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Misuse of 498a – False 498A Legal Terrorism says Supreme Court in Sushil Kumar

IN THE SUPREME COURT OF INDIA

Civil appeal No. 4399 of 2005 (Arising out of SLP (C) no. 17656 of 2004

Decided On: 19.07.2005

Appellants: Sushil Kumar Sharma
Vs.
Respondent: Union of India (UOI) and Ors.

JUDGMENT:

By this petition purported to have been filed under Article 32 of the Constitution of India, 1950 (in short ‘the Constitution’) prayer is to declare Section 498A of Indian Penal Code, 1860 (in short ‘the IPC’) to be unconstitutional and ultra vires in the alternative

to FORMULATE GUIDELINES so that INNOCENT PERSONS ARE NOT VICTIMIZED by unscrupulous persons making false accusations

2. Further prayer is made that whenever, any court comes to the conclusion that the allegations made regarding commission of offence under Section 498A IPC are unfounded, stringent action should be taken against person making the allegations. This, according to the petitioner, would discourage persons from coming to courts with unclean hands and ulterior motives. Several instances have been highlighted to show as to how commission of offence punishable under Section 498A IPC has been made with oblique motives and with a view to harass the husband, in-laws and relatives.

 3. According to the petitioner there is no prosecution in these cases but persecution. Reliance was also placed on a decision rendered by a learned Single Judge of the Delhi High Court wherein concern was shown about the increase in number of false and frivolous allegations made. It was pointed out that accusers are more at fault than the accused. Persons try to take undue advantage of the sympathies exhibited by the courts in matters relating to alleged dowry torture.

 4. Section 498A appears in Chapter XXA of IPC.

 5. Substantive Section 498A IPC and presumptive Section 113B of the Indian Evidence Act, 1372 (in short ‘Evidence Act’) have been inserted in the respective statutes by Criminal Law ( Second Amendment) Act, 1983.

 6. Section 498A IPC and Section 113B of the Evidence Act include in their amplitude past events of cruelty. Period of operation of Section 113B of the Evidence Act is seven years, presumption arises when a woman committed suicide within a period of seven years from the date of marriage.

 7. Section 498A reads as follows: “498A: Husband or relative of husband of a woman subjecting her to cruelty- Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine. Explanation – For the purpose of this section ‘cruelty’ means –

 (a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health whether mental or physical of the woman; or

(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.”

 Section 113B reads as follows:-

 “113B: Presumption as to dowry death- When the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman has been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the Court shall presume that such person had caused the dowry death.

 Explanation – For the purposes of this section ‘dowry death’ shall have the same meaning as in Section 304B of the Indian Penal Code (45 of 1860).”

 8. Consequences of cruelty which are likely to drive a woman to commit suicide or to cause grave injury or danger to life, limb or health, whether mental or physical of the woman is required to be established in order to bring home the application of Section 498A IPC. Cruelty has been defined in the explanation for the purpose of Section 498A. It is to be noted that. Sections 304B and 498A, IPC cannot be held to be mutually inclusive. These provisions deal with two distinct offences. It is true that cruelty is a common essential to both the Sections and that has to be proved. The explanation to Section 498A gives the meaning of ‘cruelty’. In Section 304B there is no such explanation about the meaning of ‘cruelty’. But having regard to common background to these offences it has to betaken that the meaning of ‘cruelty’ or ‘harassment’ is the same as prescribed in the Explanation to Section 498A under which ‘cruelty’ by itself amounts to an offence.

 9. The object for which Section 498A IPC was introduced is amply reflected in the Statement of Objects and Reasons while enacting Criminal Law (Second Amendment) Act No. 46 of 1983. As clearly stated therein the increase in number of dowry deaths is a matter of serious concern. The extent of the evil has been commented upon by the Joint Committee of the Houses to examine the work of the Dowry Prohibition Act, 1961. In some cases, cruelty of the husband and the relatives of the husband which culminate in suicide by or murder of the helpless woman concerned, which constitute only a small fraction involving such cruelty. Therefore, it was proposed to amend IPC, the Code of Criminal Procedure, 1973 (in short ‘the Cr.P.C.’) and the Evidence Act suitably to deal effectively not only with cases of dowry deaths but also cases of cruelty to married women by the husband, in-law and relatives. The avowed object is to combat the menace of dowry death and cruelty.

 10. One other provision which is relevant to be noted is Section 306 IPC. The basic difference between the two Sections i.e. Section 306 and Section 498A is that of intention. Under the latter, cruelty committed by the husband or his relations drag the women concerned to commit suicide,

 while under the former provision suicide is abetted and intended.

 11. It is well settled that mere possibility of abuse of a provision of law does not per se invalidate a legislation. It must be presumed, unless contrary is proved, that administration and application of a particular law would be done “not with an evil eye and unequal hand” (see: A. Thangal Kunju Musaliar v. M. Venkatachalam Potti, Authorised Official and Income-Tax Officer and Anr.)

 12. In Budhan Choudhry and Ors. v. State of Bihar a contention was raised that a provision of law may not be discriminatory but it may land itself to abuse bringing about discrimination between the persons similarly situated. This court repelled the contention holding that on the possibility of abuse of a provision by the authority, the legislation may not be held arbitrary or discriminatory and violative of Article 14 of the Constitution.

 13. From the decided cases in India as well as in United States of America, the principle appears to be well settled that if a statutory provision is otherwise intra-vires, constitutional and valid, mere possibility of abuse of power in a given case would not make it objectionable, ultra-vires or unconstitutional. In such cases, “action” and not the “section” may be vulnerable. If it is so, the court by upholding the provision of law, may still set aside the action, order or decision and grant appropriate relief to the person aggrieved.

 14. In Mafatlal Industries Ltd. and Ors. v. Union of India and Ors., a Bench of 9 Judges observed that mere possibility of abuse of a provision by those in charge of administering it cannot be a ground for holding a provision procedurally or substantively unreasonable. In Collector of Customs v. Nathella Sampathu Chetty (1962 (3) SCR 786) this Court observed:

 

 “The possibility of abuse of a statute otherwise valid does not impart to it any element of invalidity.” It was said in State of Rajasthan v. Union of India “it must be remembered that merely because power may sometimes be abused, it is no ground for denying the existence of power. The wisdom of man has not yet been able to conceive of a Government with power sufficient to answer all its legitimate needs and at the same time incapable of mischief.” (Also see: Commissioner, H.R.E. v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Meth (1954 SCR 1005).

 

 15. As observed in Maulavi Hussein Haji Abraham Umarji v. State of Gujarat. Unique Butle Tube Industries (P) Ltd. v. U.P. Financial Corporation and Ors. and Padma Sundara Rao (dead) and Ors. v. State of Tamil and Ors., while interpreting a provision, the Court only interprets the law and cannot legislate it. If a provision of law is misused and subjected to the abuse of the process of law, it is for the legislature to amend, modify or repeal it, if deemed necessary.

 

 16. The judgment of the Delhi High Court on which reliance was made was rendered in the case of Savitri Devi v. Ramesh Chand and Ors. In that case while holding that the allegations regarding commission of offence punishable under Section 498A IPC were not made out. Certain observations in general terms were made about the need for legislative changes. The complainant had moved this Court against the judgment on merits in SLP(Crl)……of 2003 entitled Savitri Devi v. Ramesh Chand and Ors. By order dated 28.11.2003 this Court observed, as follows:

  “Heard learned counsel for the petitioner. Delay condoned.

  We do not see any merit in the challenge made to the order of the High Court in Criminal Revision No. 462 of 2002, on the facts of the case. The special leave petition is, therefore, dismissed.

  At the same time, we express our disapproval of some of the generalized views expressed in paragraphs 23 to 32 of the judgment of the High Court by the learned Single Judge. The learned Judge ought to have seen that such observations, though may be appropriate for seminars or workshops, should have been avoided being incorporated as part of a court judgment. Some of the views also touch upon Legislative measures and wisdom of legislative policy in substance, which according to the learned Judge need to be taken into account. There was no scope for considering all such matters in the case which was before the learned Judge. It is, therefore, appropriate that such generalized observations or views should meticulously avoided by Courts in the judgments.”

  17. Above being the position we find no substance in the plea that Section 498A has no legal or constitutional foundation.

  18. The object of the provision is prevention of the dowry menace. But as has been rightly contented by the petitioner many instances have come to light where the complaints are not bonafide and have been filed with oblique motive. In such cases acquittal of the accused does not in all cases wipe out the ignominy suffered during and prior to trial. Sometimes adverse media coverage adds to the misery. The question, therefore, is what REMEDIAL MEASURES can be taken to prevent abuse of the well-intentioned provision. Merely because the provision is constitutional and intra vires, does not give a licence to unscrupulous persons to wreck personal vendetta or unleash harassment. It may, therefore, become necessary for the legislature to find out ways how the makers of frivolous complaints or allegations can be appropriately dealt with. Till then the Courts have to take care of the situation within the existing frame work. As noted above the object is to strike at the roots of dowry menace. But by misuse of the provision a new

  LEGAL TERRORISM

 can be unleashed. The provision is intended to be used a shield and not an assassin’s weapon. If cry of “wolf” is made too often as a prank assistance and protection may not be available when the actual “wolf” appears. There is no question of investigating agency and Courts casually dealing with the allegations. They cannot follow any straitjacket formula in the matters relating to dowry tortures, deaths and cruelty. It cannot be lost sight of that ultimate objective of every legal system is to ARRIVE AT TRUTH, PUNISH THE GUILTY AND PROTECT THE INNOCENT. There is no scope for any pre-conceived notion or view. It is strenuously argued by the petitioner that the investigating agencies and the courts start with the presumptions that the accused persons are guilty and that the complainant is speaking the truth. This is too wide available and generalized statement. Certain statutory presumptions are drawn which again are rebuttable. It is to be noted that the role of the investigating agencies and the courts is that of watch dog and not of a bloodhound. It should be their effort to see that an innocent person is not made to suffer on account of unfounded, baseless and malicious allegations. It is equally undisputable that in many cases no direct evidence is available and the courts have to act on circumstantial evidence. While dealing with such cases, the law laid down relating to circumstantial evidence has to be kept in view.

 19. Prayer has been made to direct investigation by the Central Bureau of Investigation (in short the ‘CBI’) in certain matters where the petitioner is arrayed as an accused. We do not find any substance in this plea. If the petitioner wants to prove his innocence, he can do so in the trial, if held.

Held : The Writ Petition is accordingly disposed of.
 
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Supreme Court on Fake Encounter Killing

Supreme Court of India

Brijlala Pd. Sinha vs State Of Bihar on 13 July, 1998
Author: Pattanaik
Bench: M Mukherjee, G Pattanaik

PETITIONER:

BRIJLALA PD. SINHA

Vs.

RESPONDENT:

STATE OF BIHAR

DATE OF JUDGMENT: 13/07/1998

BENCH:

M.K. MUKHERJEE, G.B. PATTANAIK

ACT:

HEADNOTE:

JUDGMENT:

WITH

CRL. APPEAL Nos. 218/98, 279/98 & 280-282/98

JUDGMENT

PATTANAIK,J.

These five appeals are directed against the judgment dated 28.11.1997, of the Patna High Court passed in Criminal Appeal No. 459 of 1996 and Death Reference No. 5 of 1996. All the accused appellants are police officials. All of them were convicted under Section 302/34 IPC and were directed to be hanged till they are dead by the learned Additional Session Judge, Gaya. Accused appellant Dudh Nath Ram, in addition, was convicted under Section 201 IPC but no separate sentence was awarded. The High Court, on appeal, being preferred by the accused persons and reference being made for confirmation of death sentence under Section 366 of the Criminal Procedure Code affirmed the conviction of all the accused appellants under Section 302/34, but on the question of sentence while the High Court affirmed the death sentence awarded against Dudh Nath Ram – appellant in Crl. Appeal No. 218 of 1998, Brijlala Prasad Sinha – appellant in Cr,. Appeal NO. 149 of 1998, and Victor Fedeles – appellant in Crl. Appeal No. 279 of 1998, commuted the death sentence as against accused Dinesh Singh, Deo Narain Ram, Jaikaran Yadav and sentenced them to undergo imprisonment for life, who are the appellants in Criminal Appeal Nos. 280-82 of 1998. The main ground for giving sentence of imprisonment for life as against the aforesaid three appellants is that they were merely the constable and obeyed the commands of their superior officers and, as such, their case would not come within the test laid down by this Court to bring it as a rarest of rare case.

Broadly stated the prosecution case sought to be established through different witnesses is that accused Dudh Nath Ram was the Station House Officer of Barachatti Police Station in the State of Bihar. On the early morning of 5th of December 1993 while Dudh Nath was taking tea Jaikaran informed that a Maruti Van has been speeding up with criminals and there has been indiscriminate firing from the said Maruti vehicle. On getting this information the accused Police Officials immediately left the Police Station to chase the Maruti Van. The Maruti Van, however, was forced to stop on account of a traffic jam. The chasing police officials came near the Maruti Van and started firing at the Van indiscriminately in consequence of which 3 persons from amongst the occupants of the Maruti Van were killed and their dead bodies were then removed in the Police Jeep to the Police Station. Dudh Nath then made entry in the Station Diary stating therein that as the occupants of the Maruti Van started firing at the police personnel, the police personnel resorted to firing and in course of the occurrence 3 persons were found dead. It may be stated at this stage that prosecution tried to establish a case that the accused police officers after chasing the Maruti Van and finding the van to be immobile on account of traffic jam surrounded the said van and dragged Rajesh and Khedan from the vehicle and demanded a sum of Rs. 1 lakh, but when Rajesh could not accede to the request then he and Khedan were shot dead from the close range and the driver who was sitting on the driving seat was also gunned down. This part of the prosecution case, however, could not be established as none of the prosecution witnesses unfolded this part of the prosecution case. It may be further stated that a written report was submitted to the Superintendent of Police, Gaya on 9.12.1993, alleging therein that the police officials have committed * murder of three persons as their demand of one lakh of rupees could not be fulfilled and on the basis of the said report Barachatti Case No. 148/93 was registered and the investigation of the said case was taken up by the C.I.D. Patna under Government Order and it is on completion of the investigation of the said case chage-sheet was submitted against the accused persons and on being committed to the Court of Sessions the accused persons stood their trial. The accused persons pleaded not guilty and according to them a false case has been foisted. The prosecution examined as many as 65 witnesses and exhibited a large number of documents. The prosecution witnesses who were supposed to unfold the manner in which the incident took place at 71 Mile Post on G.T. Road, namely, PWs 2,4,5,9,10,11,12,17,18,20,22035,40,52,53,54,56,57,60 and 61 all became hostile and were cross-examined by the prosecution. Similarly, PWs 13,15,16,21,30,46,47, and 49 were also tendered by the prosecution cross examined and consequently their evidence could not be pressed into service in establishing the charges against the accused persons. PWs 6,7,8,9,14,19,33,34,38,39,50,51,58,59,62, and 64 are the police personnel examined in this case. PWs 24 and 55 are the formal witnesses to the seizure on the seizure list. There is no dispute that on the date of occurrence of 5.12.1993 at 71 Mile Post at about 7.30 a.m. 3 persons were killed. But in the absence of any direct testimony as to the manner in which they were killed the prosecution case hinges upon the circumstantial evidence. The learned Session Judge relying upon the evidence of PWs 63 and 65 came to hold that deceased Rajesh Dhawan alongwith Khedan Yadav and Vinay Kumar Mishra proceeded from Ranchi to Varanasi in the night of 3.12.1993. On the basis of the evidence of PWs 23,41,42,44,45, and 48 the learned Session Judge came to hold that Rajesh Dhawan had made purchases at Varanasi on 4.12.1993. The witnesses also further revealed that two other persons had accompanied Rajesh Dhawan. PW 65 established the fact that she had a telephonic talk with her husband from Varanasi on 4.12.1993 at 7.00 p.m. On the basis of the evidence of PWs 26,27,28,29,31 and 32 to learned Session Judge came to hold that the vehicle in which deceased Rajesh Dhawan was travelling with other persons developed certain defect and misfiring was noticed at 7.00 a.m. on 5.12.1993. On the basis of the evidence of pWs 7 and 8, who are the two constables present at Barachatti Police Station the learned Session Judge came to hold that early in the morning accused Jaikaran came and informed while Dudh Nath Ram and others were taking tea at the Police Station, that some dacoits are speeding up in a Maruti Van and while speeding up they are also firing from their revolver. Thus the aforesaid prosecution evidence clearly establishes the fact that five accused appellants excepting accused Brij Lala Prasad Sinha moved in a Police Jeep chasing the Maruti Van on being informed that the miscreants are speeding up in a Maruti Van and while so speeding up are indulging in firing from their weapons. The said PWs 7,8 and 9 also stated in the Court that on 5.12.1993, the accused persons returned to Barachatti Police Station with three dead bodies and the damaged Maruti Van No. BR-14b/7407 and this fact is also corroborated by the by the evidence of PWs 58, 59 and PWs 27,28,29,31 and 32. Accused Dudh Nath Ram was the Officer in-charge of Barachatti Police Station. He immediately after arriving at the Police Station got a case registered-Barachatti P.S. Case No. 146/93 stating therein that after chasing the Maruti Van near 71 Mile Post on G.T. Road when they found the van to be stationary they challenged the occupants of the Maruti Van and when the occupants of the said Van started using at the Police personnel, the Police personnel retaliated by firing and in course of such firing 3 occupants of the Maruti Van were killed. This part of the case which could have been accepted as a defence version has not at all been established in as much as there is no iota of material to indicate that the occupants of the Maruti Van had at any point of time fired at the Police officers nor there had been any mark of violence on the Police Van which unhesitatingly point out that false defence plea had been taken by the accused persons more particularly, accused Dudh Nath Ram who was the Officer in-charge of Barachatti Police Station on the relevant date of occurrence. It is significant to notice that though the Officer in-charge accused Dudh Nath Ram is supposed to have made a written report indicating the manner in which the 3 occupants of the Maruti Van were killed in an police encounter, but such written statement or the so called FIR did not reach the higher officers of the Police Department and in fact from the evidence of PWs 58 and 64 the learned Sessions Judge came to hold that until arrival of the higher officers of the State no FIR was lodged by accused Dudh Nath Ram. On examining different seizure lists made by Dudh Nath Ram on the relevant date of occurrence and the inherent inconsistencies in those seizure lists the learned Session Judge came to the conclusion that in order to suppress the truth and to cover up the truth the seizure list was prepared later on as an after thought which indicates the guilty mind of the accused persons. In the aforesaid seizure list two country made pistols and two live cartridges were alleged to have been seized from the Maruti Van and those arms and ammunitions had been sent to Forensic Science Laboratory, Patna, for examination. The evidence of PW 34 and his reports Exhibit 16 and 16/1 clearly indicates that the cartridges found near the dead bodies of the deceased persons could not be fired from the country made pistols seized near the dead bodies and those pistols were defective. The report also further revealed that the said pistols had never been used. The aforesaid evidence clearly belies the defence theory that the occupants of the Maruti Van were speeding up by firing from their arms on the relevant date. The dead bodies of the 3 occupants of the Maruti Van were sent to the Gaya Hospital for post mortem examination and doctor PW 1 conducted the autopsy on the dead bodies of the said 3 persons. The post mortem reports are Exhibits 1, 1/1 and 1/2. The evidence of PW 1 clearly establishes the fact that the appearance * blackening of margins on the wounds on the bodies of the deceased persons is suggestive of the fact that the fire arm has been used approximately within 18 inch. The learned Session Judge, therefore, came to the conclusion that the deceased persons had been shot at from a very close range. The learned Session Judge also relied upon Exhibits 13/22, 13/23 and 13/24 which happened to be the photographs of the deceased persons and on that basis read with the evidence of doctor PW 1 came to hold that it cannot be the result of an encounter in which case there should have been some distance between both the parties but in the case in hand the distance between the parties was very close. The evidence of PWs 58 and 59 who had visited the place of occurrence on 6.12.1933 alongwith Dudh Nath Ram, Victor Fedles and Brijlala Pradsad establishes the fact that they did not find any mark of violence at a distance of 25 meters from the G.T. Road in the north side where it was alleged one dead body was found in the bush. They also did not find any mark of blood or mark of violence. The learned Session Judge analysed the evidence of PWs 58, 59 and 62 and then held that the story of encounter as alleged by the defence could not be believed. Exhibit 17/1 is the Register indicating the supply of fire arms to the accused persons Dudh Nath Ram, Brijlala Prasad Sinha and Victor Fedles. PW 38 examined by the prosecution indicated in his evidence that the rounds of cartridges which he had supplied to the aforesaid accused police officers. Even the Register Exhibit 18 series corroborates the aforesaid factum of supply of cartridges. Later on the accused persons have surrendered their arms and ammunitions together with empty cartridges from which the learned Sessions Judge came to hold that the accused persons must be held to have utilised those cartridges in killing the 3 persons who were the occupants of Maruti Van on the relevant date occurrence. The photograph of Maruti Van BR- 14B/7407 in which the deceased persons were travelling clearly demonstrated the fact that the glasses of the said Van were broken and there were marks of firing on the Van. On the other hand, there was not an iota of damage to the vehicle in which the police officers were chasing and the learned Sessions Judge, therefore, came to the conclusion that the firing was made only by the accused persons and not from the side of the deceased persons. The learned Session Judge relying upon the evidence of PW 58 came to the conclusion that even though the Supdt. Of Police, Gaya had ordered that PW 58 would investigate into the case but Dudh Nath Ram never handed over the charge of investigation to him for quite some time. His evidence further indicated that when he searched for the Station Diary and asked about it from Munshi Shabir Ahmad, the Station Diary was not available at the Police Station and he was told that Dudh Nath Ram had taken away the same. Even the Station Diary was not available on 8.12.1993 when PW 58 wanted the same. Non availability of the Station Diary at the Police Station and the reply of Munshi Shabir Ahmad to PW 58 that the same has been taken away by the accused Dudh Nath Ram was relied upon by the learned Session Judge as an additional link in the chain of circumstances to establish the case beyond reasonable doubt and in completing the chain. The learned Session Judge also relied upon the evasive answer which the accused persons had given in their examination under Section 313 Cr. P.C. and ultimately came to hold that these police officials have brutally fired at the stationary vehicle on account of which 3 occupants of the vehicle were killed. After noticing the law on the question of circumstantial evidence and on the circumstances established in the case by the prosecution witnesses the learned Sessions Judge came to hold that there is no hesitation in mind that the accused persons committed brutal murder of 3 innocent persons who had no criminal antecedents and rather they were civilised persons of the society. The learned Session Judge, therefore, held the accused persons guilty under Section 302/34 IPC. Though accused persons stood charged under Section 379/149 but the learned Sessions Judge came to hold that the said allegations of theft of Rs. 20,000/- had not been satisfactorily proved by the prosecution and as such he acquitted the accused persons of the said charge. So far as the charge under Section 120B IPC is concerned the learned Sessions Judge came to hold that the prosecution had failed to prove said charge beyond any reasonable doubt and acquitted them of this charge. So far as the charge under Section 201 IPC is concerned on an analysis of the prosecution evidence the learned Sessions Judge came to hold that the accused Dudh Nath Ram alone is guilty of the said offence and other accused persons cannot be held guilty of those charges and as such they were acquitted of the said charges. Coming to the question of sentence the learned Sessions Judge was of the opinion that 3 innocent civilians having been killed brutally in the hands of the accused persons who are police personnel and on whose shoulder the safety of the civilians lies and who are deemed to be the protector of the society and they have killed the 3 civilians without any provocation and resistance the case should be held to be one of the rarest of rare cases in which the accused persons deserve capital punishment and accordingly directed that each of them should be hanged till they are dead.

On appeal by the accused persons and a reference having been made for confirming the sentence of death under Section 366 of the Code of Criminal Procedure, the High Court by the impugned judgment came to the conclusion that the prosecution in this case has been handicapped in adducing the evidence regarding the actual manner of occurrence and also regarding the participation of individual accused in the commission of the crime for which they have been charged, tried and convicted. But on re-appreciating evidence establishing the circumstances, the High Court agreed with the conclusion of the learned trial Judge that the prosecution has been able to establish that the accused persons brutally murdered three occupants of the Maruti Van by resorting to fire from a close range. The High Court further came to the conclusion that it appears to be the absurd proposition and it indicates that there has been good deal of fabrication and manipulation for distorting and destroying the evidence in this case from the very beginning and it further appears that the police personnel in this case were very much conscious of this fact that innocent persons have been killed and in order to save their neck, they started making preparation of their defence at that very stage. On re-appreciation of the evidence the High Court agreeing with the learned Sessions Judge held that the stand of the defence that the occupants of Maruti Van BR- 14B/7407 had opened fire at the police party necessitating opening of fire by the police party at the Maruti Van is wholly falsified. The further plea that two country-made pistols were recovered near the dead body of the deceased is also falsified from the report Ex. 16/1. Ultimately, the High Court came to the conclusion that the victims have been killed by the police in a show of fake encounter and it appears that the circumstances leading to this occurrence are most unfortunate for a civilized society and the police force is meant for protecting the law abiding citizens from anti-social elements and to come to the rescue of the citizens of onslaught from the mighty and influential persons but the role of police in this case appears to have been reversed. On a scrutiny of evidence, the High Court also came to the conclusion that it appears to be true that actually the killing had taken place in a deliberate manner because the deceased failed to fulfil their demand of money. The High Court ultimately came to the conclusion: “it is thus clear that all the six appellants in this case have participated in the commission of this ghastly and gruesome murder which was committed in a most indecent manner which was likely to shake the confidence of people in the law and order machinery of the State.” Having come to the aforesaid conclusion and going to the question of sentence the High Court was of the view that the sentence of death awarded against three accused, namely, Dudh Nath Ram, Brijala Prasad Sinha and Victor Fideles does not require any interference but so far as the sentence of death awarded against the other three accused, namely, Dinesh Singh, Deo Narayan Ram and Jaikaran Yadav are concerned, they being subordinate policemen and were acting under the order and direction of their superiors, the extreme penalty of death sentence cannot be awardee to them, and therefore, it commuted their sentence to life imprisonment. Thus by the impugned judgment of the High Court in case of 3 of the accused persons, namely, Dudh Nath Ram, Brijlal Prasad Sinha and Victor Fideles the sentence of death was confirmed and in case of other three accused persons the sentence of death was commuted to life imprisonment.

