| Medical Evidence Vs Ocular Evidence…Where the medical evidence goes so far that it completely rules out all possibility of the ocular evidence being true, the ocular evidence may be disbelieved…SC jt dt 14.09.2010 | |
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IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 1243 OF 2007 Abdul Sayeed … Appellant Vs. State of Madhya Pradesh …Respondent WITH CRIMINAL APPEAL NO. 1399 OF 2008 Rafique … Appellant Vs. State of Madhya Pradesh …Respondent AND CRIMINAL APPEAL NOS.1363-1365 OF 2010 Rais @ Toun & Ors. …Appellants Vs. State of Madhya Pradesh ….Respondent JUDGMENT Dr. B.S. CHAUHAN, J. 1. All the aforesaid appeals have been filed against the common judgment and order dated 12.1.2006, of the High Court of Madhya Pradesh at Jabalpur in Criminal Appeal Nos.1191 of 1998; 1210 of 1998; and 281 of 2001 by which the appellants have been convicted under Sections 302/34 of the Indian Penal Code, 1860 (hereinafter called IPC) for committing the murders of Chand Khan and Shabir Khan, while setting aside their conviction under Sections 147 and 148 IPC awarded by the Trial Court. 2. Facts and circumstances giving rise to these appeals are that on 16.8.1994 at about 7.50 p.m., F.I.R. No.1/1994 under Sections 302, 147, 148, 149 and 307 IPC was lodged at Police Station Mandai Chowk Sarangpur, Madhya Pradesh, according to which 17 accused including 5 appellants armed with deadly weapons came from the mosque way; stopped Chand Khan and started beating him with weapons with an intention to kill him. After hearing the hue and cry made by Chand Khan, his wife Zaira Banu, sons Shabir (deceased), Anees (PW.1), and Ashfaq (PW.2), and brother Usman Ali (PW.4) came running to the place of occurrence and after seeing the incident, they were so scared that they could not muster the courage to intervene immediately. After some time Zaira Banu, Shabir and Ashfaq tried to rescue Chand Khan. Shabir was also assaulted, he was seriously injured and died on the spot. Ashfaq (PW.2), and his mother Zaira Banu also got injuries on their persons at the hands of the accused. 2 3. The Investigating Officer sent the dead bodies for post-mortems which were conducted by Dr. R.P. Sharma (PW.3). In his opinion, the cause of death of both Chand Khan and Shabir was excessive hemorrhage resulting in injuries to brain and lungs. Ashfaq (PW.2) was also examined medically. After completing the investigation, out of the seventeen accused, fourteen were put to trial for offences under Sections 148, 302 and 323, in the alternative 302/149, 324/149 and 323/149 IPC. One Nanhe Khan @ Abdul Wahid died before commencement of trial. One accused namely, Rais S/o Mumtaz is still absconding. While Iqbal @ Bhura, appellant, had also absconded, but afterwards he surrendered and was tried separately. The appellants and the other accused denied the charges and pleaded that they were falsely implicated and claimed trial. The prosecution examined 12 witnesses including Anees (PW.1), Ashfaq (PW.2) and Usman Ali (PW.4), as eye-witnesses. The other relevant witnesses were Dr. R.P. Sharma (PW.3) who conducted the post-mortems on the bodies of the deceased, Ramesh Kumar Dubey (PW.7) and Rajmal Sharma (PW.8) who had investigated the case. The appellants examined 4 witnesses in defence. 4. After conclusion of the trial, the Special Additional Sessions Judge, Shajapur, convicted Abdul Sayeed (A.11), Mumtaz Khan (A.9), Rafiq (A.6) 3 and Rais (A.5) under Section 148 IPC and awarded a sentence of 3 years’ imprisonment to each; Mumtaz (A.9) was sentenced to 2 years’ imprisonment under Section 147; Mumtaz (A.9) and Abdul Sayeed (A.11) were sentenced to Rigorous Imprisonment for life and fine of Rs.2000/- under Section 302 IPC for committing murder of Chand Khan; Rais @ Toun (A.5) and Rafiq (A.6) were sentenced to Rigorous Imprisonment for life and fine of Rs.1000/- under Section 302 IPC for committing murder of Shabir; Sayeed (A.7) was convicted under Section 324 IPC and given 2 years Rigorous Imprisonment for causing injuries to Ashfaq (PW.2); Hanif Khan (A.1), was convicted under Sections 304 Part-II, 323 and 147 IPC for causing injuries to Shabir. Iqbal alias Bhura, appellant also got convicted in separate Sessions Trial No.190/94 vide judgment and order dated 11.1.2001, under Sections 148 and 302 IPC and was awarded Rigorous Imprisonment of 3 years and life imprisonment respectively along with certain fines. 5. All the said convicts filed Criminal Appeal Nos.1191/98; 1210/98; 1233/98; and 281/2001 before the High Court of Madhya Pradesh. The State of Madhya Pradesh also filed Criminal Appeal No.1447/98 against the acquittal of some of the accused for offences under Sections 302/149, 324/149 and 323/149 IPC. As all the appeals related to the same incident, 4 the High Court disposed of all the appeals by the common judgment and order dated 12.1.2006 wherein the appellants had been convicted as mentioned hereinabove, i.e., under Sections 302/34 IPC setting aside their conviction under Sections 147/148 IPC. The High Court allowed Criminal Appeal No.1191/98 with regard to the other co-accused, Hanif Khan, Bashir Khan, Sayeed and Aslam. The appeal filed by the State of Madhya Pradesh was partly allowed. Hence, these appeals. 6. All these appeals have arisen from the same incident and have been filed against the common judgment of the High Court and thus, are being heard together. 7. Shri Fakhruddin, learned Senior counsel, Shri Ranbir Singh Yadav and Ms. Rakhi Ray, learned counsel appearing for the appellants, have submitted that in case the High Court had set aside the conviction of all the appellants and other co-accused under Sections 147/148 IPC, question of convicting them with the aid of Section 34 IPC did not arise, even otherwise no charge under Section 34 IPC was framed by the Trial Court; nor any evidence had been led to show that offences had been committed by the appellants in furtherance of a common intention. Essential ingredients of 5 Section 34 IPC, i.e., that a common intention was shared, has not been established by the prosecution. More so, the weapons allegedly used for committing the offences by the appellants do not tally with the ocular evidence of the eye-witnesses. Therefore, injuries caused to the deceased and other injured persons cannot be attributed to the appellants. Conviction under Sections 302/34 IPC is unwarranted and thus, the appeals deserve to be allowed. 8. On the other hand, Shri C.D. Singh, learned counsel appearing for the State, has vehemently opposed the appeals contending that not framing the charge under Section 34 IPC is not fatal to the prosecution and the High Court has rightly convicted the appellants under Sections 302/34 IPC. Seventeen persons came to the spot armed with deadly weapons with a common intention to kill Chand Khan. They surrounded Chand Khan and started causing injuries to him. In such a fact-situation the eye-witnesses may not describe exactly what role had been played by an individual assailant. If there are small omissions in the depositions of the eye- witnesses, the same require to be ignored. The injured witnesses have to be relied upon and even in case there is some conflict between the ocular 6 evidence and medical evidence, the ocular evidence has to be preferred. Therefore, the appeals lack merit and are liable to be dismissed. 9. We have considered the rival submissions made by the learned counsel for the parties and perused the record. 10. As mentioned hereinabove, 17 persons had allegedly participated in the crime. As per the prosecution, on the date of occurrence, i.e., 16.8.1994 at about 11 A.M., one Kamla Bai, daughter of Dev Karan, neighbour of informant Anees (PW.1) was molested by Munim Khan and Mumtaz Khan (accused/appellant) in the fields of Faqir. Smt. Gora Bai, mother of Kamla Bai, complained to Chand Khan with regard to the said incident. Chand Khan (since deceased), went to advise the uncle of Munim Khan and Pappu alias Chote Khan in this regard and scolded them. He also gave one slap to one of the accused. The appellants and other co-accused did not like the conduct of Chand Khan and in the evening the appellants and the co-accused committed the offence mentioned hereinabove. In fact, this had been the motive for commission of the offence. 7 11. Out of the seventeen accused, ten stood acquitted by the courts below. One of them is still absconding. One had died prior to the commencement of the trial. Only five accused/appellants have been convicted by the High Court. Therefore, we are concerned only with the cases of these appellants. Making reference to any of the other co-accused at this stage would not serve any purpose. 12. As per the Autopsy Report (Ex.P/7-A), prepared by Dr. R.P. Sharma (PW.3) in respect of Chand Khan, the following external injuries were noticed:- 1. Incised wound on head at occipital region, 1.5 cm x 1 x bone deep with fracture. 2. Incised wound on right parietal region 2.5 cm x = x bone deep fracture of right parietal bone, clotted blood on cerebral membrane. 3. Incised wound on left leg 10 cm x 2 cm upto bony region of Tibia. 4. Stab wound on left side of chest between 3rd and 4th rib deep upto lung 1.5 cm x = cm x deep upto left lung puncture. 8 5. Incised wound on left arm of posterior surface 5 cm x 2 cm x = cm. 6. Lacerated wound over the left eye 1 cm x = cm x < cm. In the opinion of the doctor grievous injures to vital organs i.e. head and lungs caused excessive haemorrhage which resulted in death. 13. Dr. R.P. Sharma (PW.3) also performed Autopsy on the body of Shabir Khan and gave Post-Mortem Report Ex.P/8-A. In this report he duly noted the external injuries as under:- 1. Incised wound on head at right frontal level to right ear underneath frontal bone fracture. 2. Incised wound over the left parietal region 4, =” x bone deep . 3. One lacerated wound over the occipital region =” x <” x <”. 4. Stab injury on the right side chest 1″ x <” x <”. 5. Stab injury on the right side chest 1″ x =” x deep upto lung. 6. Incised wound on left shoulder 2, =” x =” x =”. 7. Incised wound on right arm =” x =” x =”. 8. Incised wound on right arm 1″ x <” x <”. 9 The Autopsy Surgeon opined that on account of grievous injury to vital parts i.e. head and chest caused excessive haemorrhage which resulted in coma and death. Cause of death was Syncope. 14. Dr. M.K. Vashistha (PW.5) the Medical Specialist at Biaora, examined Ashfaq (PW.2) and prepared the report (Ex.P.10), according to which, he had sustained four injuries as under: 1. Incised wound 1 x 1/6 x 1/6 cm right side of the neck. 2. One bruise red 3 x 1 cm on the left arm. 3. Patient had complained of pain in the left leg but there was no external injury. 4. Abrasion on hip size = x = cm. The injuries were simple. 15. So far as Abdul Sayeed (A.11) is concerned, as per the prosecution he had a knife of 8″ and assaulted Chand Khan. It is evident from the evidence of Anees (PW.1), Ashfaq (PW.2) and Usman Ali (PW.4) that Chand Khan received cut injuries and stab wounds as found by Dr. R.P. Sharma (PW.3). As per the medical report, his left lung was found punctured due to a stab wound. The knife used in the crime was recovered by the Investigating Officer at the instance of the said appellant. He has also caused injury to Ashfaq (PW.2), an eye-witness. In view of the above, the trial Court as well 10 as the High Court reached the conclusion that he was one of the accused persons responsible for the death of Chand Khan. 16. So far as Rais alias Toun (A.5) is concerned, as per the evidence of Anees (PW.1), Ashfaq (PW.2) and Usman Ali (PW.4) when Shabir (since deceased), came to save his father Chand Khan, Rais Khan (A.5) attacked Shabir with sword. Dr. R.P. Sharma (PW.3) who examined Shabir deposed that the injuries suffered by Shabir were the result of the use of the weapon assigned to Rais alias Toun as well as other co-accused. Rais alias Toun had the sword which resulted these wounds. The trial Court as well as the High Court have found Rais responsible for killing Shabir. 17. So far as Rafiq (A.6) is concerned, as per the evidence of Anees (PW.1), Ashfaq (PW.2) and Usman Ali (PW.4), Rafiq used a Gupti for committing the crime. Injuries caused with the Gupti were found by Dr. R.P. Sharma (PW.3) on the body of Shabir. The Gupti used by Rafiq was 18″ in length and 1-1/2″ in thickness and it was sharp like a knife. The trial Court as well as the High Court recorded the specific finding that the wound found on the body of Shabir was by plying Gupti and this was done by appellant Rafiq on Shabir (deceased). 11 18. So far as Mumtaz Khan (A.9) is concerned, as per the evidence of all the three eye-witnesses, he was holding a Farsi and had beaten Chand Khan. There was a cut wound on the head of Chand Khan due to which the bone of the occipital region cracked and Dr. R.P. Sharma (PW.3) deposed that he had found the skull wound which resulted in cracking of the skull. The trial Court as well as the High Court, after appreciating the entire evidence on record came to the conclusion that Mumtaz Khan took an active part in beating Chand Khan, due to which he died spontaneously. 19. So far as Iqbal alias Bhura is concerned, as per the evidence of Anees (PW.1), Ashfaq (PW.2) and Usman Ali (PW.4), he had a sword and assaulted Shabir and the injury caused by him has been duly supported by the medical evidence. The trial Court convicted him vide judgment and order dated 11.1.2001 in a separate trial. The trial Court and the High Court found him guilty for committing murder of Shabir. 