//
archives

Faridabad

This tag is associated with 4 posts

WHEN discrepancies not pointed out while cross examining the I.O., those can not be considered as failure of prosecution = . The entry register maintained in the Girls Hostel for visitors was never produced in court. B. The finger prints taken from the glass and tea cups recovered from the hostel, to prove that the same had been used by the appellant, did not test positive. C. The rope allegedly used in the crime, was not recovered, nor has any positive evidence been produced to show that the appellant had gone to the hostel armed with a rock. D. A large number of girl students had been staying in the hostel, and none of them were examined. E. The postmortem report does not in any way prove the case of the prosecution, for the reason that the throttling, smothering and breaking of various ribs of the deceased, may not have been caused by a single person. F. The mobile phone recovered from Itarsi (M.P.) was not deposited in the Malkhana. G. The telephone number that had allegedly been purchased by Sonia (deceased), and later recovered, showed some variance. H. The journey from Faridabad to Itarsi and from Itarsi to Faridabad has not been proved. I. The Booking Register of the Taneja Guest House does not prove that the appellant had stayed in the said Guest House. 41. We have examined the aforesaid discrepancies pointed out by the learned counsel. It may be stated herein that some of the issues have been explained by the prosecution, however, no attempt was ever made by the defence to put most of these issues to SI Vinod Kumar (PW.20), the Investigating Officer in his cross-examination. It is evident from his deposition that he had, in fact, answered all the questions that were put to him in the cross-examination. However, it is pertinent to clarify that most of these questions that are being currently raised before us were not put to him. For example, he has explained that nobody from the said market had been ready to become the Panch witness for recovery of the mobile phone from Sonu’s shop at Itarsi, and that even Sonu was not ready to do so. Further, no question had been put to him in the cross-examination regarding the different EMEI number of the said mobile phone. The mobile phone that was recovered, bore the EMEI No. 3534000004033852 (Ex.P- 19), though the EMEI number of mobile phone that belonged to Sonia was 3534000004033853. Furthermore, no question had been put as to why the mobile phone, after the recovery, had not been deposited in the Malkhana. In light of such a fact situation, it is not permissible for us to consider such discrepancies. So far as the inconsistencies in the depositions of the witnesses are concerned, none of them can be held to be material inconsistency. 42. The facts so established by the prosecution do not warrant further review of the judgments of the courts below by this court. The appeal lacks merit and is, accordingly, dismissed.

Page 1     REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 896 of 2011 Rohtash Kumar …Appellant Versus State of Haryana …Respondent J U D G M E N T Dr. B.S. CHAUHAN, J. 1. This appeal has been filed against the judgment and order dated 5.2.2009 passed by the … Continue reading

