O.J.A. MONTHLY REVIEW OF CASEs
ON
CIVIL, CRIMINAL & other LAWS, 2016
(January)
Odisha Judicial Academy, Cuttack, Odisha
ODISHA JUDICIAL ACADEMY
MONTHLY REVIEW OF CASES ON CIVIL, CRIMINAL &
OTHER LAWS, 2016 (JANUARY)
I N D EX
SL.
NO
1.
CASE
SECTION / ISSUE
Date
of Judgment
Cover Page & Index
PAGE
1-3
A. Civil Laws
(i)
2.
3.
Civil Procedure Code
Md. Allauddin
Vs. The Order 1 rule
Collector, Sundargarh & 10(2) of CPC
Others
In the High Court of
Orissa, Cuttack.
Dwija Dalpati & others Vs. Order 41 Rule
Kalakanhu Patel
25 of C.P.C.
In the High Court of
Orissa, Cuttack.
of
&
of
:
4-6
Date
of
Judgment
:
05.01.2016
7-9
Date
hearing
Date
Judgment
5.01.2016
B . Criminal Laws
(i)
4.
Indian Penal Code
Muguri Kulusika Vs. State of Section
Orissa .
IPC
302
In the High Court of Orissa,
Cuttack
5.
6.
7.
Paila Santa
Orissa.
Vs.
State
of Section 302 and
304 of IPC &
In the High Court of Orissa, Section 134 of
Cuttack
Evidence Act
Sudip kr. Sen @ Biltu Vs. Section 302 and
State of West Bengal & ors.
120 B of IPC &
In the Supreme Court Of Section 25 and
27 of the Arms
India
Act.
Dharam Pal Vs. State of Section
Haryana & Ors.
363,365,376(2)
G,506,201
and
In the Supreme Court Of
120-B of IPC &
India
Section 3 of the
SC & ST (P.A.)
Act 1989
2
of
10-14
Date
of
Judgment05.01.2016
15-20
Date
of
Judgment
07.01.2016
21-25
Date
of
Judgment29.01. 2016
26-31
of Date
Judgment05.01.2016
8.
Date
of
State of Assam Vs. Ramen Section
JudgmentDowarah.
376,302,304
–
11.01. 2016.
II, Section 454
In the Supreme Court of
& Section 34 of
India
IPC
32-37
9.
Parveen Vs.
Haryana.
38-40
The
State
Date
of
of Section
Judgment398,401,411,47
19.01.2016
In the Supreme Court of 1 of IPC &
Section 25 of the
India
Arms Act
C . Other Laws
Family Court Act
Bipin
Kumar
Samal
Vs.
Minarva Swain @ Samal .
In the High Court of Orissa,
Cuttack
(i)
10.
(ii)
11.
of
Section 19 of the Date
Judgmentfamily court act
05.01.2016
Section 13(1,13B of the Hindu
Marriage
Act
1955
Section 22 of
C.P.C.
41-46
Dowry Prohibition Act,1961
Bobbili
Ramakrishna
Raju
Yadav & Ors. Vs. State of
Andhra Pradesh rep. By its
Public Prosecutor High Court of
A.P. Hyderabad, A.P. & anr.
of
Section 6 of DP Date
JudgmentAct &
19.01.2016
Section 482 of
Cr.P.C. &
Section
304-B
and 498 A of IPC
In the Supreme Court of
read
with
India
section 3 & 4 of
D.P. Act 1961
(iii) Motor Vehicle Act,1988
12. Malati Sardar Vs. National Section
Insurance Company Limited & 166(1)(2)
of
Ors.
M.V. Act 1988
In the Supreme Court of & Section 21 of
India.
CPC
*********
3
Date
of
Judgment05.01.2016
47-54
55-59
Civil Procedure Code
2. Order 1 rule 10(2) of CPC
Md. Allauddin Vs. The Collector, Sundargarh & Others
Biswanath Rath, J.
In the High Court of Orissa, Cuttack
Date of hearing & Date of Judgment: 5.01.2016
Issue
Impleading of parties.
Relevant Extract
The short back ground involved in the case is that pending
consideration of Civil Suit bearing No.389/2010 for declaration of
right title, interest and possession over the suit land at the
instance of the plaintiff, an application was filed by the opposite
party Nos.4 to 12 under Order 1 Rule 10(2) of C.P.C. seeking
their intervention in the suit on the premises that the said
opposite parties are not only the villagers but also are in use of
the disputed land as a communal land for their day to day
purposes and in the event, the suit is decided in their absence,
they are going to be seriously prejudiced. Petitioner as plaintiff
and the State opposite party as defendants in the suit seriously
objected such interventions of the opposite party Nos.4 to 12.
Considering the claim in the application under Order 1 Rule
10 of C.P.C. and the objection at the instance of the respective
parties to the said application, the trial court by the impugned
order allowed the application thereby allowing the impletion of
4
the opposite party Nos.4 to 12 as defendants. Hence, the present
writ petition at the instance of the plaintiff-petitioner.
Challenging the impugned order, learned counsel for the
petitioner contended that in view of the specific response of the
State Government in the Court below in their objection, there is
still availability of a vast patch of land to be utilized as communal
land, any order likely to be passed in the suit may not prejudice
the case of these opposite parties, suit can still be decided in
absence of these opposite parties and as such contended that the
trial court has not considered the matter in its proper perspective.
Considering the submissions of the parties, this Court finds that
there is no dispute that the interveners opposite party Nos.4 to
12 are the villagers of the particular village but fact remains the
whole village contains Ac.61.28Dec of communal land as per the
Government record and looking to the extent of land being used
by the villagers as Gochar land, this Court does not find any
reason of any apprehension for the interveners in the suit.
Further as the petitioner only claims right, title & interest in
respect of a small patch of land measure Ac.0.85 Dec from plot
No.358/404, as clearly borne from the plaint, the claim of the
petitioner appears to be very marginal in comparison to the total
availability of communal land in the village. This Court finds there
is no scope for any suffering to the opposite party Nos.4 to 12 in
the event the suit is heard in absence of them.
5
Law as settled by Hon’ble the Apex Court in the case of
“Panjum Bibi @ Ramjan Bibi and 7 others Versus Najma Alim and
another” 2008 (II) OLR-747 specifically observing that while
considering the application under Order 1 Rule 10 of C.P.C., the
Court must keep in mind that the plaintiff is the sole architect of
the plaint and he has a right to choose his own adversary against
whom he seeks relief, mere apprehension of the party that the
plaintiff and defendants of the suit may collusively get their suit
decided remains unfounded as whatever may be the judgment
and order in a suit, it cannot bind him, as he was not a party in
the suit. This decision completely fits in the case of the petitioner.
Under the facts narrated hereinabove, in view of the specific
observations, the material available on record that the villagers
still get a vast patch of land to be utilized as Gochar land, keeping
in mind the observation of the Hon’ble Apex Court in 2008(II)
OLR 747 this Court finds that the impugned order suffers from
all angles and therefore, interfering in the impugned order, this
Court sets-aside the same. The writ petition stands allowed but
however, there shall be no order as to cost.
******
6
3. Order 41 Rule 25 of C.P.C.
Dwija Dalpati & others Vs. Kalakanhu Patel
Biswanath Rath , J.
In the High Court of Orissa, Cuttack.
Date of Judgment - 05.01.2016
Issue
Remanding of the matter to the
Challenged.
trial
Court
-
Relevant Extract
The undisputed facts remain that the plaintiff filed the
bearing T.S. No.68 of 1986 claiming the following relief
declaration of the possessory title of the plaintiff over the
lands (b) Confirmation of plaintiff’s possession over the
lands; (c) Costs of the suit and (c) Any other relief which
court will deem fit and proper.
suit
(a)
suit
suit
the
The suit was disposed of finally on contest and during
pendency of the first appeal, the plaintiff moved an application for
amendment of the plaint. Though the amendment application was
allowed, the same remained unchallenged as on date. In the
meantime, consequent upon allowing the amendment, an
additional issue was also framed relating to claim of adverse
possession by the plaintiff. Framing of additional issue also
remained unchallenged till date. It is at this stage, the plaintiff
filed an application under Order 41 Rule 25 of C.P.C. praying
therein the lower Appellate Court for remanding the matter to the
trial court for recording its evidence on the additional issue
framed by the lower Appellate Court and sending the evidence
back to the lower appellate Court for its consideration in the
disposal of the appeal. This application was objected by the
opposite parties on the premises that in view of the plaint
averments in the original plaint and the averments in the written
7
statement as well as the evidence so recorded by the trial court,
there is sufficient material available on record to decide the
additional issue by the lower Appellate Court and therefore, there
is no necessity of remanding the matter to the trial Court for
recording further evidence on the additional issue.
Considering the rival contentions of the parties, the lower
appellate Court by the impugned order rejected the application at
the instance of the plaintiff and directed for decision in the appeal
on the available evidence.
By filing the writ petition the plaintiff assailed the impugned
order on the premises that in view of allowing the amendment,
further in view of framing of the additional evidence and further
in view of the mandatory provisions as contained in Order 41 Rule
25 of C.P.C., the lower Appellate Court ought to have remitted
the matter to the trial Court for recording evidence on the
additional issue and the evidence so recorded could have been
placed before the lower appellate Court for final adjudication of
the appeal.
