In the High Court of Judicature at… vs Unknown [5, December 2008]

Facts:

The appellant was alleged to have assaulted a man named Bhaurao on the abdomen by using a spear causing multiple injuries and bleeding on the cheeks, chest, and ear of the person. Not only this, multiple injuries were inflicted upon two other witnesses before the appellant named Vinod ran away. Subsequently, a case was filed before the court, where the trial court convicted the appellant under Section 324 of the Indian Penal Code and awarded a sentence of rigorous imprisonment for one year. Aggrieved by the decision, an appeal was made in the High Court.

Issues:

• Whether the appellant should be convicted under Section 302 or Section 304 of the Indian Penal Code?

Legal Provisions:

• Section 302, IPC – Punishment for murder
• Section 304, IPC – Punishment for culpable homicide amounting to murder
• Section 324, IPC – Causing grievous hurt by weapons

Appellant’s Contention:

The learned counsel submitted contentions on behalf of the appellant that the real story has been suppressed and has been laid in the court in a manipulated manner. The situation is being corroborated only based on witnesses; there lies no evidence against the appellant which proves the action of the appellant. In short, the offense of the appellant has not been proved beyond a reasonable doubt.

Respondent’s Contention:

The learned counsel appearing on behalf of the respondent submitted that the judgment passed by the trial court was apt and does not need to be interfered with since the offense was proved beyond a reasonable doubt. The witnesses were close relatives of the deceased and ought not to have been believed by the trial court.

Observations of the court:

The statements submitted by the prosecution witnesses and the certificate issued after post mortem examination deposes as to the incident of assault that led to the death of the deceased. The question which arose before this court was whether the deceased met with homicidal death. As per the opinion of the doctor, the deceased died on account of hemorrhagic shock due to multiple stab injuries. The stabs were a result of continuous use of the spear, which the appellant used to cause grievous hurt to the deceased. The story appeared self-made by the wife of the accused and the accused; therefore it cannot be termed as reliable or acceptable. There is a lack of medical evidence to prove if multiple injuries by stabbing were sufficient to cause the death of the deceased in the ordinary course of nature. Thus, it is not safe to hold the accused guilty of an offense under Section 302. However, the accused cannot escape the liability of culpable homicide.

Judgment:

The appellant is liable under Section 304 Part-I of the IPC and the sentence is reduced.

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DARGA RAM V. STATE OF RAJASTHAN AIR 2015 SC 1016

MATERIAL FACTS

The Complainant had arranged a Jagran somewhere on the fringes of the village in Rajasthan. Until midnight there were about fifty (50) individuals, including men, women, and children, including Kamala (the 7-year-old victim) and Darga Ram (the appellant). Kamala went to sleep in a nearby location with the other children. When the complainant, the victim’s father, went to the house, he discovered that Kamala was missing.
The search was then carried out on the periphery of the village, and one of the members of the village found her dead body. Upon further investigation, Kamala was found to have been raped and killed by smashing her head with a heavy stone. A case was registered under Section 302 and Section 376 of the Indian Penal Code. Darga Ram, who was a deaf, dumb, and uneducated teenager, was further interrogated and arrested by the police on the grounds of the injuries found on his intimate (or rather private) parts, along with bloodstains that matched with the victim’s blood group.
In addition to a fine of Rs. 1000/- and a default sentence of one month with rigorous imprisonment, the trial court ultimately found the appellant guilty and thus convicted him and sentenced him to incarceration for a term of ten years. Correspondingly, he was sentenced to life imprisonment and a fine of Rs. 3000/- and a default term of three months of rigorous imprisonment for the crime of punishment for murder.
An appeal was subsequently lodged by the appellant seeking to raise a plea that, at the time of the commission of the Act, the appellant was a juvenile and thus entitled to the benefit from the provisions of the Juvenile Justice Act, 2000.

ISSUES

1. Whether the appellant was a juvenile when the offense took place?
2. Whether the appellant is entitled to get benefits from the provisions of the Juvenile Justice Act, 2000?