Custodial Death – Writ petition alleging custodial death – Compensation sought – State responding that FIR lodged and erring officials charged u/ss.330, 342 and 306 IPC, sanction for prosecution granted and cognizance of offences taken – Held: In view of the facts, no further direction required at this stage – Prayer for compensation not acceptable as the issue as to whether the death was custodial, yet to be decided – Penal Code, 1860 – ss. 330, 342 and 306. Constitution of India, 1950 – Articles 21, 20(3) and 22 – Custodial violence and torture is defiance of the rights flowing from Constitution – Increase of such violence raises serious questions about the credibility of rule of law and administration of criminal justice system — universal Declaration of Human Rights, 1948 – Article 5. Criminal trial – Adherence to principle of proof beyond reasonable doubt – In Police torture cases – Held: Exaggerated and strict adherence to the principle in such cases, often results in miscarriage of justice – Courts to deal with such cases in realistic manner. The petitioner filed the writ petition before this Court alleging that his son was done to death in police custody and the police officials were giving the death, a colour of suicide, attempting to protect the erring police officials. Petitioner also sought compensation. On notice, respondent-State stated that FIR had been registered and certain police officials had been charged for commission of offences punishable u/ss. 330, 342 and 306 IPC. Sanction for prosecution had also been given. Charge-sheet had been filed. Accused had surrendered before Court and their bail had been rejected. =Disposing of the petition, the Court HELD:1.1. The Universal Declaration of Human Rights in 1948 which marked the emergence of a worldwide trend of protection and guarantee of certain basic human rights stipulates in Article 5 that “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment”. Despite this pious declaration, the crime continues unabated, though every civilized nation shows its concern and makes efforts for its eradication. [Para 6] [831-G-H; 832-A-B] 1.2. Article 21 of the Constitution of India, 1950 mandates that no person shall be deprived of his life and personal liberty except according to the procedure established by law. This sacred and cherished right i.e. personal liberty has an important role to play in the life of every citizen. Life or personal liberty includes a right to live with human dignity. There is an inbuilt guarantee against torture or assault by the State or its functionaries. Chapter V CrPC deals with the powers of arrest of persons and the safeguards required to be followed by the police to protect the interest of the arrested person. Articles 20(3) and 22 of the Constitution further manifest the constitutional protection extended to every citizen and the guarantees held out for making life meaningful and not a mere animal existence. It is therefore difficult to comprehend how torture and custodial violence can be permitted to defy the rights flowing from the Constitution. The dehumanizing torture, assault and death in custody which have assumed alarming proportions raise serious questions about the credibility of rule of law and administration of criminal justice system. The community rightly gets disturbed. The cry for justice becomes louder and warrants immediate remedial measures. [Para 8] [832-D-H; 833-A] 1.3. The diabolic recurrence of police torture resulting in a terrible scare in the minds of common citizens that their lives and liberty are under a new and unwarranted peril because guardians of law destroy the human rights by custodial violence and torture and invariably resulting in death. The vulnerability of human rights assumes a traumatic torture when functionaries of the State whose paramount duty is to protect the citizens and not to commit gruesome offences against them, in reality perpetrate them. [Para 9] [833-D-E] Raghubir Singh vs. State of Haryana (1980) 3 SCC 70; Gauri Shanker Sharma v. State of