advocatemmmohan
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Chandigarh
Service matter = Employer can refix the pay and recover the same from Employee when pay was fixed wrongly by mistake with out considering the rules and regulations in fixation of pay of Re-Employed pensioner = U.T. CHANDIGARH & ORS. …APPELLANTS VERSUS GURCHARAN SINGH & ANR. …RESPONDENTS = Reported in http://judis.nic.in/supremecourt/filename=40951
Employer can refix the pay and recover the same from Employee when pay was fixed wrongly by mistake with out considering the rules and regulations in fixation of pay of Re-Employed pensioner = if any amount had been paid due to mistake, the mistake must be rectified and the amount so paid in pursuance of the mistake must … Continue reading
Whether the DGP can reverse the adverse remaks in the matter of integrity recorded in ACR after the lapse of 9 years ? NO. Whether the successor D.G.P. CAN CANCEL THE SAME – yes – High court dismissed the writs filed by aggerieved persons – Apex court confirmed the same. – VINOD KUMAR …….. APPELLANT(S) VERSUS STATE OF HARYANA & ORS. ……….RESPONDENT(S) – http://judis.nic.in/supremecourt/imgst.aspx?filename=40896
Whether the DGP can reverse the adverse remaks in the matter of integrity recorded in ACR after the lapse of 9 years ? NO. Whether the successor D.G.P. CAN CANCEL THE SAME – yes – High court dismissed the writs filed by aggerieved persons – Apex court confirmed the same. after almost 9 years, he … Continue reading
No reduction of sentence =Rape is a non-compoundable offence and it is an offence against the society and is not a matter to be left for the parties to compromise and settle. Since the Court cannot always be assured that the consent given by the victim in compromising the case is a genuine consent, there is every chance that she might have been pressurized by the convicts or the trauma undergone by her all the years might have compelled her to opt for a compromise. In fact, accepting this proposition will put an additional burden on the victim. The accused may use all his influence to pressurize her for a compromise. So, in the interest of justice and to avoid unnecessary pressure/harassment to the victim, it would not be safe in considering the compromise arrived at between the parties in rape cases to be a ground for the Court to exercise the discretionary power under the proviso of Section 376(2) of IPC. 23) It is imperative to mention that the legislature through the Criminal Law (Amendment) Act, 2013 has deleted this proviso in the wake of increasing crimes against women. Though, the said amendment will not come in the way of exercising discretion in this case, on perusal of the above legislative provision and catena of cases on the issue, we feel that the present case fails to fall within the ambit of exceptional case where the Court shall use its extraordinary discretion to reduce the period of sentence than the minimum prescribed.
published in http://judis.nic.in/supremecourt/imgst.aspx?filename=40699 REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION 1 CRIMINAL APPEAL NOS.1278-1279 OF 2013 (Arising out of S.L.P. (Crl.) Nos. 1011-1012 of 2012) Shimbhu and Anr. …. Appellant(s) Versus State of Haryana …. Respondent(s) 2 J U D G M E N T P.Sathasivam,CJI. 1) Leave granted. 2) … Continue reading
Land Acquisition Act = whether the officers of the Union Territory of Chandigarh other than the Administrator could issue notifications under Sections 4(1) and 6(1) of the 1894 Act, = Notification dated 1.10.2002 cannot be saved at this belated stage and the Competent Authority cannot issue declaration under Section 6(1) of the Act after 11 years of the issue of notification under Section 4(1). – In the result, the appeals are allowed, the impugned order is set aside and Notifications dated 1.10.2002 and 29.9.2003 are quashed insofar as the same relate to the lands of the appellants. The parties are left to bear their own costs.
