//
archives

Verville VCP

This tag is associated with 33 posts

the conviction of the appellant may be altered from Section 302 IPC to Section 304 Part II IPC or at the most under Section 304 Part-I IPC. – the occurrence took place suddenly and there was no premeditation on the part of the appellants. There is no evidence that the appellants made special preparation for assaulting the deceased with the intent to kill him. There is no dispute that the appellants assaulted deceased in such a manner that the deceased suffered grievous injuries which was sufficient to cause death, but we are convinced that the injury was not intended by the appellants to kill the deceased.= In the facts and circumstances of the case, in our considered opinion, the instant case falls under Section 304 Part II IPC as stated above. Although the appellants had no intention to cause death but it can safely be inferred that the appellants knew that such bodily injury was likely to cause death, hence the appellants are guilty of culpable homicide not amounting to murder and are liable to be punished under Section 304 Part II IPC. 22. Accordingly, we modify the judgment of the trial court and the High Court and convert the conviction under Section 302 to 304 Part II IPC, and sentence the appellants to ten years’ imprisonment. The appeal is, therefore, disposed of with the modi

Page 1 REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 805 OF 2009 Litta Singh & Anr. … Appellant(s) versus State of Rajasthan … Respondent(s) J U D G M E N T M.Y. Eqbal, J. The present appeal by special leave arises out of the judgment and order dated 8th … Continue reading

the plea of insanity under Section 84 of the Indian Penal Code, 1860 (in short ‘the IPC’).= Another factor which goes against the appellant accused is that he himself was examined as a defence witness No.3. According to learned trial Judge, as a witness, he made his statement clearly and cogently and it was also observed that he was meticulously following the court proceedings, acting suitably when the records were furnished for perusal. The trial Judge has also pointed out that during the entire proceedings, the accused has nowhere stated that he was insane earlier to the date of incident. The trial Judge, after noting his answers in respect of the questions under Section 313 of the Code of Criminal Procedure, 1973 has concluded that the accused could not be termed as an “insane” person. – there is no evidence as to the unsoundness of mind of the appellant-accused at the time of the occurrence, namely, on 05.11.2001 and also taking note of the fact that the accused failed to discharge the burden as stated in Section 105 of the Evidence Act, we fully agree with the conclusion arrived at by the trial Court and affirmed by the High Court.

Page 1     REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 926 OF 2009 Mariappan …. Appellant(s) Versus State of Tamil Nadu …. Respondent(s) J U D G M E N T P.Sathasivam, J. 1) This appeal has been filed against the final judgment and order dated 17.10.2006 passed by … Continue reading

Section(s) 376(2)(g) and 366 of Indian Penal Code, = The trial Court itself has expressed its anguish as to how the accused had purposely delayed and dragged the examination of the prosecutrix and finally succeeded in their nefarious objective when the father of the prosecutrix died and the prosecutrix resiled on the last date of her cross-examination. The appellants belonged to a well-to-do family, while the prosecutrix came from poorest state of the society. Thus, a sudden change in their attitude is understandable A witness is a responsible citizen. It is his duty to support the case of the prosecution and should depose what he knows about the case. In the instant case, it is shocking that the mother of the prosecutrix had turned hostile and she repeatedly told the court that there had been some talks of compromise. In a case where an offence of this nature had been committed, we fail to understand as to how there can be a compromise between the parties. The conduct of the mother herself is reprehensible. 8. It is a settled legal proposition that statement of a hostile witness can also be examined to the extent that it supports the case of the prosecution.= Unfortunately, the trial court went against the spirit of law, while dealing with such a sensitive case of rape of a student by her teachers, by recording the statement of prosecutrix on five different dates. Thus, a reasonable inference can be drawn that defence had an opportunity to win her mother. The said proviso has been added by amendment vide Act 5 of 2009 w.e.f. 31.12.2009, but even otherwise, it was the duty of the trial court not to adjourn the proceedings for such a long period giving an opportunity to the accused to persuade or force, by any means, the prosecutrix and her mother to turn hostile. ; As there was a fiduciary relationship between the accused and the prosecutrix being in their custody and they were trustee, it became a case where fence itself eats the crop and in such a case the provisions of Section 114-A of the Indian Evidence Act, 1872 (hereinafter referred to as the ‘Evidence Act’) (which came into effect from 25.12.1983) are attracted. Undoubtedly it is a case which provides for a presumption against any consent in a case of rape even if the prosecutrix girl is major, however, every presumption is rebuttable, and no attempt had ever been made by any of the appellants or other accused to rebut the said presumption. : The evidence of a victim of sexual assault stands almost on a part with the evidence of an injured witness and to an extent is ever more reliable. Just as a witness who has sustained some injury in the occurrence, which is not found to be self-inflicted, is considered to be a good witness in the sense that he is least likely to shield the real culprit, the evidence of a victim of a sexual offence is entitled to great weight, absence of corroboration notwithstanding….” ; So far as the conviction is concerned, as it was case of gang rape by teachers of their student, the punishment of 10 years rigorous imprisonment imposed by the trial court is shocking, considering the relationship between the parties. It was a fit case where life imprisonment could have been awarded to all the accused persons. Unfortunately, Smt. Jasbir Kaur had been acquitted by the High Court, and State of Punjab did not prefer any appeal against the same. One of the accused, Ranjit Singh, had approached this court and his special leave petition has been dismissed. Thus, in such circumstances, we are not in a position even to issue notice for enhancement of the punishment to the accused. ;Seeking adjournments for postponing the examination of witnesses without any reason, amounts to dereliction of duty on the part of the advocate as it tantamounts to harassment and hardship to the witnesses. Tactics of filibuster, if adopted by an advocate is also a professional misconduct.