Mr. Rajinder Singh, learned senior counsel appearing for appellant Dudh Nath Ram, Mr. U.R. Lalit, learned senior counsel appearing for appellant Brij Lala Prasad Sinha, Mr. V.A. Mohta, learned senior counsel appearing for appellant Victor Fideles, assailed the conviction of their respective clients, inter alia on the ground that in the absence of any direct evidence as to the occurrence at 71 Mile Post and the prosecution having relied on the circumstantial evidence, the circumstances proved cannot be held to be a conclusive nature so as to exclude every hypothesis but that of guilt and as such, the conviction under Section 302/34 is wholly unwarranted. It was further contended that the ballistic expert’s report being to the effect that the revolvers of these police officers had not been used and the post mortem report of the three deceased persons having established that death occurred on account of injuries caused by pellets which are from the rifles used by the constables, the learned Session Judge and the High Court committed serious error in convicting the police officers under Section 302/34. On the question of sentence it was contended, that even if a conviction under Section 302/34 can at all be sustained but the case cannot be held to be a rarest of rare case warranting extreme penalty of death. According to the learned senior counsel the High Court as well as the learned Session Judge have been swayed away by the fact that the case is a sensational one in the State of Bihar as three innocent citizens have been killed from the gun shots of the police officers. It the sensation and emotion of the Courts are taken out from the purview of consideration, of the evidence adduced, no aggravating circumstances have been established so as to inflict the extreme penalty of death sentence. It was also urged by the learned senior counsel that the Courts below committed error in coming to the conclusion that the police officials must have used their revolvers from the mere fact that certain cartridges have been supplied to them but the number of cartridges deposited is less than the number of cartridges supplied. According to the learned senior counsel there is not an iota of material to establish any prior planning or meeting of mind of the accused police officers and the prosecution evidence clearly establishes that since Jaikaran stated That some dacoits are fleeing away in a Maruti Van the police officials chased them and then came back with the dead bodies of three persons and, therefore, there is no material evidence to attract Section 34 even if a common intention could develop at the spur of the moment. Mr. U.R. Lalit, learned senior counsel appearing for appellant Brij Lal Prasad Sinha, in addition, to the aforesaid arguments also contended that ASI Brij Lala did not go with accused Dudh Nath Ram as has been indicated by PWs 7 and 8. He went in a private jeep which had been kept at the Police Station and the prosecution is guilty of suppressing the evidence of the said driver of the jeep. There is no evidence of any ballistic expert that the revolver of Brij Lala was used on the date of occurrence and merely for non-explanation of 9 rounds of cartridges no conclusion can be arrived at that those 9 rounds of cartridges had in fact been used at 71 Mile Post, particularly when there has been no seizure of such cartridges from the place of occurrence. According to Mr. Lalit, learned senior counsel it has no doubt been established that the dead bodies of three persons were brought to the Police Station in the jeep in which Brij Lala had gone but that by itself cannot bring home the charge under Section 302/34 as against accused Brij Lala Prasad. Mr. Lalit, learned senior counsel also contended that the examination of accused Brij Lala under Section 313 Cr. P.C. has been perfunctory and the relevant incriminating materials have not been put which has caused serious prejudice and, therefore, the conviction of accused Brij Lala Prasad under Section 302/34 is vitiated.

Mr. Mohta, learned senior counsel appearing for Victor Fideles in addition to the arguments advanced by Mr. Rajinder Singh, learned senior counsel contended that the plea of alibi raised by accused Victor ought to have been accepted, since admittedly, he had been transferred since July 1993 to Gaya and the Courts below committed error in rejecting the pleas of alibi. He also contended that the cartridges have been issued to Victor on 19.11.1992 and the cartridges deposited in Malkhana was on 30.12.1993 and any shortage of cartridges during this period of more than a year would not lead to the conclusion that the cartridges were used on the date of occurrence. According to Mr. Mohta, learned senior counsel, positive evidence of the ballistic expert being the revolver of Victor had not been used the Courts below committed error in convicting him under Section 302/34 even if it is established that he had accompanied Dudh Nath Ram from the Police Station in chasing the Maruti Van, and at any rate the award of extreme penalty of death, according to Mr. Mohta, learned senior counsel, is wholly unjustified.

Mr. Sibbal, learned senior counsel appearing for the three constables attacked the judgment of the High Court on the ground that it proceeds on mere conjectures and not on legal evidence adduced in the case. According to Mr. Sibbal, the learned senior counsel the circumstances established through prosecution evidence do not unhesitatingly point out towards the guilt of the accused persons and, therefore, the conviction of the accused appellant under Section 302/34 is unsustainable in law.

Mr. Sinha, learned senior counsel appearing for the State of Bihar, on the other hand, contended that no doubt, there is no direct evidence as to the manner in which three occupants of Maruti Van were killed and all the prosecution witnesses who were to establish the same turned hostile and does not support the prosecution case. But according to Mr. Sinha, learned senior counsel the circumstances established in the case in hand are sufficient to prove the charge beyond reasonable doubt and the entire chain of circumstances is complete, and therefore, no error has been committed in finding the accused appellants guilty of offence under Section 302/34. According to Mr. Sinha, learned senior counsel, the chain of evidence as against the accused persons is so complete that it does not leave any reasonable ground for a conclusion consistent with innocence of the accused and on the other hand, it only points out that within all human probability it is the accused persons who are the perpetrators of the crime who have killed the three innocent persons who were occupants of the Maruti Van on the fateful day. According to Mr. Sinha when the dead bodies of three innocent persons were brought to the Police Station which has been established beyond reasonable doubt by the evidence of PWs 7 and 8 and the explanation offered by accused persons that there was an encounter in which these persons have been killed has not been established at all and no other explanation is forthcoming in such a case an additional link is established in the chain of circumstances to complete the chain and, therefore, the High Court was wholly justified in recording a conviction under Section 302/34 IPC. Mr. Sinha, learned senior counsel also urged that looking at the brutality with which three innocent persons were murdered from a close range by firing at them by police officers the High Court was justified in affirming the death sentence as against three accused persons and this Court should not interfere with the said sentence of death. According to Mr. Sinha, learned senior counsel, the evidence of PWs 7 and 8 clearly establishes the fact that Jaikaran came and narrated that Some miscreants are speeding on a Maruti Van and are simultaneously firing from the said vehicle and on hearing the same all the accused persons except accused Brij Lala Prasad moved together being fully armed with their respective revolvers and rifles. The prosecution evidence also is categorical to the fact that the speeding Maruti Van was forced to stop at 71, Mile Post on account of traffic jam. The evidence of PWs 7 and 8 further indicates that the police party headed by Dudh Nath Ram returned back with three dead bodies on the private jeep in which Brij Lala Prasad had proceeded to the place of occurrence after Dudh Nath Ram and others had left. The prosecution evidence also further establishes the fact that the Maruti Van was found to be having marks of bullets which establishes the fact that the police party had fired at the Maruti Van. The Inquest Report prepared by Dudh Nath Ram at 8.00 a.m. at the Police Station Exhibits 3, 3/1 and 3/2 indicates that Dudh Nath Ram knew the names of the victims and, therefore, it is not a case of unknown persons fleeing away on a Maruti Van as deposed to PWs 7 and 8. Though the prosecution evidence indicates that from the scene of offence some arms and ammunitions were recovered but the report of the Forensic Science Laboratory Exhibit 16 establishes the fact that those arms had only been implanted as those were not in a condition to be used. According to Mr. Sinha, learned senior counsel, the prosecution evidence indicating replacement of Exhibit 7 by its copy to office of CID suggests the guilty mind of accused Dudh Nath Ram. The learned senior counsel also urged that the evidence of PW 58 clearly indicates that pieces of bones and blood marks were found from the Maruti Van. Then against the Kurta and Pyjama of deceased Rajiv on being examined was found to have been shot at with copper and lead bullet as per exhibit 16/2. According to the learned senior counsel PW 38 establishes the fact that revolvers and rifles were entrusted to the accused persons and these accused persons also deposited their revolvers and rifles as well ass the cartridges and no explanation was offered for the shortage of cartridges. Mr. Sinha, learned counsel also submitted that the post mortem report exhibit 1 series as well as the evidence of PW 1 clearly establishes the fact that firing at the deceased had taken place from a very close ranges. Dudh Nath Ram, in addition, made an extra judicial confession to PW 25. Mr. Sinha also submitted that Statement recorded by Dudh Nath Ram contains an admission on his part that as there was an encounter the police party fired at the Maruti Van and ultimately three people were killed but the so called encounter is falsified by the fact that the police jeep did not have a single mark of violence. On these circumstances established by the prosecution evidence the only conclusion that can be arrived at is that the accused persons mercilessly fired at the Maruti Van in consequence of which three innocent persons were killed, and therefore, all of them could be held liable under Section 302/34 IPC. On the question of sentence Mr., Sinha, learned senior counsel submitted that three officers have been rightly awarded the death sentence and the High Court perhaps was justified in commuting the sentence of death to imprisonment for life in case of three subordinate police officers who had obeyed the commands of their superiors.

Before we examine the correctness of the rival submissions in the light of evidence adduced and the circumstances established, it would be appropriate to notice one feature in this case, namely, the examination of the accused persons under Section 313 Cr.P.C. has been highly perfunctory. In course of hearing, therefore, we had called upon the counsel appearing for the accused persons to indicate whether they would prefer the matter being remitted to the Sessions Judge for proper examination of the accused under Section 313 Cr.P.C. by bringing to their notice all the relevant incriminating material against them which the prosecution seeks to rely upon. But all the counsel appearing for different accused persons unanimously state that they would not like the matter to be remanded again in view of protraction of the litigation since they feel that no prejudice can be said to have been caused to the accused persons for such a perfunctory examination of the accused under Section 313 Cr. P.C. In view of the aforesaid State of affairs we proceed to examine the correctness of the rival submissions at the Bar.

As has been stated earlier there is no evidence to indicate the manner in which the three persons in the Maruti Van were killed. Conclusion on the same, therefore, has to be arrived at from the circumstantial evidence. In a case of circumstantial evidence the prosecution is bound to establish the circumstances from which the conclusion is drawn must be fully proved; the circumstances should be conclusive in nature; all the circumstances should be conclusive in nature all the circumstances so established should be consistent only with the hypothesis of guilt and inconsistent with the innocence; and lastly the circumstances should to a great certainty exclude the possibility of guilt of any person other than the accused [See (1992) 2 SCC 300]. The law relating to circumstantial evidence no longer remains res integra and it has been held by catena of decision of this court that the circumstances proved should lead to no other inference except that of the guilt of the accused, so that, the accused can be convicted of the offences charged. It may be stated as a rule of caution that before the court records conviction on the basis of circumstantial evidence it must satisfy that the circumstances from which inference of guilt could be drawn have been established by unimpeachable evidence and the circumstances unerringly point to the guilt of the accused and further all the circumstances taken together are incapable of any explanation on any reasonable hypothesis save the guilt of the accused. It is not necessary to delve into any further, on the law on the subject which has now been crystallised by several decisions of this Court. Bearing in mind the aforesaid principles let us examine the circumstances said to have been proved by the prosecution by unimpeachable evidence. Since three of the appellants have been sentenced to death by the learned Sessions Judge and said sentence had been affirmed by High Court, we thought it appropriate to examine the reliability of the prosecution evidence and the circumstances so proved by such evidence to find out whether all the links in the chain are complete or not. PWs 7 and 8 are the two Constables, who had been posted at Barachatti police station on the relevant date of occurrence. These two witnesses have been believed by the learned Sessions Judge as well as by the High Court and nothing has been pointed out to us in this Court to discard their testimony, in fact no argument has been advanced on that score. According to PW7 on the early morning of 5th December, 1993, while Dudh Nath Ram and Victor were at the police Station, Jaikaran Yadav came there and said that criminals are moving ahead firing shots. Getting this information the Officer In-charge, Dudh Nath Ram, Victor and two Constables and a Havildar went on a Maruti Van and Brij Lala later on went by a private jeep which used to remain at the police station. Further evidence of PW7 is that when these officers returned back to the police station they had brought three dead bodies in the jeep with them and they had also brought one Maruti Van by toeing. This evidence of PW7 has been fully corroborated by PW8 who was also posted at the police station on the date. On the evidence of the aforesaid two witnesses it can be safely held that the prosecution has established beyond reasonable doubt that all the police officers excluding Brij Lala Prasad on getting information from Jaikaran went together in a Maruti Van with their arms and ammunitions chasing the alleged criminals and then returned back with three dead bodies as well as another Maruti Van. The evidence of PW7 further establishes the fact that the Maruti Van which had been brought by toeing was found to be damaged and blood marks were also seen on the said vehicle. He further stated that the dead bodies brought by the police people had bullet injuries on them. The prosecution evidence clearly establishes the fact that the speeding vehicle had to stop at 71 Mile Post on account of a traffic jam and the police personnel could easily approach the said vehicle, which was immobile. It is also established beyond reasonable doubt that the vehicle in which the deceased persons were moving had several bullet marks at its body and pieces of bones and blood marks has also been found in the said vehicle as stated by PW – 58.

So fat as accused Dudh Nath Ram is concerned, he was the officer in-charge of Barachatti Police Station and he made several fabrications and manipulations which the High Court itself has found and his own statement which is Exhibit 25/1 clearly indicates that the police personnel resorted to firing when the occupants of Maruti Van started firing at them. The statement that occupants of Maruti Van started firing at the police personnel has been falsified by the fact that the police vehicle did not have a single mark of bullet on its body. Then again the two country made pistols which were supposed to have been seized from the Maruti Van by Dudh Nath Ram under Exhibit 17/1 had been sent to the ballistic expert for examination and the report of the expert Exhibit 19/2 was that it was not at all in fit condition to be used. It is further established on examination of the cartridges which had been sent to Forensic Science Laboratory supposed to have been used from the country made pistols by the occupants of the Maruti Van that those cartridges have not been fired from the country made pistols which clearly falsifies the statement of Dudh Nath Ram that occupants of Maruti Van had opened fire at the Police party which necessitated the opening of fire by the police party itself. That part of the statement of Dudh Nath thus having been falsified the further admission of Dudh Nath that police party fired at the Maruti Van remains and can be utilised as against Dudh Nath as an admission, though the other accused persons will not be bound by any such admission of Dudh Nath. Cloths seized from the Maruti Van as well as the cloths of the deceased from their person had been sen to Forensic Science Laboratory for being examined and the report Exhibit 16/2 indicates user of copper bullets and lead bullets which corroborates the statement of Dudh Nath that police party had resorted to fire at the Maruti Van. When the police personnel left the Police Station with arms in their hands and returned to the Police Station with three dead bodies, it was for them to explain under what exact circumstances three people were killed. The exact Circumstances pleaded in defence by Dudh Nath Ram to the fact that when occupants of Maruti Van started firing at the police party the police party also fired at them has been belied, as already discussed. Non-explanation of the members of the police party indicating the circumstances under which three people were killed is an additional link in the chain of circumstances completing the chain to indicate that three people were killed on account of firing by the police party. In this connection it would be appropriate to notice that the post mortem examination held by PW 1 through the post mortem reports Exhibit 1 series as well as the oral evidence of PW 1 and his findings unequivocally indicates that the police party resorted to firing at the three deceased persons from a very close range. This also runs counter to the defence case that it is an encounter in which the police personnel resorted to firing when the occupants of the Maruti Van started firing at the police personnel. In addition to all these circumstances unerringly pointing to the fact that three people were killed on account of firing from the police part, the conduct and behaviour of Dudh Nath Ram in taking away the Station Diary Book from the Police Station, which was made available only on 9.12.1993, which is also established from the evidence of PW 58 and the conclusion of the High Court that there has been a good deal of fabrication and manipulation in distorting and destroying the evidence from the very beginning goes a long way to establish the culpability of accused Dudh Nath Ram. It is true that on the circumstances proved the conclusion is irresistible that three occupants of Maruti Van were killed at 71 Mile Post on account of firing from the police personnel, but when the police personnel left the Police Station on being informed by jaikaran that miscreants are speeding up in a Maruti Van they had no intention of killing those persons. At least there is nothing in the evidence of PW 7 and 8 to indicate that the police personnel left the Police Station with the intention of killing the miscreants. The question, therefore, arises whether all the police personnel can be held guilty by taking recourse to Section 34 of the Indian Penal Code in the killing of the three occupants of the Maruti Van or only some of them can be held responsible? The liability of one person for an offence committed by another in the course of a criminal act perpetrated by several persons will arise under Section 34 of the Indian Penal Code only where such criminal act is done in furtherance of a common intention of the persons who join in committing the crime. Direct proof of common intention will, of course be difficult to get and such intention can only be inferred from the circumstances. But the existence of a common intention must be a necessary inference from the circumstances established in a given case. A common intention can only be inferred from the acts of the parties. Unless a common intention is established as a matter of necessary inference from the proved circumstances the accused persons will be liable for their individual act and not for the act done by any other person. For an inference of common intention to be drawn for the purposes of Section 34, the evidence and the circumstances of the case should establish, without any room for doubt that a meeting of minds and a fusion of ideas had taken place amongst difference accused and in prosecution of it the overt acts of the accused persons flowed out as if in obedience to the command of a single mind. If on the evidence there is doubt as to the involvement of a particular accused in the common intention, the benefit of the doubt should be given to the said accused person. There is no dispute with the proposition that a common intention can develop at the spur of the moment and in the case in hand in view of the evidence of PWs 7 and 8 there being no intention to kill the occupants of Maruti Van when the police personnel left the Police Station on being informed that miscreants are speeding up in a Maruti Van, such a common intention could have developed at 71 Mile Post but the question for consideration is what is the evidence in the present case to indicate that in fact such common intention had developed at 71 Mile Post and further what are the overt acts committed by some of the accused persons to rope in all the police officers, as has been stated earlier. All the accused persons excepting Brij Lala Prasad left together in a vehicle with their arms and ammunitions on being informed that some miscreants are speeding up in a Maruti Van. Dudh Nath Ram was the Station House Officer of Barachatti Police Station. The three police officers, namely, Dudh Nath Ram, Victor Fedels and Brij Lala Prasad were armed with revolvers which has been established from the entries in the Register of Arms and ammunitions maintained in the office and Exhibited as Exhibit 18 series. The other 3 constables had been supplied with rifles and after the incident those rifles had been seized. Report of the Director of Forensic Science Laboratory Exhibit 16/6 indicated that the 303 calibre rifles bearing nos. 35893, AA-0511 and 28896, which had been supplied to the three constables were in working order and can be used for effective fire arms. As a result of microscopic examination of fired shells it was concluded that the fired shells had been fired from the three rifles. So far as the three revolvers which had been supplied to the three police officers, namely, Dudh Nath Ram, Victor and Brij Lala Prasad, the report indicated that those also can be used as an effective fire arm but the sign of the firing can not be detected as barriers and chambers had clearly been cleaned after firing. The said report also indicated that the firing had been done at least 8 rounds on the Maruti Van through 303 barrel weapons in downward Direction.

From the post-mortem report it further transpires that from the dead bodies of three deceased persons missiles were recovered and on examination of those missiles in the Forensic Science Laboratory it is established that the same had been fired form 303 rifles. This fact establishes that death of three persons occurred on account of firing from 303 rifles which had been used by the three Constables but at the same time the vehicle in which the three deceased persons were moving as well as the bundles of sarees inside the vehicle on being examined was found to have been fired at by 38 Revolvers which Revolvers had been given to accused Dudh Nath Ram and accused Victor, as per the statement of PW – 38. From the aforesaid circumstances proved, the conclusion becomes irresistible that at 71 Mile Post the police party resorted to firing from a close range on the Maruti Van and its occupants which was immobile and this firing had been made not only from the rifles possessed by the three constables but also from the revolvers possessed by the police officials though factually the three persons got killed on receiving bullet shots from 303 rifles. It is also established that the cartridges supplied to accused Dudh Nath Ram and Victor and cartridges received back did not tally and there was no explanation for the shortage of such cartridges. These bundle of circumstances clearly established the fact that all the accused persons except accused Brij Lala Prasad who went together with their respective arms and ammunitions in the police vehicle though initially went to chase the miscreants who were told to have been speeding up in a Maruti Van but at 71 Mile Post finding the said Maruti Van stationary, indiscriminately started firing through their respective weapons which ultimately resulted in the killing of three persons and as such intention to finish up the occupants of the Maruti Van developed at the very place suddenly and therefore the two police officers would be equally liable as the three constables notwithstanding the fact that death occurred on account of receiving shots from 303 rifles used by the three Constables. In addition to the aforesaid clinching circumstances against the five police officials excepting accused Brij Lala Prasad, so far as Dudh Nath Ram is concerned the additional links in the chain of circumstances have been established from the fact that he had taken away the stationary entry from the police station, he had prepared seizure list which contradicts each other, he had manipulated the records and documents and he had introduced the story of encounter which has not been established. Such manipulation of the police papers and the special diary entries made by Dudh Nath Ram together with his own statement that the police party fired at the Maruti Van make out a full proof case so far as accused Dudh Nath Ram is concerned. Dudh Nath Ram was the leader of the police party being Station House Officers, he took other police official team and chased the Maruti Van and then ultimately started firing at the Maruti Van from a close range as a result of which these three people killed. From the aforesaid circumstances established by the prosecution, we have no hesitation in affirming the conviction of all the accused persons excepting accused Brij Lala Prasad under Section 302/34 I.P.C. It would be appropriate to consider the arguments of Mr. Mohta, the learned senior counsel appearing for accused Victor that the Courts below had committed error in rejecting the plea of alibi. According to Mr. Mohta, the learned senior counsel Victor Fedles had been transferred to Gaya since July 1993 and the Station Diary of the Police Station indicated that he was on duty from 8.00 a.m. to 2.00 p.m. and it is, therefore, apparent that on the date of occurrence and at that relevant point of time he was present elsewhere in the Civil Lines Police Station and, therefore, the prosecution has failed to establish that he was at Barachatti Police Station on the early morning of 5th December, 1993. When a plea of alibi is raised by an accused it is for the accused to establish the said by positive evidence. Under Section 11 of the Evidence Act collateral facts having no connection with the main fact except by way of disproving any material fact, proved or asserted can be admitted in evidence. In other words the facts proved as such which make the existence of the fact so highly improbable as to justify the inference that it never existed, but such fact has to be established by the person who takes the plea. In other words if Victor by evidence has established that he was present elsewhere at the relevant point of time when the occurrence took place then Victor cannot be held guilty of the offence. But in the present case the presence of accused Victor at Barachatti Police Station on 5.12.1993 has been stated by PWs 7,8,17,19,28,58,59, and 64. Even PW 64 the then S.P. of Gaya also stated about the presence of accused Victor at Barachatti Police Station on 5.12.1993. No attempt was made by Victor to call for and prove the Station Diary of Civil Lines Police Station dated 5.12.1993 to establish that he was present at Civil Lines Police Station on the relevant date. Though the prayer was made in course of hearing of the argument to call for the Station Diary such prayer was rightly rejected by the learned Sessions Judge. There is thus not an iota of material available on record to establish the plea of alibi of accused Victor and under such circumstances the Courts below had no other option than to reject such a plea. We are, therefore, unable to accept the submission of Mr. Mohta, learned senior counsel appearing for Victor that the plea of alibi has been illegally rejected. In our considered opinion, in the absence of any materials such a plea cannot be sustained. The question whether award of extreme penalty of death to accused Dudh Nath Ram and Victor is at all justified will be considered later.

But at this stage it will be appropriate to consider the sustainability of the conviction of accused Brij Lala Prasad under Section 302/34 I.P.C. The two star prosecution witnesses PWs 7 and 8 unequivocally indicate that Brij Lala Prasad did not accompany Dudh Nath Ram and other police officials in chasing the Maruti Van but left the police station after about half an hour by a private jeep which had been stationed at the police station.

As has been indicated earlier when the police party left the police station they had no intention to kill anybody much less the three occupants of the Maruti Van and they had left for the purpose of arresting these persons who were alleged to be miscreants/dacoits and who were state to have been speeding up in a Maruti Van by firing from the same Maruti Van. Neither the ballistic report nor the forensic Science Laboratory report indicate that the revolver that had been given to Brij Lala Prasad had at all been used at 71 Mile Post. It is of course true that when the police party came Brij Lala Prasad also came together and the three dead bodies had been brought by them. The only evidence which possibly can be said to have been established, so far as, accused Brij Lala Prasad is concerned is that there was some shortage of cartridges which had been supplied to him and no explanation had been offered by him. But merely for such shortage of 9 rounds of cartridges, which had been supplied to Brij Lala Prasad, a year before the date of occurrence, it is difficult to come to the conclusion that at 71 Mile Post, Brij Lala Prasad who left the police station half an hour after Dudh Nath Ram and others had left, had at all used his revolver and therefore from the circumstances established against Brij Lala Prasad it is difficult to hold that he also shared the common intention which developed at 71 Mile Post. Not only the prosecution evidence established the fact that he left the police station half an hour after the police party headed by Dudh Nath Ram had left chasing the Maruti van but also there is no iota of material so far as accused Brij Lala Prasad is concerned to establish any meeting of mind of said Brij Lala Prasad with the other police party who resorted to firing at 71 Mile Post. Then again the jeep with which the Brij Lala Prasad went was being driven by a private driver and he would have been the best person to indicate the role played by such Brij Lala Prasad but unfortunately the prosecution has not examined the said driver had not been examined. In the aforesaid circumstances, we entertain considerable doubt as to the involvement of accused Brij Lala Prasad in sharing the common intention of killing three persons in the Maruti Van, and therefore, in our considered opinion he is entitled to the benefit of doubt. We accordingly set aside the conviction and sentence passed against accused Brij Lala Prasad for the offence under Section 302/34 I.P.C. and direct that he be set at liberty unless required in any other case.