It is in this contingency, it is now to be seen as to whether
the trial court has considered the application under Order 41 Rule
25 of C.P.C. looking to the contingency provided under Order 41
Rule 24 as well as the Order 41 Rule 25 of C.P.C.?
There is no doubt that for the first time the plaintiff in the 1st
appellate stage only brought the pleadings as well as claim on the
basis of adverse possession. Thus, it is clearly appearing that
there was no scope for the plaintiff to advance evidence to
substantiate that his possession was long, continuous, hostile and
8
uninterrupted at the earlier stage. Reading of the evidence copy
of which was produced by Sri Nanda, learned counsel also did not
disclose any such evidence. From reading of the entire order, this
Court nowhere finds the lower appellate Court making any
endeavour to at least find as to whether there is any evidence on
the above aspect in the disposal of the suit? In the event, there is
no evidence on the above aspect then looking to the mandatory
provisions contained in Order 41 Rule 25 of C.P.C., the matter
ought to be remitted to the trial Court for recording further
evidence and sending the evidence so recorded back to the lower
appellate court for taking final decision in the matter.
Under the circumstances, this Court feels it appropriate to
interfere in the impugned order and while interfering in the
impugned order, this Court sets aside the same and remits the
matter back to the trial court to reconsider the application under
Order 41 Rule 25 of C.P.C. giving opportunity of hearing to the
respective parties and take a decision in the matter afresh. Since
the matter is decided in presence of both the parties, both the
parties are directed to appear before the court below on 18th
January, 2016 along with certified copy of this order. Lower court
is also directed to take a decision in the matter within a period of
one month thereafter.
******
9
Indian Penal Code
4. Section 302 of IPC
Muguri Kulusika Vs. State of Orissa .
Vinod Prasad & S. K. Sahoo, JJ.
In the High Court of Orissa, Cuttack
Date of Judgment-05.01.2016
Issue
Conviction and awarding punishment challenged.
Relevant Extract
The prosecution case, as per the oral first information report
given by Prabhudan Khosla (P.W.2) at Dasamantpur Police
Station on 11.01.2003 is that the informant was working as a
Gramarakshi and on 10.01.2003 he had come to his duty at
about 4.00 p.m. and remained in the Police Station in the night.
On 11.01.2003 at about 7.00 a.m. while the informant along with
another Gramarakshi namely Alban Khosla (P.W.3) were
proceeding towards river to attend the call of nature, on the way
near Durgamandap of village Dasmantpur, the appellant
approached them and told that on the previous day at about 9.00
p.m. while he was returning to the village from Dasmantpur
weekly market with his wife (deceased), near Bariamba Jholla in
between Marichaguda and Laresh village, a quarrel ensued
between them and he threw the deceased on the ground holding
the tuft of her hair and strangulated her and kicked her for which
she expired. The appellant further told that the cadaver of the
deceased was lying at the spot and out of fear being killed by the
relations of the deceased, he had not gone to his village and
came to village Dasmantapur. The other Gramarakshi namely
Alban Khosla who was accompanying the informant also heard
about such confession of the appellant. The Officer-in-charge of
Dasamantapur Police Station namely Goura Nayak (P.W.9)
reduced the oral information into writing and drew up the written
report (Ext.1) and himself took up investigation. During course of
10
investigation, the I.O. examined the informant, visited the spot
and prepared spot map Ext.7. He conducted inquest over the
dead body and prepared inquest report Ext.3. He seized one
slipper and broken pieces of glass bangles and hairs of the head
under seizure list Ext.2. He sent the dead body for post mortem
examination to Dasamantapur C.H.C vide dead body challan Ext.5
and command certificate Ext.8 through Constable No.22 Ramesh
Chandra Pradhan (P.W.8). He arrested the appellant on
11.01.2003 and forwarded him to Court on the next day. He
received post mortem examination report and after completion of
investigation submitted charge sheet against the appellant on
22.04.2003 under section 302 of Indian Penal Code.
After submission of charge sheet, the case was committed to
the Court of Session for trial after observing due committal
procedure where the learned Trial Court charged the appellant
under section 302 of Indian Penal Code on 18.11.2003 and since
the appellant refuted the charge, pleaded not guilty and claimed
to be tried, the sessions trial procedure was resorted to prosecute
him and establish his guilt.
The defence plea of the appellant was one of denial and it
was pleaded that he has been falsely entangled in the case.
The learned trial Court has been pleased to hold that the
evidences of P.W.2 and P.W.3 are corroborated by the medical
evidence. The nature of assault committed by the appellant
indicates his intention to commit the murder and accordingly the
learned trial Court held the appellant guilt under section 302 of
Indian Penal Code.
The learned counsel for the appellant has not challenged the
finding of the post-mortem report. The learned trial Court though
11
has not given any specific finding regarding the acceptance of the
opinion of the doctor regarding cause of death of the deceased
but it seems that he has nowhere deferred from such opinion.
After perusing the evidence on record, the postmortem
examination report Ext.4 and the statement of P.W.7 Dr.
Srimanta Kumar Pattanaik, we are of the view that there is no
dispute regarding the cause of death of the deceased due to
throttling of the neck which is homicidal in nature.
Admittedly in this case there is no direct evidence as to who
committed the crime, when it was committed or how it was
committed. The case rests upon circumstantial evidence. The law
relating to circumstantial evidence no longer remains res integra.
Coming to the last seen theory, it is stated by P.W.1 that he
saw the appellant as well as the deceased on one Friday in the
weekly market at night while they were returning to their home.
The witness has been declared hostile by the prosecution. P.W. 1
has stated that he had never seen the wife of the appellant prior
to the occurrence. Therefore, the statement of P.W.1 that he saw
the appellant in the company of the deceased is not acceptable
inasmuch as how can he know that the lady who was in the
company of the appellant on the Friday night was the deceased if
he had not seen her previously. Moreover there is no evidence
that the Friday in question when P.W.1 stated to have seen the
appellant and his wife together was the date of occurrence.
P.W.5 stated in the examination-in-chief that on thedate of
occurrence, he had gone to Friday weekly market near
Dasamantapur village where the appellant and his wife had also
gone and he had seen them returning back home. However in the
12
cross-examination, P.W.5 has stated that he had not seen them
while they were returning from the weekly market to their village
and although he saw them in the weekly market but he had not
talked with them. Thus the evidence of P.W.5 is also not so
clinching to substantiate the last seen theory.
The principle of last seen comes into play where the time
gap between the point of time when the accused and the
deceased were last seen alive and when the deceased is found
dead is so small that possibility of any person other than the
accused being the author of the crime becomes impossible. The
last seen theory should be applied while taking into consideration
the case of the prosecution in its entirety and keeping in mind the
circumstances that precede and follow the point of being so last
seen.
Where the prosecution relies upon an extra judicial
confession, the Court has to examine the same with a greater
degree of care and caution. The Courts cannot start with them
presumption that extra judicial confession is always suspect or a
weak type of evidence but it would depend on the nature of the
circumstances, the time when the confession is made and the
credibility of the witnesses who speak about such a confession
and whether the confession is voluntary and truthful.
Even the prosecution has not established any motive behind
the commission of crime. The appellant and the deceased were
having four sons and one daughter. There is no evidence
regarding any dissention between them. Even the reason given in
the so-called extra judicial confession that the as the deceased
did not walk speedily in spite of repeated warning of the appellant
for which the murder was committed is very hard to be believed.
In the case of circumstantial evidence, motive also assumes
13
significance for the reason that the absence of motive would put
the Court on its guard and cause it to scrutinize each piece of
evidence closely in order to ensure that suspicion, omission or
conjectures do not take the place of proof.
In view of the evidence available on record, we are of the
view that it is difficult to accept that the prosecution has
established the case against the appellant beyond all reasonable
doubt. The conclusion arrived at by the learned trial Court in
convicting the appellant and the reasonings assigned for arriving
at such conclusion are not at all acceptable and convincing and it
seems that the learned trial Court has proceeded on the basis of
conjectures and suspicions and impugned verdict is nothing but a
sheer moral conviction. There is a long distance between “may be
true” and “must be true” and the same divides conjectures from
sure conclusions. Law is well settled that the suspicion howsoever
strong cannot take the place of proof. No doubt the offence is
gruesome and heinous but emotions and sentiments have no
place in a criminal trial. Fouler the crime, the higher should be
the proof.
Thus we hold that the case against the appellant has not
been established by the prosecution beyond all reasonable doubt
and therefore he is acquitted of the charge under section 302 of
Indian Penal Code.
In the result, the jail criminal appeal is allowed and the
impugned judgment and order of conviction and sentence is set
aside and the appellant is acquitted of the charge under section
302 of Indian Penal Code. The appellant is in jail custody since
the date of his arrest. He should be released forthwith if he is not
required to be detained in any other case. Lower Court Records
along with copy of the judgment be sent down forthwith to the
trial Court for necessary action.
******
14
5. Section 302 and 304 of IPC
Section 134 of Evidence Act
Paila Santa Vs. State of Orissa.
Vinod Prasad & S. K. Sahoo, JJ.
In the High Court of Orissa, Cuttack
Date of Judgment- 05.01.2016
Issue
Sentencing altered as “evidence has to be weighed
and not counted.”
Relevant Extract
The prosecution case, as per the First information report
(Ext. 2) presented by Manika Santa (P.W.13), wife of the
deceased on 20.07.2001 at Maidalpur outpost under Papadahandi
Police Station, in the district of Nabarangpur is that at the date
and time of the incident the deceased father-in-law asked the
appellant as to why he was not engaging himself in some work
and wasting time in sleeping at home after consuming liquor.