LEGAL PROVISIONS

• Sections 302 and 376 of Indian Penal Code, 1860
• Rule 12(3)(b) of Juvenile Justice (Care and Protection of Children) Rules, 2007

JUDGEMENT

The Hon’ble Court ordered the Principal, Government Medical College, Jodhpur, to set up a medical examination board of doctors, including a radiographic examination of the appellant, to ascertain the age of the appellant as at the time of the offense in April 1998, took place because the appellant had no historical evidence, such as a school or other certificate. On the evidence of the Medical Board’s calculation, it was determined that, on the date of the incident, the juvenile was just 17 years, 2 months, and entitled to benefit from the provisions of the Juvenile Justice Act, 2000.
The appellant was thus deemed a juvenile in this case and the sentence awarded to him was set aside and was released from prison.

ANALYSIS

The reality that the appellant who was found guilty of the rape and murder of an innocent young child and been in prison for almost 14 years, was acquitted on the basis that he was a juvenile at the time of the commission of the offense. One is forced to believe, like the prosecution that the appellant has engaged in sexual abuse, which at the level of his growth may be a normal manifestation of natural sex. Although, his cognitive abilities were not improbable, his potential to comprehend desire, sexual arousal, and its limits could be severely impaired.
Since the appellant was illiterate and had no historical evidence, such as school or some other certificate. The question must be posed as to why hearing and speech impairment and lack of education weren’t treated as a cause for extenuating circumstances until the age of seventeen years. It was interesting why the appellant did not seek protection under Section 2(b) of the Equal Protection Act of Persons with Physical Disabilities, 1995, and why he was not protected under Section 2(d) (iii) of the Juvenile Justice Act, 2000

In such cases, the age of the juvenile should be the decisive factor and not the heinousness of the offenses a juvenile who was a minor during the commission of the offense and should not be held accountable as there was an inadequate development of cognitive faculties and decision-making abilities.

CONCLUSION

Law and social norms have always been aware of a widespread perception that children and young people are not even completely developed, they are in the cycle of development. Their brains experience a phase of great plasticity triggered by the hormonal transition of adolescence, in which the socio-emotional system that governs emotions and rewards sensitivity grows faster than the cognitive control mechanism that regulates planning, rationality, and self-discipline.
Consequently, their roles should be distinct and primarily motivated with a view to fostering rehabilitation rather than irreversible separation from society to the greatest extent possible.

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Kari Choudhary vs Most. Sita Devi And Ors. on 11 December 2001 AIR 2002 SC 441

Introduction

This is a case where a mother-in-law who was the complainant of the murder of her daughter-in-law was transposed as accused after the investigation.

Facts

Sugnia Devi was married to one of the four sons of the respondent, Seeta Devi 10 years prior to the incident. She was childless. On the night of 27-6-1988, Sugnia Devi was murdered in her bedroom. The next day, Seeta Devi lodged an FIR in the police station alleging that a few persons sneaked into their house and entered the bedroom, and strangulated Sugnia Devi. FIR number 135 was lodged by the police officer and the investigation commenced thereafter. After few days, the police were of the opinion that the manner in which Sugnia Devi was murdered is totally different from the version of Seeta Devi, they were of the view that a conspiracy was hatched against Sugnia by Seeta Devi and her other daughters-in-law. The police sent a report to the court which mentioned that the allegations mentioned in FIR number 135 were false and they have lodged another FIR and are continuing with the investigation. Seeta Devi filed a protest petition before the chief judicial magistrate contending that the allegations put by the police against her are false and the persons mentioned in FIR number 135 are the real culprits. The chief judicial magistrate dismissed the Petition. The respondent filed a revision before Highcourt which directed the magistrate to conduct an inquiry. The police force concluded the investigation and framed the charge sheet in which Seeta Devi along with her other daughters-in-law and her son, Ram Ashish, and few other persons were charged under sections 302 and 34 of the Indian Penal Code. Thus, the respondent moved the High Court of Patna again in order to quash the proceedings against her and others. The high court upheld her contention and quashed all the proceedings against the respondents without a trial. Aggrieved by this, the brother of the victim has filed this appeal before the supreme court.

Judgment

In this case, the appeal was allowed. It was held that the police cannot file 2 FIRs in a case, so the second FIR was considered as an information report. But this cannot be a ground to stop them from conducting the investigation of the crime, and it also does not give a ground for not having a trial and quashing the proceedings.