20. Ashfaq (PW.2) has stated that all the accused surrounded his father and attacked him with their weapons from all sides. He has named Rais alias Toun, Mumtaz Khan, Abdul Sayeed and Iqbal alias Bhura. It is also 12 evident from his deposition that while running away from the place of occurrence they mocked him and said: “however many of you come, we will see the end of you.” This shows that there was a common intention. Ashfaq has also explained how he had been injured. Anees (PW.1) has also deposed regarding the participation of all the five appellants and has explained what weapons they were carrying and how they had caused injuries to his father and brother. He has deposed that Chand Khan was killed by Abdul Sayeed and Mumtaz Khan and Shabir by Iqbal alias Bhura, Rais alias Toun and Rafiq. Usman Ali (PW.4), has named all the appellants along with the other co-accused who have been acquitted by the Courts below and has given full details of the incident. He also deposed that while causing the injuries, the culprits were shouting “kill them kill them”. He denied the suggestion that the appellants had not caused injury to Shabir and also denied the suggestion that Iqbal was not present there at the time of incident. He also denied the suggestion that Mumtaz Khan and Abdul Sayeed did not cause any injury to Chand Khan with Farsi and knife respectively. 21. It has strenuously been argued on behalf of the appellants that the injuries found on the person of victims could not be caused with the 13 weapons alleged to have been with the appellants and the same cannot be in consonance with the ocular evidence of Anees (PW.1), Ashfaq (PW.2) and Usman Ali (PW.4). Thus, appellants are entitled for the benefit of doubt as there is clear cut contradiction between the ocular and medical evidence. Identification in a Crowd of Assailants: 22. In cases where there are a large number of assailants, it can be difficult for a witness to identify each assailant and attribute a specific role to him. In Masalti v. State of Uttar Pradesh, AIR 1965 SC 202, this Court held as under:- “Where a crowd of assailants who are members of an unlawful assembly proceeds to commit an offence of murder in pursuance of the common object of the unlawful assembly, it is often not possible for witnesses to describe accurately the part played by each one of the assailants. Besides, if a large crowd of persons armed with weapons assaults the intended victims, it may not be necessary that all of them have to take part in the actual assault. In the present case, for instance, several weapons were carried by different members of the unlawful assembly, but it appears that the guns were used and that was enough to kill 5 persons. In such a case, it would be unreasonable to contend that because the other weapons carried by the members of the unlawful assembly were not used, the story in regard to the said weapons itself should be rejected. Appreciation of evidence in such complex case is no doubt a difficult task; but criminal courts have to do their best in dealing with such cases and it is their duty to sift the evidence 14 carefully and decide which part of it is true and which is not.” [Emphasis added] 23. A similar view was taken by this Court in Kallu alias Masih & Ors. v. State of Madhya Pradesh, (2006) 10 SCC 313; and Viji & Anr. v. State of Karnataka, (2008) 15 SCC 786 observing that in such a case it is not possible that all the witnesses may specifically refer to the acts of each assailants. 24. In Bhag Singh & Ors. v. State of Punjab (1997) 7 SCC 712, while dealing with a similar contention, this Court observed: “It is a general handicap attached to all eyewitnesses, if they fail to speak with precision their evidence would be assailed as vague and evasive, on the contrary if they speak to all the events very well and correctly their evidence becomes vulnerable to be attacked as tutored. Both approaches are dogmatic and fraught with lack of pragmatism. The testimony of a witness should be viewed from broad angles. It should not be weighed in golden scales, but with cogent standards. In a particular case an eyewitness may be able to narrate the incident with all details without mistake if the occurrence had made an imprint on the canvas of his mind in the sequence in which it occurred. He may be a person whose capacity for absorption and retention of events is stronger than another person. It should be remembered that what he witnessed was not something that happens usually but a very exceptional one so far as he is concerned. If he reproduces it in the same sequence as it registered in his 15 mind the testimony cannot be dubbed as artificial on that score alone.” 25. In the instant case, a very large number of assailants attacked Chand Khan and Shabir (deceased), caused injuries with deadly weapons to them. The incident stood concluded within few minutes. Thus, it is natural that the exact version of the incident revealing every minute detail, i.e., meticulous exactitude of individual acts cannot be given by the eye-witnesses. Injured Witness 26. The question of the weight to be attached to the evidence of a witness that was himself injured in the course of the occurrence has been extensively discussed by this Court. Where a witness to the occurrence has himself been injured in the incident, the testimony of such a witness is generally considered to be very reliable, as he is a witness that comes with a built-in guarantee of his presence at the scene of the crime and is unlikely to spare his actual assailant(s) in order to falsely implicate someone. “Convincing evidence is required to discredit an injured witness”. (Vide Ramlagan Singh & Ors. v. State of Bihar, AIR 1972 SC 2593; Malkhan Singh & Anr. v. State of Uttar Pradesh, AIR 1975 SC 12; Machhi Singh & Ors. v. State of Punjab, AIR 1983 SC 957; Appabhai & Anr. v. State of Gujarat, 16 AIR 1988 SC 696; Bonkya alias Bharat Shivaji Mane & Ors. v. State of Maharashtra, (1995) 6 SCC 447; Bhag Singh & Ors. (supra); Mohar & Anr. v. State of Uttar Pradesh, (2002) 7 SCC 606; Dinesh Kumar v. State of Rajasthan, (2008) 8 SCC 270; Vishnu & Ors. v. State of Rajasthan, (2009) 10 SCC 477; Annareddy Sambasiva Reddy & Ors. v. State of Andhra Pradesh, AIR 2009 SC 2261; Balraje alias Trimbak v. State of Maharashtra, (2010) 6 SCC 673). 27. While deciding this issue, a similar view was taken in, Jarnail Singh v. State of Punjab, (2009) 9 SCC 719, where this Court reiterated the special evidentiary status accorded to the testimony of an injured accused and relying on its earlier judgments held as under:- “Darshan Singh (PW 4) was an injured witness. He had been examined by the doctor. His testimony could not be brushed aside lightly. He had given full details of the incident as he was present at the time when the assailants reached the tubewell. In Shivalingappa Kallayanappa v. State of Karnataka, 1994 Supp (3) SCC 235, this Court has held that the deposition of the injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies, for the reason that his presence on the scene stands established in case it is proved that he suffered the injury during the said incident. In State of U.P. v. Kishan Chand, (2004) 7 SCC 629, a similar view has been reiterated observing that 17 the testimony of a stamped witness has its own relevance and efficacy. The fact that the witness sustained injuries at the time and place of occurrence, lends support to his testimony that he was present during the occurrence. In case the injured witness is subjected to lengthy cross- examination and nothing can be elicited to discard his testimony, it should be relied upon (vide Krishan v. State of Haryana, (2006) 12 SCC 459). Thus, we are of the considered opinion that evidence of Darshan Singh (PW 4) has rightly been relied upon by the courts below.” 28. The law on the point can be summarised to the effect that the testimony of the injured witness is accorded a special status in law. This is as a consequence of the fact that the injury to the witness is an in-built guarantee of his presence at the scene of the crime and because the witness will not want to let his actual assailant go unpunished merely to falsely implicate a third party for the commission of the offence. Thus, the deposition of the injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies therein. 29. Ashfaq (PW.2) had given graphic description of the entire incident. His presence on the spot cannot be doubted as he was injured in the incident. His deposition must be given due weightage. His deposition also stood fully corroborated by the evidence of Anees (PW.1) and Usmal Ali (PW.4). The 18 depositions so made cannot be brushed aside merely because there have been some trivial contradictions or omissions. Medical Evidence versus Ocular Evidence 30. In Ram Narain Singh v. State of Punjab, AIR 1975 SC 1727, this Court held that where the evidence of the witnesses for the prosecution is totally inconsistent with the medical evidence or the evidence of the ballistics expert, it amounts to a fundamental defect in the prosecution’s case and unless reasonably explained it is sufficient to discredit the entire case. 31. In State of Haryana v. Bhagirath & Ors., (1999) 5 SCC 96, it was held as follows:- “The opinion given by a medical witness need not be the last word on the subject. Such an opinion shall be tested by the court. If the opinion is bereft of logic or objectivity, the court is not obliged to go by that opinion. After all opinion is what is formed in the mind of a person regarding a fact situation. If one doctor forms one opinion and another doctor forms a different opinion on the same facts it is open to the Judge to adopt the view which is more objective or probable. Similarly if the opinion given by one doctor is not consistent with probability the court has no liability to go by that opinion merely because it is said by the doctor. Of course, due weight must be given to opinions given by persons who are experts in the particular subject.” [Emphasis added] 19 32. Drawing on Bhagirath’s case (supra.), this Court has held that where the medical evidence is at variance with ocular evidence, it has to be noted that it would be erroneous to accord undue primacy to the hypothetical answers of medical witnesses to exclude the eyewitnesses’ account which had to be tested independently and not treated as the “variable” keeping the medical evidence as the “constant”. Where the eyewitnesses’ account is found credible and trustworthy, a medical opinion pointing to alternative possibilities can not be accepted as conclusive. The eyewitnesses’ account requires a careful independent assessment and evaluation for its credibility, which should not be adversely prejudged on the basis of any other evidence, including medical evidence, as the sole touchstone for the test of such credibility. The evidence must be tested for its inherent consistency and the inherent probability of the story; consistency with the account of other witnesses held to be creditworthy; consistency with the undisputed facts, the “credit” of the witnesses; their performance in the witness box; their power of observation etc. Then the probative value of such evidence becomes eligible to be put into the scales for a cumulative evaluation. (Vide Thaman Kumar v. State of Union Territory of Chandigarh, (2003) 6 SCC 380; and Krishnan v. State, (2003) 7 SCC 56). 20 33. In Solanki Chimanbhai Ukabhai v. State of Gujarat, AIR 1983 SC 484, this Court observed, “Ordinarily, the value of medical evidence is only corroborative. It proves that the injuries could have been caused in the manner alleged and nothing more. The use which the defence can make of the medical evidence is to prove that the injuries could not possibly have been caused in the manner alleged and thereby discredit the eye-witnesses. Unless, however the medical evidence in its turn goes so far that it completely rules out all possibilities whatsoever of injuries taking place in the manner alleged by eyewitnesses, the testimony of the eye-witnesses cannot be thrown out on the ground of alleged inconsistency between it and the medical evidence.” [Emphasis added] 34. A similar view has been taken in Mani Ram & Ors. v. State of U.P., 1994 Supp (2) SCC 289; Khambam Raja Reddy & Anr. v. Public Prosecutor, High Court of A.P., (2006) 11 SCC 239; and State of U.P. v. Dinesh, (2009) 11 SCC 566. 35. In State of U.P. v. Hari Chand, (2009) 13 SCC 542, this Court re- iterated the aforementioned position of law and stated that, “In any event unless the oral evidence is totally irreconcilable with the medical evidence, it has primacy.” 21 36. Thus, the position of law in cases where there is a contradiction between medical evidence and ocular evidence can be crystallised to the effect that though the ocular testimony of a witness has greater evidentiary value vis-`-vis medical evidence, when medical evidence makes the ocular testimony improbable, that becomes a relevant factor in the process of the evaluation of evidence. However, where the medical evidence goes so far that it completely rules out all possibility of the ocular evidence being true, the ocular evidence may be disbelieved. 37. In the instant case as referred to hereinabove, a very large number of assailants attacked one person, thus the witnesses cannot be able to state as how many injuries and in what manner the same had been caused by the accused. In such a fact-situation, discrepancy in medical evidence and ocular evidence is bound to occur. However, it cannot tilt the balance in favour of the appellants. 