Page 1 1 REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO(s). 878-879 OF 2011 MOHAN LAL & ANR Appellants VERSUS STATE OF PUNJAB Respondent WITH CRIMINAL APPEAL NO. 884 of 2011 O R D E R 1. These appeals have been preferred against the impugned judgment and order dated 3.12.2010 passed … Continue reading

sections 376 (2) (g) , 376, 506, 366 and 363 IPC = The trial court has examined the issue on age and after examining the school certificate (Ext. P-N), which stood duly proved by Lakhi Ram (PW-11), Science teacher, Government High Court, Badhana and Gajraj Singh, teacher, Govt. Primary School, Badhana, came to the conclusion that her date of birth as per the school register was 4.6.1987. So on the date of incident i.e. 7.3.2001, she was 13 years 9 month and 2 days old. She was a student of 6th standard ; this Court held that fact of admission of two fingers and the hymen rupture does not give a clear indication that prosecutrix is habitual to sexual intercourse. The doctor has to opine as to whether the hymen stood ruptured much earlier or carried an old tear. The factum of admission of two fingers could not be held adverse to the prosecutrix, as it would also depend upon the size of the fingers inserted. The doctor must give his clear opinion as to whether it was painful and bleeding on touch, for the reason that such conditions obviously relate to the hymen. ; “Even in cases where there is some material to show that the victim was habituated to sexual intercourse, no inference of the victim being a woman of “easy virtues” or a women of “loose moral character” can be drawn. Such a woman has a right to protect her dignity and cannot be subjected to rape only for that reason. She has a right to refuse to submit herself to sexual intercourse to anyone and everyone because she is not a vulnerable object or prey for being sexually assaulted by anyone and everyone. Merely because a woman is of easy virtue, her evidence cannot be discarded on that ground alone rather it is to be cautiously appreciated. In view of the provisions of Sections 53 and 54 of the Evidence Act, 1872, unless the character of the prosecutrix itself is in issue, her character is not a relevant factor to be taken into consideration at all”. Thus, in view of the above, undoubtedly, the two finger test and its interpretation violates the right of rape survivors to privacy, physical and mental integrity and dignity. Thus, this test, even if the report is affirmative, cannot ipso facto, be given rise to presumption of consent.

Page 1 REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 1226 OF 2011 LILLU @ RAJESH & ANR. Appellants VERSUS STATE OF HARYANA Respondent O R D E R 1. This criminal appeal has been preferred against the impugned judgment and order dated 20.9.2010 passed by the High Court of Punjab … Continue reading