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CASE BRIEF ON VIRSA SINGH V. STATE OF PUNJAB AIR 1958 SC 465

MATERIAL FACTS

The appellant, Virsa Singh, formed an unlawful assembly together with five other individuals and assaulted one Khem Singh with a spear. His abdomen was ruptured as a consequence of injury and three coils of intestine came out of the wound that resulted in his death, which was around two and a half inches. The doctor confirmed, pertaining to the Post Mortem Report, that the injury was deep enough resulting in gushing out of digested food from the cuts and was sufficient in the ordinary course of nature to cause death.

ISSUES

1. Whether any offense has been committed by the appellant?
2. Whether an individual can get away with the punishment for the injury caused which resulted in death when there was a lack of intent?

ARGUMENTS ADVANCED

The appellant argued that the intent of the first part of section 300, thirdly, “if done with the intention of causing bodily harm to any person”, would not be adequate to fall under this section. For the second part, an additional condition of intent, i.e. “and the bodily injury intended to be inflicted which should be sufficient to cause death (in the normal course of nature)” is also required.

Furthermore, the appellant referred to the case of R v. Steane (1947) in which the Chief Justice ruled that “where a specific intent must be charged, that specific intent must be proved” and sought to expand the position of intent in the act in question. The appellant cited another paragraph from the same case where it was asserted that the accused should be acquitted in case of doubt as to the concern of intent and put the responsibility on the prosecution to prove the intent beyond a reasonable doubt.

It was argued that the above-mentioned facts do not reveal an offense of murder under section 300, thirdly because the prosecutor has not proved that there was intent to inflict a bodily injury that was sufficient in the ordinary course of nature to cause death. Lastly, the appellant linked the case to Emperor v. Sardarkhan Jaridkhan (1917), which said that it is challenging to figure out what the accused actually meant when death is caused by a single blow.

JUDGEMENT

The appeal was dismissed and the appellant was convicted under section 302 of the Indian Penal Code, 1860 (IPC).

ANALYSIS

In ascertaining whether an act is a murder or not, analyzing the intent becomes essential. However, when a single blow has caused murder, determination of intention becomes difficult; which happened in the present case. In the ordinary course of nature, whether it was necessary to cause death is a subject of interpretation from the established facts about the complexity of the injury and has little to do with the issue of intention.

In the case of Virsa Singh v. the State of Punjab, readers should note that when a case is falling under the realms of section 300 of IPC, and when there’s contention as to whether firstly or thirdly of the said section would be applied, the following aspects should be taken into account. The condition is erroneous where the accused should have the intention or knowledge to cause injury, which is necessary to cause death in the ordinary course, meaning, as long as the death results from deliberate bodily injury sufficient in the ordinary course of nature to cause death. When the intention to cause the bodily injury is genuinely found and the same is established in the court of law, then the remaining part of the investigation process is solely objective and the only concern is whether, as a matter of purely objective inference, the injury is enough to cause death in the ordinary course of nature.

The injury caused should be the cause of death. It is clearly a matter of fact whether a specific injury is enough in the ordinary course of nature to cause death or not. The perpetrator, who caused the injury deliberately, maybe oblivious that the injury is sufficient or capable of causing death.

The real analysis of this section indicates that it is not enough to establish that the injury identified to be existing is sufficient to cause death in the ordinary course of nature, but it must also be established or rather proved that the injury found to be existent was the same injury intended to be incurred. However, if his intention to inflict the injury is known and the injury sustained is sufficient in the ordinary course of nature to cause death, then the perpetrator is guilty of murder for culpable homicide.

CONCLUSION

No individual has a permit to roam scot-free, while causing injuries that are sufficient in the ordinary course of nature to cause death and argue that they are not guilty of murder, meaning that, they must confront the repercussions if they inflict injuries of that kind, and they can only get away if it can be established or rather fairly deduced that the injury was accidental or otherwise unintended.

In order to bring the case under clause thirdly of section 300, of the IPC, the court gave a four-point test that the prosecutor must observe and prove: which is used as precedents in many other succeeding cases. Justice Vivian Bose’s reflections on the four-point test have been known as ‘locus classicus’. The test set out in the case of Virsa Singh for the scope of the clause “thirdly” is now embedded in our legal framework and has become an integral part of the system.