38. It has been canvassed on behalf of the appellants that there was no charge framed under Section 34 IPC by the trial Court and appellants and other co-accused have been charged under Section 147/148 IPC. All of them have been acquitted for the said charges. Thus, it was not permissible 22 for the High Court to convict the appellants with the aid of Section 34 IPC. Non-framing of charge is fatal to the prosecution. Thus, the appellants are entitled for acquittal on this ground alone. Effect of Failure to frame proper charges 39. In State of Andhra Pradesh v. Thakkidiram Reddy & Ors., (1998) 6 SCC 554, this Court considered the issue of failure to frame the proper charges. observing as under: “10. Sub-section (1) of Section 464 of the Code of Criminal Procedure 1973 (`the Code’, for short) expressly provides that no finding, sentence or order by a court of competent jurisdiction shall be deemed invalid merely on the ground that no charge was framed or on the ground of any error, omission or irregularity in the charge including any misjoinder of charges, unless in the opinion of the court of appeal, confirmation or revision, a failure of justice has in fact been occasioned thereby. Sub-section (2) of the said section lays down the procedure that the court of appeal, confirmation or revision has to follow in case it is of the opinion that a failure of justice has in fact been occasioned. The other section relevant for our purposes is Section 465 of the Code; and it lays down that no finding, sentence or order passed by a court of competent jurisdiction shall be reversed or altered by a court of appeal, confirmation or revision on account of any error, omission or irregularity in the proceedings, unless in the opinion of that court, a failure of justice has in fact been occasioned. It further provides, inter alia, that in determining whether any error, omission or irregularity in any proceeding under this Code has occasioned a failure of justice, the Court shall have regard to the fact 23 whether the objection could and should have been raised at an earlier stage in the proceedings.” The Court further held that in judging a question of prejudice, as of guilt, the court must look to the substance of the matter and not to technicalities, and its main concern should be to see whether the accused had a fair trial, whether he knew what he was being tried for, whether the main facts sought to be established against him were explained to him fairly and clearly and whether he was given a full and fair chance to defend himself. In the said case this Court ultimately came to the conclusion that despite the defect in the framing of charges, as no prejudice had been caused to the accused, no interference was required. 40. A Constitution Bench of this Court in Willie (William) Slaney v. State of Madhya Pradesh, AIR 1956 SC 116, considered the issue of failure to frame charges properly and the conviction of an accused for the offences for which he has not been charged and reached the conclusion as under:- “86. … In such a situation, the absence of a charge under one or other of the various heads of criminal liability for the offence cannot be said to be fatal by itself, and before a conviction for the substantive offence, 24 without a charge, can be set aside, prejudice will have to be made out. …. 87. … If it is so grave that prejudice will necessarily be implied or imported, it may be described as an illegality. If the seriousness of the omission is of a lesser degree, it will be an irregularity and prejudice by way of failure of justice will have to be established.” 41. This Court in Gurpreet Singh v. State of Punjab, (2005) 12 SCC 615, referred to and relied upon its earlier judgments in Willie (William) Slaney (supra) and Thakkidiram Reddy (supra), and held that unless there is a failure of justice and thereby the cause of the accused has been prejudiced, no interference is required if the conviction can be upheld on the evidence led against the accused. The Court should not interfere unless it is established that the accused was in any way prejudiced due to the errors and omissions in framing the charges against him. A similar view has been re-iterated by this Court in Ramji Singh v. State of Bihar, (2001) 9 SCC 528; and Sanichar Sahni v. State of Bihar, (2009) 7 SCC 198. 42. There is no bar in law on conviction of the accused with the aid of Section 34 IPC in place of Section 149 IPC if there is evidence on record to show that such accused shared a common intention to commit the crime and 25 no apparent injustice or prejudice is shown to have been caused by application of Section 34 IPC in place of Section 149 IPC. The absence of a charge under one or the other or the various heads of criminal liability for the offence cannot be said to be by itself prejudicial to the accused, and before a conviction for the substantive offence without a charge can be set aside, prejudice will have to be made out. Such a legal position is bound to be held good in view of the provisions of Sections 215, 216, 218, 221 and 464 of Code of Criminal Procedure, 1973. (Vide: Dalip Singh & Ors. v. State of Punjab, AIR 1953 SC 364; Malhu Yadav & Ors. v. State of Bihar, (2002) 5 SCC 724; Dhaneswar Mahakud & Ors. v. State of Orissa, (2009) 9 SCC 307; and Annareddy Sambasiva Reddy & Ors. v. State of Andhra Pradesh, AIR 2009 SC 2661). 43. Thus, the law on the issue can be summarised to the effect that unless the accused is able to establish that the defect(s) in framing the charge(s) has caused real prejudice to him; that he was not informed as to what was the real case against him; or that he could not defend himself properly, no interference is required on mere technicalities. 26 44. If the instant case is examined in the light of the aforesaid settled legal propositions we do not find any force in the submissions made on behalf of the appellants. Section 34 IPC 45. The aforesaid conclusion takes us to the issue raised by the appellants as to whether appellants could be convicted with the aid of Section 34 IPC. Section 34 IPC carves out an exception from general law that a person is responsible for his own act, as it provides that a person can also be held vicariously responsible for the act of others if he has the “common intention” to commit the offence. The phrase “common intention” implies a pre-arranged plan and acting in concert pursuant to the plan. Thus, the common intention must be there prior to the commission of the offence in point of time. The common intention to bring about a particular result may also well develop on the spot as between a number of persons, with reference to the facts of the case and circumstances existing thereto. The common intention under Section 34 IPC is to be understood in a different sense from the “same intention” or “similar intention” or “common object”. The persons having similar intention which is not the result of the pre- arranged plan cannot be held guilty of the criminal act with the aid of 27 Section 34 IPC. (See Mohan Singh & Anr. v. State of Punjab, AIR 1963 SC 174). 46. The establishment of an overt act is not a requirement of law to allow Section 34 to operate inasmuch this Section gets attracted when a criminal act is done by several persons in furtherance of the common intention of all. What has, therefore, to be established by the prosecution is that all the concerned persons had shared a common intention. (vide : Krishnan & Anr. v. State of Kerala, (1996) 10 SCC 508; and Harbans Kaur & Anr. v. State of Haryana, (2005) 9 SCC 195 ). Undoubtedly, the ingredients of Section 34, i.e., that the accused had acted in furtherance of their common intention is required to be proved specifically or by inference, in the facts and circumstances of the case. (Vide: Hamlet alias Sasi & Ors. v. State of Kerala, (2003) 10 SCC 108; Pichai alias Pichandi & Ors. v. State of Tamil Nadu, (2005) 10 SCC 505; and Bishna alias Bhiswadeb Mahato & Ors. v. State of West Bengal, (2005) 12 SCC 657). 47. In Gopi Nath @ Jhallar v. State of U.P., (2001) 6 SCC 620, this court observed as under: 28 “8…..Even the doing of separate, similar or diverse acts by several persons, so long as they are done in furtherance of a common intention, render each of such persons liable for the result of them all, as if he had done them himself, for the whole of the criminal action — be it that it was not overt or was only a covert act or merely an omission constituting an illegal omission. The section, therefore, has been held to be attracted even where the acts committed by the different confederates are different when it is established in one way or the other that all of them participated and engaged themselves in furtherance of the common intention which might be of a pre- concerted or pre-arranged plan or one manifested or developed at the spur of the moment in the course of the commission of the offence. The common intention or the intention of the individual concerned in furtherance of the common intention could be proved either from direct evidence or by inference from the acts or attending circumstances of the case and conduct of the parties. The ultimate decision, at any rate, would invariably depend upon the inferences deducible from the circumstances of each case.” 48. In Krishnan and Anr. v. State represented by Inspector of Police, (2003) 7 SCC 56, this court observed that applicability of Section 34 is dependent on the facts and circumstances of each case. No hard and fast rule can be made out regarding applicability or non-applicability of Section 34. 29 49. In Girija Shankar v. State of U.P., (2004) 3 SCC 793, it is observed that Section 34 has been enacted to elucidate the principle of joint liability of a criminal act: “Section 34 has been enacted on the principle of joint liability in the doing of a criminal act. The section is only a rule of evidence and does not create a substantive offence. The distinctive feature of the section is the element of participation in action. The liability of one person for an offence committed by another in the course of criminal act perpetrated by several persons arises under Section 34 if 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 is seldom available and, therefore, such intention can only be inferred from the circumstances appearing from the proved facts of the case and the proved circumstances.” [Emphasis added] (Emphasis added) 50. In Virendra Singh v. State of Madhya Pradesh, JT 2010 (8) SC 319, this Court observed that: “Section 34 IPC does not create any distinct offence, but it lays down the principle of constructive liability. Section 34 IPC stipulates that the act must have been done in furtherance of the common intention. In order to incur joint liability for an offence there must be a pre- arranged and pre-meditated concert between the accused persons for doing the act actually done, though 30 there might not be long interval between the act and the pre-meditation and though the plan may be formed suddenly. In order that section 34 IPC may apply, it is not necessary that the prosecution must prove that the act was done by a particular or a specified person. In fact, the section is intended to cover a case where a number of persons act together and on the facts of the case it is not possible for the prosecution to prove as to which of the persons who acted together actually committed the crime. Little or no distinction exists between a charge for an offence under a particular section and a charge under that section read with Section 34.” 51. Section 34 can be invoked even in those cases where some of the co- accused may be acquitted provided, it can be proved either by direct evidence or inference that the accused and the others have committed an offence in pursuance of the common intention of the group. (vide: Prabhu Babaji v. State of Bombay, AIR 1956 SC 51). 52. Section 34 intends to meet a case in which it is not possible to distinguish between the criminal acts of the individual members of a party, who act in furtherance of the common intention of all the members of the party or it is not possible to prove exactly what part was played by each of them. In the absence of common intention, the criminal liability of a member of the group might differ according to the mode of the individual’s 31 participation in the act. Common intention means that each member of the group is aware of the act to be committed. 53. In view of the aforesaid discussion, we are of the considered opinion that the High Court has rightly proceeded in the matter while setting aside the conviction of the appellants under Sections 147/148 IPC and convicting them with the aid of Section 34 IPC. Sum up: 54. In view of the above, it is evident that an FIR had been lodged promptly within 20 minutes from the time of commission of the offence as the place of occurrence was in close proximity of Police Chowki and all the appellants along with other co-accused had been named therein. There had been an injured witness. The prosecution has explained the motive that the appellants did not like intervention of Chand Khan taking side of Kamla Bai who had been molested by persons of the accused party. Several hours after the lodging of the complaint by Chand Khan in that incident, the appellants attacked Chand Khan with motive in a pre-planned manner armed with deadly weapons and caused injuries. Shabir Khan, son of Chand Khan when came to rescue his father was also done away with. In the incident, Ashfaq 32 (PW.2) also got injured. The courts below after appreciating the evidence on record rightly came to the conclusion that the five appellants had been responsible for the said offences. The testimony of these witnesses had been subjected to searching cross-examination, but nothing has been brought on record to discredit the statement of either of the eye-witnesses. 55. In view of the above, we are of the view that the instant case does not present special features warranting review of the impugned judgment. Thus, there is no cogent reason to interfere with the impugned judgment and order dated 12.1.2006 passed by the High Court of Madhya Pradesh. The appeals lack merit and are accordingly dismissed. ……………………………..J. (P. SATHASIVAM) …………………………..J. (Dr. B.S. CHAUHAN) New Delhi, September 14, 2010 |
Archive for October 10th, 2010
10 Oct
Medical evidence Vs Ocular evidence see S.C judgement dtd 14-09-2010.