This case is a glaring example of how cause of justice can be defeated by inefficient, lackadaisical and incompetent investigating agency.= We began by commenting on the unhappy conduct of the investigating agency. We conclude by reaffirming our view. We are distressed at the way in which the investigation of this case was carried out. It is true that acquitting the accused merely on the ground of lapses or irregularities in the investigation of a case would amount to putting premium on the deprecable conduct of an incompetent investigating agency at the cost of the victims which may lead to encouraging perpetrators of crimes. This Court has laid down that the lapses or irregularities in the investigation could be ignored subject to a rider. They can be ignored only if despite their existence, the evidence on record bears out the case of the prosecution and the evidence is of sterling quality. If the lapses or irregularities do not go to the root of the matter, if they do not dislodge the substratum of the prosecution case, they can be ignored. In this case, the lapses are very serious. PW-5 Jaldhari Yadav is a pancha to the seizure panchnama under which weapons and other articles were seized from the scene of offence and also to the inquest panchnama. Independent panchas have not been examined. The investigating officer has stated in his evidence that the seized articles were not sent to the court along with the charge-sheet. They were kept in the Malkhana of the police station. He has admitted that the seized articles were not sent to the Forensic Science Laboratory. No explanation is offered by him about the missing sanha entries. His evidence on that aspect is evasive. Clothes of the deceased were not sent to the Forensic Science Laboratory. The investigating officer admitted that no seizure list of the clothes of the deceased was made. Blood group of the deceased was not ascertained. No link is established between the blood found on the seized articles and the blood of the deceased. It is difficult to make allowance for such gross lapses. Besides, the evidence of eye-witnesses does not inspire confidence. Undoubtedly, a grave suspicion is created about the involvement of the accused in the offence of murder. It is well settled that suspicion, however strong, cannot take the place of proof. In such a case, benefit of doubt must go to the accused. In the circumstances, we quash and set aside the impugned judgment and order. The appellants-accused are in jail. We direct that the appellants – A1-Sunil Kundu, A2-Bablu Kundu, A3-Nageshwar Prasad Sah and A4-Hira Lal Yadav be released forthwith unless otherwise required in any other case. 20. The appeals are disposed of in the aforestated terms.

Page 1 REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 1073 OF 2008 SUNIL KUNDU AND ANR. … APPELLANTS Versus STATE OF JHARKHAND … RESPONDENT WITH CRIMINAL APPEAL NO. 1419 OF 2008 HIRA LAL YADAV … APPELLANT Versus STATE OF JHARKHAND … RESPONDENT WITH CRIMINAL APPEAL NO. 1512 OF 2009 NAGESHWAR … Continue reading

Benami Transaction (Prohibition) Act, 1988 = whether the facts disclosed would indicate that even after coming into force of the Act the defence under Secion 4 can be available. Admittedly, the transaction in question was registered on 24th August, 1970. The suit was filed on 5th of July 1984 which was long before coming into force of the Act. It is an admitted position that the written statement in the suit taking plea of benami was also filed by the appellant long before the Act had come into force. Therefore, it was not a case where Section 4(2) of the Act will have a limited operation in the pending suit after Section 4(2) of the Act had come into operation. It is true that the judgment of the trial court was delivered after the Act had come into force but that could not fetter the right of the appellant to take the plea of benami in his defence. Since the Act cannot have any retrospective operation in the facts and circumstances of the present case, as held by this Court in the aforesaid decision, we are therefore of the view that the appellant was entitled to raise the plea of benami in the written statement and to show and prove that he was the real owner of the suit property and that the respondent was only his benamidar. ;sub-section (2) of Section 3 clearly says that nothing in sub-section (1) shall apply to purchase of property of any person in the name of his wife, unmarried daughter and it shall be presumed, unless the contrary is proved, that suit property had been purchased for the benefit of the unmarried daughter. = Section 3 deals with Prohibition of benami transaction. Sub-section (1) clearly prohibits that no person shall enter into benami transaction. However, sub-section (2) of Section 3 clearly says that nothing in sub-section (1) shall apply to purchase of property of any person in the name of his wife, unmarried daughter and it shall be presumed, unless the contrary is proved, that suit property had been purchased for the benefit of the unmarried daughter. Section 3(2) makes it abundantly clear that if a property is purchased in the name of an unmarried daughter for her benefit, that would only be a presumption but the presumption can be rebutted by the person who is alleging to be the real owner of the property by production of evidences or other materials before the court. In this case, the trial court as well as the appellate court concurrently found that although the suit property was purchased in the name of the respondent but the same was purchased for the interest of the appellant. We are therefore of the opinion that even if the presumption under section 3(2) of the Act arose because of purchase of the suit property by the father ( in this case appellant ) in the name of his daughter ( in this case respondent ), that presumption got rebutted as the appellant had successfully succeeded by production of cogent evidence to prove that the suit property was purchased in the benami of the respondent for his own benefit. ;whether the concurrent findings of fact could be set aside by the High Court in the second appeal. = From the judgment of the High Court we further find that the concurrent findings of fact were set aside not on consideration of the findings of fact arrived at by the courts below but only on the basis of the arguments of the learned Advocate of the respondent. This was also not permissible to the High Court in Second Appeal to come to a contrary findings of its own only on the basis of the arguments of the learned counsel for the respondent without considering the findings of the trial court as well as the appellate court. (See [2002(9) SCC 735, Gangajal Kunwar (Smt.) and Ors. Vs. Sarju Pandey (Dead) by LRs & Ors.] ). It is equally settled that High Court in second appeal is not entitled to interfere with the concurrent findings of fact arrived at by the courts below until and unless it is found that the concurrent findings of fact were perverse and not based on sound reasoning.

