannot be asked from the agency."It was for the prosecution to explain under what circumstances different signatures, other than those of A-1, appeared on those documents.The trial Court took exception to both A-1 and A-2 tearing up the notices under Section 50 NDPS Act that were served on them.In this context, the plea of the accused that they were subject to torture while in custody assumes significance.On the aspect of torture of both A-1 and A-2 while in custody, the trial Court failed to appreciate the evidence in that regard.It merely called for a report and directed the Police Commissioner to hold an enquiry to determine who the erring police officials were and thereafter to take necessary action against them.The trial Court overlooked the fact that normally the accused is unable to produce any direct evidence to make the good the plea that he was tortured in the police custody.In this case however apart from taking the plea in his statement under Section 313 Cr PC that he was tortured in the police custody he also produced a defence witness Dr. Anand Kumar, Medical Officer in Tihar Jail (DW-1).DW-1 produced the medical record of A-2 (Ex.He categorically stated "on examination, pattern Criminal Appeal Nos. 527 of 2014, 529 of 2014 & 607 of 2014 Page 51 of 57 bruises were found present over the left of the back and he was prescribed medication for the pain.As per the in and out register record, this accused was examined by then medical officer Dr. Rakesh.He was not shaken in his cross-examination.He further clarified "The first medical examination of an accused admitted in jail is conducted immediately on the entering of the accused in the jail premises and he is not allowed to go inside the jail premises without the said examination and therefore the injuries mentioned on the first examination record of an accused cannot ever be received by him inside the jail."Criminal Appeal Nos. 527 of 2014, 529 of 2014 & 607 of 2014 Page 51 of 57Nothing significant was elicited by the APP in the cross-examination of DW-1 and DW-5 to discredit their testimony.The Court concludes that both A-1 and A-2 have probablised their version that they were subjected to torture in police custody.Consequently, their so-called confessional statements could hardly be taken to be voluntary.The defence evidence ought not to have been overlooked while assessing the Criminal Appeal Nos. 527 of 2014, 529 of 2014 & 607 of 2014 Page 52 of 57 story of the prosecution about both A-1 and A-2 being apprehended from the spot i.e., outside the public toilet near Patparganj.Criminal Appeal Nos. 527 of 2014, 529 of 2014 & 607 of 2014 Page 52 of 57Contradictions in evidence of PWs as to the place of arrestIn para 56 of the trial Court judgment, the various contradictions pointed out in the statements of the prosecution witnesses have been dismissed by holding that it has no major significance which goes to the root of the matter.These inconsistencies pertain to certain important aspects regarding the place from where both the accused A-1 and A-2 were apprehended.According to the prosecution both the accused were intercepted when they were outside the public toilet near Ganesh Nagar crossing.This implied that they had come from the Laxmi Nagar side.However, none of the witnesses had spoken in one voice on this aspect.It has been pointed out that Anil Dureja (PW-16) in his cross-examination stated that the deployment of the police personnel was near the Mother Dairy on both sides.He did not remember what the distance was between the Ganesh Nagar chowk and the Mother Dairy.The distance between the Laxmi Nagar bridge and the Mother Dairy is stated to be 150 meters.The distance between the toilet at Ganesh Nagar and the Mother Dairy is almost 50 meters.If the police personnel were deployed within 10-15 meters on Mother Dairy then it is clear that they were not at the spot where the two accused were.PW-10 on the other hand stated that he had taken the position near the 'roundabout' near Mother Dairy.There was in fact no roundabout within 50 meters from the bridge.Even PW-1 talks about taking position near the crossing of the gol chakkar after getting Criminal Appeal Nos. 527 of 2014, 529 of 2014 & 607 of 2014 Page 53 of 57 down from the over bridge.There is no gol chakkar at that spot.The site plan filed by the prosecution does not show any gol chakkar.Criminal Appeal Nos. 527 of 2014, 529 of 2014 & 607 of 2014 Page 53 of 57The further contradictions are that while PW-1 stated that both the accused came to the place from the Laxmi Nagar side, PW-4 stated that they came from the Shakarpur side.Even if both Shakarpur and Laxmi Nagar bridge are on the same side, this is contradicted by PW-10 who states that they approached the place from the Patparganj side which is opposite to the Laxmi Nagar side.It is also clear that with respect to the recovery of three things from the personal search of the accused i.e. fake currency notes, the mobile phones and the pistol and live cartridges, the seizure and recovery memos had to be proved beyond reasonable doubt by the prosecution.With the signatures of A-1 on the said documents not being proved beyond reasonable doubt the prosecution has been unable to establish whether the seizures took place in the manner indicated.There is another aspect of the recoveries which has completely been missed by the trial Court.PW-16 has stated that he deposited the recoveries in the malkhana, whereas, PW-13 stated that he called the MHC(M) HC Mahavir Singh and handed over the articles to him.PW-17 states that he took out Rs.27,000/- from the sealed pullandas and kept back Rs.1740 there.In his cross examination, PW-17 states that "It is correct that fact that the sealed envelope which was opened to take out the notes was preserved was not mentioned Criminal Appeal Nos. 527 of 2014, 529 of 2014 & 607 of 2014 Page 54 of 57 in my records.I do not remember whether the envelop used by me for keeping the balance of Rs 1740 was the same envelope in which the original amount of Rs 28740 was kept.It is correct that no description of the seal which was affixed on the said envelop has been mentioned in Ex. PW4/A. Even on 4 th April 2007, I had not verified the contents of the case property but had only opened the pullandas of jamatalashi.I do not remember whether I had even broken the seal on the envelope containing the currency notes or I had managed to take out the notes without breaking the said seals.I do not remember whether I had resealed the envelope.I do not know how the remaining currency notes were kept.It is incorrect to suggest that no counterfeit currency was recovered from the accused".Criminal Appeal Nos. 527 of 2014, 529 of 2014 & 607 of 2014 Page 54 of 57109. PW-17 fails to explain how he knew that Rs.27,000 which he had taken from there were the fake currency notes and that the rest of the amount was of counterfeit.Ms. Deepa, Assistant Director FSL Rohini (PW-17) stated that she received the notes (29 notes of 1000 each, 27 recovered from A-1 and 2 from A-2) in loose condition.This is again a serious lapse on the part of the prosecution.While one mobile phone seized from A-3 was shown to belong to him, the prosecution failed to connect the mobile phones recovered from A-1 and A-2 with them.The relevant records show who the subscriber to the SIM was but not whose photo was on the customer application.Those subscribers were not examined as witnesses.It appears to the Court that the trial Court proceeded essentially on the basis of the intercepted conversations and the transcripts of those conversations and therefore overlooked the serious lacunae as far as the other evidence is concerned.Criminal Appeal Nos. 527 of 2014, 529 of 2014 & 607 of 2014 Page 55 of 57It is seen that the trial Court discarded the evidence of A-2 that the motorcycle was seized from the parking lot.It noted that in his bail application A-2 took a stand different from what he stated in his statement under Section 313 Cr PC.In his bail application, he claimed that up to the Lal Qila signal, he himself drove the motorcycle following SI Ramesh Sharma and thereafter he was forced to accompany them in a car.Finding these pleas to be to be contrary, the trial Court drew an adverse inference against him.The Court finds this approach of the trial Court to be an unsafe one to adopt in a criminal case where an accused has a fundamental right against self- incrimination.Apart from saying that it was perhaps thrown away by the accused, there appears to be no effort made to recover the key from near the place of interception.When viewed in the background of the totality of the prosecution case, this appears to be a significant lacuna.Each of the above aspects when considered separately may not be sufficient by themselves to create a doubt about the case of the prosecution, but when viewed in totality, the prosecution evidence cannot be said to inconsistent with the innocence of the accused and point unmistakably to their guilt.The records be returned to the trial Court forthwith. | ['Section 120B in The Indian Penal Code'] |