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GYARSIBAI W/O JAGANNATH V. THE STATE AIR 1953 MP 61, MANU/MP/0011/1952, 23RD OCTOBER 1952

MATERIAL FACTS

The appellant, Gyarsibai, resided in the same house along with her spouse, her children, and Kaiserbai, her sister-in-law. There were neither any cordial relations nor any good terms between Kaiserbai and Gyarsibai. Moreover, they were in regular disputes, and often had heated confrontations between them. Jagannath, her spouse, used to hit and abuse Gyarsibai for bickering with his sister, Kaiserbai. On the morning of 14/9/1951, when Jagannath was not at home, one such disagreement occurred.
When Kaiserbai forced the appellant to get out of the house, Gyarsibai went away from the home with her three children aged 7 years, 5 years, and 1.5 years, stating that she would jump into a well together with her three children, right after leaving the home. Eventually, Gyarsibai and her three children were reported by the people of the village. Gyarsibai survived, but she lost her children on account of their deaths.

ISSUES RAISED

1. Whether the appellant is liable for the offense of murder of the three children?
2. Whether the appellant is liable for the offense of attempt to suicide?

LEGAL PROVISIONS

• Section 300(4) of the Indian Penal Code, 1860
• Section 309 of the Indian Penal Code, 1860

JUDGEMENT

The appellant was sentenced to life imprisonment under Section 302 of the Penal Code. The Hon’ble Court, however, advised the Government to mitigate the sentence of life imprisonment to one of three years of rigorous imprisonment. The appellant was sentenced to six months’ imprisonment for the offense of attempt to suicide under Section 309 of the IPC.

ANALYSIS

In the case of Gyarsibai v. The State, readers should note that it is simply not murder by merely causing the death of an individual, or by performing an act with the knowledge that is so imminently dangerous that it must, in all likelihood, cause the death of the individual. In order for an act carried out with such knowledge to constitute murder, it’s indeed important that it should be committed without any excuse for incurring the risk of causing death or injury to the body. An act, committed with the knowledge of its repercussions, is not murder prima facie; it becomes murder only if it can be proven unequivocally that there was no excuse.

The conditions of the section are not met by the act of murder being one of gross recklessness. It must, however, be utterly inexcusable. If even a risk of the most extreme possible nature is taken which would usually result in death, taking the risk is not murder unless it was inexcusable to take it. The court acknowledged that there was no reason to consider that the appellant could not avoid abuse at the hands of her sister-in-law, besides jumping with her three children into a well.

In deciding what is or is not an excuse, the state of mind in which the convicted individual was, must be kept in mind. The state of mind of a rational and lawfully sane individual must be taken into consideration and then assess whether the possibility of causing death might have been prevented.

Any sane person is assumed to have some understanding of the essence of his act-and in this case, one is bound to assume that the appellant was sane. Any psychiatric illness short of insanity does not refute this knowledge or understanding.
Such terms suggest that if undertaken to escape greater harm, the imminently dangerous act is not murder. Without doing the act, if harm can be prevented, then there can be no legitimate excuse for doing the act that is so imminently dangerous that it would, in all likelihood, trigger death or harm that is likely to cause death.

CONCLUSION

The Hon’ble High Court held that under section 300(4), the appellant was justifiably convicted, as she was neither an individual of unsound mind, nor she was in a position where she could not understand or know the consequences of her behavior. Jumping into a well wasn’t the only choice she had left with. Thus, there was no excuse for her conduct, so under section 300(4) and it was reasonable to prosecute her.

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Paul vs the State of Kerala

Facts:

Jessy, the wife of the appellant was subjected to cruelty and brutality by the appellant and his mother. On 11.10.1998, the deceased was confronted with intolerable behavior by her mother-in-law, because of whom she felt harassed and insulted. She left the house in search of her husband, whom she found consuming alcohol with his friends and was assaulted by him in front of all. Thereafter, she was found dead the same night by throttling of her neck. However, the husband had set up a false case by attributing death as a suicide. The appellant and his mother were acquitted by the trial court and the High Court of Kerala held guilty under Section 302 and sentenced him to rigorous imprisonment for life along with a fine of Rs. 10,000/-. The State filed a criminal appeal against acquittal.