CASE NO.: Appeal (civil) 2867 of 2000 PETITIONER: G.Mahalingappa RESPONDENT: G.M. Savitha DATE OF JUDGMENT: 09/08/2005 BENCH: D.M. DHARMADHIKARI & TARUN CHATTERJEE JUDGMENT: J U D G M E N T TARUN CHATTERJEE, J. This is an unfortunate litigation between a father and his married daughter on the right of ownership of a house measuring … Continue reading

Section 304-B and Section 498-A of the Indian Penal Code (IPC)= whether the conviction of Kulwant Singh (appellant No.1), his father Gurtehal Singh (appellant no.2) and his mother Harminder Kaur (appellant no.3) for offences punishable under Section 304-B and Section 498-A of the Indian Penal Code (IPC) ought to be sustained. In our opinion, there is sufficient evidence on record to sustain their conviction.= We have given considerable thought to this submission but find that the law prescribes a minimum of seven years imprisonment for an offence under Section 304-B of the IPC. There is no provision for reducing the sentence for any reason whatsoever nor has any exception being carved out in law. Consequently, we cannot accept this plea. We must not lose sight of the fact that even though Gurtehal Singh and Harminder Kaur are now aged, they were responsible for the death of Rachhpal Kaur through aluminium phosphide poisoning. Rachhpal Kaur was a young lady when she died and we can only guess the trauma that her unnatural death would have caused to her parents. Sympathizing with an accused person or a convict does not entitle to us to ignore the feelings of the victim or the immediate family of the victim. Conclusion: 42. There is no merit in the appeal. It is accordingly dismissed.

Page 1 REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 1548 OF 2007 Kulwant Singh & Ors. …..Appellants Versus State of Punjab …..Respondent J U D G M E N T Madan B. Lokur, J. 1. The question before us is whether the conviction of Kulwant Singh (appellant No.1), his father … Continue reading

CIRCUMSTANTIAL EVIDENCE = the standard of proof required for recording a conviction on the basis of circumstantial evidence and laid down the golden principles of standard of proof required in a case sought to be established on the basis of circumstantial evidence which are as follows: (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. It may be noted here that this Court indicated that the circumstances concerned “must or should” and not “may be” established. There is not only a grammatical but a legal distinction between “may be proved” and “must be or should be proved” as was held by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra,(1973) 2 SCC 793 where the observations were made: [SCC para 19, p. 807) “Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between ‘may be’ and ‘must be’ is long and divides vague conjectures from sure conclusions.” (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty, (3) the circumstances should be of a conclusive nature and tendency, (4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. .These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence.”= In the light of the above discussion, we hold that the prosecution has established all the circumstances by cogent and acceptable evidence and if we consider all the circumstances it leads to a conclusion that it was the appellants/accused who kidnapped and committed the murder of the deceased Kamlesh. We are satisfied that the trial Court has rightly accepted the prosecution case and awarded life sentence which was affirmed by the High Court. We fully concur with the said conclusion. Consequently, the appeals fail and the same are dismissed.

Page 1 REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 26 OF 2008 Prakash …. Appellant(s) Versus State of Rajasthan …. Respondent(s) WITH CRIMINAL APPEAL NO. 27 OF 2008 J U D G M E N T P.Sathasivam,J. 1) These appeals are directed against the final judgment and order dated 02.03.2006 … Continue reading

In the absence of any kind of clinching evidence to connect the appellants with the crime, we are disposed to think that it would not be appropriate to sustain the conviction. 28. In the result, the appeal is allowed. The judgment of conviction and sentence recorded by the learned Sessions Judge and affirmed by the High Court is set aside and the appellants be set at liberty forthwith unless their detention is required in connection with any other case.

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL No. 114 of 2008 Lahu Kamlakar Patil and Anr. ….. Appellants Versus State of Maharashtra … Respondent J U D G M E N T Dipak Misra, J. The present appeal has been preferred by original accused Nos. 2 and 3 assailing the judgment … Continue reading

since the deceased suffered acid injury in his tongue, he was incapable of making any statement and, therefore, the alleged statement under Section 161 Cr.P.C. stated to have been recorded by PW-4 cannot be true.- If the deceased was in a position to make a long cry after the acid attack, it can be safely concluded that he would have definitely be in a condition to explain to the police officer the manner in which the occurrence took place.

Reportable IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.1709 OF 2009 SRI BHAGWAN ….APPELLANT VERSUS STATE OF U.P. ….RESPONDENT J U D G M E N T Fakkir Mohamed Ibrahim Kalifulla, J. 1. This appeal by the sole accused is directed against the judgment of the Division Bench of the High … Continue reading

Blog Stats

  • 2,873,445 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