After telling so, the deceased went to the cow shed to take care
of the cattle and after finishing his work there, while the
deceased was returning back, the appellant dealt two blows to
the deceased with a stick which landed on the head and shoulder
area for which the deceased fell down on the ground. The
grandson of the deceased namely Hadi Santa (P.W.2) brought the
deceased inside the house but found him dead. On the basis of
such First Information Report, A.S.I of Police Parameswar
Mohapatra
(P.W.16)
took
up
preliminary
investigation
and
dispatched the First Information Report to Officer-in-charge,
15
Papadahandi Police Station for registration and accordingly Debi
Prasad Das (P.W.15), who was attached to Papadahandi Police
Station as Officer-in-charge registered Papadahandi P.S. Case No.
36 dated 20.07.2001 under section 302 of Indian Penal Code
against the appellant and himself took up investigation of the
case. P.W.16 seized the weapon of offence i.e., lathi from the
spot vide seizure list Ext.6. He also held inquest over the dead
body and prepared inquest report Ext.1/2 and sent the dead body
for post mortem examination to P.H.C., Dabugam under dead
body challan Ext.7. He issued command certificate in favour of
the constables to escort the dead body to the hospital for post
mortem examination. On the very same day, P.W.16 handed over
the charge of investigation to P.W.15. P.W.15 arrested the
appellant
on
20.07.2001,
examined
the
witnesses,
sent
requisition to the doctor for the medical examination of the
appellant and forwarded the appellant to Court. On 22.07.2001
the I.O. seized the wearing apparels of the deceased and
command certificate under seizure list Ext.3. He received the post
mortem report. On 4.10.2001 the I.O. made a query to the
Medical Officer by producing the weapon of offence as to whether
the injuries sustained by the deceased are possible by such
weapon or not and received the query report. On 6.11.2001 he
received the injury report of the appellant from the Medical
Officer, C.H.C., Papadahandi and on 16.11.2001 he submitted
16
charge sheet under section 302 of Indian Penal Code against the
appellant.
After submission of charge sheet, the case was committed
to the Court of Session for trial after observing due committal
procedure where the learned Trial Court charged the appellant
under section 302 of Indian Penal Code on 23.08.2002 and since
the appellant refuted the charge, pleaded not guilty and claimed
to be tried, the sessions trial procedure was resorted to prosecute
him and establish his guilt.
In the case in hand, neither the exact statement of the
appellant
regarding
confession
nor
the
substance
of
such
statement has been brought on record. The witnesses have
simply stated the appellant confessed his guilt and begged
excuse. P.W.2 has stated that the appellant left the spot
immediately after the occurrence along with the weapon of
offence. Therefore the statements of P.W.3, P.W.5 and P.W.7 that
when they reached at the spot hearing shout, the appellant was
available there and confessed his guilt before them is a doubtful
feature. Extra judicial confession is a weak piece of evidence and
the prosecution is duty bound to prove as to why the appellant
reposed confidence on those witnesses and confessed before
them. In absence of any closeness between the appellant and
those three witnesses beforehand and in absence of any reason
as to what benefit the appellant would have derived in making
such confession, it is difficult to place any reliance on the
17
evidence relating to extra judicial confession and accordingly we
discard the same.
Coming to the contentions raised by the learned counsel for
the appellant that the case would not fall within the ambit of
section 302 of Indian Penal Code, we find that P.W.2 has stated
that there was no enmity or ill-feeling between the appellant and
the deceased prior to the incident. P.W.3 has stated that the
appellant was living with his wife and children in one house and
the deceased was living with his wife in another house. P.W.5 has
stated that he ascertained that there was a quarrel between the
deceased and the appellant for which the appellant caused the
death of the deceased. P.W.13 has stated that the appellant had
got four sons and two daughters and he was sitting idle without
doing any work. It is the prosecution case that on the date of
occurrence when the deceased father-in-law asked the appellant
as to why he was sitting idle at home and not doing any work and
always consuming liquor and left the spot, the appellant came
with a stick and assaulted the deceased. Affronted by the
reprimand by father-in-law that the appellant seems to have
acted hastily in assaulting him without taking the verbal
reprimands in a positive manner. The time gap between the
reprimanding and the assault is very short.
18
Section
299
of
Indian
Penal
Code
defines
“culpable
homicide.” In order to constitute an offence of culpable homicide,
the prosecution has to prove following aspects:(i) The death was caused by doing an act with the intention of
causing death; or
(ii) With the intention of causing such bodily injury as is likely to
cause death; or
(iii) With the knowledge that the act is likely to cause death.
Culpable homicide is murder only when it falls within any of the
four clauses that are mentioned under section 300 of Indian Penal
Code. Culpable homicide is not murder if it either does not fall
within any of the clauses or falls within any of the five exceptions
mentioned under section 300 of Indian Penal Code.
Section 304 of Indian Penal Code has two parts i.e., Section
304 Part-I and Section 304 Part-II. If the culpable homicide is not
murder as it falls within any of the five exceptions mentioned
under section 300 of Indian Penal Code but it is proved that the
accused had the intention of causing death or to cause such
bodily injury as is likely to cause death then the offence will come
within the purview of section 304 Part-I of Indian Penal Code. If
the accused has no intention of causing death or to cause such
bodily injury as is likely to cause death but has the requisite
knowledge that the injuries are likely to cause death then the
offence under section 304 Part-II of Indian Penal Code will be
19
attracted. The intention is a subjective consideration and the
state of mind would depend upon various factors like nature of
weapon used, nature of injuries inflicted, conduct of the accused
prior to the assault and after the assault etc.
The doctor (P.W.14) has not stated that any of the two
injuries sustained by the deceased is sufficient in ordinary course
of nature to cause death. The head injury caused on the deceased
has not resulted in causing any internal injury. Two stick blows
were given by the appellant out of anger hastily on grave and
sudden provocation being reprimanded by the deceased. There
seems to be no premeditation and the act was done in a heat of
passion and the appellant had not taken any undue advantage of
the situation and therefore taking overall view of all these facts,
we are of the view that the case of the appellant does not travel
beyond the purview of part-I of section 304 of Indian Penal Code.
In the result, the impugned judgment and order of
conviction of the appellant under section 302 of Indian Penal
Code and sentence of rigorous imprisonment for life as was
imposed by the learned trial Court is hereby set aside, and
instead the appellant is convicted under section 304 Part-I of
Indian Penal Code. The appellant is in judicial custody since
21.07.2001. Therefore, while convicting the appellant under
section 304 Part-I of Indian Penal Code, we sentence him to the
period of imprisonment already undergone by him, which to us
shall meet the ends of justice. The appellant be released forthwith
if his detention is not otherwise required in any other crime. This
jail criminal appeal is allowed in part as above. Lower Court
Records along with copy of the judgment be sent down forthwith
to the trial Court for necessary action.
******
20
6. Section 302 and 120- B of IPC.
Section 25 & 27 of the Arms Act.
Sudip kr. Sen @ Biltu vs. State of West Bengal & ors.
T.S. Thakur, CJI. & R. Banumathi, J.
In the Supreme Court of India
Date of Judgment -07-01-2016
Issue
Conviction based on a testimony of a single witness
even nor corroborated- can be reliable.
Relevant Extract
Briefly stated case of the prosecution is that on 13.01.2002
at about 08.30 p.m., complainant-PW1-Gora Das was having tea
along with some of his friends at the shop of one Bablu Pal-PW5
at Shakherbazar. Sandipan Majumdar-PW6 sitting on his
motorcycle was also having tea in front of tea stall of PW-5. At
that time, the appellants came in a bike to the place of
occurrence. At first, appellant-Sudip Kumar Sen @ Biltu (A-3)
abused the deceased-Saikat Saha and asked him as to why he
did not meet Jishu da in the court as he was asked to do so at
several occasions. Appellant-Apu Chatterjee @ Soumitra (A-6)
said that if the men of Khoka were not killed then there would be
no peace. On such exhortation, appellants- Tapas Das @ Bhambal
(A-2) and Sankar Das @ Bhai (A-4) caught hold of Saikat Saha
deceased and appellants Goutam Ghosh (A-1) and Sk. Kochi @
Sk. Mobarak (A-5) fired at him and Saikat Saha sustained two
gunshot injuries in the right chest. Gora Das-PW1 and Sandipan
Majumdar-PW6 had immediately taken injured Saikat Saha to
Calcutta Medical Research Institute. Dr. Debasish Pal-PW9
examined Saikat Saha and declared that he was brought dead
and issued Injury Report (Ex.4) and Death Certificate (Ex-P4/1).
21
Gora Das-PW1 lodged the complaint on 14.01.2002 at 1.45
a.m. before Thakurpukur Police Station, on the basis of which FIR
was registered in Case No.12 of 2002 under Section 302 read
with Section 34 IPC and Sections 25 and 27 of the Arms Act
against unknown persons. A. K. Ghosh- Investigating Officer
PW13 had taken up the investigation and visited the spot and
examined the available witnesses including PW6-Sandipan
Majumdar who informed the police that he had witnessed the
event and PW-6 also named the accused. On his statement, the
appellants and accused Sk. Kochi @ Sk. Mobarak and one Jishu
Jain were arrested. After investigation, chargesheet was filed
against the appellants and other accused under Section 302 read
with Section 34 IPC, Section 120-B IPC and Sections 25 and 27 of
the Arms Act.