reported in http://judis.nic.in/supremecourt/imgst.aspx?filename=40587 NON-REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.5885 OF 2013 (Arising out of SLP(C) No. 27221 of 2011) Gurbinder Kaur Brar and another …Appellants versus Union of India and others …Respondents With CIVIL APPEAL NO.5884 OF 2013 (Arising out of SLP(C) No. 25387 … Continue reading
Dying Declaration =It may not be an absolute proposition of law that a dying declaration should be recorded by a Magistrate There is nothing on record to suggest that Dr. Rajinder Rai (PW- 4) is an unreliable witness. To the contrary, he is a natural witness and his testimony has not been shaken during a long cross examination. The theory of tutoring is also ruled out in the present case as the accused persons only were present with the deceased during that time and none of the family members of the deceased were present when the dying declaration was recorded by the Doctor. The husband (appellant no.1) Manoj has also affixed his signature on the MLR on which the dying declaration was recorded by the Doctor. The evidence of PW-4 is trustworthy, cogent and reliable. What we find in the present case is that the dying declaration (Ext.PF) which was recorded by Dr.Rajinder Rai (PW-4) was also signed by Manoj (appellant no.1) which indicates that appellant No.1 was present when statement was recorded. Nothing on the record to suggest that any of the relation of the deceased was present to influence Dr. Rajinder Rai (PW-4). The law is well settled that if the declaration is made voluntarily and truthfully by a person who is physically in a condition to make such statement, then there is no impediment in relying on such a declaration. Such view was taken by this Court in Kanaksingh Raisingh Rav v. State of Gujarat, (2003) 1 SCC 73 wherein this Court held: the law is well settled i.e. if the declaration is made voluntarily and truthfully by a person who is physically in a condition to make such statement, then there is no impediment in relying on such a declaration. In the instant case, the evidence of PW 5, the doctor very clearly shows that the deceased was conscious and was medically in a fit state to make a statement. It is because of the fact that a Judicial Magistrate was not available at that point of time, he was requested to record the statement, which he did. His evidence in regard to the state of mind or the physical condition of the deceased to make such a declaration has not been challenged in the cross- examination. That being so, it should be held that the deceased was in a fit state of mind to make a declaration as held by the courts below. The next question for our consideration is whether this statement is voluntary and truthful. It is not the case of the defence that when she made the statement either she was surrounded by any of her close relatives who could have prompted her to make an incorrect or false statement. In the absence of the same so far as the voluntariness of the statement is concerned, there can be no doubt because the deceased was free from external influence or pressure. So far as the truthfulness of the statement is concerned, the doctor (PW 5) has stated that she has made the said statement which, as noted above, is not challenged in the cross-examination. The deceased in her brief statement has, in clear terms, stated that because of the quarrel between her and the accused, the accused had poured kerosene and set her on fire which, in our opinion, cannot be doubted………”
published in http://judis.nic.in/supremecourt/imgst.aspx?filename=40535 REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.1853 OF 2012 MANOJ & ORS. …APPELLANTS Versus STATE OF HARYANA …RESPONDENT J U D G M E N T SUDHANSU JYOTI MUKHOPADHAYA, J. The appellants in this case were found guilty of offence punishable under Sections 498-A and 304-B Indian … Continue reading
Service matter = in case the Disciplinary Authority disagrees with the findings recorded by the Enquiry Officer, he must record reasons for the dis-agreement and communicate the same to the delinquent seeking his explanation and after considering the same, the punishment could be passed. = in Kunj Behari Misra (supra), observing that it was a case where the disciplinary authority differed from the view of the Inquiry Officer. “In that context, it was held that denial of opportunity of hearing was per se violative of the principles of natural justice.” 11. In fact, not furnishing the copy of the recorded reasons for disagreement from the enquiry report itself causes the prejudice to the delinquent and therefore, it has to be understood in an entirely different context than that of the issue involved in ECIL (supra).= The learned Single Judge has concluded the case observing as under: “The whole process that resulted in dismissal of the petitioner is flawed from his inception and the order of dismissal cannot be sustained. I am examining this case after nearly 23 years after its institution and the petitioner has also attained the age of superannuation. The issue of reinstatement or giving him the benefit of his wages for during the time when he did not serve will not be appropriate. The impugned orders of dismissal are set aside and the petitioner shall be taken to have retired on the date when he would have superannuated and all the terminal benefits shall be worked out and paid to him in 12 weeks on such basis. There shall be, however, no direction for payment of any salary for the period when he did not work.”= As the case is squarely covered by the judgment of this court in Kunj Behari Misra (supra), we do not see any reason to approve the impugned judgment rendered by the Division Bench. Thus, in view of the above, the appeal is allowed. The judgment and order of the Division Bench is set aside and that of the learned Single Judge is restored. No costs.