U.P. AIR 1990 SC 709; Bhagwan Singh and Anr. v. State of Punjab (1992) 3 SCC 249; Smt. Nilabati Behera @Lalita Behera v. State of Orissa and Ors. AIR (1993) SC 1960; Pratul Kumar Sinha v. State of Bihar and Anr. (1994) Supp. 3 SCC 100; Kewal Pati (Smt.) v. State of U.P. and Ors. (1995) 3 SCC 600; Inder Singh v. State of Punjab and Ors. (1995) 3 SCC 702 and State of M.P. v. Shyamsunder Trivedi and Ors. (1995) 4 SCC 262, relied on. 2.1. Rarely in cases of police torture or custodial death, there is any direct ocular evidence of the complicity of the police personnel alone who can only explain the circumstances in which a person in their custody had died. Bound as they are by the ties of brotherhood, it is not unknown that the police personnel prefer to remain silent and more often than not even pervert the truth to save their colleagues – and the present case is an apt illustration – as to how one after the other police witnesses feigned ignorance about the whole matter. [Para 10] [834-A-B] 2.2. The exaggerated adherence to and insistence upon the establishment of proof beyond every reasonable doubt by the prosecution, at times even when the prosecuting agencies are themselves fixed in the dock, ignoring the ground realities, the fact-situation and the peculiar circumstances of a given case, as in the present case, often results in miscarriage of justice and makes the justice delivery system suspect and vulnerable. In the ultimate analysis the society suffers and a criminal gets encouraged. Tortures in police custody, which of late are on the increase, receive encouragement by this type of an unrealistic approach at times by the courts as well because it reinforces the belief in the mind of the police that no harm would come to them if one prisoner dies in the lock-up because there would hardly be any evidence available to the prosecution to directly implicate them with the torture. [Para 11] [834-C-E] 2.3. The courts must not lose sight of the fact that death in police custody is perhaps one of the worst kind of crimes in a civilized society, governed by the rule of law and poses a serious threat to an orderly civilized society. Torture in custody flouts the basic rights of the citizens recognized by the Constitution and is an affront to human dignity. Police excesses and the maltreatment of detainees/under-trial prisoners or suspects tarnishes the image of any civilised nation and encourages the men in `Khaki’ to consider themselves to be above the law and sometimes even to become law unto themselves. Unless stern measures are taken to check the malady of the very fence eating the crops, the foundations of the criminal justice delivery system would be shaken and the civilization itself would risk the consequence of heading, towards total decay resulting in anarchy and authoritarianism reminiscent of barbarism. The courts must, therefore, deal with such cases in a realistic manner and with the sensitivity which they deserve, otherwise the common man may tend to gradually lose faith in the efficacy of the system of judiciary itself. [Para 11] [834-F-H; 835-A- B] 3. In view of the fact that sanction for prosecution has been granted, charge sheet had been filed and cognizance had been taken, no further direction at present is necessary. If at any point of time, evidence surfaces before the concerned court to show that some other offences appear to have been committed, necessary orders can be passed. The prayer for compensation is also not acceptable because that would depend upon decision of the issue as to whether there was custodial death. [Para 12] [835-C-D] Case Law Reference: (1980) 3 SCC 70 Relied on Para 9 AIR 1990 SC 709 Relied on Para 9 (1992) 3 SCC 249 Relied on Para 9 AIR (1993) SC 1960 Relied on Para 9 (1994) Supp. 3 SCC 100 Relied on Para 9 (1995) 3 SCC 600 Relied on Para 9 (1995) 3 SCC 702 Relied on Para 9 (1995) 4 SCC 262 Relied on Para 9 CRIMINAL ORIGINAL JURISDICTION : Writ Petition (Crl.) No. 193 of 2006. Kamini Jaiswal for the Petitioner. Kamlendra Mishra for the Respondents.

REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL ORIGINAL JURISDICTION WRIT PETITION (Crl.) NO. 193 OF 2006 Dalbir Singh …Petitioner Vs. State of U.P. and Ors. …Respondents JUDGMENT Dr. ARIJIT PASAYAT, J. 1. Alleging that because of custodial torture and diabolic acts of the police officials of Noida Police, Somvir Singh @ Sonu aged 17 … Continue reading

whether extra-judicial confession of A1-Pratham inspires confidence and then find out whether there are other cogent circumstances on record, to support it. =This Court clarified that though confession may be regarded as evidence in generic sense because of the provisions of Section 30 of the

REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.1050 OF 2005 PANCHO … APPELLANT Versus STATE OF HARYANA … RESPONDENT WITH CRIMINAL APPEAL NO.1222 OF 2005 PRATHAM … APPELLANT Versus STATE OF HARYANA … RESPONDENT JUDGMENT (SMT.) RANJANA PRAKASH DESAI, J. 1. These two appeals, by special leave, can be disposed … Continue reading

Allowing the appeal, the Court HELD: 1. The Supreme Court over 50 years has been consistently observing that limited jurisdiction of the High Court under Article 227 of the Constitution of India cannot be exercised by interfering with the findings of fact and setting aside the judgments of the courts below on merits. The High Court, in the impugned judgment, has erred in interfering with the concurrent findings of fact of the authorities below under its limited jurisdiction under Article 227 of the Constitution. [Para 29 and 35] [185- G; 187-E] Nagendra Nath Bora and Another v. Commissioner of Hills Division and Appeals, Assam & Others 1958 SCR1240=AIR 1958 SC 398; Nibaran Chandra Bag v. Mahendra Nath Ghughu 1963 Suppl. SCR570= AIR 1963 SC 1895; Mohd. Yunus v. Mohd. Mustaqim & Others 1984 (1) SCR 211= (1983) 4 SCC 566; Laxmikant Revchand Bhojwani & Another v. Pratapsing Mohansingh Pardeshi (1995) 6 SCC 576; Rena Drego (Mrs.) v. Lalchand Soni & Others1998 (2) SCR 197=(1998) 3 SCC 341; Virendra Kashinath Ravat & Another v. Vinayak N. Joshi & Others 1998 (2) Suppl. SCR643= (1999) 1 SCC 47, relied on. 2.1. The High Court erroneously observed that “the authenticity of the decree passed by the court cannot be questioned. Therefore, the genuineness of the sale price has to be presumed.” This finding of the High Court cannot be sustained. It would have far reaching ramifications and consequences. If the genuineness of the sale price entered into by the buyer and the seller cannot be questioned, then in majority of the cases it is unlikely that the State would ever receive the stamp duty according to the circle rate or the collector rate. The approach of the High Court is totally unrealistic. [Para 36] [187-G-H; 188-A] 2.2. In order to ensure that there is no evasion of stamp duty, circle rates are fixed from time to time and the notification issued to that effect. The issuance of such notification has become imperative to arrest the tendency of evading the payment of actual stamp duty. It is a matter of common knowledge that usually the circle rate or the collector rate is lower than the prevalent actual market rate but to ensure registration of sale deeds at least at the circle rates or the collector rates such notifications are issued from time to time. [Para 39] [188-E, F] 2.3 It is not disputed that in the instant case the commercial plot of 788 sq. yards was valued by the circle rate at Rs.4,200 per sq. yard fixed by the Collector, meaning thereby that after the notification, no sale deed could be registered for an amount lesser than Rs.4,200/- per sq.yard. The High Court has not properly construed the observations of the District Collector to the effect that the suit was filed in the civil court with the intention to avoid tax and stamp duty inasmuch as the value of the property as per the circle rate was Rs.33,09,600, on which stamp duty to be paid was Rs.5,13,050/- whereas the stamp duty actually paid was only Rs.31,000/-, therefore stamp duty to the tune of Rs.4,82,050 was payable. This order was upheld by the Commissioner. The High Court while exercising its jurisdiction under Article 227 has set aside the orders passed by the authorities below without any basis or rationale. Apart from the jurisdiction, even what is factually stated in the order of the District Collector as upheld by the Commissioner, is unexceptionable and any interference was totally unwarranted. [Para 40-41] [189-B-C; D-E] 2.4. In the facts and circumstances of the case, the impugned judgment of the High Court cannot be sustained and is accordingly set aside, and the order passed by the District Collector, as upheld by the Commissioner, is restored. The respondent is directed to pay the balance stamp duty. [Para 42] [189-F, G] State of Punjab & Others v. Mohabir Singh etc.etc. 1995 (5) Suppl. SCR520= (1996) 1 SCC 609; R. Sai Bharathi v. J. Jayalalitha & Others 2003 (6) Suppl.SCR85= (2004) 2 SCC 9, cited. Case Law Reference: 1958 SCR1240 relied on para 23 1963 Suppl. SCR570 relied on para 24 1984 (1) SCR211 relied on para 25 (1995) 6 SCC 576 relied on para 26 1998 (2) SCR197 relied on para 27 1998 (2) Suppl. SCR643 relied on para 28 1995 (5) Suppl. SCR520 cited para 32 2003 (6) Suppl.SCR85 cited para 33 CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2226 of 2010. From the Judgment & Order dated 4.2.2008 of the High Court of Punjab and Haryana at Chandigarh in CWP No. 12094 of 2007. Puneet Mittal, AAG, Naresh Bakshi, T.A. Mir and Ankur Aggarwal for the Appellants. Manoj Swarup, Devesh Kumar Tripathi, Ashok Anand and Ajay Kumar for the Respondent.

REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 2226 OF 2010 [Arising out of Special Leave to Appeal (C) No.26684 of 2008] State of Haryana & Ors. … Appellants Versus Manoj Kumar … Respondent JUDGMENT Dalveer Bhandari, J. 1. Leave granted. 2. This appeal is directed against the judgment dated … Continue reading

Blog Stats

  • 2,887,199 hits

ADVOCATE MMMOHAN

archieves

Enter your email address to subscribe to this blog and receive notifications of new posts by email.

Join 1,905 other followers
Follow advocatemmmohan on WordPress.com