10 Oct
Relevency of FIR lodged for whatever reasons after recording the inquest-see the Supreme Court Judgement dated 15-09-2010.
| It cannot be held that if the FIR is lodged for whatever reason after recording the inquest report the same would be fatal to all the proceedings arising out of the Indian Penal Code…SC jt dt 15.09.2010 | |
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REPORTABLE
IN THE SUPREME COURT OF INDIA CRIMINAL APPEAL NO. 342 OF 2007 Sri Sambhu Das @ Bijoy Das & Anr. ………….. Appellants Versus State of Assam …………..Respondent JUDGMENT H.L. Dattu, J. 1) This appeal is directed against the judgment and order passed by the Gauhati High Court in Criminal Appeal No. 63 of 2005, dated 26.04.2006, whereby and where under, the High Court has affirmed the order passed by the Sessions Judge, Hailakandi, in Sessions Case No.2 of 2002. The appellants are convicted under Section 302/34 IPC and sentenced to imprisonment for life and to pay a fine of Rs. 10,000/- each, and in default, to undergo further imprisonment for six months each. 2) The case of the prosecution is that, on 07.06.1997 at about 5.00 P.M. the deceased Fanilal Das was returning home on a 1 rickshaw near Shiva temple and after offering his prayer, he came back to the rickshaw and at that point of time, the appellants and others assaulted the deceased and, thereafter, forcibly took him to the house of Kunja Mohan where he was assaulted by all the accused persons. It is their further case, that, one Upendra Das informed the wife of the deceased about the assault on her husband by the appellants and on hearing the same, she came to the place of occurrence and saw the accused persons assaulting the deceased, and on being informed by PW-3, police came to the place of incident and took the injured to the hospital where he was declared dead. After completing the investigation, the accused persons were charge-sheeted. Initially, four accused persons were tried by the Sessions Judge, Hailkandi for commission of the offence under Section 302/34 IPC. During the trial, four other persons were also arrayed as accused and tried along with the appellants. All the accused persons pleaded not guilty. During the course of the trial, the prosecution examined eight witnesses. After completion of the trial, the appellants were examined under Section 313 Cr.P.C., wherein the appellants completely denied their involvement in the 2 and two others for the offence under Section 302/34 IPC and sentenced as stated earlier. This order of the Sessions Court is confirmed by the Gauhati High Court by rejecting the criminal appeals filed by the accused persons. 3) This appeal is filed only by Sambhu Das @ Bijoy Das (Accused No. 4) and Bibhu Das @ Sekhar Das (Accused No. 5). 4) While assailing the judgment and order of the High Court, it is contended by Shri M.N. Rao, learned senior counsel, that admittedly, the Inquest Report was recorded by the Investigating Officer at 9.30 PM and the FIR was lodged by the wife of the deceased at 11.30 PM on 07.06.1997. Therefore, it is contended that the First Information Report loses all authenticity if written after Inquest Report. In aid of his submission, reliance is placed on the observation made by this court in the case of Balaka Singh & Ors. Vs. The State of Punjab, [1975(4) SCC 511] and Ramesh Baburao Devaskar and Ors. Vs. State of Maharashtra, [2007(13) SCC 501]. It is further contended that the High Court has failed to address itself to certain crucial aspects of evidence and proceeded 3 very casual and cavalier manner which is impermissible in law. Reliance is placed on the observation made by this court in the case of Badri vs. State of Rajasthan, [1995 Supp. (3) SCC 521], Ishvarbhai Fuljibhai Patni vs. State of Gujarat, [1995 (1) SCC 178] and Lal Singh vs. State of Madhya Pradesh, [2003 (9) SCC 464]. It is further contended that the High Court has erred in not appreciating the fact that the accused has put forward a reasonable defence throughout the trial and as well as in their statement recorded under Section 313 of Criminal Procedure Code. While elaborating this contention, it is stated that prior to the occurrence, the complainant’s husband and her husband’s younger brother Chunnulal Das had got involved in the case regarding the murder of their brother Arun Das and for that reason they have been implicated in the present case out of that grudge. It is further submitted that in the instant case, the High Court has made departure from the rule, that when an accused person puts forward a reasonable defence which is likely to be true and in addition, when the same is supported by some prosecution witnesses, the burden of proof on the other side becomes onerous, because a 4 a weak and vacillating prosecution case and by that reasonable doubt, the accused must get the benefit. It is further submitted that this court, in the case of Hate Singh Bhagat Singh vs. State of Madhya Bharat, [AIR 1953 SC 468] has held that when an accused person puts forward a reasonable defence which is likely to be true and in addition is supported by two prosecution witnesses, then the burden on the other side becomes all the heavier because a reasonable and probable story likely to be true when pitted against a weak and vacillating case is bound to raise reasonable doubts of which the accused must get the benefit. It is also contended that one important material witness, namely, Upen Das, who is said to have informed PW1 that the accused person killed her husband has not been examined by the prosecution, nor has any explanation for not examining him as a witness been given by the prosecution and, therefore, non-examination of Upen Das is fatal to the prosecution story. 5) The learned counsel for the State while justifying the impugned judgment and order, would submit that the concurrent 5 not be interfered by this Court. 6) The question that requires to be noticed and answered is, whether this Court in exercise of the powers under Article 136 of the Constitution of India, can upset the concurrent findings of fact recorded by the Trial Court and the Appellate Court. Shri M.N. Rao, learned senior counsel for the appellants, submits that this court can take a different view and also come to different conclusion than the one arrived at by the Trial and the Appellate Court, if this Court prima facie comes to the conclusion that the findings of fact reached by the Trial Court and confirmed by the High Court suffers from any patent error of law or has resulted in miscarriage of justice. In our view, the law on this issue is now well settled by several pronouncements made by this court. 7) In Dhananjay Shanker Shetty vs. State of Maharashtra, [(2002) 6 SCC 596], it is stated that : “Ordinarily, after appraisal of evidence by the two 6 SCC 426], it is observed : “…..It is true normally this Court would not substitute 9) In Bharat vs. State of Madhya Pradesh, [(2003) 3 SCC 106], it is observed that : “….The prosecution has to prove its case against the 10) In Mousam Singha Roy & Ors. vs. State of West Bengal, [(2003) 12 SCC 377], it is stated : “We are also aware that this Court does not disturb 7 11) In Ganga Kumar Srivastava vs. State of Bihar, [(2005) 6 SCC 211], it is observed : “From the aforesaid series of decisions of this Court 12) This Court, in exercise of its powers under Article 136 of the Constitution, will not re-open the findings of the High Court when there are concurrent findings of facts and there is no question of 8 Constitution, does not confer a right of appeal on a party. It only confers a discretionary power on the Supreme Court to be exercised sparingly to interfere in suitable cases where grave miscarriage of justice has resulted from illegality or misapprehension or mistake in reading evidence or from ignoring, excluding or illegally admitting material evidence. [See Basudev Hazra v. Matiar Rahaman Mandal - AIR 1971 SC 722]. 13)Keeping in view the aforesaid settled legal principles, we now proceed to examine the main contention canvassed by learned senior counsel Shri M.N. Rao, appearing for the appellant. It is submitted that in the instant case, the investigating officer (PW8), has recorded/prepared the inquest report on 7.6.1997 at 9.30 PM and at the instance of PW1, the first information report was recorded by PW8 on 7.6.1997 at 11.30 PM under Sections 147, 148, 149, 341, 342, 325, 326 and 302 of IPC against four persons and, therefore, it is contended that since FIR is lodged after inquest was held, the FIR is not reliable. Alternatively, it is contended that in a case under Section 302 read with Section 32 IPC, First Information Report cannot be lodged after the inquest has been 9 Court in Balkasingh’s case (supra) and in Ramesh Babu Rao Devaskar’s case (supra). 14) In Balaka Singh’s case, it was observed by this Court, that the names of four accused out of nine were missing in the body of the Inquest Report and this omission was not explained and, therefore, it lead to the probability that FIR must have been prepared after the preparation of Inquest Report. That was a case where there were nine accused persons and the names of five accused were mentioned in the Inquest Report. The A.S.I. had no valid explanation for the same. It was also found by the Court that FIR was registered subsequently. Therefore, the observation of this Court is to be understood in that background. We do not think that this decision lays down that under all circumstances, the First Information Report loses its authenticity, if it is filed after Inquest Report. 15) In Ramesh Babu Rao Devaskar’s case, First Information Report was lodged after inquest was held and the same was based on the version of alleged eye witness. This court was of the view that 10 and also noticed that the name of only one accused was mentioned in the FIR. However, in the Inquest Report statements of Panch witnesses recorded to the effect that some unknown assailants killed the deceased. Apart from the above omission, copy of the FIR was sent to the concerned Magistrate after four days, sharing of common object by other accused persons with the accused who was named in the FIR was not made out and one of the PWs turned hostile and testimony of other two PWs was not reliable. In view of these discrepancies, this Court, on facts, held it would be hazardous to record conviction of the accused. 16) In the present case, there is the documentary evidence in the form of G.D. entry No.164 recorded by PW-8 in the General Diary on 07.06.1997 at about 6.30 P.M. That entry was made on the telephonic message/information supplied by Asabuddin Mazumdar, PW-3. It is clearly stated therein by PW-3 that a man named Fanilal Das was lying in a serious condition on the side of verandah of Chandan Das. It was on receipt of this information that PW-8 went to the place of occurrence of the incident, drew up the inquest report, made seizure of the material objects and 11 Admittedly, the inquest report is prepared by PW-8 at 9.30 P.M. and the formal FIR is lodged by PW-1 at 11.30 P.M. The learned senior counsel Shri M.N. Rao, by placing his fingers on the admission made by PW-8 in his evidence would contend, that, FIR loses its authenticity if it is lodged after the inquest report is recorded. This submission of the learned counsel is a general proposition and may not be true in all cases and all circumstances. This general proposition cannot be universally applied, by holding that if the FIR is lodged for whatever reason after recording the inquest report the same would be fatal to all the proceedings arising out of the Indian Penal Code. 17)The Inquest Report is prepared under Section 174 Cr.P.C. The object of the inquest proceedings is to ascertain whether a person has died under unnatural circumstances or an unnatural death and if so, what the cause of death is? The question regarding the details as to how the deceased was assaulted or who assaulted him or under what circumstances he was assaulted, is foreign to the ambit and scope of the proceedings under Section 174 Cr.P.C. The 12 to be mentioned in the inquest report. The purpose of preparing the inquest report is for making a note in regard to identification marks of the accused. The inquest report is not a substantive evidence. Mention of the name of the accused and eye witness in the inquest report is not necessary. Due to non-mentioning of the name of the accused in the inquest report, it cannot be inferred that FIR was not in existence at the time of inquest proceedings. Inquest report and post mortem report cannot be termed to be substantive evidence and any discrepancy occurring therein can neither be termed to be fatal nor even a suspicious circumstance which would warrant a benefit to the accused and the resultant dismissal of the prosecution case. The contents of the inquest report cannot be termed as evidence, but they can be looked into to test the veracity of the witnesses. When an officer incharge of Police Station receives information that a person had committed suicide or has been killed or died under suspicious circumstances, he shall inform the matter to the nearest Magistrate to hold Inquest. A criminal case is registered on the basis of information and investigation is commenced under Section 157 of Cr.P.C. and the 13 thereafter, the inquest is held under Section 174 Cr.P.C. This Court, in the case of Podda Narayana Vs. State of Andhra Pradesh [AIR 1975 SC 1252], has indicated that the proceedings under Section 174 Cr. P.C. have limited scope. The object of the proceedings is merely to ascertain whether a person has died in suspicious circumstances or an unnatural death and if so, what is the apparent cause of the death. The question regarding details as to how the deceased was assaulted or who assaulted him or under what circumstances, he was assaulted is foreign to the ambit and scope proceeding under Section 174. Neither in practice nor in law was it necessary for the Police to mention these details in the Inquest Report. In George Vs. State of Kerala AIR 1998 SC 1376, it has been held that the Investigating Office is not obliged to investigate, at the stage of Inquest, or to ascertain as to who were the assailants. In Suresh Rai Vs. State of Bihar AIR 2000 SC 2207, it has been held that under Section 174 read with Section 178 of Cr. P.C., Inquest Report is prepared by the Investigating Officer to find out prima facie the nature of injuries and the possible weapon used in causing those injuries as also possible 14 18)This Court has consistently held that Inquest Report cannot be treated as substantive evidence but may be utilized for contradicting the witnesses of the Inquest. Section 175 Cr. P.C. provides that a Police Officer proceedings under Section 174 may, by an order in writing, summon two or more persons for the purpose of the said investigation. The provisions of Sections 174 and 175 afford a complete Code in itself for the purpose of inquiries in cases of accidental or suspicious deaths. 19) Section 2 (a) of the Cr.P.C. defines “Investigation” as including all the proceedings under this code for the collection of evidence conducted by the police officer. 