These appeals arise out of the common judgment dated
24.09.2012 passed by the High Court of Calcutta dismissing
Criminal Appeal No.544 of 2004 filed by the appellants and
thereby affirming the conviction of the appellants under Section
302 read with Section 34 IPC and sentence of life imprisonment
and a fine of rupees five thousand imposed on each of them. We
have considered the rival contentions and perused the impugned
judgment and material on record.
Sandipan Majumdar-PW6 has stated that on the date of the
incident i.e. on 13.01.2002 at about 8.30 p.m., while he was
taking tea at the tea stall at Shakerbazar, Saikat Saha, PW1-Gora
Das
and
others
were
also
taking
tea
there.
PW-6
had
categorically stated that the assailants armed with firearms came
together and Sudip Kumar Sen (A-3) started abusing Saikat Saha
and questioned him as to why he did not meet Jishu da in the
22
court inspite of several reminders. Apu Chatterjee (A-6) shouted
that there will be no peace if the men of Khoka were not killed.
On such exhortation, Tapas Das (A-2), Sankar Das (A-4) caught
hold of deceased and Goutam Ghosh (A-1) and Sk. Kochi (A-5)
fired at Saikat Saha. PW-6 stated that the appellants were doing
illegal business of collecting money from the flat owners in the
locality and an altercation took place over the said matter and
PW-6 further stated that the appellants also used to come to the
deceased and thus he knew all of them. PW-6 was examined by
the police on the very next day i.e. on 14.01.2002 and in his
statement before the police, PW-6 named the appellants-accused
except Jishu Jain as the assailants. PW-6 was a natural eye
witness
to
examination,
the
incident.
PW-6
Throughout
remained
the
consistent
searching
and
his
cross-
evidence
remained unshaken. That PW-6 is a natural witness is also borne
out from the fact that PW-6 accompanied PW1-Gora Das in
immediately taking the deceased to the hospital and the same is
evident from the Injury Report (Ex.4) and Death Certificate (Ex4/1) issued by PW9-Dr. Debasish Pal which clearly mention that
the deceased was brought to the hospital by PW-1 and PW-6.
It is well-settled that the court may act on a testimony of a
single
witness
though
uncorroborated,
provided
that
the
testimony of single witness is found reliable. Trial court which had
the opportunity of seeing and hearing PW-6 found him wholly
reliable and trustworthy and held that evidence of Sandipan
23
Majumdar-PW6 cannot be doubted as far as the role attributed to
A-1 to A-6 except Jishu Jain is concerned, which was affirmed by
the High Court. We find no ground to interfere with the
concurrent finding recorded by the Courts below as to the
reliability of PW-6 and to record the conviction.
Observing
that there is no impediment for recording
conviction based on the testimony of a single witness provided it
is reliable in Prithipal Singh & Ors. vs. State of Punjab & Anr.,
(2012) 1 SCC 10, it was observed as under:“49. This Court has consistently held that as a general
rule the court can and may act on the testimony of a single
witness provided he is wholly reliable. There is no legal
impediment in convicting a person on the sole testimony of a
single witness. That is the logic of Section 134 of the Evidence
Act. But if there are doubts about the testimony, the court will
insist on corroboration. In fact, it is not the number or the
quantity, but the quality that is material. The time-honoured
principle is that evidence has to be weighed and not counted. The
test is whether the evidence has a ring of truth, is cogent,
credible and trustworthy or otherwise. The legal system has laid
emphasis on value, weight and quality of evidence, rather than
on quantity, multiplicity or plurality of witnesses. It is, therefore,
open to a competent court to fully and completely rely on a
solitary witness and record conviction. Conversely, it may acquit
the accused in spite of testimony of several witnesses if it is not
24
satisfied about the quality of evidence.” [See Vadivelu Thevar v.
State of Madras, AIR 1957 SC 614, Sunil Kumar v. State (Govt. of
NCT of Delhi, (2003) 11 SCC 367, Namdeo v. State of
Maharashtra, (2007) 14 SCC 150 and Bipin Kumar Mondal v.
State of W.B., (2010) 12 SCC 91]
Considering the facts and circumstances of the case in hand,
it is evident that there was prior concert and that the appellants
have acted in furtherance of common intention. As seen from the
evidence of PW-6, all the appellants and another co-accused Sk.
Kochi were doing illegal business of extorting money from the flat
owners. On the date of occurrence, all the appellants and another
co-accused Sk. Kochi came together and Sudip Kumar Sen @
Biltu (A-3) started abusing the deceased and Apu Chatterjee (A6) exhorted others that if the men of Khoka were not killed, there
would be no peace. On such exhortation, Tapas Das and Sankar
Das (A-2 and A-4) caught hold of the deceased and Goutam
Ghosh and Sk. Kochi (A-1 and A-5) fired at the deceased. Facts
and circumstances clearly establish meeting of minds and
common intention of the appellants in committing the murder of
Saikat Saha and the appellants were rightly convicted under
Section 302 read with Section 34 IPC. No ground for interference
under Article 136 of the Constitution of India is made out. In the
result, all the appeals fail and are dismissed accordingly.
******
25
7. Section 363,365,376(2)(G), 506, 201 and 120-B of IPC
Section 3 of the SC & ST (P.A.) Act 1989
Dharam Pal Vs. State of Haryana & Ors.
Dipak Misra & Prafulla C. Pant, JJ.
In the Supreme Court of India
Date of judgment- 29.01. 2016
Issue
During pendency of a case, further investigation by
the CBI can be directed.
Relevant Extract
The minor daughter of the appellant who was raped by the
accused persons was threatened with dire consequences in case
she disclosed the incident. The incident, as alleged, occurred on
06.08.2012. Despite the threat, the daughter disclosed the
incident to her parents. Keeping in view the future of the girl and
the social repercussions, they chose to suffer in silence rather
than set the criminal law in motion. When the family stood
reconciled to the situation, something extremely untoward
happened. On 02.09.2012, Kamlesh Devi, wife of the appellant,
had gone to village Nilikhen for taking medicine for her teeth and
gums problem but did not return home on that day. The appellant
searched for his wife along with his relatives and eventually a bag
containing vegetables and medicines and some other articles
belonging to the wife was found underneath the bridge Manak
Majra on the lower side of Sarsa Branch river. The appellant
suspected that Kusum, wife of Sukh Ram, resident of Kalsi and
Aman alias Virender had abducted his wife or had thrown her into
the river. In such a situation, the appellant lodged an FIR, on
05.09.2012 at P.S. Butana. The investigating agency registered
the FIR No. 354 for the offences under Section 363, 366-A, 506,
365 and 34 of the Indian Penal Code (for short “IPC”). During the
investigation, on 05.09.2012, the dead body of Kamlesh Devi was
found near the Sarsa Branch canal bridge. Thereafter, the
26
appellant and his daughter were examined and on that basis,
offence under Section 376 IPC was added. Eventually, the
allegations were segregated and FIR No. 394 dated 20.09.2012
under Sections 363, 365, 376(2)G, 506, 201 and 120-B IPC and
Section 3 of the Scheduled Castes and the Scheduled Tribes
(Prevention of Atrocities) Act, 1989 was registered and after the
investigation, a charge-sheet was filed. Be it stated, the accused
persons in FIR No. 394 dated 20.09.2012 have been acquitted by
the judgment dated 12.03.2014 by the learned Sessions Judge.
Against the judgment of acquittal, the appellant has filed a
criminal appeal which is pending before the High Court of Punjab
and Haryana.
The High Court having negatived the stand put forth by the
appellant, the husband of the deceased, he has approached this
Court by way of special leave.
Coming to the subject matter of FIR No. 354 which relates
to the murder of the wife of the appellant, as is evident, the
report would show that the cause of death was due to
strangulation coupled with head injury which is antiemortem in
nature and sufficient to cause death in ordinary course. Apart
from the accused persons named in the FIR, another person,
namely, Krishan Kumar, was also implicated who was arrested on
19.10.2012. The other two accused persons, namely, Aman and
Kusum were taken into custody on 30.10.2012. It is a matter of
record that the appellant was provided security personnel as
threats were received by the appellant for entering into a
compromise in the rape case, and for change of his version in the
murder case of his wife.
It has been asserted and not denied by the respondents that
on 28.01.2013, the Superintendent of Police, Karnal vide Office
27
Memo No. 3961 recommended to the Director General of Police,
Haryana that the case bearing FIR No. 354 along with the rape
case and the unsolved case of murder of the sister-in-law of the
appellant be transferred to the Central Bureau of Investigation
(CBI), New Delhi. Based on the said recommendation, the
Additionally Chief Secretary, Government of Haryana vide Office
Memo No. 20/2/2013-3HG1 requested the Secretary to the
Government of India, Ministry of Personnel, Public Grievances &
Pensions, Department of Personnel & Training, New Delhi for
handing over the investigation to the CBI. It has also been
asserted that a departmental action has been taken against ASI
Ram Prakash and SHO Sanjeev Malik on the basis of the
complaints made by the appellant. On information being sought
by the appellant under the Right to Information Act, 2005, he has
been informed vide communication dated 17.11.2014 that
departmental inquiry had already been initiated against ASI Ram
Prakash and SHO Sanjeev Malik on charges of dereliction and
negligence of duty. It was also mentioned in the reply that as a
result of departmental inquiry, Ram Prakash had been reverted
from the post of ASI to Head Constable, and with respect to
Sanjeev Malik, the proceedings had been sent to the Deputy
Commissioner of Police, Ambala for being transferred.