A perusal of the CD file shows that the Child Welfare Committee,Kanyakumari District, also after examining the detenu and the unwillingnessof the parents of the detenu to take the detenu back to their home, entrustedthe custody of the minor detenu with the fifth respondent, namely,R.Jeyarani, W/o.Ramu, who is the sister of the petitioner herein.The documents produced by the learned Additional Public Prosecutorshows that the detenu in her own handwriting wrote a letter stating that sheis not ready and willing to go with her parents and yet another statementgiven by the fifth respondent, namely, R.Jeyarani, W/o.Ramu, shows that sheis prepared to take care of the detenu at her home.Therefore, the ChildWelfare Committee keeping in mind the fact that the detenu is a minor, took adecision to send her back to her parental home.But, peculiarly andsurprisingly, the parents expressed their unwillingness to take the detenu totheir home for the reason that the fourth respondent has been frequentlygiving phone calls threatening them not to interfere with the life of thedetenu.Therefore, the detenu was sent along with the fifth respondent, whois the sister of the petitioner.It is seen that the registration of the case against the fourthrespondent has ultimately ended in granting anticipatory bail to him by theFast Track Mahila Court, Kanyakumari at Nagercoil.We are surprised to seethat how this is possible for the Mahila Court to grant anticipatory bail tothe fourth respondent, who is said to have kidnapped a minor girl.In view of the above stated facts and circumstances, since theparents are not willing to take back the detenue with them, we areconstrained to send the detenu, namely, Jesila, to Vidiyal Home, Muthupatti,Near Palanganatham, Madurai, till she attains the age of 18 years.Wedirect the Authorities of the Home not to permit the fourth and the fifthrespondent at any point of time, to see the detenu.With above directions, this Habeas Corpus Petition is closed.1.The Superintendent of Police, O/o.The Superintendent of Police, Kanyakumari District.5.The Superintendent, Vidial Home, Muthupatti, Near Palanganatham, Madurai..[Order of the Court was made by T.RAJA, J.] The petitioner, namely, K.Vijayarani, the mother of the detenu, namely,Jesila, has come to this Court seeking a Writ of Habeas Corpus, directing therespondents No.1 to 3 to produce the person or body of the Petitioner's minordaughter, namely, Jesila (17/17), D/o.Kannan @ Morris, before this Court andset her at liberty.2.The learned counsel appearing for the petitioner submitted that thepetitioner, her husband and the detenu are residing peacefully.Takingadvantage of the fact that the petitioner's husband is a physicallychallenged person, who has lost his hands and one leg in an accident, thefourth respondent Mr.M.Neveen forcibly knocked the door of the petitioner'shouse at 11.30 p.m., on 10.09.2016 and opened the door and finally, kidnappedthe petitioner's minor daughter at knife point.The petitioner's husband,who is a physically challenged person was unable to stop the said illegalactivity made by the fourth respondent, who is already a married man andhaving two children.In themeanwhile, the fourth respondent has obtained Anticipatory Bail byapproaching the Fast Track Mahila Court, Kanyakumari at Nagercoil, inCr.Now, the Inspector of Police, All Women Police Station, Kanyakumari, is conducting investigation inthat case.Pursuant thereto, the detenu was secured and producedbefore us.Parents of the detenu and the fifth respondent, who is sister of thepetitioner also appeared before us.After a formal interrogation with thefather and mother of the detenu, the parents have expressed their difficultyin taking the detenu back to their home citing a reason that everyday, thefourth respondent, namely, M.Naveen is frequently visiting the fifthrespondent's house, wherein the detenu has been taking shelter and he hasbeen giving unnecessary phone calls to the parents of the detenu threateningthat if they further interfered with the life of the detenu, they would bedone away with.In view of the said statement, we posed a question to the parents ofthe detenu, since the detenu is minor as on today, her custody should betaken by them as legal guardian.The parents of the detenu jointly repliedstating that they are not in a position to take the custody of the detenuapprehending further complications for the reason that the police had nottaken any legal action against the fourth respondent when they reported tothe police station on receipt of threatening phone calls from the fourthrespondent.At this point of time, the learned Additional Public Prosecutor hasproduced the CD file.We are also giving liberty to the parents of the detenu to approachthe jurisdictional police station for police protection if situationwarrants.If any such complaint is lodged by the parents of the detenu, theconcerned Police Officers are directed to register a case against theintruder.2.The Inspector of Police, Ethamozhi Police Station, Kanyakumari District.3.The Inspector of Police, South Thamaraikulam Police Station, Kanyakumari District.4.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai. | ['Section 366 in The Indian Penal Code'] |
Shri G.G. Bade.The appeal is already listed for final hearing today.The appeal is taken up for final hearing.2] The appellant assails the judgment and order dated 05.04.2002 in Sessions Case 33/1998, by and under which, the Ist::: Uploaded on - 08/09/2017 ::: Downloaded on - 10/09/2017 01:54:47 ::: apeal232.02.J.odt 2 Ad hoc Additional Sessions Judge, Gadchiroli convicted the appellant for offence punishable under section 435 and 436 of Indian Penal Code and imposed sentence of rigorous imprisonment for three years and payment of fine of Rs.500/-.3] Shri G.G. Bade, the learned counsel appearing for the appellant (hereinafter referred to as "the accused") would submit that the judgment impugned is manifestly erroneous and occasions serious miscarriage of justice.He would urge that the prosecution has made no attempt to prove the very sine quo non for constituting offence under section 435 or 436 of Indian Penal Code.::: Uploaded on - 08/09/2017 ::: Downloaded on - 10/09/2017 01:54:47 :::::: Uploaded on - 08/09/2017 ::: Downloaded on - 10/09/2017 01:54:47 :::Mischief by fire or explosive substance with intent to cause damage to amount of one hundred or (in case of agricultural produce) ten rupees.-- Whoever commits mischief by fire or any explosive substance intending to cause, or knowing it to be likely that he will thereby cause, damage to any property to the amount of one hundred rupees or upwards [or (where the property is agricultural produce) ten rupees or upwards], shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.Classification of offence.-- The offence under this section is cognizable, bailable, non-compoundable and triable by Magistrate of the first class.Mischief by fire or explosive substance with intent to destroy house, etc.-- Whoever commits mischief by fire or any explosive substance, intending to cause, or knowing it to be likely that he will thereby cause, the destruction of any building which is ordinarily used as a place of worship or as a human dwelling or as a place for the custody of property, shall be punished with [imprisonment for life], or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.Classification of Offence.-- The offence under this section is cognizable, non-bailable, non- compoundable and triable by Court of Session.The first ingredient which the prosecution is required to establish is that mischief is committed.Mischief is defined in::: Uploaded on - 08/09/2017 ::: Downloaded on - 10/09/2017 01:54:47 ::: apeal232.02.J.odt 4 section 425 of I.P.C. thus:::: Uploaded on - 08/09/2017 ::: Downloaded on - 10/09/2017 01:54:47 ::: apeal232.02.J.odt 5::: Uploaded on - 08/09/2017 ::: Downloaded on - 10/09/2017 01:54:47 :::The prosecution was therefore, statutorily mandated to prove that the accused set afire his own hut with the intention to cause, or with the knowledge that he is likely to cause, wrongful loss or damage to the public or to any person.7] I have scrutinized the record to ascertain as to what weighed with the learned Sessions Judge in recording a finding that charge under section 435 and 436 of I.P.C. is brought home by the prosecution, but in vain.The prosecution case is that the accused set afire to his own hut which admittedly was located on government land.It is not the case of the prosecution that there were any hut or dwelling around or in the immediate vicinity and that the accused intended to cause damage or loss to some other building or dwelling or property and with such intent set afire his own hut.The learned A.P.P. makes an attempt to support the judgment impugned by contending that one Shamrao Kisan Dhore had kept his tur sticks (fodder) in the open land in the vicinity of the hut of the accused.The person who allegedly kept the fodder near the hut of the accused is not examined.Nothing is brought on record by the prosecution to suggest much less conclusively prove that the intent of the accused in burning down his own hut was to cause loss to any other person.::: Uploaded on - 08/09/2017 ::: Downloaded on - 10/09/2017 01:54:47 ::: apeal232.02.J.odt 6 8] I must also record, that three witnesses who allegedly witnessed the incident were examined by the prosecution.Out of the three witnesses P.W.1 admits in the cross-examination that he did not witness the accused doing the act.Even P.W.5 also admits in the cross-examination that he did not witness the accused burning down the hut.He states that he heard shouts, saw the accused running and some persons chasing him and therefore, joined the chase.I must observe, that not only is the prosecution a miserable failure in proving the basic ingredient of section 435 and 436 of I.P.C., as noted supra, even the evidence on record is grossly insufficient to prove, much less proved beyond reasonable doubt that accused set afire to his own hut.::: Uploaded on - 08/09/2017 ::: Downloaded on - 10/09/2017 01:54:47 :::9] I am afraid that the judgment impugned is manifestly erroneous.It is a matter of some concern that neither the learned Sessions Judge nor the battery of defence counsel, applied mind to the scope and ambit of section 435 and 436 of I.P.C. nor did they make any attempt to find out or ascertain from the material on record as to whether the basic ingredient of 435 and 436 of I.P.C., which is that mischief must be committed, is established.::: Uploaded on - 08/09/2017 ::: Downloaded on - 10/09/2017 01:54:47 ::: apeal232.02.J.odt 7 10] The appeal is allowed.The accused is acquitted of offence punishable under section 435 and 436 of I.P.C.::: Uploaded on - 08/09/2017 ::: Downloaded on - 10/09/2017 01:54:47 :::::: Uploaded on - 08/09/2017 ::: Downloaded on - 10/09/2017 01:54:47 ::: | ['Section 436 in The Indian Penal Code'] |