Coming to the question as whether for conviction under Section 302/34 I.P.C. the courts below are justified in awarding death sentence to accused Dudh Nath Ram and Victor, we find that the learned Sessions Judge as well as the High Court have not kept in view the principles enunciated by this Court in awarding of death sentence but on the other hand being swayed away by their own emotions on the ground that police officials took recourse to firing to helpless citizens. As has been discussed the death of three persons occurred not from the firing from revolvers held by Dudh Nath Ram and Victor but on account of firing from the 303 rifles held by the three Constables. It is true that the prosecution evidence establishes the fact that firing has taken place from a very close range but that by itself would not make out the case to be a rarest of rare cased justifying the extreme penalty of death. No aggravating circumstances have been indicated so far as accused Dudh Nath Ram and accused Victor are concerned to award the extreme penalty of death sentence. The judgment of the High Court starts with the expression that the case may be treated ” as one of the most sensational trials of the recent years, so far as the State of Bihar is concerned and according to the High Court the murder is a diabolical one because three innocent persons have been killed by the police officers who were supposed to be the protectors of law abiding citizens.” We are constrained to observe that the High Court has not kept in view the several decisions of this Court and has not examined the circumstances proved while considering the question of sentence but on the other hand have been swayed away with the fact that trial is a sensational one, and therefore, the officials must be awarded the extreme penalty of death. We do not find that it is a correct appreciation of the law on the subject dealing with award of death penalty, even if a conviction under Section 302/34 I.P.C. is sustained. The learned Sessions Judge also came to the conclusion that the case can be treated to be a rarest of rare cases as police officials on whose shoulders the safety of citizens lie and are being the protectors of the society are accused for killing of three civilians without any provocation and resistance. From the facts narrated and discussed in this judgment and the circumstances established through the prosecution evidence we do not find any aggravating circumstances as against Dudh Nath Ram and Victor to award death sentence against them merely because they happened to be the police officers and the constables at their comands might have resorted to fire from 303 rifles at their possession. In this view of the matter, while we uphold the conviction of accused Dudh Nath Ram and Victor under Section 302/34 I.P.C., we set aside the sentence of death awarded against them and commute the same to imprisonment for life. In the ultimate analyses, therefore, the conviction of appellant Brij Lala Prasad under Section 302/34 I.P.C. is set aside and he is acquitted of the said charge and is directed to be set at liberty forthwith unless required in any other case. Criminal appeal No. 149 of 1998 is accordingly allowed. conviction of appellant Dudh Nath Ram and appellant Victor under Section 302/34 I.P.C. is upheld but the award of death sentence against them is commuted to imprisonment for life. Criminal Appeal No. 218 of 1998 and Criminal Appeal No. 279 of 1998 are disposed of accordingly. The conviction of appellants – Dinesh Singh, Deo Narain Ram and Jaikaran Yadav under Section 302/34 I.P.C. and the sentence of imprisonment for life is upheld and Criminal Appeal Nos. 280-82 of 1998 stand dismissed.

Uncategorized

Transmigration of motive/Transfer of Malice – S.299/300/301 IPC

 

Comment : A case where a person shoots to kill his adversary but ends up killing his wife – is convicted of murder by aid of S.301 – The Court holds that his malice/intention transferred to the wife of intended victim – it is also pertinent to note that S.299/300 talks about whoever causes death of a person with intention of causing death etc. Here also death was caused of a PERSON with the intention of causing death, the section nowhere makes it an imperative requirement that actual death caused and intention to cause it should be as regards the same person. This construction is further aided by S.301. 
 
Supreme Court of India
Jagpal Singh And Others vs The State Of Punjab on 6 December, 1990
Equivalent citations: AIR 1991 SC 982, 1991 CriLJ 597, 1991 (1) Crimes 177 SC
Bench: S Pandian, K J Reddy

JUDGMENT

1. This criminal appeal is preferred by the three appellants challenging the correctness and validity of the judgment, rendered by the High Court of Punjab & Haryana in Criminal Appeal No. 108/76 on its file convicting the three appellants under Section 302 read with sections. 149, 307 read with Section 149 and 148 of the Indian Penal Code and sentencing each of the appellants to undergo life imprisonment, three years’ rigorous imprisonment and two years rigorous imprisonments respectively. According to the prosecution, these three appellants along with two others on 26.3.1971 at village Govindpura at about 7 or 8 p.m. formed themselves into an unlawful assembly with a common object of causing the death of one Kapur Singh, committed rioting, attempted to cause the death of Kapur Singh and caused the death of Mrs. Surjit Kaur. The Trial Court on the evaluation of the evidence found these three appellants (who were tried separately since they had been absconding for a long time) guilty under all the charges and convicted and sentenced them. The High Court confirmed the judgment of the Trial Court. It is brought to our notice during the hearing of the appeal that the two other accused were separately tried and convicted and sentenced. It is not known as to whether those two appellants have preferred any appeal before this Court or not.

2. To substantiate the charges levelled against these appellants, two eye witnesses were examined, namely, Kapur Singh (PW 2) and Dalip Singh (PW 3). The evidence discroses that these appellants and the other two came to the house of Kapur Singh (PW 2) to attack him and fired shots. But Kapur Singh to save his life went into the house of Udham Singh, husband of the deceased Surjit Kaur. The appellants along with the two other accused went in front of the house of the deceased and fired shots from their weapons. At that time, Surjit Kaur was standing by the side of the door of a room. It is said that one of the shots fired by the first appellant, Jagpal Singh, hit at the deceased who succumbed to the injuries, sustained by her. Though Kapur Singh (PW 2) has admitted that he could not state as to who shot at the deceased, PW 3, Dalip Singh, has deposed that it was the first appellant, Jagpal Singh. The defence has examined the husband of the deceased as DW 1. The husband of the deceased (DW 1) has categorically stated that the deceased was not shot by any one of the appellants and that both the eye witnesses were not in his house at the time of occurrence. But both the Courts below have not placed any reliance on the evidence of Udham Singh.

3. On going through the entire evidence and other connected records placed before us, we are fortified in holding that the first appellant, Jagpal Singh shot at Surjit Kaur even though he aimed at only Kapur Singh. Therefore, under the doctrine of transfer of malice as contemplated under Section 301 of the IPC, Jagpal Singh has made himself punishable under Section 302 IPC (simplicitor). So far as the rest of the appellants are concerned, the allegations are omnibus. On a careful analysis of the entire evidence particularly of Udham Singh, we are of the opinion that it is not safe to convict the other two appellants, namely, Baldev Singh and Gurmel Singh s/o Chanan Singh.

4. In the result, we convict Jagpal Singh alone under Section 302(simplicitor) and 307 (simplicitor) instead of 302 read with Sections 149 and 307 read with 149 IPC and retain the sentence of imprisonment for life and the sentence of three years rigorous imprisonment. The conviction under Section 148 IPC as against this appellant, Jagpal Singh, is set aside. As we have now come to the conclusion that it is not safe to convict the other appellants, we set aside the conviction recorded against these two appellants under Sections 302 read 149, 307 read with 149 and 148 IPC as well the sentences imposed on them therefor. Accordingly, the appeal of Jagpal Singh is dismissed subject to the above modification and the appeal so far as the other two appellants are concerned is allowed.

5. Counsel for the appellants is not able to say as to whether those two appellants have preferred any appeal before this Court or not. Therefore, we extend the benefit of acquittal to Bhupinder Singh and Gurmel Singh s/o Kehar Singh provided they have not preferred any appeal before this Court with regard to this case. In case any appeal is preferred by them challenging their convictions concerning this case is pending or dismissed then the benefit of acquittal extended by us to them cannot be enured.

6. In the result, the appeal of Jagpal Singh is dismissed as indicated above and the appeal in respect of the other two appellants is allowed. As we have now extended the benefit of acquittal to the other two accused, namely, Bhupinder Singh and Gurmel Singh s/o Kehar Singh and their convictions and sentences recorded as against them are also set aside and they are directed to be set at liberty forthwith provided their convictions are not confirmed by the dismissal of SLP, if any preferred by them, or in an appeal or if any appeal is pending before this Court.

7. The bail bonds are discharged.

Uncategorized

for a charge u/s 212 – knowledge of commission of offence sine qua non

 

Supreme Court of India
Sanjeev Kumar vs State Of Himachal Pradesh on 22 January, 1999
Equivalent citations: AIR 1999 SC 782, 1999 (1) ALD Cri 322, 1999 CriLJ 1138
Author: G Pattanaik
Bench: G P Shah

ORDER

G.B. Pattanaik, J.

1. These three appeals arise out of one Sessions Trial being Sessions Trial No. 9-B/7 of 1990 and were heard together and are being disposed of by this common judgment. Appellant Sanjiv Kumar stood charged under Sections 120B, 302 and 201 IPC. Appellant Kamlesh Tyagi stood charged under Sections 120B, 302 read with Section 120B and 201 IPC. Appellant Lekh Raj Gupta stood charged under Section 120B, 302 read with Section 120B and 212 IPC. It was alleged that all three of them hatched a criminal conspiracy to kill the deceased Rajesh Sharma and in furtherance of the said conspiracy accused Sanjiv Kumar caused murder of the deceased whereafter accused Sanjiv and accused Kamlesh caused disappearance of the evidence of the offence. Accused Lekh Raj is alleged to have harboured accused Sanjiv Kumar knowing him to have committed the offence with the intention of saving him from legal punishment. The learned Sessions Judge on a thorough analysis of the evidence on record convicted accused Sanjiv Kumar under Section 120B, 302 IPC and 201 IPC. He was sentenced to undergo imprisonment for life for the conviction under the first two charges and 7 years R.I. for his conviction of the last charge. In addition, he was directed to pay a fine of Rs. 5,000 for each of the offences with the further direction that the sentences would run concurrently. Accused Kamlesh Tyagi was also convicted under Section 120B, and Section 302 read with Section 120B IPC and was sentenced to undergo imprisonment for life for each of the offences and pay a fine of Rs. 5,000 on each count. She was also further convicted under Section 201 and was sentenced to imprisonment for 7 years and to pay a fine of Rs. 5,000. Accused Lekh Raj was convicted only under Section 212 IPC and was sentenced to undergo imprisonment for 5 years and to pay a fine of Rs. 5,000, Against their conviction the accused persons preferred two appeals -Criminal Appeal No. 121/93 and Criminal Appeal No. 125/93. The State also preferred two appeals against accused Sanjiv and accused Kamlesh and other against accused Lekh Raj for enhancement of sentence awarded by the learned Sessions Judge. These 4 appeals stood disposed of by the High Court by judgment dated 20th September, 1996, whereunder the conviction and sentence of accused Sanjiv Kumar under Sections 302/120B and 201 was affirmed. Similarly the conviction and sentence passed against accused Kamlesh Tyagi was also affirmed. But, so far as accused Lekh Raj is concerned, though his conviction under Section 212 IPC was upheld but the sentence was modified to the period already undergone. The appeals filed by the State for enhancement of sentence were also dismissed and hence the present appeals.

2. At the outset it may be stated that there is no eye witness to the commission of murder and case accordingly hinges upon the circumstantial evidence. The prosecution case in nutshell is accused Sanjiv Kumar is nephew of accused Kamlesh being her brother’s son. The father of the deceased was at relevant point of time posted as Additional District Attorney-cum-Public Prosecutor at Bilaspur. Accused Kamlesh had 4 daughters. The eldest daughter Chanchal, was a classmate of the deceased and the family of the accused and the family of the deceased were on visiting terms. Both the families of the deceased were on visiting terms. Both the families were residing in the same colony in Bilaspur. Sometimes later the family of the deceased shifted themselves from agricultural colony to Dhora as PW 19 the father of the deceased got an official accommodation at Dhora. The further prosecution case is that deceased had developed some intimacy with Chanchal which was not approved of by the father of the deceased. PW 19 in fact met Kamlesh on one occasion and requested her to refrain her daughter from meeting the deceased. But Kamlesh told PW 19 that he should restrain his son from meeting Chanchal. It was also alleged that several threats were given by Kamlesh and Sanjiv to the deceased. On the fateful day on 25.5.90 a telephonic message was received from PW 1 that the son of the Additional District Attorney has been murdered by somebody with knife which information was entered in Daily Diary Report in the Police Station Sadar Bilaspur. The District Inspector of Police PW 36 transmitted the message on telephone to the Incharge City Police which was received by PW 35 who was directed to proceed to the spot. Said PW 35 then immediately proceeded and at the place of occurrence recorded the statement of Rajeev-PWl which was treated as an FIR, The police then started investigation and after completion of investigation filed the chargesheet as already stated. The accused persons on being committed stood their trial and were ultimately convicted by the learned Sessions Judge, as already indicated. In the absence of any direct evidence relating to the murder of the deceased the learned Sessions Judge as well as the High Court based their conviction on the circumstantial evidence.

3. Learned Sessions Judge relied upon the following circumstances to bring home the charge against accused Sanjiv Kumar.

(i) Sanjiv was seen going in the house of the deceased at about 10.15 a.m. by PW 34 and he was seen coming out of the house of the deceased immediately after the occurrence by PW 1.

(ii) Shortly after the occurrence Sanjiv Kumar went to the house of PW 2 Sapna when his clothes were blood-stained and he requested Sapna to get clothes for being changed from the house of the second accused Kamlesh.

(iii) Conduct of accused Sanjiv Kumar in leaving the place and roaming under suspicious circumstances and on being enquired by PW 22 giving a false explanation.

(iv) Recovery of knife Exhibit P 4 at his residence while in custody.

(v) Recovery of clothes of the accused Sanjiv Kumar which he was wearing at the time of occurrence from the house of Kamlesh which on chemical examination were found to be stained with human blood.

(vi) The medical evidence corroborating that the knife could be used for causing the injury on the deceased and the identification of Sanjiv Kumar by the prosecution witness.

4. On these circumstances the Sessions Judge came to hold that the prosecution case as against accused Sanjiv Kumar has been proved beyond reasonable doubt.

5. So far as accused Kamlesh is concerned, the learned Sessions Judge relied upon the following circumstances for establishing the charges:

(i) Hurling of threats by her against deceased;

(ii) She came to the house of PW 2 Sapna and then sent clothes of accused No. 1 for changing his blood stained clothes;

(iii) her subsequent act and conduct when prosecution witnesses reached her residence;

(iv) her going to the shop of PW 12 and making enquiries about whereabouts of Sanjiv Kumar and giving false explanation that accused No. 1 had been given beating by some boys and was not traceable.

6. So far as accused Lekh Raj is concerned, the learned Sessions Judge came to the positive conclusion that he was not involved in the criminal conspiracy alleged to have been made by accused No. 1 and 2 and, therefore, the charges against him under Sections 120B and 302/120B must fail.

7. But so far as charge under Section 212 IPC is concerned, namely, harbouring accused No. l after commission of the crime the learned Sessions Judge relied upon the fact that Lekh Raj took Sanjiv on his scooter and thereby permitted accused No. 1 Sanjiv Kumar from evading arrest which is sufficient to establish the charge under Section 212 and accordingly convicted him of the same offence.

8. On appeal the High Court re-appreciated the materials on record and being of the opinion that the circumstances found to have been established by the Sessions Judge complete the entire chain for proving the charge against Sanjiv Kumar and Kamlesh upheld the conviction and sentence passed by the learned Sessions Judge. And so far as Lekh Raj is concerned, while the High Court upheld the conviction but modified the sentence to the period already undergone. The High Court in the impugned judgment came to hold:

Therefore, from the chain of circumstances proved on record the only hypothesis which we can think of is that it was accused Sanjiv Kumar who had killed Rajesh, as such, he is guilty of offence under Section 302, but in view of the other circumstances proved on record, if was done by him as a result of conspiracy hatched between him and accused Kamlesh Tyagi.

9. Mr. Lalit, learned senior counsel appearing for accused Sanjiv Kumar contended in this Court that in a case of circumstantial evidence each incriminating circumstance must be proved beyond reasonable doubt and all such circumstances taken together must complete the chain leaving no missing link from which it can be conclusively said that it is the accused who is the perpetrator of the crime and nobody else, and applying this principle to the circumstances sought to be established by prosecution it cannot be held that the prosecution case as against accused Sanjiv Kumar has been proved beyond reasonable doubt. According to the learned Counsel unless and until various links in the chain of evidence led by the prosecution have been proved which would unhesitatingly point to the guilt of the accused the prosecution case cannot be held to have been established. It is the further submission of Mr. Lalit learned senior counsel that all the links in the chain must be conclusively established by cogent and unimpeachable evidence. The learned Counsel submitted that the circumstantial evidence must be of a conclusive nature and the circumstances must not be capable of duality of explanation. In elaborating this submission Mr. Lalit, learned Counsel placed before us the evidence of PW 34 and PW 1 both of whom proved the two most vital pieces of evidence and pointed out several infirmities and contended that if the evidence of these two witnesses are unreliable and cannot be taken into account then whatever may be the residue of the evidence the prosecution case cannot be said to have been established beyond reasonable doubt as against accused Sanjiv Kumar. On the question of charge under Section 120B of the Indian Penal Code Mr. Lalit, learned senior counsel submitted with force that there is hardly any material on record to establish the aforesaid charge and both the learned Sessions Judge as well as the High Court committed serious error in recording a finding that the charge under Section 120B has also been established beyond reasonable doubt. The learned Counsel submitted with force that the necessary ingredients for the offence under Section 120B being a party to a criminal conspiracy and in the absence of an iota of material in support of the same the conviction under Section 120B or Section 302 read with 120B cannot be upheld. According to Mr. Lalit the only circumstance for establishing the charge under Section 201 IPC so far as accused Sanjiv Kumar is concerned, is changing of clothes and handing over the same to PW 2 for being handed over to accused Kamlesh and on this circumstance even if it is held to have been established the offence cannot be said to have been proved beyond reasonable doubt.

10. Mr. Jitender Sharma, learned senior counsel appearing for accused Kamlesh reiterated the submissions made by Mr. Lalit, so far as the charges under Section 302 read with Section 120B Indian Penal Code is concerned. According to the learned Counsel neither the materials on record established any prior meeting of mind between Kamlesh and Sanjiv Kumar nor any of the circumstance established in the case would fasten the liability of the offence of murder on accused Kamlesh and, therefore, the conviction of Kamlesh by taking recourse to Section 120B is wholly unsustainable in law.

11. So far as her conviction under Section 201 is concerned, Mr. Sharma contends that the only piece of evidence relied upon by the prosecution in this regard is when the prosecution witness reached her house she protested and wanted whether any search warrant is there and thereafter from her bathroom blood stained clothes of the accused were recovered which at that point of time were being washed and on that circumstance alone the conviction of Kamlesh under Section 201 Indian Penal Code cannot be upheld. Lastly Mr. Sharma urged that even if her conviction is upheld she has already undergone imprisonment for more than 4 years and 8 months and the sentence should be reduced to the period undergone.

12. Mr. Prem Malhotra, learned Counsel appearing for accused Lekh Raj submitted that the prosecution has not led any evidence to come to the conclusion that Lekh Raj knew about the commission of offence of Sanjiv Kumar when he took him on scooter and that being so, his conviction under Section 211 Indian Penal Code is wholly unsustainable.

13. Mr. Kochher, learned senior counsel appearing for the respondents very fairly stated that on the circumstances established by the prosecution it would be difficult to sustain the conviction under Section 120B IPC as there has been no material to prove the alleged conspiracy between Sanjiv Kumar and Kamlesh. The learned senior counsel also fairly stated that the conviction of Lekh Raj under Section 212 IPC may not be sustainable since the materials on record do not justify a finding that Lekh Raj knew about the commission of offence by Sanjiv Kumar when he took him on the scooter and the only item of evidence is that shortly after the occurrence he gave lift to Sanjiv Kumar on his scooter whereafter Sanjiv Kumar remained absconding for some period. But he argued with force that the circumstances established in the case unequivocally proved the charge under Section 302 IPC so far as Sanjiv Kumar is concerned, and Section 201 IPC so far Kamlesh is concerned, and on the materials on record it must be held that these charges have been proved beyond reasonable doubt.

14. To appreciate the correctness of the rival submissions it would be necessary for us to first enumerate the circumstances which can be said to have been established by the prosecution and then examine whether the different ingredients of different offence charged can be said to have been duly established or not?

15. It is apparent from the evidence of PW 34 that on 25.5.1990 at 10.15 a.m. when he had been to the house of deceased Rajesh while Rajesh was alone accused Sanjiv Kumar reached the place and introduced himself as Sanjiv Kumar resident of Dhora and even the deceased also told him the identity of accused Sanjiv Kumar. He also categorically stated that Sanjiv was wearing yellow T-shirt and blue jeans and sports shoes. According to his evidence Rajeev Rawat PW 1 came to his house and told him that Rajesh has been killed by somebody and further he has seen the boy coming out of the house of Rajesh and running who had knife in his hand. He also stated that Rajeev told him that the boy was wearing yellow T-shirt and blue jeans and he replied Rajeev that he also saw a boy in the house of Rajesh and thereafter when they went to the house of the deceased Rajesh they found blood on the floor and Rajesh was lying on the dining chair. Mr. Lalit pointed out to us several omissions from his earlier statement to the police in as much as he had not stated to the police that in his presence Rajiv told the police that he is the same boy who was seen by him running from the house of Rajesh after committing murder. He had also not stated to the police that Rajeev told him about seeing a boy going out of the house wearing yellow T-shirt and blue jeans and those omissions were also duly confronted to him. The question, however, remains as to whether such omissions can be said to be material omissions tantamounting to contradiction and whether on such material omission the evidence of PW 34 should be discarded from the purview of consideration? But having scrutinised the evidence of PW 34 in detail we find it difficult to discard the same from the consideration totally, and in our view, the so called omissions in his earlier statement to police cannot be held to be material ones totally impeaching his evidence. There has been no omission or contradiction relating to the fact that while he was in the house of Rajesh, Sanjiv came there and introduced himself as Sanjiv and even the deceased also introduced Sanjiv Kumar to him. From his evidence it can be safely concluded that Sanjiv was seen in the company of the deceased Rajesh in his house while Rajesh was alone at 10.15 a.m. on the date of occurrence on 25.5.1990

16. The next circumstance which has been relied upon by the prosecution is the fact that PW 1 saw somebody leaving the place of occurrence with knife in his hand wearing yellow T-shirt and blue jeans and said PW 1 identified accused Sanjiv Kumar to be the said person in T.I. parade. It is not the prosecution case that PW 1 knew Sanjiv Kumar, and therefore, unless the identify of Sanjiv Kumar is established to be the person who was seen by PWl to have left the place of occurrence with a yellow T shirt and blue jeans and knife in his hand the said circumstance cannot be of any use. The High Court in the impugned judgment while discussing the identification of Sanjiv Kumar by PW 1 in the T.I. Parade held on 13.7.1990 came to the conclusion that the said T.I. Parade loses its importance and the possibility of his seeing Sanjiv Kumar or his photograph is not ruled out as he was brought to the house of Rajesh on the very next day and used to be taken to the Courts and was also paraded in the bazar of Bilaspur alongwith accused Kamlesh. If the identification of accused Sanjiv Kumar by PW 1 in T.I. Parade held on 13.7.1990 is held to be invalid as has been held by the High Court then the second circumstance to the effect that PWl saw Sanjiv Kumar leaving the scene of occurrence with knife in his hand cannot be said to have been established.

17. The next circumstance which can be said to have been established beyond reasonable doubt through the evidence of PW 2 is that on the date of occurrence accused Sanjiv Kumar with blood stained clothes on his person reached the house of PW 2 and requested her to go to the house of accused Kamlesh and bring a set of clothes for his change and in fact said PW 2 went to the house of Kamlesh and informed her as desired by Sanjiv Kumar. This is a rather clinching circumstance against accused Sanjiv Kumar who was seen by PW 2 with blood stained clothes on his person immediately after the occurrence and nothing has been pointed out to us by Mr. Lalit, learned Counsel to discard this piece of evidence.

18. The next circumstance which can be said to have been established by the prosecution is the alleged search of the house of accused Kamlesh and recovery of blood stained clothes of the accused Sanjiv Kumar from the bathroom which were being washed. This circumstance is established from the evidence of Sapna-PW 2, R.L. Chauhan – PW 7 and Vipan Sharma – PW 11. The relevant seizure list is Exhibit PG. The report of the Chemical Examiner and that of the Serologist is Exhibit PX/2. PW 1, PW 34, and PW 2 categorically deposed that these were clothes which had been used by accused Sanjiv Kumar on the relevant date at the relevant point of time. The report of Chemical Examiner and report of the Serologist indicate the presence of human blood on the wearing apparels of Sanjiv Kumar which were seized from the house of accused Kamlesh and the accused has not offered any explanation for the same in his examination under Section 313 Cr.P.C. From the evidence of PWs 16 and 17 it has been established that accused Sanjiv Kumar while in custody, made a statement in relation to the weapon of offence Exhibit P-4 and pursuant to such statement the knife was recovered under Exhibit PV. The said knife also on chemical examination and serologically tested was found to be stained with human blood. The two Courts of fact have believed the evidence of PWs 15 and 17 and nothing has been pointed out as to why the said evidence should not be relied upon. The aforesaid circumstance also is another clinching piece of evidence as against accused Sanjiv Kumar. On the aforesaid circumstances, being established by the prosecution the conclusion is irresistible that the chain of circumstances so proved is complete and the charge of murder against accused Sanjiv Kumar is proved beyond reasonable doubt. Said accused Sanjiv Kumar, therefore, has to be convicted under Section 302 IPC and for said conviction he is sentenced to imprisonment for life.