published in http://judis.nic.in/supremecourt/imgst.aspx?filename=40533 REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELALTE JURISDICTION CIVIL APPEAL NO. 5128 OF 2013 (Arising out of SLP (C) No. 39105 of 2012) S.P. Malhotra …Appellant Versus Punjab National Bank & Ors. …Respondents O R D E R 1. Leave granted. 2. This appeal … Continue reading
Rape by Police in Custody – absence of medical examination about the Rape is not fatal to the prosecution as they made efforts to get medically examined through petition, through complaint but the Doctors refused =the complainant and one Kamaljit Kaur, who were working as ‘dai’ and nurse respectively, and brought them to the Police Station. On the intervention of Maha Singh, President of the Para Medical Union, Kamaljit Kaur, was released, but the complainant was not released.- in the night of 09.02.1989, the appellants tortured her with patta, made her senseless and had intercourse with her and released her on the morning of 10.02.1989 on the intervention of the Panchayats of Villages Paili, Otal Majarh and Unaramour. when she was released on 10.02.1989, she was in a bad shape and she told them about the torture and sexual intercourse that was forced upon her by the appellants on the night of 09.02.1989. – The appellants in their statements under Section 313 Cr.P.C. before the trial court, on the other hand, took the defence that the complainant (PW-3) along with Kamaljit Kaur were actually released on 09.02.1989 at 6.00 p.m. = the trial court and the High Court have recorded the findings of rape committed by the appellants on PW-3 because of her consistent version in her petition dated 13.02.1989 (Ext.P3/A) to the Governor made within a few days of her release from Police Station on 09.02.1989, her complaint dated 25.07.1989 and her evidence in Court. PW- 1, PW-2 and PW-3 have deposed that an attempt was made for a medical examination in the Civil Hospital, Balachaur, and the hospital at Saroa but the doctors refused to conduct the medical examination on account of the pressure from the appellant-Radha Krishan, but DW-11 and DW-12, the doctors in the hospital, have denied that they had refused to conduct the medical examination. The result is that there is no medical evidence to support the allegation of rape made by PW-3 against the appellants. The High Court, however, has held that as PW-3 was not a young woman, medical examination was not significant and absence of medical examination may not be sufficient to disbelieve PW-3 if her story stands on its own. The High Court has found that she has consistently stated in her petition dated 13.02.1989 to the Governor of Punjab, in her complaint dated 25.07.1989 before the Magistrate and in her deposition in Court that she was detained in the night and raped by the appellants and both the trial court and the High Court have found that soon after she was released from the Police Station on 10.02.1989, she stated before her husband (PW-1) and the neighbour (PW-2) that she had been raped by the appellants and that she was bleeding profusely. The trial court and the High Court, therefore, have come to the finding of guilt of rape against the appellants relying on the evidence of PW-3 as corroborated by the evidence of PW-1, PW-2 under Section 157 of the Indian Evidence Act.= Thus, the trial court and the High Court have recorded concurrent findings of facts holding the appellants guilty of the offences under Sections 323/34, 504/34, 376(2)(a) and 376(2)(g) IPC and the appellant- Radha Krishan guilty of the offence under Section 342 IPC also. = It has been repeatedly held by this Court that even though the powers of this Court under Article 136 of the Constitution are very wide, in criminal appeals this Court does not interfere with the concurrent findings of facts, save in exceptional circumstances where there has been grave miscarriage of justice
published in http://judis.nic.in/supremecourt/imgst.aspx?filename=40523 Reportable IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL No. 232 of 2007 Charanjit & Ors. …… Appellants Versus State of Punjab & Anr. ….. Respondents J U D G M E N T A. K. PATNAIK, J. This is an appeal by way of special leave … Continue reading
Dowry death sec. 498 A , 304 B of IPC =death was due to asphyxia by throttling = In the present case, we have noticed that the prosecution has successfully proved the ingredients necessary to attract the Provision of Section 304B IPC. Such ingredients having been proved, Section 113B of the Indian Evidence Act automatically comes into play. In the facts and circumstances, the death of Jaswinder Kaur had taken place just within four months of her marriage. The case of the prosecution mainly rests on the evidence of PW4 and PW5, parents of the deceased. At the end of the argument, learned counsel for the appellant made an alternative submission and requested to take a lenient view in view of the fact that after the death of Jaswinder Kaur (first wife), the appellant got married second time and from his second wife he has three children out of which one son is handicapped and his mother is also paralysed. Taking into consideration the aforesaid fact, we affirm the conviction under Section 304B IPC and 498A IPC and reduce the sentence awarded under Section 304B IPC to seven years alongwith the sentence of two years imposed under Section 498A IPC and fine of Rs.2,000/ as imposed by the Trial Court and affirmed by the Division Bench of the High Court with direction that both sentences shall run concurrently.