The issue that arises for consideration is whether such a
situation calls for issuance of direction for transfer of the
investigation to the CBI. The High Court has declined to so direct
as trial has commenced and some witnesses have been
examined. The High Court has gone by the principle of “stage”.
When the matter was listed on 18.09.2015, this Court had
directed a copy of the petition to be served on Mr. P.K. Dey,
learned counsel who ordinarily appears for the CBI. The stand of
the CBI is that the case does not fall within the guidelines laid
down by this Court in State of West Bengal & others v.
28
Committee for Protection of Democratic Rights, West
Bengal and other., (2010) 3 SCC 571. On a perusal of the said
authority, we really do not find any aspect which would support
the stand put forth by the learned counsel for the CBI. On the
contrary, as we perceive, the Constitution Bench has laid great
emphasis on instilling of faith of the victim and the public at large
in the investigating agency. True it is, the facts in the said case
were different and related to alleged crimes committed by certain
State officials, but the base of confidence in investigation has
been significantly highlighted.
In the context, we may profitably refer to a two-Judge
Bench decision in Narmada Bai v. State of Gujarat and
Others (2011) 5 SCC 79 &
A three-Judge Bench in K.V.
Rajendran v. Superintendent of Police, CBCID South Zone,
Chennai and others ,(2013) 12 SCC 480.
The factual scenario in the present case has to be
appreciated on the touchstone of the aforesaid authorities. As the
facts would reveal there was a request by the Additional Chief
Secretary for handing over the investigation to the CBI; that
departmental action was taken against the investigating
authorities for negligent investigation; that the concerned ASI has
been reverted to the post of Head Constable; and that apart,
certain material witnesses have not been examined by the
investigating agency without any rhyme or reason. The reasoning
of the High Court is as the trial has commenced, there cannot be
a transfer of the case to another investigating agency.
In this context, we may notice the statutory scheme
pertaining to investigation. Section 173 Cr.P.C. empowers the
Police Officer conducting investigation to file a report on
completion of the investigation with the Magistrate empowered to
29
take cognizance of the offence. Section 173(8) Cr.P.C. empowers
the office-in-charge to conduct further investigation even after
filing of a report under Section 173(2) Cr.P.C. if he obtains
further evidence, oral or documentary. Thus, the power of the
Police Officer under Section 173(8) Cr.P.C. is unrestricted.
Needless to say, the Magistrate has no power to interfere but it
would be appropriate on the part of the investigating officer to
inform the Court.
Be it noted here that the constitutional courts can direct for
further investigation or investigation by some other investigating
agency. The purpose is, there has to be a fair investigation and a
fair trial. The fair trial may be quite difficult unless there is a fair
investigation. We are absolutely conscious that direction for
further investigation by another agency has to be very sparingly
issued but the facts depicted in this case compel us to exercise
the said power. We are disposed to think that purpose of justice
commands that the cause of the victim, the husband of the
deceased, deserves to be answered so that miscarriage of justice
is avoided. Therefore, in this case the stage of the case cannot be
the governing factor.
We may further elucidate. The power to order fresh, de-novo
or re-investigation being vested with the Constitutional Courts,
the commencement of a trial and examination of some witnesses
cannot be an absolute impediment for exercising the said
constitutional power which is meant to ensure a fair and just
investigation. It can never be forgotten that as the great ocean
has only one test, the test of salt, so does justice has one flavour,
the flavour of answering to the distress of the people without any
discrimination. We may hasten to add that the democratic setup
has the potentiality of ruination if a citizen feels, the truth uttered
by a poor man is seldom listened to. Not for nothing it has been
said that Sun rises and Sun sets, light and darkness, winter and
spring come and go, even the course of time is playful but truth
30
remains and sparkles when justice is done. It is the bounden duty
of a Court of law to uphold the truth and truth means absence of
deceit, absence of fraud and in a criminal investigation a real and
fair investigation, not an investigation that reveals itself as a
sham one. It is not acceptable. It has to be kept uppermost in
mind that impartial and truthful investigation is imperative. If
there is indentation or concavity in the investigation, can the
‘faith’ in investigation be regarded as the gospel truth? Will it
have the sanctity or the purity of a genuine investigation? If a
grave suspicion arises with regard to the investigation, should a
Constitutional Court close its hands and accept the proposition
that as the trial has commenced, the matter is beyond it? That is
the “tour de force” of the prosecution and if we allow ourselves to
say so it has become “‘id’ee fixe” but in our view the imperium of
the Constitutional Courts cannot be stifled or smothered by bon
mot or polemic. Of course, the suspicion must have some sort of
base and foundation and not a figment of one’s wild imagination.
One may think an impartial investigation would be a nostrum but
not doing so would be like playing possum. As has been stated
earlier facts are self-evident and the grieved protagonist, a
person belonging to the lower strata. He should not harbor the
feeling that he is an “orphan under law”.
In view of the aforesaid analysis, the appeal is allowed, the
order of the High Court is set aside, and it is directed that the CBI
shall conduct the investigation and file the report before the
learned trial judge. The said investigation report shall be
considered by the trial judge as per law. Till the report by the CBI
is filed, the learned trial judge shall not proceed with the trial. A
copy of the order be handed over to Mr. P.K. Dey, learned
counsel for the CBI to do the needful.
******
31
8. Section 376,302,304 –(II), Section 454 & Sec.34 of IPC
State of Assam Vs. Ramen Dowarah
Kurian Joseph & Arun Mishra,JJ.
In the Supreme Court of India
Date of Judgment- 11. 01. 2016.
Issue
Altering sentences from under section 302 to 304(II),
sentencing to 7 years of imprisonment, but maintaining
conviction and sentence U/s- 454 of IPC to one year
rigorous imprisonment.
Relevant Extract
As per the prosecution case the incident took place on
1.5.2003 at about 5 p.m. when accused Ramen Dowarah and
Janmejoy Gogoi alias Sanju entered the house of victim and
committed rape on her and after pouring kerosene oil set her
ablaze. When the victim raised hue and cry, people assembled
and the victim was taken to the Civil Hospital. She sustained 55%
burn injuries as her condition was serious she was referred to
AMCH, Dibrugarh where in the course of her treatment she died
after 2 months on 11.7.2003. On the date of the incident the
paternal uncle of the victim Mr. Khirode Hazarika, PW 1, lodged a
First Information Report at P.S. Tinsukia.
The accused were chargesheeted. After committal they were
tried
for
commission
of
offences
under
sections
454/376(G)/302/34 IPC. The prosecution examined 11 witnesses.
The accused persons abjured the guilt and contended that they
32
had been falsely implicated in the case. The trial court convicted
the accused/respondent Ramen for commission of offence under
sections 454/376/302 IPC, and sentenced him to 1 year, 10 years
and life imprisonment respectively and a fine of Rs.3,000; in
default of payment of fine to undergo simple imprisonment for 1
month. Aggrieved thereby, accused Ramen preferred appeal
before the High Court and the same has been partly allowed.
Aggrieved thereby State has come up in appeal.
The High Court has found that it was a case of consensual
sexual intercourse with the accused Ramen and when the victim
threatened him that the incident would be disclosed by her to
mother, on the spur of the moment he poured kerosene oil on her
so as to cause burn injuries. It could not be said to be a case of
intentionally causing death falling under section 300 IPC, Hence
conviction under section 302 IPC has been set aside. Conviction
has been recorded under section 304 Part II IPC.
Considering the state of evidence what emerges is that it
could not be said to be a case of consensual sexual intercourse.
Evidence and circumstances militate against it being consensual
sexual intercourse. The age of the victim was mentioned in the
FIR as 14 years. In the medical report, Doctor has recorded the
age of the victim to be 14 years. In the postmortem report also
age is mentioned as 15 years. However radiological examination
33
evidence so as to ascertain the age of the deceased has not been
adduced. Hence we refrain from upsetting the finding of the High
Court that the prosecution has not been able to establish the age
of the deceased. However it remains that she was young and not
well-built and could be over-powered very easily. It has come in
the evidence that the evidence of PW5 namely, Manash Hazarika
who is the brother of the victim, that when the victim had cried,
the witness was threatened by accused Ramen and thereafter
accused Ramen had poured kerosene oil on the victim and set her
ablaze. It has also come in the statement of PW9 Dr. Alka Devi
that when the victim had given history which is to be treated as
dying declaration she stated to the effect that when “she cried,
accused poured kerosene oil on her and set her ablaze”. There is
nothing to doubt the veracity of the statement recorded in the
medical report which was based upon the statement made by the
victim and has been proved by PW-9 Dr. Alaka Devi. Thus, it is
crystal clear that it was not a case of consensual sexual
intercourse, but the victim had made hue and cry on commission
of rape on her and also on being threatened that she would
narrate the incident to her mother, accused Ramen had set her
ablaze after pouring kerosene over her body. Thus the High Court
has erred in upsetting the finding of the trial court which was
based on the aforesaid circumstances and the evidence on record
which clearly makes out that it was not a case of consensual
sexual intercourse. In the case of consensual sexual intercourse
34
victim would not have raised hue and cry and would not have
immediately threatened the perpetrator of the crime with the
disclosure of the incident to her mother. She was clothless when
kerosene oil was poured on her as stated by brother PW-5. It was
in fact in order to remove the evidence of rape accused Ramen
had poured kerosene on her and set her ablaze so that she is
silenced and his sin does not see the light of the day. However,
the minor brother had witnessed the incident by peeping from the
slit of door and victim also survived for some time to narrate the
incident. In our opinion the High Court has erred in law in
acquitting the accused Ramen from commission of the offence
under section 376 IPC. Men may lie but the circumstances do not
is cardinal principle of evalution of evidence. The circumstances,
the oral evidence and dying declarations of the deceased
unerringly pointed out that it was not a case of consensual sexual
intercourse. The dying declarations have to be read together
immediate conduct of victim takes it out to be a case of
consensual sexual intercourse. Accused has denied in toto the
commission of offence in the statement recorded under section
313 Cr.P.C. Thus in view of the aforesaid evidence we have no
hesitation in setting aside the finding of the High Court to the
effect that it was a case of consensual sexual intercourse. We
restore the finding recorded by the trial court.