19. Coming to the question of charge under Section 120B IPC to establish a conspiracy between accused Sanjiv Kumar and accused Kamlesh, apart from the relationship, namely, Sanjiv was the nephew of Kamlesh the prosecution evidence is totally silent to establish a criminal conspiracy between them for committing the murder of deceased Rajesh. The offence under Section 120B is an agreement between the parties to do a particular act. There is not an iota of material to establish the alleged agreement between accused Sanjiv Kumar and accused Kamlesh. In the absence of such evidence the mere fact that Sanjiv Kumar was the nephew of Kamlesh cannot be held to be sufficient to lead to an inference of conspiracy. Association of Sanjiv Kumar with Kamlesh being a relation is not enough to establish that both of them entered into a conspiracy to kill deceased Rajesh. In the aforesaid premises, the learned Counsel appearing for the respondent State was right in his submission that the charge of conspiracy cannot be sustained. We accordingly, set aside the conviction of accused Sanjiv Kumar as well as of accused Kamlesh under Section 302/120B of India Penal Code.

20. So far as the conviction of accused Kamlesh under Section 201 IPC is concerned, from the prosecution evidence it is established that when Sapna-PW 2 informed that Sanjiv Kumar is in her house with blood stained clothes Kamlesh was perturbed and by the time Chanchal and Sapna proceeded towards the house of Sapna they met Kamlesh on the way who was returning from the direction of the house of Sapna and requested Sapna to come back so that Kamlesh can give clothes for Sanjiv Kumar which he could change in the house of Sapna. It is also established that she handed over a set of clothes for Sanjiv Kumar which PW 2 Sapna carried. The further circumstance which is established from the prosecution evidence is that when the police with other witnesses knocked the door of Kamlesh who was found in a very perturbed condition and initially resisted the entry of police into her house even though the police said her house would be searched ultimately the blood stained clothes of accused Sanjiv Kumar were recovered from the bath room of her house which had been soaked with water in a bath tub. These two circumstances fully establish the charge under Section 201 IPC, so far as accused Kamlesh is concerned. In the aforesaid circumstances, we have no hesitation in affirming the conviction of accused Kamlesh under Section 201 IPC. But, so far as the sentence is concerned, she has already undergone imprisonment for about 4 years and 8 months, as stated to us in the course of hearing, by Shri Sharma, learned Counsel appearing for accused Kamlesh, and we think that the justice will be fully met if her sentence is modified to the sentence already undergone.

21. So far as accused Lekh Raj is concerned, we do not find an iota of material to indicate that he knew about the commission of offence by accused Sanjiv Kumar when he took him on his scooter and, therefore, the conviction of accused Lekh Raj of the offence under Section 212 IPC is wholly unsustainable in law. It may be stated that to attract the provisions of Section 212 IPC it is necessary to establish commission of an offence, harbouring or concealing the person known or believed to be the offender, and such concealment must be with the intention of screening him from legal punishment. The evidence adduced by the prosecution in this regard is wholly insufficient to establish either of the aforesaid ingredients, though all the ingredients are necessary to be proved. In this view of the matter the conviction of accused Lekh Raj for the offence under Section 212 is unsustainable and, we accordingly set aside the conviction and sentence and acquit him of the charge.

22. In the net result, therefore, the conviction of accused Sanjiv Kumar and accused Kamlesh under Section 302/120B IPC and the sentence passed thereunder is set aside. Accused Sanjiv Kumar, however, is convicted under Section 302 IPC and sentenced to imprisonment for life. The conviction of accused Kamlesh under Section 201 IPC is upheld; but the sentence is modified to the period already undergone. She may be released forthwith unless required in any other case. The conviction and sentence of accused Lekh Raj under Section 212 IPC is set aside and is acquitted of the charge leveled against him.

23. All the appeals are disposed of accordingly.

Family Law

Supreme Court convicting man for wife’s murder – circumstantial evidence.

In this interesting case – the Court convicted the man for murdering his wife, on the basis of following evidence – the chain of circumstantial evidence :-
i) Motive (Suspected infidelity on part of wife – strained relations on that count)
ii) Last Seen together.
iii) Unnatural subsequent conduct.
iv) killed wife at hotel – court matched his signatures on visitor’s book and vakalatnama in appeal and also matched in court u/s 73. 
Supreme Court of India
Ajit Savant Majagavi vs State Of Karnataka on 14 August, 1997
Author: S S Ahmad
Bench: M K Mukherjee, S S Ahmad

PETITIONER:

AJIT SAVANT MAJAGAVI

Vs.

RESPONDENT:

STATE OF KARNATAKA

DATE OF JUDGMENT: 14/08/1997

BENCH:

M. K. MUKHERJEE, S. SAGHIR AHMAD

ACT:

HEADNOTE:

JUDGMENT:

Present :

Hon’ble Mr. Justice M.K. Mukherjee

Hon’ble Mr. Justice S. Saghir Ahmad

Mukul Sharma, Adv. for S.R. Bhat, Adv. for the appellant Ms. Manjula Kulkarni, Adv. for M. Veerappa, Adv. for the Respondent

J U D G M E N T

The following Judgment of the Court was delivered : J U D G M E N T

S. Saghir Ahmad, J.

Padmavathi, a house wife, in this case, has been strangulated to death, of all persons, by her husband, the appellant before us.

2. BATTLE OF SEXES has always been a battle of wits. Today it is denuded of its charms. It has degenerated into a WAR involving physical violence, torture, mental cruelty and murder of the female, including particularly, the WIFE.

3. Social thinkers, philosophers, dramatists, poets and writer have eulogised the female species of the human race and have always used beautiful epithets to describe her temperament and personality and have not deviated from that path even while speaking of her odd behaviour, at times. Even in sarcasm, they have not crossed the literary limit and have adhered to a particular standard of nobility of language. Even when a member of her own species, Madame De Stael, remarked “I am glad that I am not a man; for then I should have to marry a woman”, there was wit in it. When Shakespeare wrote, “Age cannot wither her; nor custom stale; Her infinite variety”, there again was wit. Notwithstanding that these writers have cried hoarse for respect for “Woman”, notwithstanding that Schiller said “Honour Women! They entwine and weave heavenly rose in our earthly life.” and notwithstanding that Mahabharat mentioned her as the source of salvation, the crime against “woman” continues to rise and has, today undoubtedly, risen to alarming proportions.

4. It is unfortunate that in an age where people are described as civilised, crime against “Female” is committed even when the child is in the womb as the “female” foetus is often destroyed to prevent the birth of female child. If that child comes into existence, she starts her life as a daughter, then becomes a wife and in due course, a Mother. She rocks the cradle to rear up her infant, bestows all her love on the child and as the child grows in age, she gives to the child all that she has in her own personality. She shapes the destiny and character of the child. To be cruel to such a creature is unthinkable. To torment a wife can only be described as the most hated and derisive act of a human being.

5. In this appeal, we have to deal with the unfortunate story of torture of a wife and her sudden and untimely death at the hands of a person who had promised to the God, before the altar of fire, to be her protector.

6. The appellant was married to a young woman, by name, Padmavathi @ Janki, in or about April, 1984 in Belgaum Taluk. Her father was P.W. 8, Paris Savant Kaggodi who was, incidentally, also brother of appellant’s mother. Padmavathi, after bidding a-dieu to her father and other relations, came to live with the appellant in her new house where her parent-in-laws also lived. She became the victim of mental torture and cruelty for a charge, which, unfortunately, can be levied easily against any virtuous woman, that she was involved in extra marital relationship; in this case with one Gundu Badasad.

7. On becoming pregnant, Padmavathi came back to her father’s house of performance of certain ceremonies connected with the pregnancy and continued to stay there till she delivered a mala child. The information of birth of the child was conveyed to the appellant and his parents but nobody, not even the appellant, came to see Padmavathi or the child although, in normal course, the birth of a male child has the effect of bringing smile even on a frowning face. Like a lull before the storm, this cold-shouldering was the precursor of the evils that were to befall Padmavathi.

8. Four months after the delivery, the appellant suddenly, on a Saturday, came to the house of his father-in-law (P.W. 8) and sought his permission to take his wife and the child to a temple at Stanvanidhi which was a sacred and holy place for the Jains. The next morning, that is, on Sunday, the appellant, his wife and the child were seen off by his sister-in-law at the Bus Station where they boarded a Karnataka State Road Transport Corporation Bus and came to Halaga village where on Monday, at 1.00 A.M., the appellant, with his wife and child came to the house of a person named Gopal Bhimappa Inchal. The appellant told Gopal Bhimappa Inchal that on their return from the temple, they could not get the “Bus” and, therefore, they had come to this house for the night halt. As promised, the appellant with his wife and the child left the house in the early morning and came to “Ashoka Lodge” in Belgaum where he checked in Room No. 113 at 9.30 A.M. on 09.09.85. That was the most unfortunate, as also, the last day in Padmavathi’s life. At about 12.00 Noon, the appellant came to the reception counter of “Ashoka Lodge” and informed the people there that his wife has died of heart-attack and that he was going to bring his relations. he left the “Lodge”, with child in his lap, never to come back. Her gave the child to a lady called Gangavva, in village Halaga who, later, sent the child to Padmavathi’s father.

9. The police was informed of the matter in due course which visited the “Lodge” and held the inquest. The body of Padmavathi was sent for post mortem examination which revealed that Padmavathi had died not because of cardiac arrest, but on account of asphyxia. Her death was homicidal.

10. The police arrested, challenged and prosecuted the appellant, who was found “not guilty” by the trial court but the High Court, on appeal by the State, reversed the verdict and convicted the appellant u/s 302 IPC and sentenced him to life imprisonment. Now, the matter is before us.

11. Learned counsel for the appellant has contended that the High Court should not have interferred with the judgment passed by the trial Court unless it was of the positive opinion that the judgment was perverse and that it had to be reversed for “substantial and compelling reasons”. It is contended that since substantive and compelling reason have not been indicated, the judgment of the High Court is liable to be set aside and that of the trial court is to be restored. It is also contended that even if all circumstance appearing against the appellant are taken into consideration, the cumulative effect of those circumstance does not lead to the irresistible conclusion that the appellant was guilty.

12. Section 378 of the Code of Criminal Procedure 1973 which corresponds to Section 417 of the old Code provides for appeal in case of acquittal.

13. There was quite a controversy among the Court with considerable divergence of judicial opinion as to the scope of appeal against an order of acquittal. This controversy remained unabated till some guideline was indicated by the Privy Council in Sheo Swarup & Ors. v. King Emperor, L.R. 61 Indian Appeals 398 = AIR 1934 P.C. 227(2). This decision was considered inSanwat Singh vs. State of Rajasthan, (1961) 3 SCR 120, in which the legal position was explained by this Court as under :-

(1) The evidence upon which the

order of acquittal was passed by

the trial court can reviewed,

reappreciated and reappraised by

the Appellate Court.

(2) The principle laid down by the

Privy Council in Sheo Swarup & ors.

v. King Emperor, L.R.. 61 Indian

Appeals 398 (supra); provide

correct guidelines for the

Appellate Court while disposing of

the appeal against the order of

acquittal.

(3) The words “substantial and

compelling reasons”, “good and

sufficiently cogent reasons” or

“strong reasons” used by this court

in its various judgments do not

have the effect of curtailing power

of the High Court to reconsider,

review or scrutinise the entire

evidence on record so as to come to

its own conclusions in deciding the

appeal against an order of

acquittal.

14. As a matter of fact, the power of the High Court are not different from its powers in an ordinary appeal against conviction. The additional burden which is placed on the High Court is that it has to consider each of the grounds which has prompted the trial court to pass the order of acquittal and to record its own reasons for not agreeing with the trial court.

15. In State of Uttar Pradesh vs. Samman Das, AIR 1972 SC 677 – (1972) 3 SCR 58, this Court again reiterated the above principles and pointed out that there were certain cardinal rules which had always to kept in view in appeal against acquittal. It was pointed out that there is a presumption of innocence in favour of the accused especially when he has been acquitted by the trial court. It was further to be kept in view that if two views of the matter are possible. the view which favours the accused has to be adopted. The Appellate Court has also to keep in view the fact that the trial judge has the advantage of looking at the demeanour of witnesses and that the accused is still entitled to the benefit of doubt. The doubt should be such as a rational thinking person will reasonably, honestly and conscientiously entertain and not the doubt of an irrational mind. (See also : Sohrab vs. State of Madhya Pradesh, (1973) 1 SCR 472 = (1972) 3 SCC 751 = AIR 1972 SC 2020; Ediga Sanjnna vs. State of Andhra Pradesh, (1976) 2 SCC 210; Satbir Singh & Anr. vs. State of Punjab, (1977) 3 SCR 195 = (1977) 2 SCC 263; Chandrakanta Devnath vs. State of Tripura, (1986) 1 SCC 549 = 1986 Cr.L.J. 809; G.B. Patel & Anr. vs. State of Maharashtra, AIR 1979 SC 135; Awadesh & Anr. vs. State of Madhya Pradesh, (1988) 3 SCR 513 = (1988) 2 SCC 557; Anokh Singh vs. State of Punjab, (1992) 1 (Supp) SCC 426; Gajanan Amrut Gaykwad & Ors. vs. State of Maharashtra, (1995) 3 (Supp) SCC 607; Ram Kumar vs. State of Haryana, AIR 1995 SC 280; Betal Singh vs. State of Madhya Pradesh, (1996) 4 SCC 203).

16. This Court has thus explicitly and clearly laid down the principle which would govern and regulate the hearing of appeal by the High Court against an order of acquittal passed by the trial court. These principles have been set out in innumerable cases and may be reiterated as under :- (1) In an appeal against an order

of acquittal, the High Court

possesses all the powers, and

nothing less than the powers, it

possesses while hearing an appeal

against an order of conviction.

(2) The High Court has the power to

reconsider the whole issue,

reappraise the evidence and come to

its own conclusion and finding in

place of the findings recorded by

the trial court, if the said

findings are against the weight of

the evidence on record, or in other

words, perverse.

(3) Before reversing the findings

of acquittal, the High Court has to

consider each ground on which the

order of acquittal was based and to

record its own reason for not

accepting those grounds and not

subscribing to the view expressed

by the trial court that the accused

is entitled to acquittal.

(4) In reversing the finding of

acquittal, the High Court has to

keep in view the fact that the

presumption of innocence is still

available in favour of the accused

and the same stands fortified and

strengthened by the order of

acquittal passed in his favour by

the trial court.

(5) If the High Court, on a fresh

scrutiny and reappraisal of the

evidence and other material on

record, is of the opinion that

there is another view which can be

reasonably taken, then the view

which favours the accused should be

adopted.

(6) The High Court has also to keep

in mind that the trial court had

the advantage of looking at the

demeanour of witnesses and

observing their conduct in the

Court especially in the witness-

box.

(7) The High Court has also to keep

in mind that even at that stage,

the accused was entitled to benefit

of doubt. The doubt should be such

as a reasonable person would

honestly and conscientiously

entertain as to the guilt of the

accused.

17. It is in the light of these principle that it has to be seen whether the High Court, in the instant case, was justified in reversing the order of acquittal.

18. Before taking up this task, it may be stated that for a crime to be proved, it is not necessary that the crime must be seen to have been committed and must in all circumstances, be proved by direct ocular evidence by examining before the Court those persons who had seen its commission. The offence can be proved by circumstantial evidence also. The principle fact or “factum probandum” may be proved indirectly by means of certain inferences drawn from “factum probans”, that is, the evidentiary facts. To put it differently, circumstantial evidence is not direct to the point in issue but consists of evidence of various other facts which are so closely associated with the fact in issue that taken together, they form a chain of circumstances from which the existence of the principal fact can legally inferred or presumed.

19. It has been consistently laid down by this Court that were a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused of the guilt of any other person. (See : Hukam Singh vs. State of Rajasthan, AIR 1977 SC 1063; Eradu and other vs. State of Hyderabad, AIR 1956 SC 316; Earabhadrappa vs. State of Karnataka, AIR 1983 SC 446;State of U.P. vs. Sukhbasi and others. AIR 1985 SC 1224; Balwinder Singh vs. State of Punjab, AIR 1987 SC 350; Ashok Kumar Chatterjee vs. State of Madhya Pradesh. AIR 1989 SC 1890).

20. The circumstance from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances. In Bhagat Ram vs. State of Punjab, AIR 1954 SC 621, it was laid down that where the case depends upon the conclusions drawn from circumstance, the cumulative effect of the circumstance must be such a to negative the innocence of the accused and bring the offences home beyond any reasonable doubt.

21. In Padala Veera Reddy vs. State of Andhra Pradesh and others, 1991 SCC (Crl.) 407 = AIR 1990 SC 79, it was laid down that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests :- (1) the circumstance from which an

inference of guilt is sought to be

drawn, must be cogently and firmly

established;

(2) those circumstances should be

of a definite tendency unerringly

pointing towards guilt of the

accused;

(3) the circumstance, taken

cumulatively, should form a chain

so complete that there is no escape

from the conclusion that within all

human probability the crime was

committed by the accused and none

else; and

(4) the circumstantial evidence in

order to sustain conviction must be

complete and incapable of

explanation of any other hypothesis

than that of the guilt of the

accused and such evidence should

not only be consistent with the

guilt of the accused but should be

inconsistent with his innocence.

22. (See also : State of Uttar Pradesh vs. Ashok Kumar Srivastava, (1992) 2 SCC 86 = 1992 Cr.LJ 1104) in which it was pointed out that great care must be taken in evaluating circumstantial evidence and if the evidence relied on is reasonably capable of two inference, the one in favour of the accused must be accept. It was also pointed out that the circumstances relied upon must be found to have been fully established and the cumulative effect of all the facts so established must be consistent only with the hypothesis of guilt.

23. What is important is that the possibility of the conclusions being consistent with the innocence of the accused must be ruled out altogether.

24. Let us now delve into the merits.

25. In order to prove its case, the prosecution has examined many witnesses to establish the link between the appellant and the crime. Paris Savant Kaggodi (P.W. 8) stated that his daughter Padmavathi was married to the appellant who was being ill-treated at the house of her in- laws principally because the appellant entertained a doubt that she was having extra marital relationship with Gundu Badasad. When Padmavathi became pregnant, she came to live with her parents and at the house of her parents, she gave birth to a child.

26. The learned Session Judge and the High Court have both found that this part of the statement of Padmavathi’s father has not been challenged and, therefore, it was established that Padmavathi was not treated fairly at the house of her in-law and the appellant carried doubt in his mind that she was involved in post-marital sex with Gundu Badasad. It was also established that she gave birth to a child at the house of her father.

27. The appellant, however, denied the prosecution story that he came to the house of his father-in-law and took away his wife and child. The trial court, namely, the IInd Addl. Sessions Judge, Belgaum has found that the prosecution had failed to establish that the appellant had come to the house of his father-in-law and requested him to take his wife and child to a temple or that, thereafter, he took his wife to the “Ashoka Lodge” at Belgaum where she was throttled to death by the appellant. The High Court, however, has reversed this finding and come to the conclusion that the death of Padmavathi, in Room No. 113 of “Ashoka Lodge”, at the hands of the appellant, was established by the fact that her dead body, which was identified by Mallasarja (P.W. 1) of Gandigawad village who was working at Belgaum, was found in that room. She had not died a natural death but was strangulated to death which was established by the post- mortem examination conducted by the Doctor (P.W. 12). Ajit (P.W. 2) who was the room-boy of “Ashoka Lodge” categorically stated that the appellant with his wife and the child had come to the “Lodge” and occupied Room No. 113. He also stated that the appellant later left the “Lodge” with his child on the pretext that his wife had died and that he was going to call his relations.

28. It is contended by the learned counsel for the appellant that since P.Ws. 9, 14, 17 and 18 as also P.W. 3 had turned hostile and had not supported the prosecution case, their statements are liable to be excluded and if this is done, the result will be that the link in the prosecution story would stand broken and the appellant could not be held guilty on the basis of broken circumstantial evidence. The Addl. Sessions Judge had fallen into the web of this, apparently, forceful argument but the High Court, and in our opinion, rightly, accepted the remaining evidence and held that in spite of hostility of the aforesaid witnesses, the prosecution story was fully established.

29. We would like to add a few words of our own on the effect of exclusion of statements of those witnesses who had turned hostile.

30. Gangavva (P.W. 3), with whom the child was left by the appellant on his return from “Lodge”, was the witnesss who was treated as hostile. Even if her statement is excluded, the main part of the prosecution story that the appellant had come with Padmavathi to “Ashoka Lodge” where they had occupied Room No. 113 is not affected. Their presence in “Ashoka Lodge” is testified by Ajit (P.W. 2), the room-boy of “Ashoka Lodge”. Padmavathi was, therefore, last seen in the company of the appellant. The appellant left the “Lodge” on the pretext that his wife had died and he was going to call his relations. But he did no return. His conduct of not returning back to Room No. 113 eloquently indicates that he, in order to avoid arrest, did not return to “Lodge”. He left the dead body of Padmavathi lying in Room No. 113 to be found out there by the hotel and police people. An innocent person would not have behaved in that fashion. His innocence would have been reflected in his conduct of coming back to the “Lodge”.

31. Apart from the appellant’s conduct in not returning to “Ashoka Lodge”, aft having left the “Lodge” at 12.00 Noon, another conduct of the appellant is significantly eloquent. When he reported at “Ashoka Lodge”, he was sporting a beard and had also unkempt hairs on his head. In the evening of the day of incident, he got his head and the beard shaved which is proved by the barber (P.W. 5), examined in the case. This was done obviously to the conceal his identity but police was vigilant and the appellant was apprehended without difficulty.

32. The appellant’s further conduct in taking away the child with him at 12.00 Noon is also significant. The child was hardly four months old and was a breast-suckling infant. Had Padmavathi been alive, the appellant; would have left the child with her. His taking away the child with him coupled with his statement made to the room-boy that his wife had died of heart-attack, establishes that Padmavathi was already dead. Since she was strangulated to death, there was non else except the appellant to have done it. It was positively that act of the appellant. He took the extreme step on account of suspected infidelity of his wife which he had been harbouring since his marriage.

33. The other hostile witnesses are Jaipal (P.W. 14) who had seen the appellant and his wife Padmavathi with their child in a Karnataka State Road Transport Corporation Bus, P.W. 9 before whom extra judicial confession was alleged made the appellant, P.Ws. 17 and 18 who were the witnesses for the Panchanamas apart from P.W. 15 who was also the witness of Panchanama but he did not turn hostile. If the statements of these witnesses are excluded, the prosecution case is still not affected on merits inasmuch as the story that the appellant had gone to the house of his father-in- law and taken away his wife and child and that the ultimately stayed in “Ashoka Lodge” at Belgaum where Padmavathi was found dead is not affected. Whether the appellant with his wife and the child had gone to the temple or had stayed with a friend in the night, cannot be said to be essential links in the chain of events leading to the conclusion that the appellant had committed the crime. The appellant was last seen with Padmavathi in Room No. 113 of “Ashoka Lodge” where he had stayed on the fateful day and had left the “Lodge with his child on the pretext that he was going to call his relations as Padmavathi had died of heart-attack. As pointed out earlier, Padmavathi had died of strangulation. The appellant’s presence in the Room immediately before the death of Padmavathi and his conduct in not coming back to the “Lodge” are circumstances strong enough to establish his guilt.

34. Some dispute appears to have been raised before the High Court as also before us that the hotel records should not be relied upon to indicate that the appellant had stayed in “Ashoka Lodge”.

35. Ajit (P.W. 2), room-boy of the “Lodge”, in his statement on oath, has given out that the appellant had come with his wife and child to the “Ashoka Lodge” and had taken one Room on the ground-floor for his stay. The necessary entry (Ex.P1(a)) was made by the Manager of the “Lodge” in the “Register of Lodgers”. The appellant had put his signature on the Register which is Ex.P1(b). The appellant, his wife and the child had been taken by the room-boy to Room No. 113 where he also supplied an extra bed. The hotel Manager, though mentioned as a witness in the charge-sheet, was not examined as he had already left the service of the “Lodge”. These facts stand proved by the statement of the room-boy and the High Court has already recorded a finding that the appellant had stayed in Room No. 113 of the “Ashoka Lodge”.

36. The original records were also placed before us and we have perused those records. Since learned counsel for the appellant contended that the appellant had not stayed in the “Ashoka Lodge”, we looked into the “Register of Lodgers”. It contains the relevant entry against which signature of the appellant also appears. His signature also appears on the “Vakalatnama” filed by him in this appeal. In the presence of the learned counsel for the parties, we compared the signature of the appellant on the “Vakalatnama” with the signature in the “Register of Lodgers”. A mere look at the signatures was enough to indicate the similarity which was so apparent that it required no expert evidence. This comparison was done by us having regard to the provisions of Section 73 of the Evidence Act which provides as under:- S.73. Comparison of signature,

writing or seal with others

admitted or proved.- In order to

ascertain whether a signature,

writing or seal is that of the

person by whom it purports to have

been written of made, any

signature, writing or seal admitted

or proved to t satisfaction of the

Court to have been written or made

by that person may be compared with

the one which is to be proved,

although that signature, writing or

seal has not been produced or

proved for any other purpose.

The Court may direct any

person present in Court to write

any words or figures for the

purpose of enabling the Court to

compare the words or figures so

written with any words or figures

alleged to have been written by

such person.”