found that there was prima facie case against six persons, namely, Virbal, Bihari, Shishupal, Kandiya, Gangadhar and Gyasiya and he fixed the date for further proceedings against these six persons.Subsequent to the filing of this private complaint, in respect of the same matter, the Police filed a Challan Under Section 307, IPC against five persons, namely, Bihari, Shishupal, Gyasiya, Ramchand and Manphool.Of these Bihari, Shishupal, Gyasiya, are common accused in the complaint and the Challan.All the accused filed an application before the trial Court that both the complaint case and the Challan of the Police should be tried together.The Magistrate rejected this application against which the accused filed a revision before the Additional Sessions Judge, who has referred the case to the High Court. | ['Section 417 in The Indian Penal Code'] |
A.No.120/2011 Page 1 of 18A.No.120/2011 Page 1 of 18On 24.07.2005 at about 04.00 or 04.15 A.M. ASI Jaipal Singh, Head Constable Jagdish Prasad and Constable Raj Rao were on duty in PCR van at Madhuban Chowk, Rohini.An informer told them about hearing cries of a woman from a park towards Deepali Chowk.Immediately, they went to the spot and found a man committing rape upon a lady while the other wearing kurta-pyjama had caught hold of her hands.Constable Raj Rao apprehended him when he attempted to escape.The person who was performing sex with the lady was apprehended by ASI Jaipal Singh.Daily Diary (DD) No.9A was recorded at Police Station, Rohini.SI Harjinder Rana went to the spot and took custody of the appellants.She recorded ASI Jaipal Singh's statement and lodged First Information Report.Prosecutrix 'G' (assumed name) and both the appellants were taken to Sh.Baba Sahib Ambedkar Hospital (in short 'BSA) for medical examination.Statements of the witnesses conversant with the facts were recorded.The exhibits were sent to Forensic Science Laboratory.Pursuant to the appellant's disclosure statements their involvement in case FIR No.338/2005 under Section 457/380 IPC at Police Station, Rohini surfaced and their correct names were ascertained Virender @ Lala and Kailash.The prosecutrix 'G' was admitted for treatment at IHBAS.After completion of investigation, a Crl.A.No.120/2011 Page 2 of 18 charge-sheet was filed against the appellants.A.No.120/2011 Page 3 of 18 emerged in the testimonies of PCR officials as to where they were stationed; at what distance the spot of occurrence was and at which specific place the prosecutrix was found.There were residential houses nearby, but no independent public witness was associated.It is highly unbelievable that none of the residents would hear cries of the lady from the nearby park.The appellants have not challenged their presence and apprehension by PCR officials on the relevant date and time.They claimed that they had confrontation with the PCR officials and were falsely implicated when they did not accede to their demand to pay illegal gratification.A-2 had consumed liquor and it was detected during medical examination (Ex.PW4/B).A-2 in 313 statement admitted that they were drunk.They did not elaborate when and at which place, they had consumed liquor.DD No.9A (Ex.PW-15/K) recorded at 04.31 a.m. at Police Station Rohini reveals that two men have been apprehended with a lady in the park, near Deepali Chowk from where her cries were coming.The prosecutrix 'G' a hapless lady lived alone on the footpath.She was mentally retarded.Kuldeep Singh, recorded in the MLC (Ex.PW-4/A) that she was talking 'irrelevantly'.Considering her mental condition, she was sent to IHBAS for examination.On 28.07.2005, after considering report from IHBAS, she was admitted there for treatment.She was diagnosed having 'Unspecified Psychosis'.The Investigating Officer was not able to record her statement under Section 161 Cr.P.C. She was taken to Dr.Baba Saheb Ambedkar Hospital, Rohini at 07.20 a.m. on 24.07.2005 where her MLC (Ex.PW-4/A) was prepared.The MLC records that she was a victim of rape at about 03.45 P.M. that Crl.A.No.120/2011 Page 5 of 18 day.He disclosed that at about 04.15 A.M. they got information from a vehicle owner that he had heard cries of a lady from a park at Deepali Chowk.When they reached in the park at A-3 Block, Sector-8, Rohini, they saw 'G' was lying naked on the ground and was crying.A boy wearing kurta-pyjama had caught hold of her hands and the other person was performing sex with her.The boy wearing kurta-pyjama attempted to escape but was caught hold by Constable Raj Rao.The man who was in naked condition was caught hold by him.Their names were ascertained Ravinder and Satyawan @ Sultan.He apprised the control room.Local police arrived at the spot.The occurrence took place at 4/4.15 A.M. First information Report was lodged promptly without any delay at 06.00 A.M. ASI Jaipal Singh attributed specific role to the each accused in his statement Ex.PW2/A given to the police at the earliest- soon after the incident.While appearing as PW-2, he (ASI Jaipal Singh) proved the said version without any variation and deposed that on 24.07.2005, he was posted at PCR, North-West Zone.On getting information from some vehicle owner Crl.A.No.120/2011 Page 6 of 18 at about 04.00 a.m. about hearing cries of a lady in the park near Deepali Chowk, he informed PCR Commander for further direction to reach the spot.On reaching in the park at A-3 Block, Sector -8, Rohini, they saw a lady crying.Two persons were there, one of them had caught hold of her hands while the other was committing rape upon her.The lady was asked to put on her clothes.On inquiry from the victim, he came to know that she was not of stable mind.SI Harjinder Rana reached the spot with senior officers and recorded his statement (Ex.PW-2/A).In the cross- examination, he stated that the distance between Madhuban Chowk and Deepali Chowk was 2.5 kilometer.He fairly admitted inability to furnish description of the informer.He was not able to refer to the make of the car.They entered inside the park from the ring road side.There were trees in the park.SI Harjinder Rana reached the spot after half an hour.He stayed there uptill 08.30 A.M. He further admitted that he did not hand over any report regarding calls made to headquarters.There were lights in the park.Information to the local police was sent around 04.15 a.m. He denied that the accused going in the car, were stopped at Madhuban Chowk and money was demanded from them.The place of occurrence was residential area.He was not aware if the accused's car was parked near the place of incident or not.On scanning his deposition, Crl.He had no prior animosity with the accused to falsely implicate them in the incident.The investigation was carried out subsequently by local police at Rohini and PCR officials had no say to fabricate the evidence.He and his colleagues had reached the spot in the performance of their official duties and were able to apprehend the accused with the lady.No suggestion was put in the cross-examination that he was not on official duty that time.Thereafter, they rushed to the spot.They saw that a man was committing sex with a lady Crl.A.No.120/2011 Page 8 of 18 and another person wearing kurta-pyjama had caught hold of her hands.The lady was crying.On seeing them, the person who had caught hold the lady's hands tried to run away.He immediately apprehended him and his name was ascertained Ravinder.The person committing rape was apprehended by ASI Jaipal Singh.He was not wearing any clothes at that time.He disclosed his name Satyawan.The prosecutrix was unable to furnish her details and it appeared that she was mentally retarded.ASI Jaipal directed her to wear her clothes.After 10-15 minutes, local police arrived and recorded their statements.In the cross-examination, he explained that the person who gave the information had come in a car at around 04.00 a.m. ASI Jaipal had not noted down the description of the person and the car.It had taken 7-8 minutes to reach the spot.They left the spot after 10-15 minutes on arrival of the Investigating Officer.He denied that the accused were implicated as they refused to pay bribe to them.He admitted that there were residential houses around the place of incident.Material facts regarding the incident remained unchallenged in the cross-examination of this witness.No suggestion was put to him that he with ASI Jaipal Singh had not gone to the park and prosecutrix 'G' was not recovered from there.It was not