35
Coming to the question whether it was a case under section
302 or under section 304 Part II IPC for recording the aforesaid
conclusion, the High Court has held that on the spur of the
moment the accused had set ablaze the victim on being
threatened that the incident of consensual sexual intercourse
would be disclosed by her to mother. In view of our finding that it
was not a case of consensual sexual intercourse and the shameful
method and manner in which the incident has taken place, leaves
no room for any doubt that the accused wanted to eliminate the
deceased for all time to come. He intended to cause death by
setting her ablaze so that commission of offence of rape does not
see the light of the day. No circumstance has been brought on
record to indicate that it was a case of any exception, to take it
out from the realm of section 300 IPC. Thus the High Court in our
opinion has erred in holding that accused did not intend to cause
death. The facts and circumstances which have been proved
indicate that the accused wanted to get rid of the victim by
causing her death. The doctor has also opined that the injuries
were dangerous to life and victim was taken in a precarious
36
condition to the doctor PW-9. She could survive for 2 months, is
not the test. It is a case where accused clearly intended to kill
deceased after committing the crime so as to silence her. The
overall
circumstances
established
to the
hilt that accused
intended to cause death by setting her ablaze after committing
forcible sexual intercourse. The submission of the counsel
appearing on behalf of the accused that the accused poured
kerosene oil on being threatened disclosure of the incident by
victim to her mother, was the cause of setting her ablaze. The
aforesaid
conduct
does
not
exculpate
but
indicates
the
intendment of accused to cause death and makes him liable for
punishment under section 302 IPC. The act was done with the
intention of causing death. The intention to kill is present in the
case. The act amounts to murder.
In view of the aforesaid discussion, we are of the considered
opinion that the judgment and order partly allowing the appeal by
the High Court, deserves to be and is hereby set aside. The
judgment and order of conviction and sentence passed by the
trial court is hereby restored. The appeal is accordingly allowed.
******
37
9. Section 398,401,411 & 471 of IPC
Section 25 of the arms Act
Parveen Vs. The State of Haryana
V. Gopala Gowda & Uday Umesh Lalit ,JJ
In the Supreme Court of India
Date of Judgment- 19.01. 2016
Issue
Challenging the question of sentencing.
Relevant Extract
According to the prosecution, the police had received specific
information that the appellant and one Jaswant were planning to
loot passing vehicles near Agma Gas Agency Store situated in
Sector
21D,
Faridabad.
This
information
was
received
on
09.02.2009 after 9:30 p.m. PW2 Ishwar Singh, ASI was already
present in Sector 21D, Faridabad on patrol duty. On receipt of the
information, he along with raiding party proceeded towards the
spot. According to PW2 Ishwar Singh and PW4 Head Constable
Yaseen Khan, they saw a white coloured Indigo car parked at a
deserted spot. They further saw that the appellant and said
Jaswant tried to stop a passing Maruti car but the driver evaded
them and sped away. The police overpowered the appellant and
said Jaswant and on their personal search recovered a knife from
38
the appellant and an iron rod from Jaswant. On search of the car,
the police found two number plates, one having car registration
number of Madhya Pradesh. The photographer was called and
photographs of the vehicle and the site in question were taken.
During investigation it was discovered that said car was
actually owned by LIC and was a stolen vehicle. Neither the
appellant nor said Jaswant could come up with any explanation
how that car was found in their possession. Further, both these
persons were statedly residents of Distt. Gonda, U.P. and not
residents of Faridabad.
The Trial Court after considering the material on record
found that the case as against the appellant and Jaswant was
fully made out. It convicted both the accused under Section 398
IPC and sentenced them to suffer rigorous imprisonment for
seven years. They were further convicted under Sections 471 IPC
and 411 IPC and sentenced to suffer rigorous imprisonment for
seven years and one year respectively with imposition of fine and
sentences in default. The appellant was also convicted under
Section 25 of the Arms Act and sentenced to suffer rigorous
imprisonment for one year.
In appeal arising from the judgment of conviction of Trial
Court, it was submitted that both the accused had already
undergone custody for over three and a half years and that their
39
sentence be reduced to that already undergone. The High Court
considered the matter in its entirety and found both the accused
were armed with deadly weapons and that the record showed
that they had other pending cases registered against them. The
High Court thus did not differ from the view taken by the Trial
Court and dismissed the appeal.
We
have
gone
through
the
record
and
heard
rival
submissions. As mentioned herein above, notice was limited to
the question of sentence. The conviction in the instant case is
under Sections 398 and 401 of the IPC. Though sentence under
Section 401 can be less than seven years, that under Section 398
“shall not be less than seven years”. The appellant and said
Jaswant were sentenced to seven years rigorous imprisonment
under Section 398 IPC, which is the minimum sentence. In the
circumstances no relief can be granted to the appellant. We
therefore dismiss this Criminal Appeal.
******
40
Family Court Act, 1984
10. Section 19 of the Family Court Act
Section 13(1, 13-B of the Hindu Marriage Act 1955
Section 22 of CPC
Bipin Kumar Samal Vs. Minarva Swain @ Samal .
Vinod Prasad & S.K. Sahoo, JJ.
In the High Court of Orissa, Cuttack.
Date of Judgment-05.01.2016
Issue
Marriage be dissolved by mutual consent.
Relevant Extract
The appellant-husband filed the petition for divorce stating
therein
that
his
marriage
with
the
respondent-wife
was
solemnized on 06.05.2011 as per the Hindu customs and rites
and about three months after marriage, the respondent-wife
started misbehaving with her in-laws family members in an
aggressive manner. She used to throw away and destroy the
utensils of the house and always persuading the appellanthusband to live separately in a rented house from the other
family members. As the appellant-husband did not agree to such
proposal given by the respondent-wife, she threatened him to kill
as well as his family members by administering poison in their
food. The respondent-wife tortured the appellant-husband and
her in-laws family members. She lodged a false complaint before
State Women’s Commission against the petitioner and her in-laws
family members so also an FIR at Barachana Police Station
alleging dowry torture in order to harass them. It is the further
case of the appellant-husband that the respondent-wife left the
41
matrimonial house on 05.09.2011 and despite several attempts
made by him as well as his parents, no reconciliation was possible
due to adamant attitude of the respondent-wife.
The respondent-wife on being noticed filed her written
statement denying the averments made in the divorce petition. It
is the case of the respondent-wife that after her marriage, she
stayed in the matrimonial house for about four months and
during that period, she was subjected to torture by the appellanthusband and his family members in connection with further
demand of dowry of Rs.50,000/- and a motor cycle. It is her
further case that on 01.09.2011 the in-laws family members
attempted to kill her by setting her on fire with kerosene but
fortunately she was rescued by the neighbours. It is her further
case that on getting information about the incident, her father,
uncle and brother came to the house of the appellant-husband
but they were misbehaved by her in-laws family members and
she was also driven out of her matrimonial house on 07.09.011.
It is her further case that even though she was always ready and
willing to lead conjugal life with the appellant- husband but her
husband did not turn up to take her back. The respondent-wife
prayed for dismissal of the divorce proceeding.
42
The learned Judge, Family Court, formulated the following
points for determination:(i) Whether the respondent-wife after solemnization of marriage
treated the appellant-husband with cruelty?
(ii) Whether the respondent-wife has deserted her husband
without reasonable cause?
The learned Family Judge while adjudicating on point no.1
held that the allegations made against the respondent-wife do not
amount to ‘cruelty’ in the eye of law. So far as point no.2 is
concerned, it was held that the ground of ‘desertion’ is not made
out against the respondent-wife. The learned Family Judge held
that since the appellant-husband failed to establish the grounds
of ‘cruelty’ and ‘desertion’ in accordance with law, the divorce
petition deserved to be dismissed.
Challenging the impugned judgment and order of the
learned Family Judge, this matrimonial appeal has been filed with
a prayer to set aside the same and to dissolve the marriage
between the parties. On being noticed, the respondent-wife
appeared in the case.