37. This Section consists of two parts. While the first part provides for comparison of signature, finger impression, writing etc. allegedly written or made by a person with signature or writing etc. admitted or proved to the satisfaction of the Court to have been written by the same person, the second part empowers the Court to direct any person including an accused, present in Court, to give his specimen writing or finger prints for the purpose of enabling the Court to compare it with the writing or signature allegedly made by that person. The Section does not specify by whom the comparison shall made. However, looking to the other provision of the Act, it is clear that such comparison may either be made by a handwriting expert under Section 45 or by anyone familiar with the handwriting of the person concerned as provided by Section 47 or by the Court itself.

38. As a matter of extreme caution and judicial sobriety, the Court should not normally take upon itself the responsibility of comparing the disputed signature with that of the admitted signature of handwriting and in the event of slightest doubt, leave the matter to the wisdom of experts. But this does not mean that the Court has not power to compare the disputed signature with admitted signature as this power is clearly available under Section 73 of the Act. (See : State (Delhi Administration) vs. Pali Ram, AIR 1979 SC 14 = (1979) 2 SCC 158)

39. We have already recorded above that on the comparison of the signature in the “Register of Lodgers” with the appellant’s signature on the “Vakalatnama”, we have not found any dissimilarity and are convinced that the appellant himself had signed the “Register of Lodgers” in token of having taken Room No. 113 in “Ashoka Lodge” on rent wherein he had stayed with his wife and the child.

40. On an overall consideration of the matter, we are of the opinion that the High Court, in reversing the judgment of the trial court, had fully adhered to the principles laid down by this Court in various decisions and there is no infirmity in its judgment.

41. The circumstance, the conduct and behaviour of the appellant conclusively establish his guilt on no amount of innovative steps by him including sporting a beard and later shaving off the beard and the head could conceal the offence or his identity. It was rightly remarked by the famous Urdu poet, Amir Meenai in a couplet :-

“Qareeb hai yaro jo Roz-i-Mahshar

Chhupey ga kuston ka khoon keonkar

Jo chup Rehegi Zaban-i-Khanjar

Lahoo Pukarega Aastin Ka”

42. Translated into English, it will mean :- “On the day of Judgment, you will

not be able to conceal the killing

of innocents. If the sword will

keep silent, the blood stains on

your sleeves will reveal your

guilt.”

43. For the reasons stated above, we find no merit in the appeal which is dismissed. The appellant is no bail. His bail bonds are cancelled. He shall be take into custody forthwith to serve out the life sentence.

Criminal Justice System

The difference between Consent & Submission in cases of Rape

Punjab-Haryana High Court
Rao Harnarain Singh Sheoji Singh … vs The State on 12 August, 1957
Equivalent citations: AIR 1958 P H 123, 1958 CriLJ 563
Author: T Chand
Bench: T Chand

ORDER

Tek Chand, J.

1. This is an application under Section 498, Criminal Procedure Code, for release of the petitioners on bail pending their trial for offence said to have committed under Sections 302. 376, 109 and 201, Indian Penal Code. The applicants are (1) Rao Harnarain Singh, an Advocate and an Additional Public Prosecutor at Gurgaon, (2) Ch. Mauji Ram Deputy Superintendent Jail, Gurgaon, (3) Balbir Singh and (4) Sanwat Singh. The salient facts of the case are that Kalu Ram accused, husband of Mst. Surti, used to live in one of the rooms in the house of accused Rao Harnarain Singh.

Mst. Surti is said to be an attractive girl of 19 years. On the evening of 18th of April 1957 Rao Harnarain Singh was entertaining Ch. Mauji Ram, Deputy Superintendent Jail, Gurgaon, on the eve of his transfer. Rao Harnarain Singh is said to have required Kalu Hum to send Mst. Surti for the carnal pleasures of himself and his guests. Kalu Ram, who had a very humble station in life, after initial protasts, was induced to provide his wife to satisfy the carnal lust of Rao Harnarain Singh and his guests.

It is said that the girl protested vehemently against this outrageous demand, but under pressure of her husband, she was induced to surrender her chastity. It is alleged that three accused persons Rao Harnarain Singb, Ch. Mauji Ram and Balbir Singh ravished her during the night & she died almost immediately. It is also alleged that her shrieks were heard by some Advocates living in the neighbourhood. It is then stated that at the instance of Rao Harnarain Singh, Dr. Ram Parshad, Assistant Surgeon, was sent for in order to ascertain whether the girl had merely swooned or died.

Another physician Dr. Gulati, was also summoned and both of thorn were of the view, that she was dead but they could not assign the cause of her death. In the early hours of the morning of 19th April 1957 she was cremated. The prosecution contention is that the cremation was unduly hurried, without the performance of the usual funeral rites and with a view to destroy proof of violence done to her. The prosecution then alleges that soon after the hurried cremation of the dead body of Mst. Surti Rao Harnarain Singh left Gurgaon on 19th of April 1957 and was not to be seen there for several days.

Ch. Mauji Ram also left Gurgaon in the early hours of the morning of 19th of April 1957. It is also alleged that before her cremation, clothes worn by Mst. Surti at the time had been removed and they have been found by an expert to be smeared with stains of seminal fluid and human blood. Kalu Ram, the husband of Mst. Surti, made a confession giving full details as to the manner in which pressure was put on him for production of his wife for the satisfaction of the carnal pleasures of Rao Harnarain Singh and his guests.

This confession had been retracted after a lapse of a month and a half of its recording. The prosecution contends that Kalu Ram was made to resile from the confession under influence and coercion emanating from accused Rao Harnarain Singh and Mauji Ram, The prosecution also submitted that Babu Ram, who served Rao Harnarain Singh and his guests at the dinner, was a witness to the earlier part of the entertainment and saw Rao Harnarain Singh, Mauji Ram and Balbir Singh going inside a room with the girl and he also heard their talk when they came out after she had expired.

Out of the applicants Balbir Singh was proclaimed as an absconder and was apprehended after his property had been attached under the provisions of Criminal Procedure Code. Bail Application was rejected by the Committing Magistrate and the Additional Sessions Judge also declined to release the accused on bail. This Court has therefore been moved under Section 498, Criminal Procedure Code, praying that the petitioners be released on bail pending the decision of the case.

2. On behalf of the accused it is stated that a report was made by the local station house Officer to the Superintendent of Police of Gurgaon on 26th of April, 1957 that no tfrime had been committed. It is then stated that about three weeks after the cremation of the girl a rumour went round in Gurgaon that Mst. Surti had died an unnatural death and this rumour was featured by a local newspaper. A formal report was then lodged by the Superintendent of Police on 11th of May, 1957.

In that report he stated that on 26th of April. 1957 station House Officer Sadar Gurgaon brought to his notice an incident wherein a woman was reported to have died on the night of 18th/19th of April 1957 and that her body was cremated in haste early in the morning without performance of customary obsequial rites. The report then stated that although no formal or informal complaint or report had been lodged with the police and since the matter was likely to attract public attention he ordered Shri Ram Partap Deputy Superintendent of Police to Institute immediate inquiries into the Incident.

The report then mentioned that while the matter was still under inquiry with the Deputy Superintendent of Police, the Superintendent of Police found a large number of different rumours in circulation as to the sinister and suspicious manner in which the girl met her death. The Superintendent of Police ordered that a case under Section 302, Indian Penal Code, should be registered and investigated by the Inspector of Police, C. I. A, Gurgaon, under his direct supervision, and that the inquiry entrusted to Shri Ram Partap, Deputy Superintendent of Police, should be discontinued forthwith and all the papers transferred to his file. On 13th of May 1957 the Deputy Superintendent of Police, C. I. D. started investigation. On 18th of May, 1957 Rao Harnarain Singh was taken into custody and Mauji Ram was arrested on 28th of May, 1957. Balbir Singh accused was arrested on 26th of June, 1957. In this case 30th of July 1957 was the date fixed for recording the evidence of prosecution witnesses and on that day a transfer application was moved on behalf of the accused in this Court which has not yet been disposed of except that the High Court declined to stay proceedings in the trial Court. I am informed that 12th of August 1957 is the next date of hearing in this case before the trial Court.

3. Mr. Bhagat Singh Chawla has pressed for enlargement of the accused on bail on several grounds. He said that his clients deserved to be released on bail, as there did not appear any reasonable ground for holding that they had been gulity of an offence punishable with death or with imprisonment for life.

In the absence of Corpus delict he said it was not possible on the allegations in this case to hold any one of the accused to be guilty of murder, especially when there is no eye-witness to testify to the murder and no proof being available that the body of the girl which was cremated in the early hours shortly after the occurrence bore any marks of violence, suggestive of commission of offences of which they have been accused.

4. He also contended that on the allegations made in this case commission of offence of rape on the girl could not be established. According to him the girl was produced for the satisfaction of the carnal desires of Rao Harnarain Singh and his guests, with the consent of the girl’s husband Kalu Ram. He further urged that the girl was also a consenting party and she surrendered her body to the three persons willingly and with the approval and at the bidding of her husband.

5. Mr. Bhagat Singh, also suggested that she was a grown up girl of 19 years, and a married woman, and death could not result in consequence of sexual intercourse with her by three persons. Her death, he thought, was fortuitous and probably due to sudden failure of the heart. In his words, Rao Harnarain Singh and his guests were having “a good time” and had gathered there for a little bit of “gaiety and enjoyment”.

He also said that his two clients were “respectable persons”, one being an Advocate and the other a Deputy Superintendent of Jail, and for this reason also deserved to be set at large. He lastly urged that the gathering of three accused in the evening and their act in ravishing Mst. Surti, young wife of Kalu Ram, might be morally reprehensible but it was not such an act which should stand in the way of the accused, from being released on bail.

6. From such material as was referred to during the course of arguments of the counsel, I cannot accept the suggestion of S. Bhagat Singh Chawla that Kalu Ram, the husband of the girl, was a pander who had willingly agreed to minister to the baser passions of his clients. I cannot even pursuade myself to the view that his wife was a dissolute young woman who willingly lent her body to her ravishers to gratify her own lustful propensities;

The confession of Kalu Ram which was read out and which was later retracted after a month and a half, does not suggest consent on the part of either Kalu Ram or Mst Surti his wife. Kalu Ram appears to have protested as vehemently as he could dare, having regard to his humble station in life, to the suggestion made by accused Rao Harnarain Singh, that he should send his wife for carnal connection with himself and with his guests.

After such verbal resistance as Kalu Ram could offer had been overcome, his wife indignantly refused to submit to the indecent proposal conveyed to her through her husband. It is said that under the husband’s pressure, she after vehement protestations resigned herself to the disgrace that awaited her. There is also material with the prosecution that her shrieks pierced through the walls of the room and were heard by some Advocates living in the neighbourhood just before her voice was finally and fatally silenced. Such a submission on her part cannot be called by any stretch of language, consent.

7. A mere act of helpless resignation in the face of inevitable compulsion, quiescence, non-resistance, or passive giving in, when volitional faculty is either clouded by fear or vitiated by duress, cannot be deemed to be “consent” as understood in law. Consent, on the part of a woman as a defence to an allegation of rape, requires voluntary participation, not only after the exercise of intelligence, based on the knowledge, of the significance and moral quality of the act, but after having freely exercised a choice between resistance and assent.

Submission of her body under the influence of fear or terror is no consent. There is a difference between consent and submission. Every consent involves a submission but the converse does not follow and a mere act of submission does not involve consent. Consent of the girl in order to relieve an act, of a criminal character, like rape, must be an act of reason, accompanied with deliberation, after the mind has weighed as in a balance, the good and evil on each side, with the existing capacity and power to withdraw the assent according to one’s will or pleasure.

A woman is said to consent, only when she freely agrees to submit herself, while in free and unconstrained possession of her physical and moral power to act in a manner she wanted. Consent implies the exercise of a free and untrammelled right to forbid or withhold what is being consented to; it always is a voluntary and conscious acceptance of what is proposed to be done by another and concurred in by the former. On the material placed before me it cannot reasonably be argued that Mst. Surti was an assenting victim to the outrage perpetrated on her, on the fatal night. It is also not possible for me to accept the contention of the counsel for the accused petitioners, that Kalu Rani, the husband of the girl had freely and voluntarily accepted the importunate overtures, said to have been made to him, by Rao Haranarain Singh with full awareness of and willing concurrence in the proposed acts to which his wife was to be subjected by the accused persons.

8. Mr. Bhagat Singh Chawla also submitted commiseratingly that his clients were respectable and well connected persons, belonging to a higher strata of society and had assembled to spend a pleasant evening with no intention to endanger the life of the girl. The orgy of lust and debauchery to which the accused are said to have abandoned themselves was an act of unmitigated reprobates rather than of the so called “respectable persons”.

9. I am not unmindful of the proposition that the bad character of a man does not disentitle him from being bailed out if the law allows it. It is also well established that the object of detention pending criminal proceedings, is not punishment, and the law favours allowance of bail, which is the rule, and refusal is the exception. On the other hand, the social position or status of an accused person should not be taken into consideration while granting or rejecting an application for bail.

The Courts do not grant bail merely because an accused is a respectable man and is able to afford reasonable security (vide Emperor v. Abhairaj Kunwar AIR 1940 Oudh 8 (A) and Shaikh Karim v. Emperor AIR 1926 Nag 279 (B). I may profitably quote the observations of Courtney-Terrell, C. J., in Hikayat Singh v. Emperor, AIR 1932 Pat 209, at p. 211 (C).

“We must point out in the most emphatic way for the future guidance of Magistrates and Sessions Judges that save in exceptional cases, persons accused of crimes punishable with long terms of imprisonment should not be released by them on bail. The richer the accused and the more easy it is for him to find bail, the less it is desirable that he should be released …..”

10. It will be proper at this place to consider the principles which should guide the Courts in granting bail in a case like the present. There cannot be inflexible rules governing a subject which rests principally with the Courts’ discretion in the matter of allowance or refusal of bail. The probability or improbability of the prosecution terminating in conviction is not a conclusive consideration for the grant or refusal of bail, particularly in a case like this, in which evidence has not so far been led. For their guidance the Courts also look to other circumstances which may be determinative, as for example the Courts consider:

(a) the enormity of the charge,

(b) the nature of the accusation,

(c) the severity of the punishment which the conviction will entail, (d) the nature of the evidence in support of the accusation,

(e) the danger of the applicant’s absconding if he is released on bail,

(f) the danger of witnesses being tampered with,

(g) the protracted nature of the trial, (h) opportunity to the applicant for preparation of his defence and access to his counsel and

(i) the health, age and sex of the accused. There are also other considerations and the above is by no means an exhaustive catalogue of the factors which should weigh with the Courts.

11. The applicants in this case are accused of having committed the offences of murder, rape and also for causing disappearance of evidence of these offences. The first is a capital offence entailing death sentence, the second involves imprisonment for life and the last makes the offence punishable with imprisonment which may extend to seven years.

Section 497(1) of the Code of Criminal Procedure, while conferring wide discretionary powers on Courts to grant or refuse bail, where an accused person is suspected of the commission of a non-bailable offence, imposes important limitations, in cases where there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life. The words “death or imprisonment for life,” should be read disjunctively, so as to mean offence punishable with death or punishable with imprisonment for life vide Emperor v. Nga San Htwa, AIR 1927 Rang 205 (FB) (D).

12. In this case an application for bail has been made at the initial stages of the case before the framing of charges against the accused and it is not possible at this juncture to scan the evidence in order to sec whether it establishes the guilt of the accused beyond reasonable doubt. On an application for bail it is not the certainty or the improbability of a capital sentence or imprisonment for life being imposed, which is to be seen but simply whether, the offence is one for which such a sentence may be awarded.

In considering an application for bail a Court is not required to conduct a preliminary trial of the case and consider the probability of the accused being found guilty or innocent. The Courts while deciding such applications, will be traversing beyond their proper ambit and would be exceeding: the limits of their function if they engage themselves in discovering the guilt or innocence of the accused applicant, which can only be determined at the trial stage.

Courts may, however, incidentally turn to the evidence with a view to examining the question of allowance or refusal of bail with reference to the principles governing release or detention pending the proceedings vide Public Prosecutor v. M. Sanyasayya Naidu AIR 1925 Mad 1224 (E).

13. The applicants in this case have been accused of having committed grave offences punishable with long terms of imprisonment and this is a consideration against their being released on bail. The question of severity of punishment must be looked at not from the point of view of what sentence on the facts of a particular case the Court should award, but only to see the maximum punishment which the Court may award.

14. Shri Chctan Das Diwan, learned counsel appearing for the State, has argued that the State entertains grave apprehension that there is a danger of the applicants absconding. It is stated in the affidavit of S. Surjan Singh, Deputy Superintendent of Police, C.I.D., that Balbir Singh accused was proclaimed as an absconder and he could not be apprehended until his property was attached under the provisions of the Criminal Procedure Code.

He has also argued that two accused, Rao Harnarain Singh and Mauji Ram, are men of importance in their respective walks of life, possessing considerable wealth and wielding great influence, and the witnesses who are to be produced by the prosecution, comparatively, occupy a very humble station in life; one of such witnesses served meals to the party at the dinner and another was a sweepress in the house of Rao Harnarain Singh. In this case, the apprehension that the accused on being released on bail will in all likelihood avail themselves of the opportunities to corrupt the prosecution witnesses by tampering with their testimony cannot be dismissed as chimerical.

15. In this case there is no risk of any unreasonable delay in consequence of the laches of the prosecution. An unreasonably long detention in Jail before the commencement of the trial is ordinarily a hardship, which weighs greatly with the Courts, in favour of the accused, while considering the desirability of allowing bail applications. But in this case there is no such risk as 12th of August, 1957, is the next date fixed before the trial Court. It is expected that the trial will proceed with reasonable speed.

16. There is no suggestion, that the trial is going to be protracted or their detention in jail has in any way deprived them of an opportunity to prepare their defence or has in any way interfered with their right to instruct their counsel. Lastly, bail in this case has not been asked on grounds relating to health or age of the accused.

17. After having thoroughly examined the arguments of the learned counsel, and after taking into careful consideration the principles governing release on bail, I am of the view, that this application and Criminal Miscellaneous No. 397 of 1957 cannot succeed, and are, there-tore, dismissed. I must however, warn the trial Court against drawing any inferences as to the guilt or innocence of the accused from any observations made in this order. The guilt or innocence of the accused is a matter which has to be determined by the trial Court and no remarks made by me should be treated as prejudging the case. Such comments as have been made in this order exclusively bear on considerations for refusing or allowing release on bail.

Criminal Justice System

Scope of Scrutiny at the stage of discharge …Supreme Court

This Judgment highlights the scope of scrutiny at the stage of discharge. 
 Supreme Court of India
R.S. Mishra vs State Of Orissa & Ors. on 1 February, 2011
Bench: J.M. Panchal, H.L. Gokhale

HELD:1.1. The provision concerning the framing of a charge is to be found in Section 228 of Cr.P.C. This Section is however, connected with the previous section, i.e. Section 227 which is concerning `Discharge’. From Section 227 it is clear that while discharging an accused, the Judge concerned has to consider the record of the case and the documents placed therewith, and if he is so convinced after hearing both the parties that there is no sufficient ground to proceed against the accused, he shall discharge the accused, but he has to record his reasons for doing the same. Section 228 which deals with framing of the charge, begins with the words "If after such consideration". Thus, these words in Section 228 refer to the `consideration’ under Section 227 which has to be after taking into account the record of the case and the documents submitted therewith. These words provide an inter-connection between Sections 227 and 228. That being so, while Section 227 provides for recording the reasons for discharging an accused, although it is not so specifically stated in Section 228, it can certainly be said that when the charge under a particular section is dropped or diluted, (although the accused is not discharged), some minimum reasons in nutshell are expected to be recorded disclosing the consideration of the material on record. This is because the charge is to be framed `after such consideration’ and therefore, that consideration must be reflected in the order. [Paras 17, 18] [357-F-G; 358-G-H; 359-A-C]

1.2. A discharge order is passed on an application by the accused on which the accused and the prosecution are heard. At the stage of discharging an accused or framing of the charge, the victim does not participate in the proceeding. While framing the charge, the rights of the victim are also to be taken care of as also that of the accused. That responsibility lies on the shoulders of the Judge. Therefore, on the analogy of a discharge order, the Judge must give his reasons atleast in a nutshell, if he is dropping or diluting any charge, particularly a serious one as in the present case. It is also necessary for the reason that the order should inform the prosecution as to what went wrong with the investigation. Besides, if the matter is carried to the higher Court, it will be able to know as to why a charge was dropped or diluted. [Para 19] [359-D-F]

1.3. At the initial stage of the framing of a charge, if there is a strong suspicion/evidence which leads the Court to think that there is ground for presuming that the accused has committed an offence, then it is not open to the Court to say that there is no sufficient ground for proceeding against the accused. Further, at the stage of the framing of the charge, the Judge is expected to sift the evidence for the limited purpose to decide if the facts emerging from the record and documents constitute the offence with which the accused is charged. This must be reflected in the order of the judge. Thus it cannot be disputed that in this process the minimum that is expected from the Judge is to look into the material placed before him and if he is of the view that no case was made out for framing of a charge, the order ought to be clear and self-explanatory with respect to the material placed before him. In the present case, all that the appellant stated in his judicial order was, that on consideration of the material available in the case diary, he had found that there was no sufficient material to frame the charge under Section 302 of IPC. This is nothing but a bald statement and was clearly against the statement of the injured eye witness, and supporting medical papers on record. The appellant has not even referred to the same. He has also not stated in his order as to why he was of the opinion that the material available in the case diary was insufficient. Such a bald order raises a serious doubt about the bona fides of the decision rendered by the Judge concerned. A young person had been killed. It was not a case of grave and sudden provocation. The material on record showed that there was an injured eye witness and there was the supporting medical report. The material on record could not be said to be self- contradictory or intrinsically unreliable. Thus, there was a prima facie case to proceed to frame the charge under Section 302 IPC. The reason given for dropping the charge under Section 302 was totally inadequate and untenable, and showed a non-application of mind by the appellant to the statements in the charge-sheet and the medical record. The order does not explain as to why a charge under Section 304 was being preferred to one under Section 302 IPC. In fact, since the material on record revealed a higher offence, it was expected of the appellant to frame the charge for more grievous offence and not to dilute the same. [Paras 20, 21 and 22] [359-G-H; 360-G-H; 361-A-G]

1.4. The impugned order of the High Court deciding Revision notes that the appellant had been functioning in the rank of the District Judge from August 1991 onwards, i.e. for nearly 5 years prior to his judicial order and further states that a Judicial Officer, before being posted as an Additional Session Judge, gets experience of taking the sessions cases as Assistant Session Judge. It cannot, therefore, be said that the appellant did not have requisite experience to pass a correct legal order under Section 228 of Cr.P.C. That apart, all that the impugned order in Revision did was to suggest to the High Court Administration, that if the appellant was not yet confirmed, his probation should wait and if he was already confirmed, his performance be verified before giving him the higher scale. Since the appellant, was already confirmed in service, all that the High Court did on the administrative side was to check his record, and thereafter to deny him the selection grade. The above observation in the impugned order in Revision was a suggestion to the Administration of the High Court. It was not a case of making any adverse or disparaging remarks. Having noted that the appellant had failed in discharging his duty in framing the correct charge, and having also noted that his record was not good, the High Court could not have granted him the selection grade. The selection grade is not to be conferred as a matter of right. The record of the concerned Judge has to seen, and that having been done in the present case (in pursuance to the observations of the High Court), and having noted the serious deficiencies, the High Court had denied the selection grade to the appellant. The impugned order contained nothing but a correctional suggestion to the High Court Administration which the Administration has accepted. [Para 24] [362-C-H; 363-A]

1.5. It is only because of the note made by inspecting Judge that the cursory order passed by the appellant in the Sessions case diluting the charge against the accused came to the notice of the High Court Administration. By the time the suo-moto Revision was decided, the accused had already undergone the punishment of rigorous imprisonment of 5 years and, therefore, the Revisional Court did not deem it fit to reopen the case. The appellant cannot take advantage of this part of the judgment of the Revisional Court, to challenge the observations of the Revisional Judge making a suggestion to the High Court to scrutinize appellant’s record for the dereliction of duty on his part. The appellant was responsible for an unjustified dilution of the charge and, therefore, thorough checking of his service record was necessary which is, what was directed in the impugned order of the Revisional Court/High Court. There is no reason to interfere in the said order making certain observations and suggestions which were necessary in the facts and circumstances of the case. [Paras 25, 26] [363- B-F]

In the matter of `K’ A Judicial Officer, 2001 (3) SCC 54; V.K. Jain v. High Court of Delhi through Registrar General and Others, 2008 (17) SCC 538 and Prakash Singh Teji v. Northern India Goods Transport Company Private Limited and Anr, 2009 (12) SCC 577 – distinguished.

State of Bihar v. Ramesh Singh AIR 1977 SC 2018; Nirmaljit Singh Hoon v. State of West Bengal1973 (3) SCC 753; Chandra Deo Singh v. Prokash Chandra Bose AIR 1963 SC 1430; Niranjan Singh v. Jitendra Bhimraj 1990 (4) SCC 76 – relied on.

Case Law Reference:

2001 (3) SCC 54 distinguished Para 12

2008 (17) SCC 538 distinguished Para 13

2009 (12) SCC 577 distinguished Para 14

AIR 1977 SC 2018 relied on Para 20

1973 (3) SCC 753 relied on Para 20

AIR 1963 SC 1430 relied on Para 20

1990 (4) SCC 76 relied on Para 20

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 232 of 2005.

From the Judgment & Order dated 28.10.2002 of the High Court of Orissa in Suo Motu Criminal Revision Petition No. 367 of 1997.

Uday Gupta, D.K. Mishra, Manoj Swarup for the Appellant.

Suresh Chandra Tripathy, Janaranjan Das, Swetaketu Mishra for the

Respondents.

Uncategorized

Transfer of Malice under Indian Penal Code.