specifically put as to which of the Crl.They came back along with a lady and two persons.He identified both the appellants A-1 and A-2 brought by ASI Jaipal Singh and Constable Raj Rao.Message was given to the control room and police official of police station Rohini reached the spot.In the cross-examination, he stated that he remained at the spot for about ten minutes.He further stated that their statements are recorded by the Investigating Officer.Again nothing was suggested to PW-1 that ASI Jaipal Singh and Constable Raj Rao had not gone inside the park and had not returned with the prosecutrix and the appellants.She deposed that when she was sleeping on the road on footpath, two men took her to a park 'when morning was to commence'.One of them caught hold of her and the other did 'jabardasti' with her.She further elaborated that the said person opened his pants and removed her salwar and did 'galatkam' with her forcibly.Then PCR van came and the police officials got her released from those two men.She identified and re-cognized Kailash who committed rape upon her and Virender who had caught hold of her hands.The incident took place around 04.30 a.m. She could guess the time by 'seeing stars'.She elaborated that she was woken up by two persons present in the court and they dragged her.She did not shout as both of them did 'jabardasti' with her.PW-4/A).There is no conflict between the ocular and medical evidence.They did not furnish their correct particulars and gave incorrect names.Subsequently, it was found that their correct name were Virender and Kailash.Both had consumed liquor.They did not explain their presence in the park at odd hours with the prosecutrix.The appellants who had consumed liquor exploited innocence of a mentally retarded lady whose mental faculties were under developed and who lived alone on footpath.They took her to a nearby park to satisfy Crl.A.No.120/2011 Page 16 of 18 their lust and committed rape upon her.Due to her metal conditions, she was not able to put resistance.A young lady leading a vagabond life was subjected to gang rape under the cover of her mental condition.The appellants Virender @ Lalla @ Bhura (A-1) and Kailash @ Satyawan @ Sultan @ Kala (A-2) challenge judgment dated 13.12.2010 in Sessions Case No.109/2009 arising out of FIR No.729/2005 registered at Police Station Rohini by which they were convicted for committing offences punishable under Section 376 (2) (g) IPC.By an order dated 04.01.2011, they were sentenced to undergo RI for ten years with fine of `5,000/- each.They were duly charged and brought to trial.The prosecution examined 15 witnesses to substantiate the charges.In their 313 statements, the appellants pleaded false implication.On appreciating the evidence and considering the rival contentions of the parties, the Trial Court, by the impugned judgment held both the appellants perpetrators of the crime and sentenced them.A.No.120/2011 Page 2 of 183. Learned counsel for the appellants urged that there was no legal evidence against the appellants to base conviction.The Trial Court did not appreciate the evidence in its true and proper perspective and fell into grave error in relying upon the testimonies of police witnesses with whom the appellants had an altercation on demand of bribe.Statement of the prosecutrix was not recorded during investigation.In her cross- examination, she categorically admitted that she was tutored by the Investigating Officer.Presence of ASI Jaipal Singh, Head Constable Jagdish Prasad and Constable Raj Rao at the spot is highly doubtful.No log book/register maintained in the vehicle was produced.The informer was not cited as a witness.The prosecution witnesses were unable to disclose the name of the informer and the vehicle in which he was travelling.The MLC and FSL reports do not establish appellants' involvement in the incident.Vital contradictions and inconsistencies have Crl.Test Identification Proceedings were not conducted.Learned Additional Public Prosecutor urged that the prosecutrix's statement has been corroborated by PCR officials and there are no good reasons to discard their statements.A.No.120/2011 Page 3 of 18I have considered the submissions of the parties and have examined the Trial Court record.They did not specify as to which of the police official Crl.A.No.120/2011 Page 4 of 18 had demanded bribe from them.PCR officials came into motion when an unknown informer disclosed that he had heard cries of a woman in the park at Deepali Chowk.Both the appellants were apprehended from the park with the lady.There was no occasion for the PCR officials to have confrontation with the appellants at Madhuban Chowk.It lends credence to the prosecution version that she was found in the park and was a victim of sexual assault.A.No.120/2011 Page 4 of 18A.No.120/2011 Page 5 of 18The Investigating Officer lodged First Information Report on the statement of ASI Jaipal Singh (Ex.PW-2/A).The accused did not deny their apprehension with the lady from the park.PW-2 (ASI Jaipal)'s statement that rape was being committed upon the lady while the other had caught hold of her hands has remained uncontroverted and unchallenged in the cross-examination.A.No.120/2011 Page 6 of 18A.No.120/2011 Page 7 of 187. PW-8 (Constable Raj Rao), another police official posted in PCR van has corroborated PW-2's testimony in entirety.He also deposed that on 24.07.2005 he was posted in PCR vehicle stationed near Madhuban Chowk.At about 04.15 A.M. some vehicle owner informed ASI Jaipal that a lady was crying in a park, Sector-8, Rohini.ASI Jaipal Singh immediately sent a message to command room.A.No.120/2011 Page 9 of 18 PCR officials had demanded bribe and for what reason.PW-8 was not acquainted with the accused prior to the incident.A.No.120/2011 Page 8 of 18A.No.120/2011 Page 9 of 188. PW-1 (Head Constable Jagdish Prashad) has supplemented the statements of PW-2 and PW-8 on material facts.He also deposed that on 24.07.2005, he was on duty with ASI Jaipal Singh and Constable Raj Rao in PCR vehicle Commander 41 parked at Madhuban Chowk.On 04.00 A.M. the informer told them that he had heard cries of a woman from the side of Deepali Chowk park.He along with other staff went near the park at A-3 Block, Sector-8, Rohini.ASI Jaipal Singh and Raj Rao went inside the park.PW-1 had no ulterior motive to fabricate a false story.A.No.120/2011 Page 10 of 18A.No.120/2011 Page 10 of 18All the three police witnesses PW-1, 2 and 8 have corroborated each other on vital facts.They were not nurturing any grievance or ill-will with the appellants to falsely implicate them in the heinous offence.They were posted on duty in PCR van and on getting information about the commission of a serious offence, in the discharge of their official duties, they rushed to the spot and were able to apprehend the appellants and the lady with whom the sexual assault was committed.The Trial Judge put preliminary questions to her to ascertain if she was capable to give rational answers and was mentally fit to depose.She further deposed that she was taken to the hospital where she was examined.She identified her clothes (Ex.P-1) seized at the hospital.In the cross-examination she stated that the incident took place about three months back.She used to reside permanently on the road.She had no jhuggi or pucca residence.Nobody else resided with her on the road at that time.Five police officials were present in the police vehicle.She further stated that the police vehicle came when she was on the road.She admitted that she identified Kailash and Virender at the instance of the Investigating Officer.She further admitted Crl.A.No.120/2011 Page 13 of 18 that she did not know the accused prior to the incident.They were shown to her by the Investigating Officer when she attended the court on earlier two dates.She further admitted that when the incident took place she was not mentally fit.She denied the suggestion that Kailash did not commit rape upon her and the accused Virender had not caught hold of her.She further denied that the statement was made falsely by her at the instance of Investigating Officer.Prosecutrix's statement, who was mentally retarded, is to be examined as a whole.The whole of the evidence in chief and cross examination has to be read together to find out the truth.Mere reading of a portion of the cross examination, ignoring the chief examination would be misleading.It is true that at some places in the cross-examination she has admitted that both the accused were shown to her by the Investigating Officer and she identified them at her instance.PW-7 is a poor hapless lady who was leading a vagabond life.She used to sleep on footpath.She belonged to the poor section of the society.She was illiterate and rustic witness.She was not expected to recapitulate all minute details of the incident correctly and exactly.However, she was categorical in her deposition before the Court that Kailash committed rape while Virender caught hold of her.In the cross-examination no suggestion was put to her that Kailash and Virender were not found in the Crl.A.No.120/2011 Page 14 of 18 park with her.Nothing was suggested that the prosecutrix was not subjected to sexually assault or that the police officials had not recovered her from the park with the accused.The case was investigated by the police officers of police station Rohini who were having no animosity with the accused.PW-7 'G' was also not acquainted with the accused to falsely identify them at