20) Section 157 of the Code says that if, from the information received or otherwise an officer incharge of a police station has reason to suspect the commission of an offence which he is empowered to investigate, he shall forthwith send a report of the same to the Magistrate concerned and proceed in person to the spot to investigate the facts and circumstances of the case, if he does 15 proceedings to the spot, is not for investigation. In order to bring such proceedings within the ambit of investigation, it is not necessary that a formal registration of the case should have been made before proceeding to the spot. It is enough that he has some information to afford him reason even to suspect the commission of a cognizable offence. Any step taken by him pursuant to such information, towards detention etc., of the said offence, would be part of investigation under the Code. 21)In Maha Singh vs. State (Delhi Administration), [(1976) SCC 644], this court considered a case in which police officer arranged a raid after recording a complaint, but before sending it for registration of the case. It was held in that case that “the moment the Inspector had recorded a complaint with a view to take action to track the offender, whose name was not even known at that stage, and proceeded to achieve the object, visited the locality, questioned the accused, searched his person, seized the note and other documents, turns the entire process into investigation under the Code. 16 court stated that “Though ordinarily investigation is undertaken on information received by a police officer, the receipt of information is not a condition precedent for investigation.” 23) The principles now well settled is that when information regarding a cognizable offence is furnished to the police that information will be regarded as the FIR and all enquiries held by the police subsequent thereto would be treated as investigation, even though the formal registration of the FIR takes place only later. 24)Assuming that some report was made on telephone and that was the real First Information Report, this by itself would not affect the appreciation of evidence made by the learned Sessions Judge and the conclusions of fact drawn by him. The FIR under Section 154 Cr. P.C. is not a substantive piece of evidence. Its only use is to contradict or corroborate the maker thereof. Therefore, we see no merit in the submission made by learned counsel for the appellants. 17 Postmortem was conducted by Dr. Ashit Som (PW6). From the Postmortem Report of the deceased Fanilal Das, it appears that injuries on their examination were found to be ante mortem in nature. In his opinion, death is due to shock and haemorrhage resulting from the injuries sustained which were caused by blunt weapons. Unfortunately, the doctor has not stated in his report whether the injuries sustained by the deceased were of homicidal in nature. Therefore, we have seen the report furnished by the doctor, who, as per his post mortem report found lacerated wound over the middle of frontal region of the scalp with fracture of frontal bone corresponding to the injury, lacerated wound over right parietal of the scalp 6cmx2cmx2cm fracture of parietal bone, two incisior and two canine teeth of both jaws were dislocated. Dislocation of both elbow and ankle joint was also there. He has further opined that the injuries were fresh and caused by a blunt object. It has come in the evidence of PW-8 that immediately after the inquest report was prepared, the body of the deceased was sent for post mortem. This would coincide with this evidence on this aspect. Secondly, the seizure report which is marked as one of the 18 seized by him, such as nylon rope, bamboo stick, iron chain, dao, rod and lathi etc. A little comparison of these seized objects and the wounds found on the body of the deceased, a safe inference can be drawn that this part of evidence of this witness can be believed, since it corroborates with the opinion of the Doctor, PW-6. Therefore, it can be safely inferred that the deceased died because of the injuries sustained by the assault made by other persons and not by self inflicted wounds. 26)The prosecution case solely rests on the evidence of PW1. She is the wife of the deceased. PW2, though turned hostile, has spoken to a part of the incident. PW3 is the U.D.P. Secretary of Paikan Bazar. He is alleged to have gone to Paikan Tempur Bazar to purchase sweets and having heard from the people gathered on the side of the verandah of Chandu Das’s house at the Paikan Bazar, that Fanilal Das lying in a serious condition, he informed the Police from Ballu Das’s telephone. This version of PW3 appears to be correct. This information, in fact, triggered the Investigating 19 entries in the Registers at the Police Station. 27)The evidence of PW1 requires a thorough scrutiny. PW1 is the wife of the deceased. According to her, one Upendra Das informed her that the accused persons including the appellants are assaulting her husband in Kunja Mohan’s house and on receiving the information, it is further stated by her, that she immediately rushed to that place and found that the accused persons had tied the hands of her husband and were assaulting him. It has also come in her evidence that she saw all the accused persons dragging her husband inside their house. She has further stated around that time, the Police Party reached the spot and took her husband in a vehicle and she also accompanied her husband in the same vehicle and on arriving at the hospital, the doctors declared that her husband was dead and after inquest of the dead body, she returned home with the help of police and immediately she lodged the First Information Report (Ext.1). In her cross-examination, suffice it to say, that nothing very striking except minor contradiction has been elicited, which would not shake her credibility. In fact, she has 20 lodged the FIR with the Police and she has further denied the suggestion that she did not tell the police that the accused persons had assaulted her husband and killed him while he was returning home from Hailkandi Town on a Rickshaw. Therefore, two important aspects emerge from her evidence before the Trial Court. Firstly, she has seen that her husband was tied by means of a rope in the house of Kunj Mohan Das and secondly, the accused persons including the appellants were assaulting her husband. The case of the prosecution and the fate of the accused entirely depend on her version and, therefore, as we said earlier, it is on her testimony that the fate of these accused persons/appellants really hinges. The reasons for not examining Upendra Das, who is supposed to have informed PW1 about the incident, is not explained by the prosecution. Therefore, we might have to eschew this part of the evidence of PW1, since no effort is made by the prosecution to explain the reason for non-examination of one of the important persons, who is said to have informed PW1 about the assault and dragging of the deceased into the house of first accused, who is not before us. Then, the next question that would arise is, can we 21 of the testimony of this witness. At this juncture, we intend to add that if the prosecution fails to explain the reason for non- examination of an important witness, who is supposed to have informed the alleged incident, should the accused persons go scot free. It is a difficult question, sometimes difficult to answer. Since, it is noticed by this Court time and again that in number of criminal cases, because of sloppy attitude shown by the prosecution, the real culprit goes scot free. It is no doubt true that when her statement was recorded under Section 161 Cr.P.C., she had not implicated four other accused persons but certainly implicated the appellants and two other accused persons. Merely because she has made some improvement in the FIR lodged by her, we cannot totally discard her testimony. 28)PW8 is the Investigating Officer. He was attached to Hailakandi Police Station. He was the one who visited the place of occurrence on being directed to do so by the office-in-charge of the Police Station. In his evidence, he has stated that Iti Mohan Das-PW3 took him to the place of occurrence and he found the injured 22 come in his evidence that on reaching the place of occurrence, he drew up sketch map of the place of occurrence, and seized incriminating materials. He has also stated that he removed the injured to Hailakandi Civil Hospital where the Medical Officer declared him dead. It has also come in his evidence that he was the one who prepared the Inquest Report. He further narrates that PW2 informed him that the deceased was travelling in his rickshaw and at that time, Chandra Das@Smritikanta and two unknown persons dragged him out of the rickshaw and assaulted him by means of rod, hunter etc. Though PW2 turned hostile, their part of evidence supports the case of the prosecution. In his cross examination, defence has elicited from him that Inquest Report was prepared by him at 9.30 PM and FIR was registered at 11.30 PM. Much was made at out of this admission by learned senior counsel arguing for the appellants, we have already answered this issue while considering the issue that whether FIR loses all authenticity if written after Inquest Report. The other important admission that was made by him that when he recorded the statement of PW1, she did not mention the names of Subhash, Bela 23 accused persons. Her version that she went to the place of occurrence on being informed to her about the assaulting of her husband by the accused persons is corroborated in his testimony. It is also of some importance that PW-1 for the first time, in her evidence before the Court, implicated them and that is how, they were arrayed as co-accused and tried along with others. The learned Trial Judge, however, has acquitted those accused persons. In our view, rightly so. In our opinion, it is not necessary for the prosecution to examine every other witness cited by them in the charge-sheet. Mere non-examination of some persons does not corrode the vitality of the prosecution version, particularly, the witnesses examined have withstood the cross-examination and pointed to the accused persons as perpetrators of the crime. The Trial Court and the High Court have come to the conclusion that the evidence of PW1 is trustworthy and reliable. We have also carefully perused the evidence of PW1, whose evidence is corroborated by PW-8 and the Postmortem report issued by PW6, we are convinced that the Trial Court and the High Court were justified in believing the testimony the testimony of PW-1. 24 However, in his examination-in-chief, he says that he was carrying Fanilal Das in his Rickshaw and he stopped the Rickshaw at Tepur Bazar on the request made by the deceased and it is at that time, the deceased had a quarrel with some people and some persons assaulted him with blunt objects. In his cross-examination by the learned counsel for the prosecution, he denies the suggestions put to him with reference to his statement made under Section 161 Cr. P.C. before the Investigating Officer. 30)Md. Asaf Ali Majumdar – PW3, Md. Masuraff Ali Barbhuiya - PW4, Harmendra Das-PW5 are brought in by the prosecution as eye-witnesses to the occurrence. But all of them have turned hostile. Unfortunately, the trend in this country appears to be, as the time passes, dead are forgotten and the living with a criminal record are worshipped and adored and no witness would like to speak against them. The Trial Court and the High Court has not given any credence to their evidence. 25 local tea shop owner. He has stated that he accompanied the Police to the house of the accused and found the deceased tied with a rope in the verandah of Kunja Mohan. He also states that he saw some injuries on the body of the deceased person. He also confirms that the Investigating Officer seized a chain, a lathi, one dao and a rope. 32)In our view, having carefully seen the evidence of PW1, which is corroborated by the postmortem report issued by PW6 and the evidence of PW8, it is trustworthy and reliable. The Trial Court and the High Court have accepted her evidence while holding that the accused persons in furtherance of the common intention, assaulted Fanilal Das and killed him. We do not find any good reason to upset this finding of the Trial Court and the High Court. 33)The learned senior counsel submitted that the High Court in a most casual manner has rejected the appeals filed by the accused. This assertion, in our opinion, is not justified. The High Court has arrived at its findings after examination and consideration of the 26 affirmed the findings of the trial court while convicting the accused persons. 34)In view of the foregoing discussion, we do not see any merit in this appeal. Accordingly, it is dismissed. ……………………………………….J. ……………………………………….J. New Delhi, 27 |
10 Oct
Consequence of contradiction-Supreme Court Judgement dated 16-09-2010
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10 Oct
Congress leader Sajjankumar’s Appeal is dismissed by Supreme Court
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REPORTABLE
IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. OF 2010 Sajjan Kumar …. Appellant (s) Versus Central Bureau of Investigation …. Respondent(s) JUDGMENT P. Sathasivam, J. 1) Application for intervention is allowed. 2) Leave granted. 3) This appeal is directed against the order of the High Court of Delhi at New Delhi dated 19.07.2010 whereby the learned single Judge confirmed the order dated 15.05.2010 passed by the District Judge-VII/NE-cum- Additional Sessions Judge, Karkardooma Courts, Delhi in S.C. No. 26/10, RC SII 2005 S0024. By the said order, 1 charges against the appellant for offences punishable under Section 120B read with Sections 153A, 295, 302, 395, 427, 436, 339 and 505 of the Indian Penal Code (hereinafter referred to as “IPC”) and for the offence under Section 109 read with Sections 147, 148, 149, 153A, 295, 302, 395, 427, 435, 339 and 505 IPC, besides framing of a separate charge for offence punishable under Section 153A IPC and rejected the application for discharge filed by the appellant. 4) Brief Facts:- (a) The present case arises out of 1984 anti-Sikh Riot cases in which thousands of Sikhs were killed. Delhi Police has made this case a part of FIR No. 416 of 1984 registered at Police Station Delhi Cantt. In this FIR, 24 complaints were investigated pertaining to more than 60 deaths in the area. As many as 5 charge-sheets were filed by Delhi Police relating to 5 deaths which resulted in acquittals. One supplementary charge-sheet about 2 acquittal. The investigation pertaining to the death of family members of Smt. Jagdish Kaur PW-1, was reopened by the anti-Riot Cell of Delhi Police in the year 2002 and after investigation, a Closure Report was filed in the Court on 15/22.12.2005. (b) After filing of the Closure Report in the present case, on 31.07.2008, a Status Report was filed by the Delhi Police before the Metropolitan Magistrate, Patiala House Court, New Delhi. Pursuant to the recommendation of Justice Nanavati Commission, the Government of India entrusted the investigation to the Central Bureau of Investigation (hereinafter referred to as “CBI”) on 24.10.2005. On receipt of the said communication, the respondent-CBI registered a formal FIR on 22.11.2005. The Closure Report was filed by Delhi Police on 15.12.2005/22.12.2005, when a case had already been registered by the CBI on 22.11.2005 and the documents had already been transferred to the respondent-CBI. 3 bearing No. 1/2010 in the present case on 13.01.2010. After committal, charges were framed on 15.05.2010. At the same time, the appellant has also filed a petition for discharge raising various grounds in support of his claim. Since he was not successful before the Special Court, he filed a revision before the High Court and by the impugned order dated 19.07.2010, after finding no merit in the case of the appellant, the High Court dismissed his criminal revision and directed the Trial Court for early completion of the trial since the same is pending from 1984. 5) Heard Mr. U.U. Lalit, learned senior counsel for the appellant, Mr. H.P. Rawal, learned Additional Solicitor General for the respondent-CBI and Mr. Dushyant Dave, learned senior counsel for the intervenor. 6) Submissions: (a) After taking us through the charge-sheet dated 13.01.2010, statements of PW-1, PW-2 and PW-10, order dated 15.05.2010 framing charges by the District Judge, 4 High Court dated 19.07.2010, Mr. Lalit, learned senior counsel for the appellant submitted that i) the statement of Jagdish Kaur is highly doubtful and later she made an improvement, hence the same cannot be relied upon to frame charge against the appellant; ii) reliance on the evidence of Jagsher Singh PW-2, who gave a statement after a gap of 25 years cannot be accepted; iii) the statement of Nirprit Kaur PW-10 is also not acceptable since the same was also made after a gap of 25 years of the occurrence; iv) other witnesses who were examined in support of the prosecution specifically admitted that they did not see the appellant at the time of alleged commission of offence; v) inasmuch as the charge has been framed after 25 years of occurrence, proceeding against the appellant, at this juncture, is violative of his constitutional right under Article 21; vi) after filing of the closure report by the Delhi Police, by following the procedure, the present action of the CBI conducting further re- 5 improved materials is impermissible in law; vii) follow-up action based on the recommendation of Justice Nanavati Commission is also impermissible at this juncture; viii) many remarks/observations made by the High Court are uncalled for and based on conjectures and surmises and also without there being any material on record. If those observations are not deleted from the order of the High Court, it would amount to directing the trial Judge to convict the appellant without proper proof and evidence. (b) On the other hand, Mr. H.P. Rawal, learned Additional Solicitor General appearing for the CBI submitted that in view of categorical statement by the victims before Justice Nanavati Commission and its recommendation which was deliberated in the Parliament, the Government of India took a decision to entrust further/re-investigation in respect of 1984 anti-Sikh riots through CBI. According to him, the present action by the CBI and framing of charges against the appellant and 6 Code of Criminal Procedure (hereinafter referred to as “Cr.P.C.”). He also submitted that at the stage of framing of the charges, the material on record has not to be examined meticulously; a prima facie finding of sufficient material showing grave suspicion is enough to frame a charge. He pointed out that there is nothing illegal with the order framing charge which was rightly affirmed by the High Court. He further submitted that the High Court has not exceeded in making observations and, in any event, it would not affect the merits of the case. (c) Mr. Dushyant Dave, learned senior counsel for the intervenor, while reiterating the stand taken by the learned Additional Solicitor General supported the order of the District Judge framing charges as well as the order of the High Court dismissing the criminal revision filed by the appellant. He pointed out that it is not a case for interference under Article 136 of the Constitution of India. No prejudice would be caused to the appellant and he has 7 cannot be a ground for interference. Relevant Provisions: 7) Before considering the claim of the parties, it is useful to refer Sections 227 and 228 of the Cr.P.C. which are reproduced below: “227. Discharge.- If, upon consideration of the record of 228. Framing of charge- (1) If, after such consideration (a) is not exclusively triable by the Court of Session, he (b) is exclusively triable by the Court, he shall frame in (2) Where the Judge frames any charge under clause (b) 8 It is clear that the Judge concerned has to consider all the records of the case, the documents placed, hear the submission of the accused and the prosecution and if there is “not sufficient ground” (Emphasis supplied) for proceeding against the accused, he shall discharge the accused by recording reasons. If after such consideration and hearing, as mentioned in Section 227, if the Judge is of the opinion that “there is ground for presuming” (Emphasis supplied) that the accused has committed an offence, he is free to direct the accused to appear and try the offence in accordance with the procedure after framing charge in writing against the accused. Statements of PW-1, PW-2, PW-8 and PW-10 8) Mr. Lalit, learned senior counsel for the appellant pointed out that the prosecution, for framing the impugned charges, heavily relied on the statements of 9 took us through their statements made at various stages which are available in the paper-book. It is true that Jagdish Kaur PW-1, in her statement under Section 161 Cr.P.C. dated 20.01.1985, did not mention the name of the appellant. Even in the affidavit dated 07.09.1985, filed before Justice Ranganath Misra Commission she has not whispered a word about the role of the appellant. According to him, for the first time i.e. in the year 2000, after a gap of 15 years an affidavit was filed before Justice Nanavati Commission, wherein she referred the name of the appellant and his role along with certain local Congress workers. According to Mr. Lalit, except the above statement in the form of an affidavit before Justice Nanavati Commission, she had not attributed anything against the appellant in the categorical statements made on 20.01.1985 as well as on 07.09.1985 before Justice Ranganath Misra Commission. 10 Justice Nanavati Commission’s report and entrusting the investigation to CBI, she made a statement before the CBI officers at the initial stage by mentioning “that the mob was being led by Congress leaders”. Only in later part of her statement, she mentioned that “she learnt that Sajjan Kumar, the Member of Parliament was conducting meeting in the area”. She confirmed the statement in the form of an affidavit dated 07.09.1985 filed before Justice Ranganath Misra Commission as well as her deposition with regard to the appellant before Justice Nanavati Commission on 08.01.2002. No doubt, in the last part of her statement, it was stated that in the year 1984-85, the atmosphere was totally against the Sikh community and under pressure she did not mention the name of Sajjan Kumar. She also informed that she could not mention his name for the safety of her children. 10) The other witness Jagsher Singh, first cousin of Jagdish Kaur, in his statement recorded by the CBI on 11 name of the appellant and his threat to Sikhs as well as to Hindus who had given shelter to Sikhs. According to Mr. Lalit, this witness mentioned the name of the appellant for the first time before the CBI nearly after 23 years of the incident which, according to him, cannot be relied upon. 11) The other witness relied on by the prosecution in support of framing of charges is Nirprit Kaur PW-10. It is pointed out that she also made certain statements to the CBI after a gap of 23 years and she did not mention the name of the appellant except stating that one Balwan Khokhar who is alleged to be a nephew of Sajjan Kumar, came to her house for discussing employment for her nephew as driver. 12) The other statement relied on by the prosecution in support of framing of charges against the appellant is that of Om Prakash PW-8. He narrated that during the relevant time he had given shelter to a number of women and children of Sikh community including Jagdish Kaur 12 not even utter a word about the appellant but at the end of his statement on being asked, stated that he knew Shri Sajjan Kumar, Member of Parliament. However, he further stated that he did not see him in that mob or even in their area during the said period. In the last sentence, he expressed that he had heard from the people in general that Sajjan Kumar was also involved in the 1984 riots. 13) By pointing out the earlier statement of Jagdish Kaur PW-1, recorded by the CBI, her affidavit before Justice Nanavati Commission and the statement of Jagsher Singh PW-2, Nirpreet Kaur PW-10 and Om Prakash PW-8 before the CBI, Mr. Lalit submitted that there was no assertion by anyone about the specific role of the appellant except the bald statement and that too after 23 years. In such circumstances, according to him, the materials relied on by the prosecution are not sufficient to frame charges. According to him, mere suspicion is not sufficient for which he relied on the judgments of this Court in Union 13 (1979) 3 SCC 4 and Dilawar Balu Kurane vs. State of Maharashtra, (2002) 2 SCC 135. 14) In Prafulla Kumar Samal (supra), the scope of Section 227 of the Cr.P.C. was considered. After adverting to various decisions, this Court has enumerated the following principles: “(1) That the Judge while considering the question of 14 15) In Dilawar Balu Kurane (supra), the principles enunciated in Prafulla Kumar Samal (supra) have been reiterated and it was held: “12. Now the next question is whether a prima facie 14. We have perused the records and we agree with the 15 16) It is clear that at the initial stage, if there is a strong suspicion 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. The presumption of the guilt of the accused which is to be drawn at the initial stage is only for the purpose of deciding prima facie whether the Court should proceed with the trial or not. If the evidence which the prosecution proposes to adduce prove the guilt of the accused even if fully accepted before it is challenged in cross-examination or rebutted by the defence evidence, if any, cannot show that the accused committed the offence, then there will be no sufficient ground for proceeding with the trial. A Magistrate enquiring into a case under Section 209 of the Cr.P.C. is not to act as a mere Post Office and has to come to a conclusion whether the case before him is fit for 16 entitled to sift and weigh the materials on record, but only for seeing whether there is sufficient evidence for commitment, and not whether there is sufficient evidence for conviction. If there is no prima facie evidence or the evidence is totally unworthy of credit, it is the duty of the Magistrate to discharge the accused, on the other hand, if there is some evidence on which the conviction may reasonably be based, he must commit the case. It is also clear that in exercising jurisdiction under Section 227 of Cr.P.C., the Magistrate should not make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial. 17) Exercise of jurisdiction under Sections 227 & 228 of Cr.P.C. On consideration of the authorities about the scope of Section 227 and 228 of the Code, the following principles emerge:- (i) The Judge while considering the question of framing the charges under Section 227 of the Cr.P.C. has the undoubted 17 finding out whether or not a prima facie case against the accused has been made out. The test to determine prima facie case would depend upon the facts of each case. ii) Where the materials placed before the Court disclose grave suspicion against the accused which has not been properly explained, the Court will be fully justified in framing a charge and proceeding with the trial. iii) The Court cannot act merely as a Post Office or a mouthpiece of the prosecution but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the Court, any basic infirmities etc. However, at this stage, there cannot be a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial. iv) If on the basis of the material on record, the Court could form an opinion that the accused might have committed offence, it can frame the charge, though for conviction the conclusion is required to be proved beyond reasonable doubt that the accused has committed the offence. 18 of the material on record cannot be gone into but before framing a charge the Court must apply its judicial mind on the material placed on record and must be satisfied that the commission of offence by the accused was possible. vi) At the stage of Sections 227 and 228, the Court is required to evaluate the material and documents on record with a view to find out if the facts emerging therefrom taken at their face value discloses the existence of all the ingredients constituting the alleged offence. For this limited purpose, sift the evidence as it cannot be expected even at that initial stage to accept all that the prosecution states as gospel truth even if it is opposed to common sense or the broad probabilities of the case. vii) If two views are possible and one of them gives rise to suspicion only, as distinguished from grave suspicion, the trial Judge will be empowered to discharge the accused and at this stage, he is not to see whether the trial will end in conviction or acquittal. 