CASE NOTE : A true classic on Transmigration of Motive/Transfer of Malice cases. In this case the accused gave poisoned halwa to X who having enough to make him sick, threw it away – which was eaten by two children who died. Accused was held liable for death of these two children by aid of :-
i) S.299/300 talk about causing death (not of a specific person);
ii) S.301 – further fructifies this by saying 

(If a person, by doing anything which he intends or knows to be likely to cause death, commits culpable homicide by causing the death of any person, whose death he neither intends nor knows himself to be likely to cause, the culpable homicide committed by the offender is of the description of which it would have been if he had caused the death of the person whose death he intended or knew himself to be likely to cause) 

Madras High Court

Emperor vs Mushnooru Suryanarayana Murthy on 2 January, 1912
Equivalent citations: (1912) 22 MLJ 333
Author: Benson

JUDGMENT

Benson, J.

1. This is an appeal by the Public Prosecutor on behalf of Government against the acquittal of one Suryanarayana Murthi, on a charge of having murdered the girl, Rajalakshmi.

2. The facts of the case, so far as it is necessary to state them for the purposes of this appeal, are as follows:

The accused, with the intentipn of killing Appala Narasimhulu, (on whose life he had effected large insurances without Appala Narasimhulu’s knowledge, and in order to obtain the sums for which he was insured), gave him some sweetmeat (halva) in which a poison containing arsenic and mercury in soluble form had been mixed. Appala Narasimhulu ate a portion of the sweetmeat, and threw the rest away. This occured at the house of the accused’s brother-in-law where the accused had asked Appala Narasimhulu to meet him. Rajalakshmi, who was aged 8 or 9 years, and who was niece of the accused, being ,the daughter of accused’s brother-in-law, took some of the sweetmeat and ate it and gave some to another little child who also ate it. According it one account Rajalakshmi asked the accused for a portion of the sweetmeat, but according to the other account, which we accept as the true account, Appala Narasimhulu, after eating a portion of the sweetmeat threw away the remainder, and it was then picked up by Rajalakshmi without the knowledge of the accused. The two children who had eaten the poisoned sweetmeat, died from the effects of it, but Appala Narasimhulu, though the poison severely affected him, eventually recovered. The accused has been sentenced to transpiration for life for having attempted to murder Appala Narasimhulu. The question which we have to consider in this appeal is whether, on the facts stated above, the accused is guilty of the murder of Rajalakshmi.

3. I am of opinion that the accused did cause the death of Rajalakshmi and is guilty of her murder. The law on the subject is contained in Sections 299 to 301 of the Indian Penal Code and the whole question is whether it can properly be said that the accused “caused the death” of the girl, in the ordinary sense in which those words should be understood, or whether the accused was so indirectly or remotely connected with her death that he cannot properly be said to have “caused” it. It is not contended before us that the accused intended to cause the death of the girl, and we may take it for the purpose of this appeal that he did not know that his act was even likely to cause her death. But it is clear that he did intend to cause the death of Appala Narasimhulu. In order to effect this he concealed poison in a sweetmeat and gave it to him eat. It was these acts of the accused which caused the death of the girl, though no doubt her own action, in ignorantly picking up and eating the poison, contributed to bring about the result. Section 299 of the Indian Penal Code says : ” Whoever causes death by doing an act with the intention of causing death, or with the intention of Causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide.” It is to be observed that the section does not require that the offender should intend to kill (or know himself to be likely to kill) any particular person. It is enough if he “causes the death” of any one by doing an act with the intention of “causing death” to any one, whether the person intended to be killed or any one else. This is clear from the first illustration to the section, “A lays sticks and turf over a pit, with the intention of thereby causing death, or with the knowledge that death is likely to be thereby caused Z believing the ground to be firm, treads on it, falls in and is killed. A has committed the offence of culpable homicide.”

4. Nor is it necessary that the death should be caused directly by the action of the offender, without contributory action by the person whose death is caused or by some other person. That contributory action by the person whose death is caused will not necessarily prevent the act of the offender from being culpable homicide, even if the death could not have occurred without such contributory action, is clear from the above illustration, and that contributory action by a third person will not necessarily prevent the act of the offender from being culpable homicide, even if the death could not have occurred without such contributory action, is clear from the second illustration, viz., “A knows Z to . be behind a bush. B does not know it. A, intending to cause, or knowing it to be likely t6 cause, Z’s death, induces B to fire at the bush. B fires and kills Z. Here B may be guilty of no offence ; but A has committed the offence of culpable homicide.

5. The language of the section and the illustration seem to me to show that neither the contributory action of Appala Narasimhulu in throwing away part of the sweetmeat, nor the contributory action of the girl in picking it up and eating it prevent our holding that it was the accused who caused the girl’s death. The Indian Law Commissioners in their report (1846) on the Indian Penal Code call attention to the unqualified use of the words “to cause death ” in the definition of culpable homicide, and rightly point out that there is a great difference between acts which cause death immediately, and acts which cause death remotely, and they point out that the difference is a matter to be considered by the courts when estimating the effect of the evidence in each case. Almost all, perhaps all, results are caused by a combination of causes, yet we ordinarily speak of a result as caused by the most conspicuous or efficient cause, without specifying all the contributory causes. In Webster’s Dictionary ” cause ” is defined as ” that which produces or effects a result; that from which anything proceeds and without which it would not exist ” and again ” the general idea of cause is that without which another thing, called the effect, cannot be; and it is divided by Aristotle into lour kinds known by the name of the material, the formal, the efficient and the final cause. The efficient cause is the agent that is prominent or conspicuous in producing a change or result.”

6. In the present case 1 think that the accused’s action was the efficient cause of the girl’s death, though her own action in picking up and eating the poison was also necessary in order to effect her death ; just as in the illustration given in the Code the man who laid the turf and sticks over the pit with the intention of causing death was held to be the cause of the death of the man who ignorantly fell into the pit ; although the death would not have occurred if he had hot of his own free will walked to the spot where the pit was. The Code says that the man who made the pit is guilty of culpable homicide, and, in my opinion, the accused in the present case, who mixed the poison in sweetmeat and gave it to be eaten, is equally guilty of that offence. The mens rea which is essential to criminal responsibility existed with reference to the act done by the accused in attempting to kill Apala Narasimhulu, though not in regard to the girl whose death he, in fact, caused, and that is all that the section requires. It does not say ” whoever voluntarily causes death,” or require that the death actually caused should have been voluntarily caused. It is sufficient if death is actually, even though involuntarily, caused to one person by an act intended to cause the death of another. It is the criminality of the intention with regard to the latter that makes the act done and the consequence which follows from it an offence.

7. Turning now to Section 300, Indian Penal Code, we find that culpable homicide is murder if the act by which death ‘ is caused is done with the intention of causing death, and does not fall within certain specified exceptions, none of which are applicable to the present case.

8. It follows that the accused in the present case is guilty of murder, and this is rendered still more clear by Section 301 of the Code. The cases in which culpable homicide is murder under Section 300 are not confined to cases in which the act by which the death is caused is done with the intention of causing death. Section 300 specifies other degrees of intention or knowledge which may cause the ate to amount to murder, and then Section 301 enacts that ” if a person, by doing anything which he intends or knows to be likely to cause death, commits culpable homicide by causing the death of any person, whose death he neither intends nor knows himself to be likely to cause, the culpable homicide committed by the offender is of the description of which it would have been if he had caused the death of the person whose death he intended or knew himself to be likely to cause.”

9. The section does not enact any rule not deducible from the two preceding sections, but it declares in plain language an important rule deducible, as we have seen, from those sections, just as an explanation to a section does. The rule could not well be stated as an explanation to either Section 299 or Section 300 as it relates to both. It was, therefore, most convenient to state the rule by means of a fresh section., The rule makes it clear that culpable homicide may be committed by causing the death of a person whom the offender neither intended, nor knew himself to be likely, to kill, a rule which though it does not lie on the surface of Section 299, yet is, as we have seen, deducible from the generality of the words ” causes death” and from the illustration to the section ; and the rule then goes on to state that the quality of the homicide, that is, whether it amounts to murder or not, will depend on the intention or knowledge which the offender had in regard to the person intended or known to be likely to be killed or injured, and not with reference to his intention or knowledge with reference to the person actually killed, a rule deducible from the language of the Sections 299 and 300 though not, perhaps, lying on their very surface. The conclusion, then, at which I arrive is that the accused in this case is guilty of murder as defined in Sections 299 to 301, Indian Penal Code.

10. This conclusion is in accord with the view of Norman Offg., C.J., and Jackson, J., in the case reported in 13 W. R. Criminal Letters, p. 2, where it is said: “The prisoner gave some poisoned rice water to an old woman who drank part herself and gave part to a little girl who died from the effect of the poison. The offence of the prisoner, under Section 301 of the Indian Penal Code, is murder.” That the present accused would be guilty of murder under English Law is clear from the case of Agnes Gore. In that case Agnes Gore mixed poison in some medicine sent by an Apothecary, Martin, to her husband, which he ate but which did not kill him, but afterwards killed the Apothecary, who to vindicate his reputation, tasted it himself, having first stirred it about. ” It was resolved by all the Judges that the said Agnes was guilty of the murder of the said Martin, for the law conjoins the murderous intention of Agnes in putting the poison into the electuary to kill her husband, with the event which thence ensued; i.e., the death of the said Martin; for the putting of the poison into the electuary is the occasion and cause ; and the poisoning and death of the said Martin is the event, quia eventus est qui ex causa sequitur, et dicuntur eventus quia ex causis eveniunt, and the stirring of the electuary by Martin with his knife without the putting in of the poison by Agnes could not have been the cause of his death.” (King’s Bench 77 English Reports, p.853 at page 854).

11. A number of other English cases have been referred to, but it is unnecessary to discuss them as we must decide the case in accordance with the provisions of the Indian Penal Code, and these are not necessarily the same as the English Law.

12. In the result, I would allow the appeal by Government and convict the accused of the murder of Rajalakshmi.

13. The accused was originally sentenced to seven years’ rigorous imprisonment for having attempted to murder Appala Narasimhulu. This sentence was enhanced to one of transportation for life by this court acting as a court of revision in December, 1910, when this appeal was not before them. Looking to these facts I am unwilling to now impose a sentence of death, though it would have been appropriate if the accused had been convicted of murder at the original trial.

Sundara Aiyar, J.

14. In this case the accused Suryanarayana Murthi was charged by the Sessions Court of Ganjam with the murder of a young girl named Rajalakshmi and with attempt to murder one Appala Narasimhulu by administering poison to each of them on the 9th February 1910. He was convicted by the Sessions Court on the latter count but was acquitted on the former count and was sentenced to seven years’ rigorous imprisonment. He appealed against the conviction and sentence in Criminal Appeal No. 522 of 1910, and this court confirmed the conviction and enhanced the sentence to transportation for life. The present appeal is by the Government against his acquittal on the charge of murdering Rajalakshmi.

15. The facts as found by the lower court are that the accused, who was a clerk in the Settlement Office at Chicacole, got the life of Appala Narasimhulu, the prosecution 1st witness, insured in two Insurance Companies for the sum of Rs. 4,000 in all, having paid the premia himself; that the 2nd premium for one of the insurances fell due on the 12th January, 1910, and the grace period for its payment would elapse on the 12th February, 1910; that the prosecution 1st witness being at the same time badly pressed for means of subsistence asked the accused for money on the morning of 9th February ; that the latter asked him to meet him in the evening at the house of his (the accused’s) brother-in-law, the prosecution 8th witness; that at the house the accused gave the prosecution 1st witness a while substance which he called ‘ halva’ but which really contained arsenic and mercury in soluble form ; that the prosecution 1st witness having eaten a portion of the halva threw aside the rest; that it was picked up by the daughter of the prosecution 8th witness, the deceased Rajalakshmi, who ate a portion of it herself and gave another portion to a child of a neighbour ; and that both Rajalakshmi and the other child were seized with vomiting and purging and finally died, Rajalakshmi some four days after she ate the halva and the child two days earlier. After the prosecution 1st witness had thrown away the halva both he and the accused went to the bazaar and the accused gave prosecution 1st witness some more halva. The prosecution 1st witness suffered in consequence for a number of days but survived. The accused, as already stated, has been sentenced to transportation for life for attempting to murder the prosecution 1st witness.

16. The case for the prosecution with reference to the poisoning of Rajalakshmi was, as sworn to by the prosecution 1st witness, that, when the accused gave him the halva, the girl asked for a piece of it and that the accused, though he reprimanded her at first, gave her a small portion. But I agree with the learned Sessions Judge that this story is improbable. The girl was the accused’s own niece being his sister’s daughter. He and her father (the prosecution 8th witness) were on good terms. He had absolutely no motive to kill her, and there was no necessity for giving her the halva. The accused, in his statement to the Magistrate (the prosecution 22nd witness) soon after the occurrence, said that the girl had picked up the halva and eaten it. He had made a similar statement to the prosecution 8th witness when the latter returned to his house on the evening of the 9th immediately after the girl had eaten it. This statement is in accordance with the probabilities of the case, and I accept the Sessions Judge’s finding that the halva was not given to the girl by the accused but picked up by her after the prosecution 1st witness had thrown it way. The question we have to decide is whether, on these facts, the accused is guilty of the murder of the girl. At the conclusion of the arguments we took time to consider our judgment, as the point appeared to us to be one of considerable importance, but we intimated that, even if the accused should be held to be guilty of murder, we would not consider it necessary, in the circumstances, to inflict on him the extreme penalty of the law.

17. It is clear that the accused had no intention of causing the death of the girl Rajalakshmi. But it is contended that the accused is guilty of murder as he had the intention of causing the death of the prosecution 1st witness, and it is immaterial that he had not the intention of causing the death of the girl herself. Section 299, Indian Penal Code, enacts that whoever causes death by doing an act with the intention of causing death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide.” Section 300 says “culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death.” Section 301 lays down that ” if a person, by doing anything which he intends or knows to be likely to cause death, commits culpable homicide by causing the death of any person, whose death he neither intends nor knows himself to be likely to cause, the culpable homicide committed by the offender is of the description of which it would have been if he had caused the death of the person whose death he intended or knew himself to be likely to cause.” The contention of the learned Public Prosecutor, to put it very shortly, is (1) that it was the accused’s act that caused the death of the girl and (2) that the accused had the intention of causing death when he gave the poison to the prosecution 1st witness and was, therefore, guilty of any death that resulted from his act. He urges that the sections of the Penal Code practically reproduce the English Law according to which the causing of death with malice aforethought, though the malice may not be directed against a particular individual whose death ensues, would amount to murder. Before referring to the English Law, I shall consider the provisions of the Penal Code bearing on the subject. If Mr. Napier’s contention be sound it would make no difference whether Appala Narasimhulu, the prosecution 1st witness, also died in consequence of the poison or not; nor would it make any difference if, instead of the poison being picked up by the girl and eaten by herself, she gave it to some one else and that one to another again and so on if it changed any number of hands. The accused would be guilty of the murder of one and all of the persons who might take the poison, though it might’ have been impossible for him to imagine that it would change hands in the manner that it did. The contention practically amounts to saying that the intervention of other agencies, and of any number of them, before death results, would make no difference in the guilt of the accused, that causing death does not mean being the proximate cause of death, but merely being a link in the chain ot the cause or events lea-ding to the death and that further any knowledge on the part of the accused that such a chain of events might result from his act is quite immaterial. It is, prima facie, difficult to uphold such an argument. Now is there anything in the sections of the Penal Code to support it? Section 39 provides that ” a person is said to cause an effect’ voluntarily ‘ when he causes it by means whereby he intended to cause it, or by means which, at the time of employing those means, he knew or had reason to believe to be likely to cause it.” The illustration to the section is that if a person sets fire by night to an inhabited house in a large town for the purpose of facilitating robbery, and thus causes the death of a person, he would be taken to have caused the death voluntarily if he knew that he was likely to cause it even though he may not have intended to cause death and may even be sorry that death had been caused by his act. The section and the illustration both show that causation with respect to any event involves that the person should have knowledge that the event was likely to result from his act. Section 299, Indian Penal Code, in my opinion, does not lead to a different conclusion. But before dealing with it, I must turn to Section 301, Indian Penal Code. That section apparently applies to a cause where the death of the person whose death was intended or known to be likely to occur by the person doing the act, does not, as a fact, occur but the death of some one else occurs as the result of the act done by him. It evidently does not apply where the death both of the person whose death was in contemplation and of another person or persons, had occurred. Can it be said that, in such a case, the doer of the act is guilty of homicide with reference to those whose death was not intended by him and could not have been foreseen by him as likely to occur ? Are we to hold that a man who knows that his act is likely to cause the death of one person is guilty of the death of all the others who happen to die, but whose death was far beyond his imagination? Such a proposition it is impossible to maintain in criminal law. Section 301 of the Indian Penal Code has reference to a case where a person intending to cause the death of A, say by striking or shooting him, kills B because B is in the place where he imagined A to be, or B rushes in to save A and receives the injury intended for A. The reason for not exculpating the wrong-doer in such cases is that he must take the risk of some other person being in the place where he expected to find A, or, of some one else intervening between him and A. The section is a qualification of the rule laid down in Section 299 and is evidently confined to cases where the death of the person intended or known to be likely to be killed does not result. If the Public Prosecutor’s general proposition were right, Section 301 of the Indian Penal Code would seem to be unnecessary, as Section 299 would be quite enough. If a person is intended by Section 299 to be held to be guilty for deaths which are not known to be likely to occur, then that section might itself have been worded differently so as to show that the particular death caused need not have been intended or foreseen and what is more important, Section 301 of the Indian Penal Code would not be limited to cases where the death of the particular individual intended or foreseen does not occur. The general theory of the criminal law is that the doer of an act is responsible only for the consequences intended or known to be likely to ensue; for otherwise he could not be said to have caused the effect ” voluntarily,” and a person is not responsible for the involuntary effects of his acts. Illustrations A and B, in my opinion, support this view. Sections 323 and 324 show that a person is responsible in the case of hurt or grievous hurt only for what he causes voluntarily ; and Section 321 shows that hurt to the particular person in question must have been intended or foreseen. In the eye of the law, no doubt, a man will be taken to have foreseen what an ordinary individual ought to foresee, and it will not be open to him to plead that he himself was so foolish as, in fact, not to foresee the consequence of his act. A person might, in some cases, be responsible for effects of which his act is not the proximate cause where the effect is likely to arise in the ordinary course of events to result from the act. This rule will certainly hold good where a person’s act set in motion only physical causes which lead to the effects actually occurring ; when the effect is not due merely to physical causes set in operation by an act, but other persons’ wills intervening are equally necessary causes with the original act to lead to the result, it is more difficult to decide whether the act in question can be said to be the cause of the effect finally produced. The Code throws very little light on the question, Ordinarily, a man is not criminally responsible for the acts of another person, and ordinarily his act should not be held to be the cause of a consequence which would not result without the intervention of another human agency. Sir J. Fitz James Stephen in his ‘History of the Criminal Law of England,’ Vol. III, p. 8, says : ” A more remarkable set of cases arc those in which death is caused by some act which does unquestionably cause it, but does so through the intervention of the independent voluntary act of some other person. Suppose, for instance, A tells B of facts which operate as a motive to B for the murder of C. It would be an abuse of language to say that A had killed C, though no doubt he has been the remote cause of C’s death.” The learned author proceeds to point out that, even when a person counsels, procures or commands another to do an act, he would be only guilty as an abettor but not as a principal offender whose act caused the result, say murder. This is the well settled principle of the English Law, though there appear to be one or two exceptions, to be hereafter pointed out. No such exceptions are mentioned in the Indian Code. They may perhaps be recognised where the doer of the act knew that it would be likely that his own act would lead other persons, not acting wrongfully, to act in such a manner as to cause the effect actually produced. But the scope of the exceptions cannot cover those cases where the doer could not foresee that other persons would act in the manner indicated above. This is the principle adopted in determining civil liability for wrongs. See the discussion of the question in Baker v. Snell (1908) 2 K.B. 825. A stricter rule cannot be applied in cases of criminal liability.

18. Now, can it be said that the accused, in this case, knew it to be likely that the prosecution 1st witness would give a portion of the halva to the girl Rajalakshmi? According to Section 26 of the Indian Penal Code ” a person is said to have ‘reason to believe’ a thing if he has sufficient cause to believe that thing but not otherwise.” A trader who sells a basket of poisoned oranges may be said to have sufficient ‘ reason to believe’ that the buyer would give them to various persons to eat; but one who gives a slice of an orange to another to eat on the spot could not be said to have sufficient ‘ reason to believe’ that he would give half of that slice to another person to eat or that he would throw away a portion and that another would eat it. The poison was thrown aside here not by the accused but by the prosecution 1st witness. The girl’s death could not have been caused but for the intervention of the prosecution 1st witness’s agency. The case, in my opinion, is not one covered by Section 301 of the Indian Penal Code. The conclusion, therefore, appears to follow that the accused is not guilty of culpable homicide by doing an act which caused the death of the girl. Mr. Napier, as already mentioned, has contended that the law in this country on the question is really the same as in England; and he relies on two English cases in support of his contention, viz., Saunder’s case and Agnes Gore’s case. I may preface my observations on the English Law by citing Mr. Mayne’s remark that “culpable homicide is perhaps the one branch of criminal law in which an Indian student must be most careful in accepting the guidance of English authorities.” According to the English Law ” murder is the unlawful killing, by any person of sound memory and discretion, of any person under the King’s peace, with malice aforethought, either express or implied by law. This malice aforethought which distinguishes murder from other species of homicide is not limited to particular ill-will against the persons slain, but means that the fact has been attended with such circumstances as are the ordinary symptoms of a wicked, depraved, and malignant spirit ; a heart regardless of social duty, and deliberately bent upon mischief. Any formed design of doing mischief may be called malice ; and therefore, not only killing from premeditated hatred or revenge against the person killed, but also, in many other cases, killing accompanied with circumstances that show the heart to be previously wicked is adjudged to be killing of malice aforethought and, consequently, murder.”-RUSSELL on Crimes and Misdemeanors, 7th Edition, Volume I, page 655. It will be observed that, in this definition, malice is made an essential requisite, and all cases have to be brought under it. Knowledge that the act is likely to cause death is not part of the definition Nor have we any words to import what is contained in the explanations to Section 299 of the Indian Penal Code or in Cls. 2, 3 and 4 of Section 300. The law was worked out of England to its present condition by a series of judicial decisions. This accounts for the statement that general malice is enough and that it need not be directed against the particular individual killed. Hence also the proposition that wicked intention to injure is enough and intention to kill that individual is not necessary. See ROSCOE’S Criminal Evidence, 13th Edition, pages 617 to 619. Malice again is explained to mean malice implied by law as well as malice in fact. The result is, the law in England is not as different from that in India as a comparison of the definitions might, at first sight, indicate. This is apparent from the statement of the English Law at pp. 20-22, Vol. III of Stephen’s History of the Criminal Law. The statement, however, shows that the law is not identical in both countries. In England an intention to commit any felony will make the act murder if death results. Again ” if a child under years of discretion, a madman, or any other person of defective mind, is incited to commit a crime, the inciter is the principal ex necessitate, though absent when the thing was done. In point of law, the act of the innocent agent is as much the act of the procurer as if he were present and did the act himself.” See RUSSELL on Crimes, Vol. I, page 104. The Indian law does not make the abettor guilty of the principal offence in such circumstances. There is also a presumption in the English Law that ” all homicide is malicious and murder, until the contrary appears from circumstances of alleviation, excuse, or justification ; and it is incumbent upon the prisoner to make out such circumstances to the satisfaction of the Court and Jury, unless they arise out of the evidence produced against him.” See Russell on Crimes, Vol. I, page 657. There is no such presumption here. In Saunder’s case as stated in Roscoe’s Criminal Evidence, p. 154, the prisoner intending to poison his wife gave her a poisoned apple which she, ignorant of its nature, gave to a child who took it and died. This was held murder in the husband, although being present he endeavoured to dissuade his wife from giving it to the child. In Hale’S Pleas of the Crown, Vol. I, p. 436, it is not stated that the prisoner endeavoured, to dissuade his wife from giving the apple to the child. On the other hand, the author says : ” If A commands or counsels B to kill C and before the fact is dose A repents and comes to B and expressly discharges him from the fact and countermands it, if after this countermand B does it, it is murder in B; but A is not accessory.” The decision apparently proceeded on the English rule that the innocence of the intervening agent had the effect of holding the prisoner liable as the principal offender. In Agnes Gore’s case (1614) 77 E.R. 853 the wife who mixed ratsbane in a potion sent by the apothecary to her husband which did not kill him but killed the apothecary who, to vindicate his reputation, tasted it himself, having first stirred it up, was held guilty of murder because the wife had the intention of killing the husband though not of killing the apothecary. It is possible that an Indian court may hold in such a case that it was the duty of the wife to warn and prevent the apothecary from tasting the potion and that she was guilty of an illegal omission in not doing so. Whether the case might not come under Section 301, Indian Penal Code, also it is unnecessary to consider. In The Queen v. Latimer (1886) 17 Q.B.D.359 ” the prisoner, in striking at a man, struck and wounded a woman beside him. At the trial of an indictment against the prisoner under 24 and 25 Vic. C 100, Section 20, for unlawfully and maliciously wounding her, the Jury found that the blow ‘ was unlawful and malicious and did in fact wound her, but that the striking of her was purely accidental and not such a consequence of the blow as the prisoner ought to have expected.’ The Court of Crown Cases Reserved held that the prisoner was guilty. The decision proceeded upon the words of the statute. Section 18 enacted that “whosoever shall unlawfully and maliciously cause any grievous bodily harm to any person with malicious intent shall be guilty of felony.” Then Section 20, leaving out the intent, provided that whosoever shall unlawfully and maliciously wound or inflict any grievous bodily harm upon any other person shall be guilty of misdemeanour. Lord Coleridge, C.J., pointed out that the language of Sections 18 and 20 was different and that the earlier statute had been altered which provided that the intention should be against the person injured. In Regina v. Michael, where a bottle containing poison was put on the mantel-piece where a little child found it and gave part of the contents to the prisoner’ child who soon after died, the Judges were of opinion that ” the administering of the poison by the child was under the circumstances of the case as much in point of law an administering by the prisoner as if the prisoner had actually administered it with her own hand.” This decision also, no doubt, proceeded on the ground of want of discretion in the intervenor, the child. The Indian courts may hold that a person who keeps poison at a place where others might have access to it must be taken to know that death is likely to result from the act. It is clear that English decisions are not always a safe guide in deciding cases in this country where the provisions of the Penal Code must be applied. In Shankar Balkrishna v. King-Emperor (1904) I.L.R. 32 Cal. 73 the Calcutta High Court held that the prisoner in the case, an Assistant Railway Station Master, was not liable where death would not have resulted if the guard had not acted carelessly, as the prisoner could not be taken to know that the accident to the train which resulted in the loss of human life was likely to lead to death. In In re The Empress v. Sahae Rae (1877) I.L.R. 3 Cal. 623 which may be usefully compared with The Queen v. Latimer (1886) 17 Q.B.D.359 and where also the prisoner was held guilty, the decision was put on the ground that the prisoner knew it to be likely that the blow would fall on a person for whom he had not intended it. Holding, as I do, that, in the circumstances of this case, the prisoner could not be said to have known that it was likely that the prosecution 1st witness would throw aside the halva so as to be picked up and eaten by some one else and that the prisoner was not responsible, in the circumstances, for the voluntary act of prosecution 1st witness, I must come to the conclusion that the prisoner is not guilty of the murder of the girl Rajalakshmi. It is not contended that there was a legal duty on the part of the accused to prevent the girl from eating the halva and that he was guilty of murder by an illegal omission.