the instance of the investigating officer.She attributed specific role to the each accused.She corroborated statements of PWs 2 and 8 on all material facts.Her testimony consistently matches with the version of every other witness.Minor deviation in the cross- examination on some aspects does not efface her entire deposition.In the decision reported as State of Himachal Pradesh V.Asha Ram AIR 2006 SC 381, Supreme Court highlighted the importance to be given to the testimony of the prosecutrix as under:-A.No.120/2011 Page 12 of 18A.No.120/2011 Page 13 of 18A.No.120/2011 Page 14 of 18"........It is now well-settled principle of law that conviction can be founded on the testimony of the prosecutrix alone unless there are compelling reasons for seeking corroboration.The evidence of a prosecutrix is more reliable than that of an injured witness.The testimony of the victim of sexual assault is vital unless there are compelling reasons which necessitate looking for corroboration of her statement, the Courts should find no difficulty in acting on the testimony of a victim of sexual assault alone to convict an accused where her testimony inspires confidence and is found to be reliable.Even minor contradictions or insignificant discrepancies in the statement of the prosecutrix should not be a ground for throwing out an otherwise reliable prosecution case.A.No.120/2011 Page 15 of 18Her version that she was sexually assaulted finds reflection in MLC (Ex.PW-4/A).PW-4 (Dr.Kuldeep Singh) examined her on 24.07.2005 at 07.20 a.m. She was taken to hospital by SI Harjinder Rana.In the MLC it is recorded that she was a victim of sexual assault.She was referred to senior gynecologist and was examined by Dr.PW-6 (Dr.Nidhi Tiwari) identified signatures of Dr.Shilpa at point 'X' on MLC (Ex.A.No.120/2011 Page 16 of 18Minor contradictions, discrepancies and improvements highlighted by the counsel for the appellants are inconsequential.They are not of such magnitude to materially affect the trial.These deviations on trivial matters without effecting the core of the prosecution case are not enough to reject her testimony in its entirety.Their presence with the prosecutrix inside the park has been established and proved beyond reasonable doubt.Both were apprehended at the spot and were taken to hospital for medical examination.Their vehicle was seized at the spot.Non-examination of informer or independent public witness from the locality is not fatal.The informer set the police machinery into motion.He was not a witness to the occurrence and had heard unusual cries of the lady from the park at odd hours.The Trial Court has dealt with appellant's contention regarding FSL report, absence of injuries etc. minutely and no interference is called for to disturb the said findings.In their 313 statements, the appellants did not offer plausible explanation to the incriminating circumstances proved against them.It is unbelievable that both the appellants would be falsely implicated in heinous offence on their Crl.A.No.120/2011 Page 17 of 18 alleged refusal to pay bribe to the PCR officials.PW-7 'G' had no extraneous consideration to identify the accused as culprits.The testimony of all the witnesses including the prosecutrix is consistent and inspires confident.A.No.120/2011 Page 17 of 18In the light of the above discussion the appeal lacks merits and is dismissed.Trial Court record be sent back forthwith.(S.P.GARG) JUDGE May 10, 2013 sa Crl.A.No.120/2011 Page 18 of 18A.No.120/2011 Page 18 of 18 | ['Section 380 in The Indian Penal Code', 'Section 457 in The Indian Penal Code'] |
He has further submitted that on 3.10.2007 the mother of the deceased Sapna Goel along with other near relatives had given an application in writing to the ACP, Tilak Nagar, Delhi that the post mortem on the dead body of her daughter Sapna Goel be waived and the dead body be handed over to them for cremation.He further stated that it is mentioned in the application that deceased Sapna Goel was Crl.P. No. 13/2010 Page No. 1 of 4 happy in her matrimonial home and there was no complaint against the accused persons.So keeping in view the application moved by her mother and other relatives no case is made out against the accused persons.He has further submitted that Dr. L.C. Gupta who has conducted the post mortem is a tainted doctor and some enquiries were pending against him so no reliance can be placed on the report of the post mortem of the said doctor.This revision petition has been filed by the petitioners u/s 397/401 Cr.P.C. read with section 482 Cr.P.C. with a prayer that the order dated 30.9.2009 (Order on Charge) and 17.11.2009 (framing of Charge) whereby the learned trial Court has framed Charge against the petitioners under section 302/34 IPC may be set aside and quashed.He has further submitted that learned trial Court had wrongly framed Charge and the petitioners are liable to be discharged.P. No. 13/2010 Page No. 1 of 4On the other hand learned counsel for the State stated that there is sufficient material on record for framing of Charge against the petitioners and the learned trial Court has rightly framed Charge against all the accused persons on the basis of statement recorded by the police of the mother of the deceased and various other near relatives who have made serious allegations against all the petitioners having killed the deceased.I have heard learned counsel for the parties and perused the record.Although the mother of the deceased Sapna Goel had moved an application before ACP that the post mortem on the dead body of her daughter be waived but it was only because of the fact that she and other near relatives were present at the house of the accused persons and when the I.O S.I. Dharmpal arrived there the accused persons had told her mother and the other relatives and also the police officer that Sapna Goel was drying cloths on the roof of the house and due to giddiness she fell down from the roof and died.Thereafter at the instance of the accused persons an application was moved in writing to ACP, Tilak Nagar, Delhi, for waiving of post mortem of deceased.All the accused persons also moved a similar application to the police for Crl.P. No. 13/2010 Page No. 2 of 4 waiving of post mortem giving the same story in the application.S.I Dharmpal reached the spot when the accused persons were about to take the dead body of the deceased for cremation.S.I Dharampal reached the spot on the basis of a DD No. 21A dated 3.10.2009 wherein somebody had informed the police that a lady has died on account of hanging.On the receipt of this DD, SI Dharampal reached the spot but the S.I. refused to waive of the post mortem and thereafter post mortem was got conducted by Dr. L.C. Gupta on the following day at 4.10 p.m and Dr. L.C. Gupta has given his opinion regarding cause of death as under:-P. No. 13/2010 Page No. 2 of 4Dr. L.C. Gupta has given a clear finding in the post mortem report that all the injuries are ante mortem in nature and homicide cannot be ruled out.So from the findings of doctor in the post mortem report it is clear that this is a case of homicide and the injuries on the dead body are ante mortem in nature and possibility of homicide cannot be ruled out.The arguments of the learned counsel for the accused cannot be accepted that there are some allegations against doctor and some enquiry is pending.Post mortem report cannot be rejected merely on this ground.The mother of the deceased gave statement to the police leveling serious allegations against all the accused persons.Similarly statements of other witnesses have also been recorded by the police in which they Crl.P. No. 13/2010 Page No. 3 of 4 have leveled serious allegations against the accused persons.Police also recorded statement of one Tara Chand Gupta, the Nana of the deceased under section 161 Cr.P.C. He told to the police in his statement that on 2.10.2007 he had received a telephone call from Sapna Goel at about 11 p.m. wherein she wanted to meet him on the following day.He further submitted that he wanted to know the reasons from Sapna Goel but she told him that her Nanand namely Lata and her husband Sanjeev were present in the house so she will told everything on the day when they will meet and the telephone was dis-connected.The police also recorded statement of Priyansi, minor daughter of the deceased under section 161 Cr.P.C. who told the police that on the date of incident her Bua Lata and Sajeev were present in the house and her Bua had made her ready to go to the school when she asked Bua about the well being of her mother she told that she was sleeping as she was not well.Presence of petitioners Lata and Sanjeev has been confirmed by this witness Priyanshi.The police also took 42 photographs of the deceased at the time of the post mortem and these photographs also show the presence of injuries on her neck etc.P. No. 13/2010 Page No. 3 of 4After going through the statements of the witnesses and the post mortem report, I am satisfied that learned trial Court has rightly framed Charge against the petitioners under section 302/201/34 IPC.There is no merit in the revision petition8. Dismissed.P. No. 13/2010 Page No. 4 of 4 | ['Section 34 in The Indian Penal Code', 'Section 302 in The Indian Penal Code', 'Section 201 in The Indian Penal Code'] |