published in http://judis.nic.in/supremecourt/imgs1.aspx?filename=40518 Page 1 1 REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.510 OF 2007 RANJIT SINGH …APPELLANT Versus STATE OF PUNJAB …RESPONDENTS J U D G M E N T SUDHANSU JYOTI MUKHOPADHAYA, J. This appeal is directed against the judgment and order dated 17th January, 2007 passed by the Division Bench of the Punjab and Haryana High Court at Chandigarh in Criminal Appeal … Continue reading
Section 106,113 A,113 B of Evidence Act, 498 A 304 B and 210 /34 = When prosecution proved death with in 7 years due to dowry harassment, the burden shift on accused to prove his innocence, else court can draw presumption under sec. 113 B of Evidence Act = Section 106 of the Evidence Act does not relieve the burden of prosecution to prove guilt of the accused beyond reasonable doubt but where the prosecution has succeeded to prove the facts from which a reasonable inference can be drawn regarding the existence of certain other facts and the accused by virtue of special knowledge regarding such facts fail to offer any explanation then the Court can draw a different inference. 16. The ingredients necessary for application of Section 304B IPC and the applicability of Section 113B of the Evidence Act was discussed by this Court in State of Rajasthan v. Jaggu Ram, (2008)12 SCC 51. In the said case, this Court held as follows: “11.The ingredients necessary for the application of Section 304B IPC are: 1. that the death of a woman has been caused by burns or bodily injury or occurs otherwise than under normal circumstances; 2. that such death has been caused or has occurred within seven years of her marriage; and 3. that soon before her death the woman was subjected to cruelty or harassment by her husband or any relative of her husband in connection with any demand for dowry. 12. Section 113B of the Evidence Act lays down that if soon before her death a woman is subjected to cruelty or harassment for, or in connection with any demand for dowry by the person who is accused of causing her death then the court shall presume that such person has caused the dowry death. The presumption under Section 113B is a presumption of law and once the prosecution establishes the essential ingredients mentioned therein it becomes the duty of the court to raise a presumption that the accused caused the dowry death. 13. A conjoint reading of Section 304B IPC and Section 113B, Evidence Act shows that in order to prove the charge of dowry death, prosecution has to establish that the victim died within 7 years of marriage and she was subjected to cruelty or harassment soon before her death and such cruelty or harassment was for dowry. The expression “soon before her death” has not been defined in either of the statutes. Therefore, in each case the court has to analyse the facts and circumstances leading to the death of the victim and decide whether there is any proximate connection between the demand of dowry, the act of cruelty or harassment and the death.” In the present case, the prosecution proved that the death of Santosh Kaur has occurred otherwise than under normal circumstances. Such death has occurred within a period of 9 months of her marriage i.e. much before seven years. The statements of PW2 and PW3 are trustworthy and they stated that Santosh Kaur was subjected to harassment by her husband and other accused relatives in connection with demand for dowry just prior to death. The prosecution having established essential ingredients, it becomes the duty of the Court to raise a presumption that the accused caused dowry death. In the present case, the accused has failed to explain as to why he was in a hurry to cremate the deceased in the early morning of 24th January, 1993 while she died in the mid night of 23rd/24th January, 1993 i.e. within few hours. The village of deceased’s parents was just 1718kms far from the village of the accused but the reason as to why they were not informed about the incident on the same day and why the accused had not waited for them to come is not explained. The accused has also failed to explain as to why according to the F.S.L. Report, an Organo Phosphorus Pesticide was found in the vomiting of the deceased. Therefore, the Trial Court rightly drew an inference that the accusedappellants were guilty of the offence for which they were charge.
published in http://judis.nic.in/supremecourt/imgs1.aspx?filename=40516 Page 1 1 REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.14 OF 2007 RAJINDER SINGH …APPELLANT Versus STATE OF HARYANA …RESPONDENTS With CRIMINAL APPEAL NO.15 OF 2007 J U D G M E N T SUDHANSU JYOTI MUKHOPADHAYA, J. These two appeals are directed against the common judgment dated 9th December, 2005 passed by the learned Single Judge of the Punjab and Haryana High Court at Chandigarh in two separate Criminal Appeal Nos. 392SB of 1995 and 151SB of 1995, whereby the learned Single Judge dismissed the appeals preferred by the accused and affirmed the conviction and sentence awarded by the Additional Session Judge, Yamuna Nagar at Jagadhri. 2.The appellants were tried for offences under Sections 498A … Continue reading
Confirmation of conviction with out assigning valid reasons – not valid and as such remanded to consider afresh =The High Court’s cryptic reasoning is contained in two short paragraphs. We find such disposal of a criminal appeal by the High Court particularly in a case involving charge under Section 302 of the IPC where the accused is sentenced to life imprisonment unsatisfactory. It was necessary for the High Court to consider whether the trial court’s assessment of the evidence and its opinion that the appellant must be convicted deserve to be confirmed. This exercise is necessary because the personal liberty of an accused is curtailed because of the conviction. The High Court must state its reasons why it is accepting the evidence on record. The High Court’s concurrence with the trial court’s view would be acceptable only if it is supported by reasons. In such appeals it is a court of first appeal. Reasons cannot be cryptic. By this, we do not mean that the High Court is expected to write an unduly long treatise. The judgment may be short but must reflect proper application of mind to vital evidence and important submissions which go to the root of the matter. Since this exercise is not conducted by the High Court, the appeal deserves to be remanded for a fresh hearing after setting aside the impugned order.
published in http://judis.nic.in/supremecourt/imgs1.aspx?filename=40502 Page 1 1 NON-REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 818 OF 2013 [ARISING OUT OF SLP (CRL.) NO. 1300 OF 2013] Majjal … APPELLANT Versus State of Haryana … RESPONDENT O R D E R 1. Leave granted. 2. This appeal, by grant of special leave, is … Continue reading
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