19. I would uphold the finding of acquittal of the lower court and dismiss the appeal.

Benson, J.

20. As we differ in our opinion as to the guilt of the accused, the case will be laid before another Judge of this court, with our opinions under Section 429, Criminal Procedure Code.

21. This appeal coming on for hearing under the provisions of Section 429 of the Code Criminal Procedure

The Court delivered the following

Rahim, J.

22. The question for decision is whether the accused Suryanarayanamurti is guilty of an offence under Section 302, Indian Penal Code, in the following circumstances He wanted to kill one Appala Narasimhulu on whose life he had effected rather large insurances and for that purpose gave him some halva (a sort of sweet meat), in which he had mixed arsenic and mercury in a soluble form, to eat. This was at the house of the accused’s brother in-law, where Appala Narasimhulu had called by appointment. The man ate a portion of the halva, but not liking its taste threw away the remainder on the spot. Then, according to the view of the evidence accepted by my learned brothers Benson and Sundara Aiyar JJ., as well as by the Sessions Judge, a girl of 8 or 9 years named Rajalakshmi, the daughter of the accused’s brother-in-law, picked up the poisoned halva, ate a portion of it herself, and gave some to another child of the house. Both the children died of the effects of the poison, but Appala Narasimhulu, the intended victim, survived though after considerable suffering. It is also found as a fact, and I agree with the finding, that Rajalakshmi and the other girl ate the halva without the knowledge of the accused, who did not intend to cause their deaths. Upon these facts Benson J. would find the accused guilty of the murder of Rajalakshmi, while Sundara Aiyar J., agreeing with the Sessions Judge, holds a contrary view.

23. The question depends upon the provisions of the Indian Penal Code on the subject as contained in Section 299 to 301. The first point for enquiry is whether the definition of culpable homicide as given in Section 299 requires that the accused’s intention to cause death or his knowledge that death is likely to be caused by his act in question must be found to exist with reference to the particular person whose death has actually been caused by such act, or is it sufficient for the purposes of the section if criminal intention or knowledge on the part of the accused existed with reference to any human being, though the death oi the person who actually fell a victim to the accused’s act was never compassed by him. I find nothing in the words of the section which would justify the limited construction. Section 299 says: “Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide.” The language is perfectly general; all that it requires is that there should be an intention to cause death or a knowledge that death is likely to be the result, and there is nothing in reason which, in my opinion, would warrant us in saying that the homicidal intention or knowledge must be with reference to the life of the person whose death is actually caused. The law affords protection equally to the lives of all persons, and once the criminal intention, that is, an intention to destroy human life, is found, I do not see why it should make any difference whether the act done with such intention causes the death of the person aimed at or of some one else. Illustration (a) to Section 299 makes it quite clear that the legislature deliberately employed general and unqualified language in order to cover cases where the person whose death is caused by the act of the accused was not the person intended to be killed by him but some other person. Section 301 also supports this construction as it assumes that the accused in such cases would be guilty of culpable homicide; and I may here point out that the object of this section is to lay down that the nature of culpable homicide of which the accused in these cases would be guilty, namely whether murder or not, would be the same as he would have been guilty of, if the person whose death was intended to be brought about had been killed. Now the first paragraph of Section 300 declares that culpable homicide shall be deemed to be murder if the act by which death is caused is done with the intention of causing death, using so far the very words of Section 299. In the 2nd and 3rd paragraphs of Section 300 the language is not quite identical with that of the corresponding provisions in Section 299, and questions may possibly arise whether where the fatal act was done not with the intention of causing death but with the intention of causing such bodily injury as as likely to cause death, or with the knowledge that the accused is likely by such act to cause death, the offence would be one of murder or culpable homicide not amounting to murder. But it is not necessary for me to express any opinion on these matters as in the present case the prisoner undoubtedly intended to cause death.

24. The next point for consideration is whether the death of Rajalakshmi was caused by the accused’s act within the meaning of Section 299. The question is really one of fact or of proper inference to be drawn from the facts. That girl’s death was caused by eating the sweetmeat in which the accused had mixed poison and which he brought to the house where the girl lived in order to give it to the man for whom it was intended. It was given to him, but he, not relishing the taste of it, threw it down. The deceased girl soon afterwards picked it up and ate it, But the accused was not present when Rajalakshmi ate it, and we may even take it that, if the accused had been present, he would have prevented the girl from eating the sweetmeat. These being the facts, there can be, however, no doubt, that the act of the accused in mixing arsenic in the halva and giving it to Appala Narasimhalu in Rajalakshmi’s house was one cause in the chain of causes which brought about the girl’s death. The question then is whether this act of the accused was such a cause of Rajalakshmi’s death as to justify us in imputing it to such act. In my opinion it was. Obviously it is not possible to lay down any general test as to what should be regarded in criminal law as the responsible cause of a certain result when that result, as it often happens, is due to a series of causes. We have to consider in each case the relative value and efficiency of the different causes in producing the effect and then to say whether responsibility should be assigned to a particular act or not as the proximate and efficient cause. But it may be observed that it cannot be a sufficient criterion in this connection whether the effect could have been produced in the case in question without a particular cause, for it is involved in the very idea of a cause that the result could not have been produced without it. Nor would it be correct to lay down generally that the intervention of the act of a voluntary agent must necessarily absolve the person between whose act and the result it intervenes. For instance, if A mixes poison in the food of B with the intention of killing B and B eats the food and is killed thereby, A would be guilty of murder even though the eating of the poisoned food which was the voluntary act of B intervened between the act of A and B’s death. So here the throwing aside of the sweetmeat by Appala Narasimhulu and the picking and the eating of it by Rajalakshmi cannot absolve the accused from responsibility for his act. No doubt the intervening acts or events may sometimes be such as to deprive the earlier act of the character of an efficient cause. Now, suppose, in this case Appala Narasimhulu had discovered that the sweetmeat was poisoned and then gave it to Rajalakshmi to eat, it is to his act that Rajalakshmi’s death would be imputed and not to the accused’s. Or suppose Appala Narasimhulu, either suspecting that the sweetmeat was poisoned or merely thinking that it was not fit to be eaten, threw it away in some unfrequented place so as to put it out of harm’s way and Rajalakshmi happening afterwards to pass that way, picked it up, and ate it and was killed, the act of the accused in mixing the poison in the sweetmeat could in that case hardly be said to have caused her death within the meaning of Section 299. On the other hand, suppose Appala Narasimhulu, finding Rajalakshmi standing near him and without suspecting that there was anything wrong with the sweetmeat, gives a portion of it to her and she ate it and was killed, could it be said that the accused who had given the poisoned sweetmeat to Appala Narsimhulu was not responsible for the death of Rajalakshmi ? I think not. And there is really no difference between such a case and the present case. The ruling reported in 13 W.R.Cr. Letters, p. 2, also supports the view of the law which I have tried to express.

25. Reference has been made to the English law on the point and though the case must be decided solely upon the provisions of the Indian Penal Code, I may observe that there can be no doubt that under the English Law as well the accused would be guilty of murder. In English Law it is sufficient to show that the act by which death was caused was done with malice aforethought, and it is not necessary that malice should be towards the person whose death has been actually caused. This is well illustrated in the well-known case of Agnes Gore (1614)77 E.R. 853 and in Saunder’s case I. Hale P.C. 431 and also in Regina V. Michael 9 C and P. 356. No doubt” malice aforethought,” at least according to the old interpretation of it as including an intention to commit any felony, covers a wider ground in the English Law than the criminal intention or knowledge required by Sections 299 and 300, Indian Penal Code, but the law in India on the point in question in this case is undoubtedly, in my opinion, the same as in England.

26. Agreeing therefore with Benson J., I set aside the order of the Sessions Judge acquitting the accused of the charge of murder and convict him of an offence under Section 302, Indian Penal Code. I also agree with him that, in the circumstances of the case, it is not necessary to impose upon the accused the extreme penalty of the law, and I sentence the accused under Section 303, Indian Penal Code, to transportation for life.


Uncategorized

Virsa Singh v. State of Punjab – SC on Murder S.300 IPC

 Comment : The Court held that to bring a case under section 300 IPC Part 3 – the prosecution need not prove that the accused knew the injury to be sufficient in the ordinary course of nature to cause death – this would be too onerous – and would be tantamount to requiring a direct intention to cause death – which is already provided in clause 1, two clauses in the same section can’t be made to cater to same situation. Hence in these cases only these things need to be proved :-
i) Quite objectively – bodily injury present;
ii) This particular injury intended to be caused (that is – it is not accidental) 
iii) then begins the objective examination – expert opinion – whether sufficient in the ordinary course of nature to cause death or mere likely to cause death – here the difference is merely the probability of fatality from injury. Former – is murder. Latter is Culpable Homicide not amounting to Murder
 
Supreme Court of India
Virsa Singh vs The State Of Punjab on 11 March, 1958
Equivalent citations: 1958 AIR 465, 1958 SCR 1495
Bench: Bose, Vivian

PETITIONER:

VIRSA SINGH.

Vs.

RESPONDENT:

THE STATE OF PUNJAB

DATE OF JUDGMENT:

11/03/1958

BENCH:

BOSE, VIVIAN

BENCH:

BOSE, VIVIAN

IMAM, SYED JAFFER

GAJENDRAGADKAR, P.B.

CITATION:

1958 AIR 465 1958 SCR 1495

ACT:

Criminal Trial–Culpable homicide amounting to murder– Prosecution to Prove-Presence and Nature of Injury -Intention to cause that Particular Injury, which was not accidental or unintentional and was sufficient to cause death in the ordinary (course of nature–Indian Penal Code (Act XLII of 1860), s. 300, 3rdly.

HEADNOTE:

The accused thrust a spear into the abdomen of ,he deceased. This injury caused his death. In the opinion of the doctor the injury was sufficient to cause death in the ordinary course of nature. It was found by the Sessions judge that the accused intended to cause grievous hurt only. In his opinion however the third clause Of S. 300 Indian Penal Code applied. He accordingly convicted and sentenced the accused under S. 302 India, Penal Code. The High Court upheld the conviction, It was argued that the third clause Of s. 300 Indian Penal Code did not apply as it was not proved that the accused intended to inflict a

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bodily injury that was sufficient to cause death in the ordinary course of nature as s. 300 Indian Penal Code third clause states, ” If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death

Held, that the prosecution must prove the following before it can bring a case under s. 300 Indian Penal Code third clause.

(1) It must establish, quite objectively, that a bodily injury is present.

(2) The nature of the injury must be proved; these are purely objective investigations.

(3) It must be proved that there was an intention to inflict that particular injury, that is to say, that it was not accidental or unintentional, or that some other kind of injury was intended.

(4) It must be proved that the injury of the type just described made up of the three elements set out above was sufficient to cause death in the ordinary course of nature. This part of the enquiry is purely objective and inferential and has nothing to do with the intention of the offender. The third clause of S. 300 Indian Penal Code consists of two parts. Under the first part it must be proved that there was an intention to inflict the injury that is found to be present and under the second part it must be proved that the injury was sufficient in the ordinary course of nature to cause death. The words ” and the bodily injury intended to be inflicted ” are merely descriptive. All this means is, that it is not enough to prove that the injury found to be present is sufficient to cause death in the ordinary course of nature ; it must in addition be shown that the injury found to be present was the injury intended to be inflicted. Whether it was sufficient to cause death in the ordinary course of nature is a matter of inference or deduction from the proved facts about the nature of the injury and has nothing to do with the question of intention.

JUDGMENT:

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 90 of 1957.

Appeal by special leave from the judgment and order dated November 21, 1956, of the Punjab High Court in Criminal Appeal No. 326 of 1956 arising out of the judgment and order dated June 26, 1956, of the Court of the Sessions Judge at Ferozepore in Sessions Case No. 8 of 1956. Jai Gopal Sethi and R. L. Kohli, for the appellant. N. S. Bindra and T. M. Sen, for the respondent. 1958. March 11. The Judgment of the Court was delivered by

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BOSE J.-The appellant Virsa Singh has been sentenced to imprisonment for life under s. 302 of the Indian Penal Code for the murder of one Khem Singh. He was granted special leave to appeal by this Court but the leave is limited to ” the question that on the finding accepted by the Punjab High Court what offence is made out as having been committed by the petitioner.”

The appellant was tried with five others under sss. 302/49, 324/149 and 323/149 Indian Penal Code. He was also charged individually under s. 302.

The other, were acquitted of the murder charge by the first Court but were convicted under ss. 326, 324 and 323 read with s. 149, Indian Penal Code. On appeal to the High Court they were all acquitted.

The appellant was convicted by the first Court under s. 302 and his conviction and sentence were upheld by the High Court.

There was only one injury on Khem Singh and both Courts are agreed that the appellant caused it. It was caused as the result of a spear thrust and the doctor who examined Khem Singh, while he was still alive, said that it was ” a punctured wound 2″ x 1/2″ transverse in direction on the left side of the abdominal wall in the lower part of the iliac region just above the inguinal canal. He also said that

” Three coils of intestines were coming out of the wound.” The incident occurred about 8 p. m. on July 13, 1955. Khem Singh died about 5 p. m. the following day. The doctor who conducted the postmortem described the injury as-

” an oblique incised stitched wound 21/2″ on the lower part of left side of belly, 13″ above the left inguinal ligament. The injury was through the whole thickness of the abdominal wall. Peritonitis was present and there was digested food in that cavity. Flakes of pus were sticking round the small intestines

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and there were six cuts……… at various places, and digested food was flowing out from three cuts.” The doctor said that the injury was sufficient to cause death in the ordinary course of nature.

The learned Sessions Judge found that the appellant was 21 or 22 years old and said-

” When the common object of the assembly seems to have been to cause grievous hurts only, I do not suppose Virsa Singh actually had the intention to cause the death of Khem Singh, but by a rash and silly act he gave a rather forceful blow, which ultimately caused his death. Peritonitis also supervened and that hastened the death of Khem Singh. But for that Khem Singh may perhaps not have died or may have lived a little longer.”

Basing on those facts, he said that the case fell under s. 300, 3rdly and so he convicted under s. 302, Indian Penal Code.

The learned High Court Judges considered that the whole affair was sudden and occurred on a chance meeting “. But they accepted the finding that the appellant inflicted the injury on Khem Singh and accepted the medical testimony that the blow was a fatal one.

It was argued with much circumlocution that the facts set out above do not disclose an offence of murder because the prosecution has not proved that there was an intention to inflict a bodily injury that was sufficient to cause death in the ordinary course of nature. Section 300, 3rdly was quoted:

” If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death.”

It was said that the intention that the section requires must be related, not only to the bodily injury inflicted, but also to the clause, “and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death.”

This is a favourite argument in this kind of case but is fallacious. If there is an intention to inflict an injury that is sufficient to cause death in the ordinary 1499

course of nature, then the intention is to kill and in that event, the “thirdly ” would be unnecessary because the act would fall under the first part of the section, namely- ” If the act by which the death is caused is done with the intention of causing death.”

In our opinion, the two clauses are disjunctive and separate. The first is subjective to the offender: “If it is done with the intention of causing bodily injury to any person.”

It must, of course, first be found that bodily injury was caused and the nature of the injury must be established, that is to say, whether the injury is on the leg or the arm or the stomach, how deep it penetrated, whether any vital organs were cut and so forth. These are purely objective facts and leave no room for inference or deduction: to that extent the enquiry is objective; but when it comes to the question of intention, that is subjective to the offender and it must be proved that he had an intention to cause the bodily injury that is found to be present. Once that is found, the enquiry shifts to the next clause- ” and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death.” The first part of this is descriptive of the earlier part of the section, namely, the infliction of bodily injury with the intention to inflict it, that is to say, if the circumstances justify an inference that a man’s intention was only to inflict a blow on the lower part of the leg, or some lesser blow, and it can be shown that the blow landed in the region of the heart by accident, then, though all injury to the heart is shown to be present, the intention to inflict ail injury in that region, or of that nature, is not proved. In that case, the first part of the clause does not come into play. But once it is proved that there was an intention to inflict the injury that is found to be present, then the earlier part of the clause we are now examining 190

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” and the bodily injury intended to be inflicted ” is merely descriptive. All it means is that it is not enough to prove that the injury found to be present is sufficient to cause death in the ordinary course of nature; it must in addition be shown that the injury is of the kind that falls within the earlier clause, namely, that the injury found to be present was the injury that was intended to be inflicted. Whether it was sufficient to cause death in the ordinary course of nature is a matter of inference or deduction from the proved facts about the nature of the injury and has nothing to do with the question of intention. In considering whether the intention was to inflict the injury found to have been inflicted, the enquiry necessarly proceeds on broad lines as, for example, whether there was an intention to strike at a vital or a dangerous spot, and whether with sufficient force to cause the kind of injury found to have been inflicted. It is, of course, not necessary to enquire into every last detail as, for instance, whether the prisoner intended to have the bowels fall out, or whether he intended to penetrate the liver or the kidneys or the heart. Otherwise, a man who has no knowledge of anatomy could never be convicted, for, if he does not know that there is a heart or a kidney or bowels, be cannot be said to have intended to injure them. Of course, that is not the kind of enquiry. It is broadbased and simple and based on common sense: the kind of enquiry that ” twelve good men and true could readily appreciate and understand.

To put it shortly, the prosecution must prove the following facts before it can bring a case under s. 300, 3rdly ” ; First, it must establish, quite objectively, that a bodily injury is present ;

Secondly, the nature of the injury must be proved; These are purely objective investigations.

Thirdly, it must be proved that there was an intention to inflict that particular bodily injury, that is to say, that it was not accidental or unintentional, or that some other kind of injury was intended.

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Once these three elements are proved to be present, the enquiry proceeds further and,

Fourthly, it must be proved that the injury of the type just described made up of the three elements set out above is sufficient to cause death in the ordinary course of nature. This part of the enquiry is purely objective and inferential and has nothing to do with the intention of the offender. Once these four elements are established by the prosecution (and, of course, the burden is on the prosecution throughout) the offence is murder under s. 300, 3rdly. It does not matter that there was no intention to cause death. It does not matter that there was Do intention even to cause an injury of a kind that is sufficient to cause death in the ordinary course of nature (not that there is any real distinction between the two). It does not even matter that there is no knowledge that an act of that kind will be likely to cause death. Once the intention to cause the bodily injury actually found to be present is proved, the rest of the enquiry is purely objective and the only question is whether, as a matter of purely objective inference, the injury is sufficient in the ordinary course of nature to cause death. No one has a licence to run around inflicting injuries that are sufficient to cause death in the ordinary course of nature and claim that they are not guilty of murder. If they inflict injuries of that kind, they must face the consequences; and they can only escape if it can be shown, or reasonably deduced that the injury was accidental or otherwise unintentional. We were referred to a decision of Lord Goddard in R v. Steane (1) where the learned Chief Justice says that where a particular intent must be laid and charged, that particular intent must be proved. Of course it must, and of course it must be proved by the prosecution. The only question here is, what is the extent and nature of the intent that s. 300 3rdly requires, and how is it to be proved ? The learned counsel for the appellant next relied on a passage where the learned Chief Justice says that: (1) [1947] 1 All E. R. 813, 816.

1502

“if, on the totality of the evidence, there is room for more than one view as to the intent of the prisoner, the jury should be directed that it is for the prosecution to prove the intent to the jury’s satisfaction, and if, on a review of the whole evidence, they either think that the intent did not exist or they are left in doubt as to the intent, the prisoner is entitled to be acquitted.”

We agree that that is also the law in India. But so is this. We quote a few sentences earlier from the same learned judgment:

“No doubt, if the prosecution prove an act the natural consequences of which would be a certain result and no evidence or explanation is given, then a jury may, on a proper direction, find that the prisoner is guilty of doing the act with the intent alleged.”

That is exactly the position here. No evidence or explanation is given about why the appellant thrust a spear into the abdomen of the deceased with such force that it penetrated the bowels and three coils of the intestines came out of the wound and that digested food oozed out from cuts in three places. In the absence of evidence, or reasonable explanation, that the prisoner did not intend to stab in the stomach with a degree of force sufficient to penetrate that far into the body, or to indicate that his act was a regrettable accident and that he intended otherwise, it would be perverse to conclude that he did not intend to inflict the injury that he did. Once that intent is established (and no other conclusion is reasonably possible in this case, and in any case it is a question of fact), the rest is a matter for objective determination from the medical and other evidence about the nature and seriousness of the injury.

The learned counsel for the appellant referred us to Emperor v. Sardarkhan Jaridkhan (1) where Beaman J. says that- ” where death is caused by a single blow, it is always much more difficult to be absolutely certain what degree of bodily injury the offender intended.”

With due respect to the learned Judge he has linked (1) (1917) I. L. R. 41 Bom. 27,29.

1503

up the intent required with the seriousness of the injury, and that, as we have shown, is not what the section requires. The two matters are quite separate and distinct, though the evidence about them may sometimes overlap. The question is not whether the prisoner intended to inflict a serious injury or a trivial one but whether he intended to inflict the injury that is proved to be present. If be can show that he did not, or if the totality of the circumstances justify such an inference, then, of course, the intent that the section requires is not proved. But if there is nothing beyond the injury and the fact that the appellant inflicted it, the only possible inference is that he intended to inflict it. Whether he knew of its seriousness, or intended serious consequences, is neither here nor there. The question, so far as the intention is concerned, is not whether he intended to kill, or to inflict an injury of a particular degree of seriousness, but whether he intended to inflict the injury in question; and once the existence of the injury is proved the intention to cause it will be presumed unless the evidence or the circumstances warrant an opposite conclusion.- But whether the intention is there or not is one of fact and not one of law. Whether the wound is serious or otherwise, and if serious, how serious, is a totally separate and distinct question and has nothing to do with the question whether the prisoner intended to inflict the injury in question. It is true that in a given case the enquiry may be linked up with the seriousness of the injury. For example, if it can be proved, or if the totality of the circumstances justify an inference, that the prisoner only intended a superficial scratch and that by accident his victim stumbled and fell on the sword or spear that was used, then of course the offence is not murder. But that is not because the prisoner did not intend the injury that he intended to inflict to be as serious as it turned out to be but because he did not intend to inflict the injury in question at all. His intention in such a case would be to inflict a totally different injury. The difference is not One of law but

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one of fact; and whether the conclusion should be one way or the other is a matter of proof, where necessary, by calling in aid all reasonable inferences of fact in the absence of direct testimony. It is not one for guess-work and fanciful conjecture.

The appeal is dismissed.

Appeal dismissed.

Criminal Justice System

Perusal of Defence testimony

Comment :  defence witnessess cannot always be termed to be tainted one. defences witnesses are entitled to equal treatment and equal respect as that of the prosecution. The issue of credibility and the trustworthiness ought also to be attributed to the defence witnesses at par with that of prosecution 
Supreme Court of India
State Of Haryana vs Ram Singh on 15 January, 2002
Equivalent citations: AIR 2002 SC 620, 2002 (1) ALT Cri 123
Author: Banerjee
Bench: U Banerjee, N S Hegde

JUDGMENT

Banerjee, J.

1. While it is true that the postmortem report by itself is not a substantive piece of evidence, but the evidence of the doctor conducting the postmortem can by no means be ascribed to be insignificant. The significance of the evidence of the doctor lies vis-a-vis the injuries appearing on the body of the deceased person and likely use of the weapon therefore and it would then be the prosecutor’s duty and obligation to have the corroborative evidence available on record from the other prosecution witnesses.