The instant bail application has been filed with a prayer to enlarge the applicant on bail in Case Crime No. 47 of 2020, under Sections 60/63 U.P. Excise Act, and 420 IPC, Police Station Haldaur, District Bijnor, during pendency of trial.(ii) The applicant shall remain present before the trial court on each date fixed, either personally or through his counsel.In case of his absence, without sufficient cause, the trial court may proceed against him under Section 229-A of the Indian Penal Code.(iii) In case, the applicant misuses the liberty of bail during trial and in order to secure his presence proclamation under Section 82 Cr.P.C. is issued and the applicant fails to appear before the court on the date fixed in such proclamation, then, the trial court shall initiate proceedings against him, in accordance with law, under Section 174-A of the Indian Penal Code.(iv) The applicant shall remain present, in person, before the trial court on the dates fixed for (i) opening of the case, (ii) framing of charge and (iii) recording of statement under Section 313 Cr.P.C. If in the opinion of the trial court absence of the applicant is deliberate or without sufficient cause, then it shall be open for the trial court to treat such default as abuse of liberty of bail and proceed against him in accordance with law.(v) The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad.(vi) The computer generated copy of such order shall be self attested by the counsel of the party concerned.(vii) The concerned Court/Authority/Official shall verify the authenticity of such computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing.The order reads thus:"Looking to impediments in arranging sureties because of lockdown, while invoking powers under Article 226 and 227 of the Constitution of India, we deem it appropriate to order that all the accused-applicants whose bail applications came to be allowed on or after 15th March, 2020 but have not been released due to non-availability of sureties as a consequence to lockdown may be released on executing personal bond as ordered by the Court or to the satisfaction of the jail authorities where such accused is imprisoned, provided the accused-applicants undertakes to furnish required sureties within a period of one month from the date of his/her actual release."Order Date :- 8.9.2020 Mukesh Kr. | ['Section 174A in The Indian Penal Code', 'Section 229A in The Indian Penal Code'] |
Briefly stated, case of the prosecution is that on the night intervening 11 th and 12th February 1989 PW-1 Laik Ram, who was security supervisor in Ishvaku India Pvt. Ltd., visited police post Prashant Vihar at around 3.00 AM and informed that on the fateful night at about 2.30 AM when he had gone to check his security staff at Plot No.4, Sector-9, Rohini he was informed by Villan Jamadar that one Surat Ram has been murdered in the jhuggies of Sain Baba Housing Society.On the basis of Crl.A.Nos.17/95, 21/95, 106/95 Page 2 of 21 said information, FIR No.31/1989 under Section 302 IPC was registered at Police Station Samepur Badli.Crl.A.Nos.17/95, 21/95, 106/95 Page 2 of 21ASI Inder Singh also conveyed the information to the SHO and proceeded to the spot of occurrence.SHO Inspector Rati Ram also reached there, and found that the dead body of Surat Ram was lying on a cot in his Jhuggi.The cot as well as the mattress thereupon were stained with blood.Blood stained cot Ex.P-1 and mattress Ex.P-2 were converted into sealed packets and taken into possession.Investigating Officer lifted blood from the spot on a piece of cotton and sealed it in a phial and also took into possession the blood stained earth and the control earth from the spot.He found a green coloured printed saree Ex.P-3 smeared with blood at the roof of adjoining jhuggi which was also converted into a sealed packet and taken into possession.The Investigating Officer got the spot of occurrence photographed and also prepared a rough site plan.He also arranged for sending the dead body for post mortem.During investigation, statement of PW-2 Villan Jamadar was recorded wherein he named the appellants Munna Lal, Sohan Sahai and Asad Bai as the persons who had committed murder of Surat Ram.Dead body of the deceased was sent for post mortem.It is further the case of the prosecution that appellant Munna Lal was arrested on 14th February 1989 and on his disclosure and pointing out, blood stained knife/churri Ex.P-4 as also his blood stained kurta and lungi Ex.P-5 and P-6 were recovered, which were converted into sealed Crl.A.Nos.17/95, 21/95, 106/95 Page 3 of 21 packets, and taken into possession.Thereafter, on the same day appellant Sohan Sahai was arrested.He was wearing a blood stained shirt Ex.P-9 which was taken into possession.She made a disclosure statement and in furtherance thereof she got recovered her blood stained petticoat and blouse Ex.P-7 and P-8 which were seized by the police.On 17th February 1989, after the post mortem, a sealed packet containing blood stained clothes of the deceased was also handed over to the police.All those blood stained articles including the weapon of offence were sent for serological examination.Except for petticoat Ex.P-7 and blouse Ex.P-8 of Asad Bai and blood stained earth lifted from the spot of occurrence, which tested positive for blood group `B, all other exhibits tested positive for blood group `O. The knife Ex.P-4 was sent for opinion of the doctor who conducted the post mortem and he opined that the injuries found on the person of deceased Surat Ram could have been caused by the knife Ex.P-9 which appellant Sohan Sahai was found wearing at the time of arrest.He has also drawn our attention to serological reports Ex.It would be seen that PW4 Kul Bahara in his testimony, inter alia, stated thus:These three appeals are directed against the judgment as also order on sentence both dated 31st October 1994 passed by learned Additional Sessions Judge in Sessions Case No.18/1994 arising out of FIR No.31/1989 under Section 302/34 IPC, P.S. Samepur Badli.Learned trial Judge vide aforesaid judgment and order on sentence has convicted the appellants for the offence punishable under Section 302 read with section 34 of the Indian Penal Code (in short `IPC) and sentenced them to undergo imprisonment for life and also to pay a fine of Rs.500/- each and, in default of payment of fine, to undergo further simple imprisonment for a period of three months respectively.His statement to that effect was recorded by ASI Inder Singh and sent to the police station for registration of the case.After completion of the investigation, all the three appellants were forwarded for trial under Section 302/34 IPC.Crl.A.Nos.17/95, 21/95, 106/95 Page 3 of 21The learned counsel for the appellants has taken us through the judgment and pointed out that learned Additional Sessions Judge has recorded conviction of the appellants relying upon following evidence/circumstances:-(a) Eye witness account of the occurrence given by PW-3 Villan Jamadar.Crl.A.Nos.17/95, 21/95, 106/95 Page 4 of 21(b) Believing the evidence of motive to the effect that appellant Asad Bai wanted to perform second marriage of her daughter Mangli Bai with appellant Sohan Sahai in consideration of Rs.1500/- whereas deceased Surat Ram was against it and wanted Mangli Bai to go back to her husband.(c) The extra judicial confession made by the appellant in presence of PW4 Kul Bahara.(d) Recovery of blood stained weapon of offence i.e. knife/churri Ex.P.4 at the instance of Munna Lal as also recovery of his blood stained kurta Ex.P-5 and lungi Ex.P-6;(e) Recovery of blood stained shirt Ex.P-9 from the person of accused Sohan Sahai;(f) Recovery of blood stained petticoat and blouse Ex.P-7 and Ex.8 at the instance of accused Asad Bai;(g) Serological reports Ex.P-13/1 to Ex.P-13/4, which establish that blood stains on the clothes of Munna Lal and Sohan Sahai as also on the knife/churri Ex.P-4 matched with the blood stains on the clothes of the deceased, the cot and the mattress and blood lifted from the place of occurrence, as all those exhibits had stains of blood group `O.Learned counsel for the appellants has assailed the impugned judgment on the ground that learned trial court has erred in relying upon the testimony of purported eye witness PW-3 Villan Jamadar whose narration, about the manner in which murder took place, is highly unnatural, bordering on fiction and whose presence at the spot is highly doubtful.She has further submitted that the Crl.A.Nos.17/95, 21/95, 106/95 Page 5 of 21 learned trial Judge, though, he has relied upon the testimony regarding extra judicial confession, has failed to take note of the fact that PW-4 Kul Bahara in his cross examination has stated that Asad Bai had confessed about her guilt at the police station.She has argued that since the alleged confession was made while in custody at the police station, it is inadmissible in evidence.Learned counsel for the appellants has further contended that the evidence of the prosecution regarding the recovery of the weapon of offence and blood stained clothes at the instance of respective appellants is highly doubtful.She has also drawn our attention to the serological report Ex.PW-13/1 to Ex.PW-13/4 and pointed out that except for the blood stains on the blouse Ex.P-7 and the petticoat Ex.P-8 of Asad Bai and the blood stained earth sample lifted from the spot, which tested positive for blood group `B, all other samples tested positive for blood group `O. She has submitted that this mis-match between the blood stains found on the exhibits, casts doubt on the prosecution case and in particular indicates that someone else who was having blood group `B was