On the date of hearing, both the spouses were present in
person along with their respective counsels. The spouses decided
to part away and not to stay together. The respondent-wife
furnished a list of gifts given at the time of marriage and as per
understating between the parties, the appellant-husband was
43
directed to return the entire marriage gifts to the respondent-wife
and to pay her Rs. 4,00,000/- (rupees four lakhs) and the parties
were directed to file their respective affidavits with a prayer that
their marriage be dissolved by mutual consent. On that day the
appellant-husband tendered a bank draft of Rs. 1,00,000/(rupees one lakh) standing in the name of respondent-wife which
was handed over to her in Court and she was directed to get it
encashed. The appellant-husband was directed to come with the
rest of the amount of Rs. 3,00,000/- (rupees three lakhs) in the
shape of a bank draft on the next date. On the next date, the
appellant-husband tended a bank draft of Rs. 3,00,000/- (rupees
three lakhs) standing in the name of respondent-wife which was
directed to be kept in sealed cover and both the parties were
directed to file a joint affidavit mentioning therein about the
outside Court settlement and for passing a decree of divorce by
mutual
consent.
The
appellant-husband
as
well
as
the
respondent-wife filed a joint application for divorce by mutual
consent under section 13-B of the Hindu Marriage Act, 1955 in
Court wherein they have stated that both the parties on outside
Court
settlement
have
amicably
decided
to
dissolve
their
marriage by way of mutual consent of divorce for their better
future as there is no chance of reunion between them as the
marriage has been irretrievably broken down.
44
It is further mentioned in the mutual divorce application that
the petition for divorce on mutual consent was filed without any
undue influence or coercion from any quarter as both the parties
have mutually agreed to dissolve their marriage as there was no
meaning to remain with the bond. Accordingly, prayer was made
for dissolution of marriage by decree of divorce under section 13B of the Hindu Marriage Act, 1955 for the betterment of the
parties.
In view of the lawful mutual agreement and compromise
between the parties and filing of an application for divorce by
mutual
consent
and
considering
the
prayer
made
in
the
application and the fact that the parties have been remaining
separately since the month of September 2011 and also being
satisfied that the marriage between the parties has been broken
down irretrievably and there is no chance of reunion and giving
our anxious consideration in the matter and the terms of
settlement arrived at between the parties and in furtherance of
the settlement, the appellant-husband has already deposited the
entire amount of permanent alimony and returned all the articles
which the respondent-wife had brought at the time of marriage to
45
her, for the ends of justice we admit the compromise between the
parties as we are satisfied that the compromise have been
lawfully entered into between the parties without any coercion
and out of their own volition and the mutual consent has not
been obtained by force, fraud or undue influence.
Accordingly we dissolve the marriage between Bipin Kumar
Samal and Minarva Swain @ Samal which was solemnized on
06.05.2011 in accordance with Hindu customs and rites by a
decree of divorce and it is further directed that the compromise
petition shall form the part of the decree. It is further directed
that the parties shall remain bound by their statements. The bank
draft of Rs. 3,00,000/- (rupees three lakhs) bearing Draft No.
589498 dated 18.11.2015 of the State Bank of India standing in
the name of Minarva Swain tendered by the appellant-husband in
Court on 20.11.2015 and kept in sealed cover shall be handed
over to the respondent-wife on proper identification. She is
directed to make an endorsement in the order sheet regarding
receipt of the same. She is free to get the bank draft encashed.
The appeal is disposed of accordingly and there shall be no order
as to cost.
******
46
Dowry Prohibition Act, 1961
11. Section 6 of DP Act
Section 482 of Cr.P.C.
Section 304-B and 498 A of IPC read with section 3 & 4
of Dowry Prohibition Act 1961
Bobbili Ramakrishna Raju Yadav & Ors. Vs. State of Andhra
Pradesh rep. By its Public Prosecutor High Court Of A.P.
Hyderabad, A.P. & anr.
T.S. Thakur, CJI. A.K. Sikri & R. Banumathi ,JJ.
In the Supreme Court of India
Date of Judgment- 19.01.2016
Issue
Appeal to quashing proceedings Under Section 6 of
Dowry Prohibition Act.
Relevant Extract
Brief facts leading to the filing of this appeal are as follows:First appellant is working as an Engineer in G.E. India Technology
Company at Bangalore. Appellants No.2 and 3 are the parents,
appellant No.4 is widowed sister and appellants No.5 and 6 are
the sisters of appellant No.1. Marriage of first appellant and
Syamala Rani was performed at Vizianagaram on 04.05.2007 and
after marriage, Syamala Rani was residing at Bangalore with her
husband-appellant No.1. Syamala Rani died on 06.09.2008 under
suspicious circumstances and a case was registered in FIR
No.1492 of 2008 under Sections 304B, 498A IPC read with
Sections 3 and 4 of the Dowry Prohibition Act at H.A.L. Police
Station, Bangalore City. On completion of investigation in the said
case, chargesheet was filed against the appellants No.1 to 6 and
the case was committed to Sessions Court vide committal order
47
dated 29.12.2008 and was taken on file as S.C. No.79 of 2009 in
the
Court
of
Principal
Sessions
Judge,
Bangalore.
Second
respondent-father of Syamala Rani filed a private complaint
against the appellants under Section 6 of the Dowry Prohibition
Act alleging that he had paid dowry amount and other articles
which were presented as dowry to the appellants on their demand
and the same were not returned. The Magistrate took cognizance
of the offence under Section 6 of the Dowry Prohibition Act in
C.C. No.532 of 2009.
The appellants then preferred a petition under Section 482
Cr.P.C. before the High Court to quash the complaint i.e.
C.C.No.532 of 2009 contending that the complaint does not
disclose an offence and that FIR No.1492 of 2008 was already
registered against the appellants at Bangalore city. The High
Court vide the impugned order dismissed the petition filed by the
appellants holding that the offences alleged in the previous case
in S.C.No.79 of 2009 emanating from the FIR No.1492 of 2008
and the subsequent complaint in C.C.No.532 of 2009 are not one
and the same as the previous case was registered under Sections
304B and 498A IPC read with Sections 3 and 4 of the Dowry
Prohibition Act, whereas the subsequent case is registered under
Section 6 of the Dowry Prohibition Act which is independent of
the previous case. Being aggrieved, the appellants have preferred
this appeal. We have considered the rival contentions and
48
perused the impugned judgment and material available on
record.
Section 6 of the Dowry Prohibition Act lays down that where
the dowry is received by any person other than the bride, that
person has to transfer the same to the woman in connection with
whose marriage it is given and if he fails to do so within three
months from the date of the marriage, he shall be punished for
violation of Section 6 of the Dowry Prohibition Act. Section 6
reads as under:6. Dowry to be for the benefit of the wife or her heirs.(1) Where any dowry is received by any person other than the
woman in connection with whose marriage it is given, that person
shall transfer it to the woman(a) if the dowry was received before marriage, within [three
months] after the date of marriage; or
(b) if the dowry was received at the time of or after the marriage,
within [three months] after the date of its receipts; or
(c) if the dowry was received when the woman was a minor,
within [three months] after she has attained the age of eighteen
years; and pending such transfer, shall hold it in trust for the
benefit of the woman.
[(2) If any person fails to transfer any property as required by
subsection
49
(1) within the time limit specified therefore, [or as required by
Sub-section (3),] he shall be punishable with imprisonment for a
term which shall not be less than six months, but which may
extend to two years or with fine [which shall not be less than five
thousand rupees, but which may extend to ten thousand rupees]
or with both.]
(3) Where the woman entitled to any property under sub-section
(1) dies before receiving it, the heirs of the woman shall be
entitled to claim it from the person holding it for the time being:
[Provided that where such woman dies within seven years of her
marriage, otherwise than due to natural causes, such property
shall,(a) if she has no children, be transferred to her parents; or
(b) if she has children, be transferred to such children and
pending such transfer, be held in trust for such children.]
If the dowry amount or articles of married woman was
placed in the custody of his husband or in-laws, they would be
deemed to be trustees of the same. The person receiving dowry
articles or the person who is dominion over the same, as per
Section 6 of the Dowry Prohibition Act, is bound to return the
same within three months after the date of marriage to the
woman in connection with whose marriage it is given. If he does
not do so, he will be guilty of a dowry offence under this Section.
The section further lays down that even after his conviction he
50
must return the dowry to the woman within the time stipulated in
the order.
It is well-settled that power under Section 482 Cr.P.C.
should be sparingly exercised in rare cases. As has been laid
down by this Court in the case of Madhavrao Jiwajirao Scindia &
Ors. vs. Sambhajirao Chandrojirao Angre & Ors., (1988) 1 SCC
692, that when a prosecution at the initial stage was asked to be
quashed, the test to be applied by the Court was as to whether
the uncontroverted allegations as made in the complaint prima
facie establish the offence. It was also for the Court to take into
consideration any special feature which appears in a particular
case to consider whether it was expedient and in the interest of
justice to permit a prosecution to continue. This was so on the
basis that the Court cannot be utilized for any oblique purpose
and where in the opinion of the Court chances of an ultimate
conviction are bleak and therefore, no useful purpose was likely
to be served by allowing a criminal prosecution to continue, the
Court may while taking into consideration the special facts of a
case also quash the proceedings even though it may be at a
preliminary stage.