2. These two criminal appeals being Crl. Appeal No. 78 of 1999 and Crl. Appeal No. 79 of 1999 arising from the same Judgment of the High Court against that of the learned Additional Sessions Judge, Hissar in Sessions Case No. 80 of 1992 in which (1) Bhajan Lal (2) Rai Sahab, (3) Ram Singh and (4) Ram Kumar faced trial. All the accused faced charge under Section 302 IPC read with Section 201 IPC and the learned Additional Sessions Judge, Hissar by his Judgment dated 9th/10th August, 1995 convicted Bhajan Lal under Section 302 IPC and sentenced him to imprisonment for life, whereas the accused Rai Sahab, Ram Singh and Ram Kumar were convicted under Sections 302/149 IPC and sentenced in the manner alike. The learned Additional Sessions Judge did not convict any of the accused under Section 201 IPC by reason of the conviction under Section 302 IPC read with Section 149 IPC. The case of the prosecution however, runs as below:-

3. Complainant-Budh Ram is the brother of Manphool (deceased). They are residents of village Chinder. On 22.1.1992, Budh Ram and Manphool went to the temple at about 6 a.m. and returned at about 6.15 a.m. When Manphool was ahead of Budh Ram by about 10 paces and had reached near the house of Kishan Lal, a jeep RJI-3407 was there and Rich Pal, a resident of Chinder and Appellant Bhajan Lal were standing near it, armed with guns. Appellant Rai Sahab was sitting on the driver seat, while Appellant Ram Kumar and Ram Singh alias Singha were also sitting by his side on the front seat. Accused Ram Kumar and Ram Sing, on seeing Manphool, stated that Manphool had won money in gambling dishonestly from Ram Singh, and that he should be taught a lesson for dishonesty. Rich Pal and Bhajan Lal fired a shot each from their respective guns, and as a result of receiving the shots, Manphool feel down. Complainant-Budh Ram took shelter in the temple out of fear. Dholu Ram, son of Manphool on hearing the report of the gunshot, reached there. Prosecution case further has been that immediately thereafter Ram Kumar and Singha alighted from the jeep and all four of them tied the body in a blanket and put the same in the jeep and then went away in their jeep after threatening the persons present at site. Complainant-Budh Ram informed his brother — Ranjit and thereafter chased the jeep in a truck. They made a thorough search on the canals and roads at Badopal and Bhola etc. but did not find any clue. Therefore, Complainant-Budh Ram along with Dholu Ram went to Agroha Police Station, to lodge the report. The statement of Budh Ram was recorded at 3.05 p.m., which formed the basis of the FIR (Ex.-PF).

4. The Station House Officer SI Kishan Dutt being PW-12 in the examination-in-chief, inter alia, stated as below:-

“On 22.1.92 I was posted as SHO P.S. Agroha. On that day, Budh Ram came to me in the police station. He was accompanied by Dholu Ram. He made statement before me upon which I recorded FIR Ex.PF which was read over and explained to him to which he signed in token of its correctness. I recorded police proceedings on it, handed over one copy of FIR to him and obtained his signature. Then I left for the post and reached the place of occurrence alongwith Budh Ram and Dholu Ram. I lifted blood stained earth, 2-3 pieces of bones from the spot, which were converted into separate sealed parcels. Seal of KD was used. Seal after use was given to Dholu Ram PW. I lifted blood stained earth Ex.P. 12 and three pieces of bones Exs. P. 13/1-3 vide recovery memo Ex.PG, attested by Dholu Ram and Budh Ram. I prepared rough site plan of the place of occurrence Ex.PR, recorded statements of Dholu and Budh Ram. I raided the houses of the accused but they were found absconding. I searched for the dead-body in the canal. I stayed for the night in village Budha Khera. On 23.1.92 I deposited the case property with the MHC.

On 26.1.92 I along with Ranjit and Dholu Ram was going in search of the accused and dead body. At Chable minor (mori) Yad Ram met me and told me that he along with Atma Ram has recovered dead body of Manphool from the Chuli Bagrian minor near the field of Ram Pat. Then I reached there I held inquest proceedings on the dead body of Manphool and prepared inquest report Exs.PD/1. I recorded statements of Dholu, Ranjit, Yad Ram and Atma Ram in the inquest proceedings I hand over the dead body along with application for post-mortem examination Ex.PD to constable Sadhu Ram and HC Jagdish.”

5. It is at this stage it would be convenient to note the postmortem report which reads as below:-

“It was a dead-body of a man, moderately built and nourished, necked without any belongings with mouth and eyes closed. Rigor mortis was absent in all the limbs. The body was wet and smeared with mud, crass and leaves. The skin of the hands was swollen and was sodden. The nails and the hair could be pulled out easily. A tattooed mark “Manphool” was present on the anterior aspect of the right fore-arm and also found the following injuries. The height of the dead-body was 5 feet 11 inches:-

1. A crushed wound posterior and right lateral aspect of skull of irregular shape and size was 10 cms anterio posteriorly and 12 cms side to side involving the skin, sub coetaneous tissues and underlying bones which were right and left parietal bone, right temporal and occipital. Most of the brain matter was absent except a few brain matter left in the posterior coronial fosse. Pieces of bones involved were absent.

2. An oval punctured would in the left scapular area of the chest (However I have written abdomen by mistake). Measuring 1.5 cms x 1 cm with a collar of abrasion all around the wound. The direction of the wound was oblique going downward and forward. On dissection and 4th rib was fractured in the middle. The left lung was lacerated and congested. Clotted blood was present in left pleural cavity. Few pellet and foreign body were recovered. Anterior wall of pleural cavity was also congested and there was sub coetaneous hemorrhage in the left memory area.

3. A punctured wound on left side of abdomen 8 cms away towards left from the umbilicus. Omentum and few lops of intestines were coming out of the wound. The wound was showing a collar of abrasion along the whole margins of the wound. Black tattooing was present around the wound. On dissection there was congestion in the skin Sub Coetaneous tissue and huge blood was present in the peritoneum cavity. Omentum was congested and loop of small intestines were showing the congestion. Spleen was ruptured. Few pellets of fire-arm and foreign body was recovered. Small intestines showed semi digested small amount of food which was semi liquid.semi-digested.”

6. The facts shortly put thus reveal the date of occurrence being 22.1.1992 at 6.15 a.m. and the body was recovered on 26.1.1992 by one Atma Ram and Yad Ram. Atma Ram stated:

“On 26/27 of January, 1993 i.e. about two years and two months ago, I and Yad Ram were searching for the dead-body of Manphool. We reached Chuli minor near the field of Rajpat. There we saw a dead-body floating in the Chuli Minor. That dead-body was that of Manphool. We took out that dead-body from Chuli Minor (a canal). Name of Manphool was tattooed on the hand of the dead-body. I had also identified the dead-body by seeing the fact. The skull was empty (khokhli), as the skull was in torn condition. Yad Ram then left to the Police Station for giving intimation. I stayed at the spot near the dead-body. Yad Ram brought the Police. Dholu and Ranjeet also accompanied the police. Police prepared the inquest report of the dead-body and then recorded my statement.

On 13.2.91 I and Ranjeet were going to the P.S. Agroha to enquire if Singha alias Ram Singh had been arrested or not. Dead-body was found 18/19 days prior to our going to the police station. Thanedar had met us at the Bus Stand of village Khara Kheri. There a secret information was received by Sub Inspector (Thanedar) that accused Ram Singh was coming from the side of village Chinder. In the meantime of four-wheeler came there from which accused Ram Singh had alighted. On our pointing out SI apprehended Ram Singh now present in the court. Upon interrogation by the police he (Ram Singh) disclosed that 18/19 days ago he along with four other persons after committing the murder of Manphool Singh had thrown his dead-body in the canal and before throwing the same he had removed a golden ring from the finger of the dead-body of Manphool and the same was conceded by him at his house in the Niwar (strings) of the Palang (bed) and could get the same recovered. In this regard his statement Ex.PQ was recorded which was thumb marked by Singh accused and attested by me and Ranjeet Singh. Thereafter accused led the Police party in his house situated at village Chinder and then got recovered the ring. (At this stage, a sealed Parcel bearing seals of SS has been broken open and ring taken out there-from). The ring is Ex.P. 12. It is the same ring which was got recovered from the palang as stated above and the same was made into a sealed parcel and taken into possession vide recovery memo. Ex.PQ/1, attested by me and Ranjeet.”

7. It is on this state of evidence, the High Court has passed an Order of acquittal so far as Ram Singh is concerned and as such partly allowed the appeal. In its Judgment, the High Court recorded the reasoning for such an Order of acquittal of one of the accused persons as below:

“…..The evidence of PW 12-Kishan Dutt shows that accused-Ram Singh alias Singh was arrested only on 13.2.1992. But Ex.PL/2 also shows that Ram Singh alias Singha had allegedly thumb-marked the disclosure statement on 29.1.1992. If accused-Ram Singh alias Singha was arrested only on 13.12.1992, then he could not have made a disclosure statement on 29.1.1992. Further, Ex.PQ is the alleged disclosure statement of Ram Singh alias Singha made on 13.2.1992. Atma Ram (PW-11) also stated in his evidence that Ram Singh alias Singha was arrested on 13.2.1992 and that he made the disclosure statement (Ex.PQ) in pursuance of which the ring (Ex.P. 12) was recovered. This inconsistency casts a lot of doubt as the involvement of accused-Ram Singh. Even according to prosecution, he was only sitting in the jeep and had raised a lalkara that Manphool should be taught a lesson. It is further alleged that he along with 3 of the accused wrapped Manphool in a blanket and put him in the jeep. But in view of that we have pointed out above, we are of the view that it is wholly unsafe to convict this accused on the basis of the available material and therefore, we are of the view that he (Ram Singh alias Singha) should be acquitted, giving him the benefit of doubt……”

8. Incidentally, the factual score depicts that Rich Pal had expired during the course of trial before the learned Additional Sessions Judge and having regard to the death of Rich Pal, the conviction and sentence pertaining to two other accused persons were maintained by the High Court and the present appeal by the accused persons pertain thereto. The State Government, also however, being aggrieved by the Order of acquittal moved this Court in appeal. Since these appeals arise out of the same Judgment, appeals were consolidated and were heard together.

9. The principal contention raised in support of the appeal filed on behalf of the accused persons has been that medical evidence as is available on record completely demolished the prosecution case. Let us, therefore, have a look at the medical evidence as is available on record. The postmortem report has already been noticed above and as such we need not dilate on the injuries inflicted on the body of the deceased excepting what is required presently for our purpose herein. Dr. R.K. Kataria conducted the postmortem examination on the body of the deceased on 27.1.1992. In this evidence he has been rather specific that injuries No. 1, 2 and 3 were the result of three independent shots though, however, possibility of injury No. 1 being caused by some heavy weapon cannot be ruled out. As regards direction of injury No. 2, Dr. Kataria explained that the nature of the injury itself indicates that it was caused by weapon from above to downward and injuries No. 2 and 3 were possible by a firearm weapon within a range of 3 ft.: whereas injury No. 2 Dr. Kataria stated could be caused by a firearm from behind, injury No. 3 is possible by firearm only from the front side. Dr. Kataria, however, went on to depose:

“Since I had X-rayed injury No. 1, therefore, I did not think it proper to give any details about nature of injury being ante mortem or post mortared or whether is attributed in causing the death. I also did not mention the nature of weapon used for injuries No. 2 and 3 also. In fact I had referred the dead-body for X-ray examination of injury No. 1 in order to ascertain the weapon used. It is correct that X-ray report was not shown to me till today. I was also not shown the pieces of bones in this case. It is correct that my opinion given in the post-mortem report the injuries No. 2 and 3 were sufficient to cause death due to shock and hemorrhage is wrong. Volunteered in fact mentioning of injury No. 1 omitted I had referred the X-ray examination of injury No. 1. It is incorrect to suggest that I did not mention about injury No. 1 while giving opinion about the cause of death as I wanted to toe the line of police.”

10. A bare perusal of the evidence of the doctor depicts three specific features, namely, (i) Dr. Kataria had referred to have injury No. 1 X-rayed; (ii) nature of the weapon used by the accused persons has not been mentioned, as no such column was there in the Performa prepared for postmortem report and as such Dr. Kataria did not give the nature of the weapon used for injuries. As a matter of fact only for the ascertainment of the weapon used, the body of the deceased was referred for X-ray. The X-ray report, however, was not shown to the doctor till the date of examination, or even produced before the court; (iii) Dr. Kataria was also not shown the pieces of bones in the case. These three factors go a long way in support of the defence contention that it was a blind murder and thus a false implication.

11. The state of evidence available on record has been quoted extensively in this Judgment, which could otherwise be also avoided but has been so done so as to appreciate the trustworthiness or the credibility of the prosecution case. Medical evidence points out an injury having a downward stint: medical evidence points out two several gun shots injuries one from the front and one from the back – the eye-witnesses account does not, however, obtain any support from the medical evidence rather runs counter thereto. A definite evidence of availability of some bones at the place of occurrence was admittedly not shown to the postmortem doctor. Eye-witnesses account (PW-8) Budh Ram records that after giving the lalkara accused Bhajan Lal fired upon his brother Manphool and Rich Pal accused had fired one shot upon his brother. Rich Pal accused had since died and the brother on receiving the firearm injuries fell down on the spot. Immediately, thereafter an alarm was raised by the eye-witness upon which accused Bhajan Lal and Rich Pal threatened him that in case of any alarm they would also kill the PW-8 by reason wherefore the latter took the shelter by the side of the Mandir. The witness went on to record that after Manphool, his brother, fell down and all the accused except Rai Sahab wrapped him in a blanket and put in the jeep and the accused Rai Sahab then drove the jeep. The witness thereafter stated that:-

“… We then i.e. Dholu Ram, Ranjit and myself followed the accused in a truck. We went to the canal of Badopal. We also saw the accused on the roads but they were not visible. We went on the Bank of canal of Badopal. We also went to Bhoda, Sarangpur, Kherampur, Kohli and other roads and then on the canal but could not find the accused and the jeep and Manphool. Ultimately, I lodged report Ex.PF in P.S. Agroha. In this regard my signature are there on FIR Ex.PF. The contents of the FIR were read over to me and after admitting the same to be correct put my signatures.

Police then came to the place of occurrence and lifted three pieces of bones, blood stained earth. Both were made into parcel and then sealed. Both were sealed separately seal after use was handed over to me. Both the parcels were taken into possession vide recovery memo Ex.PG.”

(Emphasis supplied)

12. Significantly; the prosecutor produced the bundle containing three pieces of bones, which are identified by PW-8 as the same pieces of bones, which were under seizure by the police authorities at the place of occurrence — these bones, however, were not produced and placed for examination before the postmortem doctor as to whether they can be co-related with that of the deceased person. The Serological Report of these bones did not see the light neither the Ballistic Experts’ Report as to the nature of the weapons used. It is a duty cast on the prosecution to prove the guilt of the accused persons beyond all reasonable doubts. High Court has dealt with the issue that the thumb marked disclosure statement of Ram Singh dated 29.1.1992 casts a lot of doubt as to the involvement of accused Ram Singh since Ram Singh was arrested only on 13.2.1992 as such disclosure statement of 29.1.1992 cannot be had — it is this inconsistency which was noticed by the High Court and Ram Singh, at whose instance the ring was supposed to have been recovered, stands acquitted on the ground of benefit of doubt. The High Court, however, has not considered the medical evidence vis-a-vis the eye-witnesses’ account — the conflict and inconsistency between the two also raises a very great suspicion in the mind of the Court: credibility of the prosecution case stands at zero level by reason of the conclusion of the High Court and accordingly benefit of doubt to Ram Singh. It is the same prosecutor, which has recovered the pieces of bones, had it exhibited but not produced before the postmortem doctor, who would otherwise be able to identify the bones as that of the deceased. This failure of the prosecution, in our view, cannot be taken as a mere omission but a failure, which would go a long way in the matter of reposing confidence thereon.

13. While it is true that the law is well settled in regard to the issue that in an appeal against conviction for the offence of murder Supreme Court would be rather slow to intervene in the event of there being a concurrent finding of fact but it is equally settled that in the event the finding, which suffers from the vice of perversity of any fundamental rules or even a definite procedural injustice going to the root of the prosecution case question of the Apex Court being slow in intervention would not arise. In this context, reference may be made to the decision of this Court in Arjun Marik and Ors. v. State of Bihar (1994 Supp (2) SCC 372) wherein this Court in paragraph 15 stated as below:-

“15. We are also aware of the fact that as a rule of practice, in appeal against conviction for offence of murder Supreme Court is slow to disturb a concurrent finding of fact unless it is shown that the finding is manifestly erroneous, clearly unreasonable, unjust or illegal or violative of some fundamental rule of procedure or natural justice. Further it has also to be remembered that in a murder case which is cruel and revolting it becomes all the more necessary for the Court to scrutinise the evidence with more than ordinary care lest the shocking nature of the crime might induct instinctive reaction against a dispassionate judicial scrutiny of the evidence in law.”

14. The Judgment under appeal admittedly does not contain a whisper even pertaining to the contradictions between eye-witnesses account and the medical evidence. In the contextual facts and as noticed above, medical evidence runs positively counter to the eye-witnesses’ account rendering the ocular testimony not being dependable or trustworthy. There is no credible evidence on record. It is significant that all the so-called eye-witnesses were produced in Court by the police from its custody in handcuff condition and it is only on the witness box that the handcuffs were released and taken up from the body of the person. All of them are under-trial prisoners being involved in a murder trial. The Court thus has to scrutinise its evidence with a title bit of caution and scrutiny so as to judge their veracity. Admittedly all the supposed eye-witnesses are relations of the deceased. As such they fall within a category of interested witnesses. It is not that the evidence ought to be discredited by reason of the witness being simply an interested witness but in that event the Court will be rather strict in its scrutiny as to the acceptability of such an evidence. High Court has principally relied on the 161 statements and the contradictions available on the record have not been taken note of. In our view this is a clear error on the part of the High Court. Some weapons have been seized along with the cartridges and it has been stated that such recovery was effected in terms of the disclosure statement. Before this Court it has been strongly urged that the same is in contravention of Section 27 of the Evidence Act. Undoubtedly, Section 27, though provides an exception, but the Court should always be vigilant about the circumvention of its provision — “Sarkar on Evidence (15th Edition)” has the following to state on Section 27:-

“…..The protection afforded by the wholesome provisions of Sections 25 and 26 is sought to be whittled down by the police by their ingenuity in manipulating the record of the information given by the accused in the case-diary in such a manner as to make it appear that it led to the discovery of some facts although the police might have made such discovery from other sources. When a fact is once discovered from information received from another source, there can be no discovery again even if any information relating thereto is subsequently extracted from the accused. A devise sometimes adopted by the police is to stage a scene and take the accused to the place where the things discovered lay buried or hidden and require him to make a search for them at the spot indicated to the accused, or sometimes the articles are first produced before the accused and thereafter statements purporting to have been made by him about the so-called discovery are recorded. Court should be watchful that the protection afforded by Sections 25 and 26 should not be dependent on the ingenuity of the police officer in composing the narrative conveying the information relating to the alleged recovery of a fact.”

15. In Pulukuri Kotayya v. Emperor 741 Ind. APP 65: (AIR 1947 PC 67), the Privy Council considered the provision of Section 27 of Evidence Act and observed:-

“It is fallacious to treat the ‘fact discovered’ within the section as equivalent to the object produced; the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this, and the information given must relate distinctly to this fact. Information as to past user, or the past history, of the object produced is not related to its discovery in the setting in which it is discovered. Information supplied by a person in custody that ‘I will produce a knife concealed in the roof of my house’ does not lead to the discovery of a knife; knives were discovered many years ago. It leads to the discovery of the fact that a knife is concealed in the house of the informant to his knowledge, and if the knife is proved to have been used in the commission of the offence, the fact discovered is very relevant. But if to the statement the words be added ‘with which I stabbed A’., these words are inadmissible since they do not relate to the discovery of the knife in the house of the informant.” (p. 77 of Ind App)”

16. The observations stand accepted by this Court in Prabhoo v. State of Uttar Pradesh .

17. Let us however, at this stage, analyse the evidentiary value of such discoveries.

(i) Licensed double barrel .12 bore gun bearing No. 70002-1978 along with license No. 240-VII/Fatehabad (valid upto 2.8.1992) along with three .12 bore cartridges and one fired cartridge case of .12 bore — this recovery memo stands witnessed by Dholu Ram (PW-10) and Budh Ram (PW-8).

(ii) Recovery memo of Jeep No. RJI-3407 — this recovery stands witnessed by Dholu Ram and Budh Ram, PWs 10 and 8.

(iii) Pointing out memo — Rai Sahab, Ram Kanwar, Rich Pal and Bhajan Lal led the police party to Badipal Canal, at Chable Mori and pointed out the place where on the left bank of the canal the jeep had been parked and thereafter the dead body was put into the canal: this pointing out memo also stands witnessed by Dholu Ram and Budh Ram.

(iv) Four disclosure statements of Bhajan Lal, Ram Kanwar, Rich Pal and Rai Sahab accused persons and all the four statements stand witnessed by Dholu Ram and Budh Ram, PWs 10 and 8.

(v) Recovery memo of blood stained earth lifted from left bank of Badipal Canal near the bridge of Chable Mori stands witnessed by Dholu Ram and Budh Ram.

(vi) Disclosure statement/memo of the accused Ram Singh: while in the process of throwing the dead body of Manphool in the canal, a golden ring was removed from his person and that ring has been kept concealed though led to the subsequent recovery of the same. This statement however stands witnessed by Ranjit and Atma Ram (PW-11).

(vii) Recovery memo of golden ring in terms of the disclosure statement witnessed by Ranjit and Atma Ram (PW-11).

“Ranjit happens to be the brother of Manphool, the deceased: the memos mentioned in No. 1-5 are all dated 29.1.1992 whereas 6th and 7th memos are dated 13.2.1992.”

18. Two of the recoveries, as noticed above, thus stood witnessed by Atma Ram: let us briefly, at this stage, refer to the deposition of Atma Ram noticed herein before to the extent that on 26/27.1.192 when Atma Ram was searching for the dead body of Manphool, he reached Chable more and saw a dead body floating — the dead body was then lifted to the bank of the canal and whereas Atma Ram was keeping a watch, Yad Ram was sent to inform the police. The police came along with Dholu and Ranjit. On the second occasion again Atma Ram and Ranjit enquired, after having discovered that though the dead body was recovered some time back, whether Ram Singh had been arrested or not — when Thanedar met them and in the meantime a four wheeler came from which the accused Ram Singh had alighted and on the pointing out by Atma Ram, Ram Singh was arrested and thereupon interrogation started by the police, which made Ram Singh to disclose the commission of the offence and throwing up of the dead body in the canal as also removal of the golden ring from the finger of the dead body and subsequently recovery thereof, as noticed herein before. The ring was identified. The High Court, however, thought it fit to acquit Ram Singh by reason of discrepancy in the records.

19. These are, however, the evidence available on record for the recoveries effected upon disclosure being made. The High Court obviously did not place any reliance on the evidence of Atma Ram as otherwise no acquittal could have been ordered for Ram Singh.

20. Significantly all disclosures, discoveries and even arrests have been made in the presence of three specific persons, namely, Budh Ram, Dholu Ram and Atma Ram — no independent witness could be found in the aforesaid context — is it deliberate or is it sheer coincidence — this is where the relevance of the passage from Sarkar on Evidence comes on. The ingenuity devised by the prosecutor knew no bounds — Can it be attributed to be sheer coincidence? Without any further consideration of the matter, one thing can be more or less with certain amount of conclusiveness be stated that these at least create a doubt or suspicion as to whether the same has been tailor-made or not and in the event of there being such a doubt, the benefit must and ought to be transposed to the accused persons. The trial Court addressed itself on scrutiny of evidence and came to a conclusion that the evidence available on record is trustworthy but the High Court acquitted one of the accused persons on the basis of some discrepancy between the oral testimony and the documentary evidence as noticed fully herein before. The oral testimony thus stands tainted with suspicion. If that be the case, then there is no other evidence apart from the omni present Budh Ram and Dholu Ram, who however are totally interested witnesses. While it is true that legitimacy of interested witnesses cannot be discredited in any way nor termed to be a suspect witness but the evidence before being ascribed to be trustworthy or being capable of creating confidence, the Court has to be consider the same upon proper scrutiny. In our view, the High Court was wholly in error in nor considering the evidence available on record in its proper perspective. The other aspect of the matter is in regard to the defence contention that Manphool was missing from village for about 2/3 days and is murdered on 21.1.1992 itself. There is defence evidence on record by DW-3 Raja Ram that Manphool was murdered on 21.1.1992. The High Court rejected the defence contention by reason of the fact that it was not suggested to Budh Ram or Dholu Ram that the murder had taken place on 21.1.1992 itself and DW-3 Raja Ram had even come to attend the condolence and it is by reason therefore Raja Ram’s evidence was not accepted. Incidentally be it noted that the evidence tendered by defence witnesses cannot always be termed to be a tainted one — the defence witnesses are entitled to equal treatment and equal respect as that of the prosecution. The issue of credibility and the trustworthiness ought also to be attributed to the defence witnesses at par with that of the prosecution. Rejection of the defence case on the basis of the evidence tendered by defence witness has been effected rather casually by the High Court. Suggestion was there to the prosecution’s witnesses in particular PW-10 Dholu Ram that his father Manphool was missing for about 2/3 days prior to the day of the occurrence itself — what more is expected of the defence case : a doubt or a certainty — jurisprudentially a doubt would be enough : when such a suggestion has been made prosecution has to bring on record the availability of the deceased during those 2/3 days with some independent evidence. Rejection of the defence case only by reason thereof is far too strict and rigid a requirement for the defence to meet — it is prosecutor’s duty to prove beyond all reasonable doubts and not the defence to prove its innocence — this itself is a circumstance, which cannot but be termed to be suspicious in nature.

21. Considering the aforesaid, we do feel it expedient to record that the High Court fell into a manifest error in coming to a conclusion as reflected in the Judgment under appeal and which thus cannot be sustained. The appeal (Criminal Appeal No. 79/1999), therefore, succeeds and is allowed and the appellants be released from the custody, if not required in any other proceedings.

22. In view of the decision above, Criminal Appeal No. 78/1999 (State of Haryana v. Ram Singh)fails and stands dismissed.