there at the spot of occurrence but, there is no explanation forthcoming as to who that person was, whose blood was found in blood stained earth lifted by the Investigating Officer from the spot.Thus, she has argued that a possibility cannot be ruled out that some other person with blood group `B was responsible for the murder of Surat Ram.She has also argued that evidence to prove motive is also not reliable and is liable to be rejected.Crl.A.Nos.17/95, 21/95, 106/95 Page 5 of 21Crl.A.Nos.17/95, 21/95, 106/95 Page 6 of 21Learned counsel for the State, on the other hand, has argued in favour of the conclusions arrived at by the learned Additional Sessions Judge.He has submitted that the learned Additional Sessions Judge has rightly relied upon the testimony of PW3 Villan Jamadar, who is a natural witness being a resident of a nearby jhuggi and who had no motive whatsoever to falsely implicate the appellants for the murder of the deceased Surat Ram, which version also finds support from other circumstantial evidence.In support of this contention, he has drawn our attention to the testimony of PW3 Villan Jamadar and PW4 Kul Bahara and submitted that from their evidence, it is amply proved on record that there was a motive on the part of the appellants Asad Bai and Sohan Sahai to kill the deceased, who was not agreeable to second marriage of his daughter Mangli Bai with the appellant Sohan Sahai.P4, blood stained lungi Ex. P-5 and kurta Ex. P-6 of appellant Munna Lal, at his instance, as also the recovery of blood stained petticoat and blouse of appellant Asad Bai Exhibits P-7 and P-8 at her instance and also recovery of blood stained shirt Ex.PW13/1 to Pw13/4 and submitted that the blood stains found on knife/churri Ex.P-4, saree of Asad Bai Ex.P-3, lungi and kurta of appellant Crl.A.Nos.17/95, 21/95, 106/95 Page 7 of 21 Munna Lal Exhibits P-5 and P-6 and shirt of appellant Sohan Sahai Ex.P-9 tested positive for human blood of group "O" and those blood stains matched with the blood group of the deceased Surat Ram lifted from the spot in a phial and also the blood stains found on cot Ex.P-1 and mattress Ex.P-2 on which the dead body was found.Thus, he has argued that the learned Additional Sessions Judge has rightly relied upon the testimony of PW3 Villan Jamadar which finds corroboration from above referred circumstantial evidence of motive as also confession of the appellant Asad Bai and the recovery of the blood stained weapon of offence and clothes at the instance of respective appellants and urged us to dismiss the appeals.Crl.A.Nos.17/95, 21/95, 106/95 Page 7 of 21We have carefully considered the submissions made by the learned defence counsel as also the learned counsel for the State.His testimony, however, does not appear to be trustworthy.Firstly, because, the witness in his examination-in-chief has stated that on the fateful night at around 2.00 A.M., he had gone out of his jhuggi to urinate.He heard some noise coming from the jhuggi of Surat Ram, therefore, he peeped into the jhuggi, and he saw in the light of an earthen lamp (diya) that appellant Sohan Sahai was holding Surat Ram by his legs, appellant Asad Bai was holding him by her hands and Munna Lal was cutting his neck with a Crl.A.Nos.17/95, 21/95, 106/95 Page 8 of 21 churri.On seeing this, he went running to Laik Ram, Security Guard of the company and narrated the entire incident to him.Thereafter, he went along with Laik Ram to the police post.If above version of the witness was true, then in the rukka Ex.PW1/A wherein the statement of Laik Ram was recorded, the names of the appellants and the details about the manner in which murder of Surat Ram was committed would have found mention in the statement of Laik Ram Ex. PW1/A recorded at the police post.However, it is noted, that though aforesaid statement Ex.PW1/A records that PW 3 Villan Jamadar told Laik Ram that Surat Ram has been murdered in the jhuggis of Sain Baba Housing Society, there is no mention of the names of the culprits and the details about the manner in which murder was committed.Secondly, PW3 Villan Jamadar, in his cross- examination, has stated that when Munna Lal was cutting the throat of the deceased slowly with the knife/churri, nobody had put his or her hand on the mouth of the deceased.If the aforesaid version was true then definitely the deceased must have cried with pain and even physically resisted the appellants.In such eventuality, obviously, the nearby jhuggi dwellers would have heard the cries of the deceased and reached the spot of occurrence, which is not the case.Even there is nothing in the testimony of the Investigating Officer to suggest that he found any sign of resistance given by the deceased at the spot of occurrence.Therefore, we do not find it safe to rely upon the testimony of PW3 Villan Jamadar, which is highly unnatural and bordering on fiction.Otherwise also, Villan Jamadar in his cross-examination has stated that he Crl.A.Nos.17/95, 21/95, 106/95 Page 9 of 21 accompanied PW1 Laik Ram to the police post for lodging the report.If he was an eye witness to the occurrence and had gone to the police post with one Laik Ram, for lodging the report, his entire version should have found mention in the report Ex. PW1/A lodged by PW1 Laik Ram.Crl.A.Nos.17/95, 21/95, 106/95 Page 8 of 21Crl.A.Nos.17/95, 21/95, 106/95 Page 9 of 219. Learned counsel for the State has submitted that Asad Bai was wife of the deceased Surat Ram, therefore, it can be safely inferred that she, being the wife, was present in the jhuggi of Surat Ram on the fateful night.He has argued, thus it was obligatory upon her, in view of Section 106 of the Indian Evidence Act, 1872, to explain in her statement under Section 313 Cr.P.C., as to where she was on the fateful night or what happened in the jhuggi which resulted in murder of the deceased.He has argued that, since Asad Bai has failed to come out with any explanation in that regard, it provides a strong additional incriminating circumstance against her.The prosecution must stand or fall on its own legs and it cannot derive any strength from the weakness of the defence.To properly appreciate the contention of learned counsel for the State, it is necessary to reproduce para 17 of the said judgment, which reads thus:Crl.A.Nos.17/95, 21/95, 106/95 Page 10 of 21We have been taken through the entire evidence on record.The medical evidence on record clearly proves that the death of Kalwati and her two minor daughters was homicidal caused by strangulation.The cause of death was asphyxia."when the police had taken away Asad Bai on account of murder of her husband, the police also took me from my jhuggi at about 12.00 night and at the police station Asad Bai had confessed that she had murdered her husband, in my presence"Crl.A.Nos.17/95, 21/95, 106/95 Page 12 of 21From the aforesaid version, it is apparent that purported extra judicial confession, if at all it was made, was made by Asad Bai at the police station while she was in custody.Thus, in our view the learned trial court has erred in relying upon the testimony of PW4 Kul Bahara relating to extra judicial confession made by the appellant Asad Bai.It would be noticed that the Additional Sessions Judge has also believed the evidence of the prosecution regarding motive on the parts of the appellants to kill the deceased Surat Ram.The story of the prosecution as per the charge sheet is that Mangli Bai daughter of Asad Bai was married to PW4 Kul Bahara.She returned from her matrimonial home after 15 days.Asad Bai did not wish her daughter Mangli Bai to go back to her husband Kul Bahara and she wanted to marry her to the appellant Sohan Sahai in consideration of Rs.1500/-, whereas the deceased Surat Ram was opposed to the idea and he wanted Mangli Bai to go back to her husband and there used to be fight between Asad Bai and the deceased Surat Ram on the said issue.To prove the aforesaid motive, prosecution has examined two witnesses PW3 Villan Jamadar and PW4 Kul Bahara.PW3 Villan Jamadar in his cross-examination on behalf of the appellant Asad Bai was unable to tell about the exact nature of conversation which used to take place between Surat Ram and Asad Bai regarding their daughter Mangli Bai, and in the later part of the cross-examination, he has Crl.A.Nos.17/95, 21/95, 106/95 Page 13 of 21 admitted that he was never present during such conversations.In his examination-in-chief also he has stated that he used to hear that Asad Bai wanted to marry their daughter Mangli Bai again, whereas Surat Ram wanted to send her to her previous husband.However, he has not clarified in his cross- examination from whom he had heard that but, he is categoric that he never heard any conversation between Asad Bai and the deceased Surat Ram regarding their daughter Mangli Bai.Therefore, it is obvious, that PW3 Villan Jamadar is not an eye witness to any such discord between the appellant Asad Bai and the deceased and his testimony regarding the motive part is only hearsay, and, therefore, is inadmissible in evidence.Crl.A.Nos.17/95, 21/95, 106/95 Page 13 of 21Another witness examined by the prosecution to prove motive on the part of the appellants Asad Bai and Sohan Sahai to kill the deceased Surat Ram is PW4 Kul Bahara.We may mention at the outset that PW4 Kul Bahara falls within the category of an interested witness because according to him 15 days after his marriage with Mangli Bai, his mother-in-law (appellant Asad Bai) took her back to her house and never