In the light of the well settled principles, it is to be seen
whether the allegations in the complaint in the present case and
other materials accompanying the complaint disclose the offence
51
punishable under Section 6 of the Dowry Prohibition Act. Marriage
of first respondent and Syamala Rani was solemnized in
Vizianagaram on 04.05.2007 and the couple was living in
Bangalore. Appellants 2 to 6–the parents and sisters of appellant
No.1 were living in Vizianagaram. It is the contention of the
appellants that there are no allegations in the complaint that the
‘stridhana articles’ were given to appellants 2 to 6 and that they
failed to return the same to Syamala Rani. In paras (3) and (4) of
the complaint filed by the second respondent, it is alleged that he
paid the dowry amount “to the accused and some ‘stridhana
articles’ like double cot and other furniture and utensils required
to set up a family”. In the complaint, it is vaguely alleged that
even after death of deceased-Syamala Rani, the accused started
threatening the complainant and that the accused offered to pay
an amount of Rs.10,000/- towards full and final settlement. Th
relevant averments in the complaint in paragraphs (5) and (6)
read as under:“5. The complainant submits that even after the death of the
deceased the accused by keeping the dead body on one side,
started threatening the complainant and his family members that
if they give any report to the police, they will be killed then and
there only and they offered to pay an amount of Rs.10,000/towards full and final settlement. There the complainant, who was
in deep shock at the death of his daughter could not answer
anything but gave a report to the police.
52
6. The complainant submits that he lead several mediations
with the accused through his colleagues, whose names are
mentioned below for return of the dowry, but the accused did not
return the amount and other amounts, given under different
heads. A duty cast upon the accused to return those articles and
amount, which were presented as dowry on demand made by the
accused. The complainant reserves his right to file a fresh
complaint against all the accused for return of the dowry.”
By reading of the above, it is seen that there are no
specific allegations against appellants 2 to 6 that the dowry
articles were entrusted to them and that they have not returned
the dowry amount and the articles to Syamala Rani. Equally,
there are no allegations that those dowry articles were kept in
Vizianagaram and used by appellants 2 to 6 who were separately
living
away
from
the
couple
in
Bangalore.
Even
though
complainant has alleged that the dowry amount was paid at the
house of the accused at Gajapathinagaram, there are no specific
allegations of entrustment of the dowry amount and articles to
appellants 2 to 6.
Giving of dowry and the traditional presents at or about the
time of wedding does not in any way raise a presumption that
such a property was thereby entrusted and put under the
dominion of the parents-in-law of the bride or other close
relations so as to attract ingredients of Section 6 of the Dowry
53
Prohibition Act. As noticed earlier, after marriage, Syamala Rani
and first appellant were living in Bangalore at their matrimonial
house. In respect of ‘stridhana articles’ given to the bride, one
has to take into consideration the common practice that these
articles are sent along with the bride to her matrimonial house. It
is a matter of common knowledge that these articles are kept by
the woman in connection with whose marriage it was given and
used by her in her matrimonial house when the appellants 2 to 6
have been residing separately in Vizianagaram, it cannot be said
that the dowry was given to them and that they were duty bound
to return the same to Syamala Rani. Facts and circumstances of
the case and also the uncontroverted allegations made in the
complaint do not constitute an offence under Section 6 of the
Dowry Prohibition Act against appellants 2 to 6 and there is no
sufficient ground for proceeding against the appellants 2 to 6. Be
it noted that appellants 2 to 6 are also facing criminal prosecution
for the offence under Sections 498A, 304B IPC and under
Sections 3 and 4 of the Dowry Prohibition Act. Even though the
criminal proceeding under Section 6 of the Dowry Prohibition Act
is independent of the criminal prosecution under Sections 3 and 4
of Dowry Prohibition Act, in the absence of specific allegations of
entrustment of the dowry amount and articles to appellants 2 to
6, in our view, continuation of the criminal proceeding against
appellants 2 to 6 is not just and proper and the same is liable to
be quashed.
The impugned order in Criminal Petition No.1778 of 2010 is
set aside qua the appellants 2 to 6 and the appeal is partly
allowed.
******
54
Motor Vehicle Act, 1988
12. Section 166(1) (2) of M.V. Act 1988
Section 21 of CPC
Malati Sardar Vs. National Insurance Company Limited & ors.
Anil R. Dave & Adarsh Kumar Goel ,JJ.
In the Supreme Court of India
Date of Judgment-05.01.2016
Issue
Setting aside a claim only on the ground of lack of
jurisdiction –justification thereof.
Relevant Extract
On 7th May, 2008, the deceased Diganta Sardar, aged 26
years, a school teacher, unmarried son of the appellant was hit
by Bus No.WB/15-A-4959 insured with the respondent company
at Hoogly, in the State of West Bengal and died. He was travelling
on motor cycle of his colleague, Uttam Samui as a pillion rider.
The appellant filed an application under Section 166 of the Motor
Vehicles Act, 1988 (“the Act”) for compensation before the
Tribunal at Kolkata.
Rash and negligent driving by the driver of the bus having
been established, the Tribunal, applying the multiplier of 13 on
account of age of the appellant being 47 years, and taking into
account the income of the deceased and other relevant factors,
fixed compensation of Rs.16,12,200/- with interest at the rate of
6% p.a. from the date of filing of claim petition vide its Award
dated 7th February, 2012.
55
The respondent company preferred an appeal before the
High Court on the only ground of lack of territorial jurisdiction of
the Tribunal. The objection of the respondent was that the
accident took place at Hoogly and the claimant resided at Hoogly.
Office of the respondent being at Kolkata did not attract
jurisdiction of the Kolkata Tribunal.
The High Court upheld the objection of the respondent and
allowed the appeal of the respondent company and directed
refund of the amount deposited/paid, if any, to the respondent
company.
The question for consideration thus is whether the Tribunal
at Kolkata had the jurisdiction to decide the claim application
under Section 166 of the Act when the accident took place
outside Kolkata jurisdiction and the claimant also resided outside
Kolkata jurisdiction, but the respondent being a juristic person
carried on business at Kolkata. Further question is whether in
absence of failure of justice, the High Court could set aside the
award of the Tribunal on the ground of lack of territorial
jurisdiction.
56
In our view, the matter is fully covered by decisions of this
Court in Mantoo Sarkar Vs. Oriental Insurance Company
limited ,(2009)2 SCC 244.
It will be worthwhile to quote the
statutory provision of Section 166(2) of the Act :
“166. Application for compensation.— * * *
(2) Every application under sub-section (1) shall be made,
at the option of the claimant, either to the Claims Tribunal having
jurisdiction over the area in which the accident occurred, or to the
Claims Tribunal within the local limits of whose jurisdiction the
claimant resides or carries on business or within the local limits of
whose jurisdiction the defendant resides, and shall be in such
form and contain such particulars as may be prescribed:
Provided that where no claim for compensation under
Section 140 is made in such application, the application shall
contain a separate statement to that effect immediately before
the signature of the applicant.”
It was held that the jurisdiction of the Tribunal was wider
than the civil court. The Tribunal could follow the provisions of
Code of Civil Procedure (CPC). Having regard to Section 21 CPC,
objection of lack of territorial jurisdiction could not be entertained
in absence of any prejudice. Distinction was required to be drawn
between a jurisdiction with regard to subject matter on the one
hand and that of territorial and pecuniary jurisdiction on the
other. A judgment may be nullity in the former category, but not
57
in the later. Reference was also made to earlier decision of this
Court in Kiran Singh vs. Chaman Paswan ,AIR 1954 SC 340
to the following effect :
“With
reference
to
objections
relating
to
territorial
jurisdiction, Section 21 of the Civil Procedure Code enacts that no
objection to the place of suing should be allowed by an appellate
or revisional court, unless there was a consequent failure of
justice. It is the same principle that has been adopted in Section
11 of the Suits Valuation Act with reference to pecuniary
jurisdiction. The policy underlying Sections 21 and 99 CPC and
Section 11 of the Suits Valuation Act is the same, namely, that
when a case had been tried by a court on the merits and
judgment rendered, it should not be liable to be reversed purely
on technical grounds, unless it had resulted in failure of justice,
and the policy of the legislature has been to treat objections to
jurisdiction both territorial and pecuniary as technical and not
open to consideration by an appellate court, unless there has
been a prejudice on the merits. The contention of the appellants,
therefore, that the decree and judgment of the District Court,
Monghyr, should be treated as a nullity cannot be sustained
under Section 11 of the Suits Valuation Act.’ ”
We are thus of the view that in the face of judgment of this
Court in Mantoo Sarkar Vs. Oriental Insurance Company
limited ,(2009)2 SCC 244, the High Court was not justified in
setting aside the award of the Tribunal in absence of any failure
58
of justice even if there was merit in the plea of lack of territorial
jurisdiction. Moreover, the fact remained that the insurance
company which was the main contesting respondent had its
business at Kolkata.
The provision in question, in the present case, is a
benevolent provision for the victims of accidents of negligent
driving. The provision for territorial jurisdiction has to be
interpreted consistent with the object of facilitating remedies for
the victims of accidents. Hyper technical approach in such
matters can hardly be appreciated. There is no bar to a claim
petition being filed at a place where the insurance company,
which is the main contesting parties in such cases, has its
business. In such cases, there is no prejudice to any party. There
is no failure of justice. Moreover, in view of categorical decision of
this Court in Mantoo Sarkar Vs. Oriental Insurance Company
limited ,(2009)2 SCC 244, contrary view taken by the High
Court cannot be sustained. The High Court failed to notice the
provision of Section 21 CPC. Accordingly, we allow this appeal,
set aside the impugned judgment of the High Court and restore
the award of the Tribunal
******
59