19 statements of PW-1, PW-2, PW-10 as well as of PW-8, it cannot be presumed that there is no case at all to proceed. However, we are conscious of the fact that the very same witnesses did not whisper a word about the involvement of the appellant at the earliest point of time. It is the grievance of the appellant that the High Court did not take into account that the complainant Jagdish Kaur PW-1 had not named him in her first statement filed by way of an affidavit dated 07.09.1985 before Justice Ranganath Misra Commission nor did she named him in her subsequent statements made before the Delhi Police (Riots Cell) and in her deposition dated 08.01.2002 before Justice Nanavati Commission except certain hearsay statement. It is the stand of Jagdish Kaur PW-1, the prime prosecution witness, that apart from her statement dated 03.11.1984, she has not made any statement to Delhi Police at any stage. However, it is also the claim of the C.B.I. that the alleged statements of Jagdish Kaur PW-1, dated 20 Nirprit Kaur PW-10, in her statement under Section 161 Cr.P.C., has denied having made any statement before the Delhi Police. At the stage of framing of charge under Section 228 of the Cr.P.C. or while considering the discharge petition filed under Section 227, it is not for the Magistrate or a Judge concerned to analyse all the materials including pros and cons, reliability or acceptability etc. It is at the trial, the Judge concerned has to appreciate their evidentiary value, credibility or otherwise of the statement, veracity of various documents and free to take a decision one way or the other. Investigation by the C.B.I. 19) Learned Additional Solicitor General has brought to our notice the letter dated 24.10.2005 from Mr. K.P. Singh, Special Secretary (H) to Mr. U.S. Mishra, Director, Central Bureau of Investigation, North Block, New Delhi. A perusal of the said letter shows that in reply to the discussion held in the Lok Sabha on 10.08.2005 and the 21 Nanavati Commission of Inquiry into 1984 anti-Sikh riots, the Prime Minister and the Home Minister had given an assurance that wherever the Commission has named any specific individuals as needing further examination or re- opening of case the Government will take all possible steps to do so within the ambit of law. The letter further shows that based on the assurance on the floor of the Parliament, the Government examined the report of Justice Nanavati Commission, its recommendations regarding investigation/re-investigation of the cases against (a) Shri Dharam Das Shastri, (b) Shri Jagdish Tytler, and (c) Shri Sajjan Kumar. The letter further shows that the Government had decided that the work of conducting further investigation/re-investigation against the abovementioned persons as per the recommendations of Justice Nanavati Commission should be entrusted to the CBI. Pursuant to the said decision, Home Department forwarded the relevant records connected with the cases 22 additional records/information required in connection with investigation are to be obtained from the Delhi Police. The materials placed by the CBI show that Justice Nanavati Commission submitted its report on 09.02.2005, its recommendations were discussed by the Lok Sabha on 10.08.2005 and the Rajya Sabha on 11.08.2005, Government of India asked CBI to inquire those recommendations on 24.10.2005 and the F.I.R. No. 416 of 1984 dated 04.11.1984 of Police Station, Delhi Cantt was re-registered by the CBI as case RC-24(S)/2005- SCU.I/CBI/SCR.I/New Delhi. Pursuant to the same, on 22.11.2005, investigation was taken up and it revealed that the accused persons committed offences punishable under Section 109 read with Sections 147, 148, 149, 153A, 295, 302, 396, 427, 436, 449, 505 and 201 IPC and accordingly filed the charge-sheet. It is relevant to note that no one including the appellant has not challenged appointment of CBI to inquire into the recommendations 23 Status Report by Delhi Police 20) Mr. Lalit heavily relied on the status report of the Delhi Police and consequential order of the Magistrate. By pointing out the same, he contended that the CBI is not justified in re-opening the case merely on the basis of observations made by Justice Nanavati Commission. The following conclusion in the status report dated 31.07.2008 filed by the Delhi Police was pressed into service. “From the investigation and verification made so far in her statement recorded by the I.O. of the 24 It is seen from the report that taking note of lot of contradictions in the statement of Jagdish Kaur PW-1 before the Commissions and before different investigating officers and after getting legal opinion from the Public Prosecutor, closure report was prepared and filed before the Metropolitan Magistrate, Patiala House Courts, New Delhi on 31.07.2008. It is further seen that before 25 summons to the complainant i.e, Smt. Jagdish Kaur number of times and the same were duly served upon her by the officers of the Special Riot Cell but she did not appear before the Court. In view of the same, the Magistrate, on going through the report and after hearing the submissions and after noting that the matter under consideration is being further investigated by the CBI and the investigation is still pending and after finding that no definite opinion can be given in respect of the closure report, without passing any order closed the matter giving liberty to the prosecution to move appropriate motion as and when required. 21) Mr. Lalit, learned senior counsel, by placing copy of the final report under Section 173 Cr.P.C. by Delhi Police as well as endorsement therein including the date on which the said report was filed before the Court, submitted that the action taken by Delhi Police cannot be faulted with. In other words, according to him, till the 26 Police was free to proceed further and there is no error in the action taken by the Delhi Police. In view of the order dated 31.07.2008 of the Magistrate, declining to give definite opinion on the closure report since the same was under further investigation by CBI, we are of the view that no further probe/enquiry on this aspect is required. Delay 22) Learned senior counsel appearing for the appellant further submitted that because of the long delay, the continuation of the prosecution and framing of charges merely on the basis of certain statements made after a gap of 23 years cannot be accepted and according to him, it would go against the protection provided under Article 21 of the Constitution. Mr. Lalit heavily relied on para 20 of the decision of this Court in Vakil Prasad Singh vs. State of Bihar, (2009) 3 SCC 355 which reads as under: “20. For the sake of brevity, we do not propose to 27 28 After adverting to various decisions including Abdul Rehman Antulay and Ors. vs. R.S. Nayak & Anr., this Court further held: “24. It is, therefore, well settled that the right to speedy 29 demand of a sum of Rs.1,000/- as illegal gratification for release of payment for the civil work executed by a contractor, a charge was laid against Assistant Engineer in the Bihar State Electricity Board and taking note of considerable length of delay and insufficient materials, based on the above principles, ultimately the Court after finding that further continuance of criminal proceedings pending against the appellant therein is unwarranted and quashed the same. Though the principles enunciated in the said decision have to be adhered to, considering the factual position being an extraordinary one, the ultimate decision quashing the criminal proceedings cannot be applied straightaway. 23) In P. Vijayan vs. State of Kerala and Another, (2010) 2 SCC 398, this Court while considering scope of Section 227 of Crl.P.C. upheld the order dismissing the petition filed for discharge and permitted the prosecution to proceed further even after 28 years. In that case, from 30 was a fake and only in the year 1998 reports appeared in various newspapers in Kerala that the killing of Varghese in the year 1970 was in a fake encounter and that senior police officers were involved in the said fake encounter. Pursuant to the said news reports, several writ petitions were filed by various individuals and organisations before the High Court of Kerala with a prayer that the investigation may be transferred to the Central Bureau of Investigation (CBI). In the said writ petition, Constable Ramachandran Nair filed a counter affidavit dated 11.01.1999 in which he made a confession that he had shot Naxalite Varghese on the instruction of the then Deputy Superintendent of Police (DSP), Lakshmana. He also stated that the appellant was present when the incident occurred. By order dated 27.01.1999, learned Single Judge of the High Court of Kerala passed an order directing CBI to register an FIR on the facts disclosed in the counter affidavit filed by Constable Ramachandran 31 which Constable Ramachandran Nair was named as Accused 1, Mr Lakshmana was named as Accused 2 and Mr. P. Vijayan, the appellant, was named as Accused 3 for an offence under Section 302 IPC read with Section 34 IPC. After investigation, CBI filed a charge-sheet before the Special Judge (CBI), Ernakulam on 11.12.2002 wherein all the abovementioned persons were named as A-1 to A-3 respectively for an offence under Sections 302 and 34 IPC. The appellant – P. Vijayan filed a petition under Section 227 of the Code on 17.05.2007 for discharge on various grounds including on the ground of delay. The trial Judge, by order dated 08.06.2007, dismissed the said petition and passed an order for framing charge for offences under Sections 302 and 34 IPC. Aggrieved by the aforesaid order, the appellant – Vijayan filed Criminal Revision Petition No. 2455 of 2007 before the High Court of Kerala. By an order dated 04.07.2007, learned Single Judge of the High Court dismissed his criminal revision petition. The 32 Court. Taking note of all the ingredients in Section 227 of the Criminal Procedure Code and the materials placed by the prosecution and the reasons assigned by the trial Judge for dismissing the discharge petition filed under Section 227, this Court confirmed the order of the trial Judge as well as the order of the High Court. Though, there was a considerable lapse of time from the alleged occurrence and the further investigation by CBI inasmuch as adequate material was shown, the Court permitted the prosecution to proceed further. 24) Though delay is also a relevant factor and every accused is entitled to speedy justice in view of Article 21 of the Constitution, ultimately it depends upon various factors/reasons and materials placed by the prosecution. Though Mr. Lalit heavily relied on paragraph 20 of the decision of this Court in Vakil Prasad Singh’s case (supra), the learned Additional Solicitor General, by drawing our attention to the subsequent paragraphs i.e., 33 enunciated in A.R.Antulay’s case (supra) are only illustrative and merely because of long delay the case of the prosecution cannot be closed. 25) Mr. Dave, learned senior counsel appearing for the intervenor has pointed out that in criminal justice “a crime never dies” for which he relied on the decision of this Court in Japani Sahoo vs. Chandra Sekhar Mohanty, (2007) 7 SCC 394. In para-14, C.K. Thakker, J. speaking for the Bench has observed: “It is settled law that a criminal offence is considered as In the case on hand, though delay may be a relevant ground, in the light of the materials which are available before the Court through CBI, without testing the same at the trial, the proceedings cannot be quashed merely on the ground of delay. As stated earlier, those materials 34 only at the trial. Observations by the High Court 26) Coming to the last submission about the various observations made by the High Court, Mr. Lalit pointed out that the observations/reference/conclusion in paragraphs 64, 65, 69, 70, 72, 73 and 50 are not warranted. According to him, to arrive such conclusion the prosecution has not placed relevant material. Even otherwise, according to him, if the same are allowed to stand, the trial Judge has no other option but to convict the appellant which would be against all canons of justice. He further submitted that even if it is clarified that those observations are to be confined for the disposal of the appeal filed against framing of charges and dismissal of discharge petition and need not be relied on at the time of the trial, undoubtedly, it would affect the mind of the trial Judge to take independent conclusion for which he relied on a judgment of this Court in Common Cause, A 35 SCC 667. He pressed into service paragraph 177 which reads as under: “177. Mr Gopal Subramaniam contended that the Court has On the other hand, learned Additional Solicitor General highlighted that these observations by the High Court are based on the materials placed and, in any event, it would not affect the interest of the appellant in the ultimate trial. In view of the apprehension raised by the learned senior counsel for the appellant, we also verified the relevant 36 Judge to evaluate all the materials including the evidentiary value of the witnesses of the prosecution such as Jagdish Kaur PW-1, Jagsher Singh PW-2, Nirpit Kaur PW-10 and Om Prakash PW-8, alleged contradictory statements, delay and the conduct of the Delhi Police in filing Status Report and on the basis of further investigation by the CBI, we clarify that all those observations of the High Court would not affect the ultimate analysis and final verdict of the trial Judge. Conclusion: 27) In the light of the above discussion, we are of the view that it cannot be concluded that framing of charges against the appellant by the trial Judge is either bad in law or abuse of process of law or without any material. However, we clarify that de hors to those comments, observations and explanations emanating from the judgment of the learned single Judge, which we referred in para 26, the trial Judge is free to analyse, appreciate, 37 materials being placed by prosecution as well as the defence. Inasmuch as the trial relates to the incident of the year 1984, we direct the trial Judge to take sincere efforts for completion of the case as early as possible for which the prosecution and accused must render all assistance. Interim order granted on 13.08.2010 is vacated. With the above observation and direction, the appeal is disposed of. ……………………………………J. ……………………………………J. NEW DELHI; 38
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10 Oct
Judgement of Supreme Court on declaration of title and possession
| A finding on the question of title recorded in a suit for eviction would how far be binding in a subsequent suit for declaration of title and recovery of possession between the same parties?…SC Jt dt 22.09.2010 | |
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REPORTABLE
IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.2579 OF 2004 Md. Nooman & Ors. ….Appellants Versus Md. Jabed Alam & Ors. ….Respondents JUDGMENT AFTAB ALAM, J. 1. A finding on the question of title recorded in a suit for eviction would how far be binding in a subsequent suit for declaration of title and recovery of possession between the same parties? This is the question that arises for consideration in this appeal. The answer to the question would depend on, in what manner the question of title was raised by the parties and how it was dealt with by the court in the eviction proceedings. Ordinarily, it is true, in a suit for eviction even if the court goes into the question of title, it examines the issue in an ancillary manner and in such cases (which constitute a very large majority) any observation or finding on the question of title would certainly not be binding in any subsequent suit on the dispute of title. But there may be exceptions to the general rule and as we shall find presently, the case in hand seems to fall in that exceptional category of very limited number of cases. 2. Amina Khatoon, the mother of respondent nos.1-4, (who were substituted in her place and brought on record after her death) instituted a suit for eviction (Title Suit No.36 of 1973) in the Court of Second Munsif, Arrah, against Md. Lukman, the father of appellant nos.1-6 (who were similarly substituted in his place and brought on record after his death). According to the plaintiff Amina Khatoon, the suit property originally belonged to her mother-in-law, Sulakshana. Sulakshana had two other sons, Md. Lukman (the original defendant) and Md. Jan, apart from Amina’s husband, Mahmood Hassan. Amina further claimed that Sulakshana sold the suit house to her through a registered sale deed dated August 13, 1957. Following the purchase of the suit house, she moved the Block Development Officer (BDO) and the municipality for mutation of her name in respect of the suit house in the revenue and municipal records. The defendant Md. Lukman, filed an objection before the BDO, but his objection was disallowed and her name was entered in the revenue and municipal records. Later on, the municipality filed a suit against her for arrears of tax whereupon all the outstanding dues of tax were paid by her. It was further the case of Amina, that she had let out the suit house to the defendant about 4 or 5 years prior to the filing of the suit on a monthly rent of Rs.10.00 (rupees ten only). The defendant did not pay the rent from September, 1971 to February 13, 1973. She then sent a registered notice to him under section 106 of the Transfer of Property Act, 1882 through her lawyer determining the defendant’s tenancy and asking him to vacate the house by March 31, 1973. The defendant did not vacate the house forcing her to go to the court. 3. The defendant in his written statement, apart from the formal objections to the maintainability of the suit, denied that Sulakshana executed any sale deed with respect to the suit house in favour of the plaintiff. He described the sale deed, relied upon by the plaintiff as the basis of her title, as a forged and fabricated document. In this connection, the defendant stated that Sulakshana had an attack of paralysis before August 13, 1957 when the sale was said to have been executed by her. She had lost her senses and she was not in a position to execute any sale deed. No consideration was paid by the plaintiff to Sulakshana and the title to the house never passed to her. The defendant set up a rival claim of title over the suit house. He stated that Sulakshana had transferred the suit house in his favour in 1950, by Hiba (oral gift) and since then he was coming in possession of the suit property. Originally, it was parti (vacant) land. He submitted a plan in the municipality for construction of the house on it and constructed the house after the plan was sanctioned. He was living in the house constructed by him over the land which was given to him by his mother by Hiba. He denied any relationship of landlord and tenant with the plaintiff and also denied to have taken the suit house from the plaintiff on a monthly rent of Rs.10.00 (rupees ten only). He never paid any rent to the plaintiff, nor was any rent due against him. 4. On the basis of the pleadings of the parties, the trial court framed seven issues, of which issue nos.3 & 4 relating to the plaintiff’s claim of title over the suit property and issue no.5 about the relationship of landlord and tenant between the parties are relevant for this appeal. Those three issues are as under: “3. Has the plaintiff got title to the suit land? plaintiff and the defendant led their respective evidences, both oral and documentary. The defendant also examined the third brother, Md. Jan from his side as DW11. On a consideration of the evidences adduced before it, the trial court upheld the plaintiff’s claim of title to the property arriving at the following finding: “In view of the discussion made above I hold that the sale deed 6. It then took up issue nos.5 and 6 (about the plaintiff’s entitlement to a decree of eviction) together and came to hold and find that the relationship of landlord and tenant between the parties had not been proved. In light of its finding on issue no.5, the court further observed that in case the question of title is raised by the defendant and if it is found that there is no contract of tenancy, the proper course would be to dismiss the suit and not to convert it into a declaratory or possessory suit which is of altogether a different nature. The court further pointed out that the suit before it was neither for declaration of title nor the plaintiff had paid ad valorem court fee. The plaintiff was, therefore, not entitled to a decree of eviction since the relationship of landlord and tenant was not established between the parties. It, accordingly, dismissed the suit by judgment and order dated December 23, 1974. 7. The plaintiff took the matter in appeal, (Title Appeal No.12 of 1975) which too was dismissed by the Second Additional District Judge, Arrah, by judgment and order dated February 19, 1975. From the judgment of the first appellate court, it appears that before it the main focus was on the issue of relationship of landlord and tenant between the parties. The trial court found that the suit property was vacant land and not a house (the case of the plaintiff was that the suit property was a piece of land 3 kathas and 5 dhurs in area with a fallen down house). It also noted that on behalf of the respondent no argument was advanced on the invalidity of the sale deed and the controversy was mainly about the relationship of landlord and tenant between the parties. On this issue, the appellate court came to the same finding as the trial court and dismissed the plaintiff’s appeal observing as follows: “10. It is quite clear from the above enunciated principle that in declared and possession of the suit house recovered after paying 8. The plaintiff did not take the matter any further but filed another suit (Title Suit No.16/82 of 1978-79) against Md. Lukman seeking declaration of title over the property and recovery of its possession from the defendant. In this suit, her claim of title over the suit property was exactly the same as in the previous suit. The defendant too, apart from raising the objections based on limitation and res judicata and similar other formal pleas mainly stuck to the same story as in the previous case. According to the defendant, the sale deed relied upon by the plaintiff was not a genuine document for consideration and it was not executed by Sulakshana, who was the mother of the defendant. It was stated on behalf of the defendant that Sulakshana died in 1957. In the beginning of that year she suffered from fever for about a month and remained confined to bed and thereafter she suffered an attack of paralysis. She lost all power of understanding and continued in that state till her death in August 1957. The defendant specifically pleaded that on August 13, 1957 when the disputed sale deed was shown to have been executed, she had no power of understanding. It was further stated on his behalf that the plaintiff’s husband was a clever litigant and he manoeuvred to fabricate the sale deed by setting up some other woman as Sulakshana. It was also stated that if there was in existence any sale deed purportedly executed by Sulakshana, it must have been manufactured in collusion with the scribe, the attesting witnesses and the registrar and it would not confer any right, title or interest in the suit property on the plaintiff. It was further the case of the defendant that the disputed sale deed was never acted upon and the plaintiff never came in actual possession of the suit property on this basis. The defendant also denied the case of the plaintiff that she had inducted him as a tenant in the suit premises on a monthly rental of Rs.10.00 (rupees ten only) or as a licensee, as totally false and concocted. The defendant claimed that his mother Sulakshana had given him the suit property in the year 1950 by Hiba (oral gift) and put him in actual physical possession of the suit premises and since then he was coming in its possession. He constructed a boundary wall around the land and a house consisting of five rooms, etc. It was lastly claimed that the defendant was coming and continuing in possession to the knowledge of everyone, including the plaintiff and, thus, the defendant had, in any event, acquired title by adverse possession. 9. It is, thus, to be seen that in the second suit too both parties went to the court with the same stories as in the previous suit, though, it is true that this time each side led some additional evidence in support of its case, for example, the plaintiff relied upon and produced a copy of the judgment in the earlier suit in which her claim of title over the suit property was upheld. 10. The trial court framed a number of issues, of which issue nos. III, IV, V & VI are relevant for this appeal and are as follows: “III) Has the plaintiff got title over the suit property? V) Has the plaintiff acquired title by adverse possession? The trial court considered issue nos. III, IV & V together and came to find and hold that the plaintiff had succeeded in proving her title whereas the defendant had failed to prove his adverse possession. Issue nos. III & V were therefore decided in the plaintiff’s favour while issue no. IV was decided against her. On the basis of its findings, the trial court held that the plaintiff had valid cause of action and it, accordingly, decreed the suit by judgment and order dated February 28, 1981. 11. Against the judgment and order passed by the trial court the defendant preferred an appeal (Title Appeal No.33 of 1981). The first appellate court (the eighth Additional District Judge, Arrah), on a reappraisal of the evidence produced by the parties, came to find and hold that the plaintiff had failed to prove that Sulakshana had put her left thumb impression on the sale deed (Ext.3) after understanding its contents and she had, thus, failed to prove her title to the suit premises on the basis of the sale deed. The appellate court, accordingly, allowed the appeal and by judgment and order dated May 21, 1987 set aside the judgment and decree passed by the trial court and dismissed the plaintiff’s suit. 12. The original plaintiff was dead by this time and her heirs and legal representatives, the present respondents, took the matter in second appeal (Appeal from Appellate Decree No.236 of 1987) to the High Court. In the High Court, the second appeal was heard on the substantial question of law framed as under: “…whether the judgment and decree regarding title passed in 13. The High Court by judgment and order dated May 24, 2002 answered the question in the affirmative, in favour of the appellants (respondents herein), allowed the appeal, set aside the judgment and order passed by the appeal court below and restored the judgment and decree of the trial court. The High Court noted that the earlier suit (for eviction) and the later suit for declaration of title and recovery of possession were between the same parties and were contested on exactly the same claims raised by the two sides. The plaintiff on each occasion was claiming title to the suit premises on the basis of a sale deed executed by Sulakshana in her favour in the year 1950. The defendant on each occasion alleged that the sale deed was sham, fake and fabricated and set up a rival claim of title on the plea that his mother Sulakshana had made an oral gift of the suit premises in his favour in the year 1950 and since then he was coming in possession over it. The premises, when it was given to him in gift, was a vacant land over which he had constructed a house after obtaining sanction from the municipality. The High Court, therefore, observed as under: “9… The facts of the earlier Title Suit No.36 of 1973, which 10. In the facts and circumstances of the case, the judgment and 14. Mr. H.L. Agrawal, learned senior advocate, appearing for the appellant contended that the High Court had seriously erred in holding that the finding in the earlier suit of eviction would operate as res judicata in the subsequent suit for declaration of title and recovery of possession. Mr. Agrawal contended that a court dealing with an eviction suit was a creature of the Rent Act and was a court of limited jurisdiction. It had no authority or jurisdiction to decide disputes of title and hence, any finding recorded by it on the larger issue of title could not be binding on a court under the Code of Civil Procedure adjudicating upon a dispute of title between the two sides. He further submitted that there may be instances where in a suit for eviction the tenant might deny the title of the person seeking his ejectment and in those cases the rent court may incidentally go into the question of title in order to decide on the primary issue of eviction. But its findings on the issue of title would only be incidental and never binding in a proper suit for declaration of title and recovery of possession. In support of the submission he relied upon a decision of this Court in Shamim Akhtar v. Iqbal Ahmad & Anr., (2000) 8 SCC 123, in which it is said that in an eviction suit under the Rent Act, the question of title can be considered by the court as an incidental question and the final determination of title must be left to the decision of the competent court. The decision in Shamim Akhtar arose from U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 and the Provincial Small Cause Courts Act, 1887 and it was on a totally different set of facts. The observation of the court relied upon by Mr. Agrawal was of course stating the general rule and no more than that. The decision in Shamim Akhtar in no way helps the case of the appellants in the present appeal. 15. The counsel for the respondents on the other hand relied upon a decision of this court in Sajjadanashin Sayed Md. B.E.Edr.by LRs. (D) vs. Musa Dadabhai Ummer and Ors., (2000) 3 SCC 350. The decision in this case dealt with the question when a matter can be said to be directly and substantially in issue and when it is only collaterally and incidentally in issue. The decision in Sajjadanashin does seem to help the case of the respondents. But we may state here that Mr. Agrawal with great fairness brought to our notice a decision of the Patna High Court1 in Pardip Singh vs. Ram Sundar Singh, AIR (36) 1949 Patna 510, though it is clearly against him. It is an old decision in which the division bench of the High Court placed reliance on two earlier decisions of the Privy Council. In Pardip Singh Meredith J., speaking for the division bench of the court observed as follows: 1 “The decision in a rent suit is not res judicata on the question of 16. We respectfully concur with the view expressed in the decision in Pardip Singh. 17. We have carefully examined the pleadings of the parties in the two suits and the evidences led by them in support of their respective claims regarding title in the two suits. And, we are satisfied that the issue of title was expressly raised by the parties in the earlier eviction suit and it was expressly decided by the eviction court. The question of title was directly and substantially in issue between the parties in the earlier suit for eviction. Hence, the High Court was right in holding that the finding recorded in favour of the plaintiff in the earlier suit for eviction would operate as res judicata in the subsequent suit for declaration of title and recovery of possession between the parties. 18. We, thus, find no merit in the appeal. It is dismissed, but in the facts and circumstances of the case there will be no order as to costs. ……………………………..J ………………………………J |
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