sent Mangli Bai back to her matrimonial home.From this, it can be inferred that witness might be nursing a grudge against the appellant Asad Bai as she was not allowing her daughter to go back to her matrimonial home.Had he actually been witness to such a transaction, he would at least have known the name of the person with whom Mangli Bai was supposed to be remarried.Further, to prove above referred point of discord between appellant Asad Bai and her deceased husband Surat Ram, the best witness could be Mangli Bai herself.Mangli Bai, however, has neither been cited nor examined as a witness to prove the motive.Since prosecution has opted to withhold the best evidence by not producing her as a witness, we are inclined to infer that had she been examined as a witness, her version would have gone against the prosecution.Therefore, under the circumstances, we are of the view that the evidence led by the prosecution to establish motive on the part of the appellants Asad Bai and Sohan Sahai, is not reliable, and that the learned Additional Sessions Judge has erred in concluding that there was a motive on the part of the appellant to kill the deceased.Crl.A.Nos.17/95, 21/95, 106/95 Page 14 of 21Coming to the recovery of the weapon of offence knife/churri Ex.P-4 and blood stained lungi Ex.P-5 and kurta Ex.P-6 at the instance of accused Munna Lal.To prove aforesaid recovery, prosecution has relied upon the Crl.A.Nos.17/95, 21/95, 106/95 Page 15 of 21 statements of the Investigating Officer PW13 Inspector Rati Ram, PW12 Constable Anang Pal Singh and PW 2 Pratap Chand Mandal.Crl.A.Nos.17/95, 21/95, 106/95 Page 15 of 21PW 2 Pratap Chand Mandal has stated in his examination-in-chief that accused Munna Lal was arrested by the police on 14th February, 1989 and he made a disclosure statement to the police stating that he could get recovered one white shirt and lungi and knife.Thereafter, he led the police party to jhuggi opposite the jhuggi of the deceased and got recovered knife/ churri Ex.He has stated that recovered articles were taken into possession vide memo Ex.2/B, which bears his signatures at point "A".Perusal of the record would show that though the recovery memo Ex.2/A bears the signatures of PW2 Pratap Chand Mandal, neither the disclosure statement of Munna Lal Ex.12/A nor his personal search memo Ex.P-12/B bears signatures of this witness.Had this witness been present at the time of arrest of Munna Lal and when he made disclosure, under natural circumstance, the Investigating Officer would have obtained his signatures on the personal search memo as well as the disclosure statement of the appellant Munna Lal, being an independent witness.Since his signatures are not there on the arrest memo Ex.PW12/B and disclosure statement Ex.PW12/A, his presence at the time of the recovery of Exhibits P-4 to P-6 is doubtful.Otherwise also, PW13 Inspector Rati Ram in his entire testimony has nowhere stated that PW2 Pratap Chand Mandal was with him on 14th February 1989, when he received information Crl.A.Nos.17/95, 21/95, 106/95 Page 16 of 21 about the presence of the appellant Munna Lal at his jhuggi, or that he subsequently joined him in the investigation to witness the recovery of weapon of offence and blood stained clothes of the appellant Munna Lal Exbts P-4 to P- 6 at his instance.On the other hand, in his cross-examination he has stated that when he arrested Munna Lal, he did not join any independent witness from the nearby jhuggis to his arrest.Therefore, it remains unexplained as to when PW2 Pratap Chand Mandal came to be joined as witness and under what circumstances he signed the pointing out-cum-recovery memo Ex.12/A as also the sketch of the knife Ex.2/A. Even the testimony of Constable Anang Pal Singh who is supposed to be other witness of recovery of weapon of offence and clothes Exbts.P-4 to P-6 on the pointing of appellant Munna Lal, does not give any clue as to how and when PW2 Pratap Chand Mandal came to be joined as a witness to the recovery at the instance of appellant Munna Lal.In view of the aforesaid circumstances, we are of the opinion that presence of PW2 Pratap Chand Mandal at the time of recovery is highly doubtful and that being so, the testimony of PW12 Constable Anang Pal Singh and PW13 Investigating Officer Inspector Rati Ram also becomes doubtful and unreliable.Thus, we do not find it safe to rely upon the aforesaid evidence of recovery of witness and blood stains clothes at the instance of Munna Lal.Crl.A.Nos.17/95, 21/95, 106/95 Page 16 of 21If the evidence pertaining to recovery of above said articles at the instance of Munna Lal fails, then the evidence of the prosecution regarding Crl.A.Nos.17/95, 21/95, 106/95 Page 17 of 21 recovery of the blood stained shirt from the person of accused Sohan Sahai as also the blood stained petticoat and blouse at the instance of Asad Bai becomes doubtful, because of the same reasons.Otherwise also, the prosecution story, as narrated by the Investigating Officer Inspector Rati Ram, to the effect, that at the time of arrest accused Sohan Sahai was wearing blood stained shirt Ex.P-9 appears to be highly improbable, because had prosecution version about murder of Surat Ram been true, under natural course of circumstances, the first impulse of the appellant accused would have been either to get rid of the shirt or to wash it in order to remove the blood stains from the shirt, instead of moving around wearing the blood stained shirt.Thus, in our view, even the evidence of recovery of blood stained shirt from the person of the accused Sohan Sahai is highly doubtful.Crl.A.Nos.17/95, 21/95, 106/95 Page 17 of 21Even if the recovery of petticoat and blouse Exhibits P-7 and P-8 at the instance of appellant Asad Bai is accepted, then also it is of no help to the prosecution because as per the serological report, the blood found on the petticoat and the blouse Exbts.P-7 and P-8 was of group "B" which did not match with the blood group "O" found on the samples lifted and seized from the spot of occurrence, as such those clothes are not connected to the murder of the deceased Surat Ram.Crl.A.Nos.17/95, 21/95, 106/95 Page 18 of 21Crl.A.Nos.17/95, 21/95, 106/95 Page 18 of 21Lastly, it would be seen from the serological report Ex.13/3 that though the case of the prosecution is that the blood group of the deceased Surat Ram was O, the blood stained earth lifted from the spot of occurrence tested positive for the blood group B. That being the case, a possibility of someone having blood group B been present at the spot of occurrence or having been involved in the killing of the deceased Surat Ram cannot be ruled out.From the record, including the testimony of the Investigating Officer Inspector Rati Ram, it is apparent that Investigating Officer has not cared to find out the reasons for presence of blood group B in the blood stained earth lifted from the spot of occurrence.In absence of any explanation coming forth in this regard, a possibility cannot be ruled out that some other person with blood group B might be responsible for the death of the deceased.Further, the Investigating Officer Inspector Rati Ram in his testimony has deposed that on reaching the spot of occurrence, he seized blood stained earth, blood stained articles including one printed green saree which was found at the roof of adjoining jhuggi of son of appellant Asad Bai, vide a Seizure Memo Ex. PW1/B. On seeing the blood stained saree, under the natural course of circumstances, Investigating Officer was expected to suspect some lady for the murder.According to PW1 Laik Ram, who is one of the witnesses to the Seizure Memo Ex.PW1/B, PW3 Villan Jamadar was present at the time of recovery of the saree.If Villan Jamadar actually was an eye witness to the Crl.A.Nos.17/95, 21/95, 106/95 Page 19 of 21 occurrence, at least at the time of recovery of saree, he would have told the Investigating Officer that the deceased was killed by the appellants Asad Bai, Sohan Sahai and Munna Lal.In that eventuality, the Investigating Officer was naturally expected to arrest Asad Bai instead of allowing her to go along with the dead body as Inspector Rati Ram has deposed in his testimony.The aforesaid conduct of Inspector Rati Ram rules out the presence of PW3 Villan Jamadar at the time of occurrence and raises a strong doubt that he has been introduced subsequently as an eye witness by the Investigating Officer.Crl.A.Nos.17/95, 21/95, 106/95 Page 19 of 21In view of the discussion above, we are of the opinion that the learned Additional Sessions Judge has erred in appreciating the evidence inasmuch as relying upon the testimony of PW3 Villan Jamadar as also the evidence relating to motive on the part of the appellants as well as the extra judicial confession made by appellant Asad Bai.Even the testimony of witnesses regarding recovery of incriminating articles, like weapon of offence Ex.P4 and blood stained clothes of the appellant Exbts P-5 to P-9 at their instance is highly doubtful.Thus, we do not consider it safe to sustain the judgment of conviction.Accordingly, we accept the appeals filed by the appellants Sohan Sahai, Asar Bai and Munna Lal and set aside the judgment of conviction as also the order of sentence passed by the learned trial Judge.Crl.A.Nos.17/95, 21/95, 106/95 Page 20 of 21All the three appellants are, accordingly, acquitted.The appeals stand disposed of as having been allowed. | ['Section 302 in The Indian Penal Code', 'Section 34 in The Indian Penal Code'] |