Issues:

Whether the appellant is guilty of murder?

Legal Provisions:

• Section 300, The Indian Penal Code – Murder
• Section 302, The Indian Penal Code- Punishment for murder
• Section 304, The Indian Penal Code– Punishment for culpable homicide not amounting to murder
• Section 105, The Indian Evidence Act, 1872-Burden of proof
• Section 313, The Criminal Procedure Code

Appellant’s Contention:

The learned counsel submitted that Jessy had aborted a child and was going through depression. Although there was a quarrel and assuming that the appellant had set up a scene of suicide, he must be extended the benefit of exception 4 of Section 300.

Respondent’s Contention:

The respondent in her submission made mention of the deceased being subjected to mental and physical cruelty by the appellant and his mother. After examination of several witnesses and chemical analysis reports, it entailed abrasion and contusion on various parts of the body of the deceased. Therefore, the decision of the High Court should standstill.

Observations of the court:

The judgment revealed that the High Court had found an incomplete examination by the Sessions Judge under Section 313 of the CrPc and pointed out the necessity of Section 106 being taken into account. The appellant had contended that there was no one except him in the bedroom when the incident took place which places the burden of proof on him under Section 105. Therefore, he palpably set up a false case depicting suicide committed by the deceased. Even if the appellant was intoxicated, he is still liable for the actions he took. If the said act would not have amounted to murder then it would have taken the scope of Section 304. The bruise, abrasion, and contusion make the case more evident.

Judgment:

The court concluded that the appellant had made a false plea and caused the death of his wife by throttling. The act amounts to murder defined under Section 300 of the IPC and does not draw any exceptions to it.

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Ananta Kamilya vs The State of West Bengal

Facts:

Ananta Kamilya inflicted an injury by lathi on the head of the deceased after a heated argument because of which the deceased was taken to different hospitals and departed his life after 7 days. The appellant moved to the Supreme Court seeking relief after being aggrieved by the decision of the High Court of Calcutta, which dismissed the appeal of the appellant and held the accused guilty for the offense committed under Section 302 of the IPC.

Issue:

Whether the appellant was guilty of murder?

Legal Provisions:

• Section 300 of the Indian Penal Code – Murder
• Section 302 of the Indian Penal Code – Punishment for murder
• Section 304 of the Indian Penal Code – Punishment for culpable homicide not amounting to murder

Appellant’s Contention:

The learned counsel submitted that there was no intention on the part of the accused to inflict a serious injury which could have ultimately led to the death of the deceased, which implies that the offense committed does not amount murder. Furthermore, it was submitted that the deceased passed away after 7 days, despite taking the deceased to several different hospitals. Therefore, it was prayed to convict the accused under either Part I or Part II of Section 304 of the IPC.

Respondent’s Contention:

The learned counsel for the state of West Bengal supporting the decision of the High Court of Calcutta, submitted that an act of causing an injury on any vital part of the body could be lethal and, thus, the offense committed would be considered under Section 300 of the IPC, hence, it was prayed to dismiss the appeal.

Observations of the Court:

The court after reviewing the facts of the case and the judgment rendered by the High Court was of the opinion that the accused did not carry a lathi, instead, it was present at the place of the incident. It was only due to a heated argument that the accused on the spur of the moment gave a lathi blow on the head of the deceased, who after sustaining the injury got a fracture. Despite such serious injury, he was taken to the police station, other hospitals, and eventually after the 7th day he died. This shows the grievousness of the injury, which means the death was an outcome of an injury in an argument. Therefore, the case would fall under exception 4 to Section 300.

Judgment:

After looking from all the angles of the scenario, the accused is not guilty of murder and is liable to be punished under Part I of Section 304 of the IPC, sentencing him to undergo imprisonment for 10 years.

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Karulal v. State of Madhya Pradesh

Facts

An appeal was filed before the Supreme Court. By 5 accused, namely- Karulal, Amra, Kachru, Suratram and Bhagirath; against the order of the Madhya Pradesh High Court dated 23^rd June 2009, where the Trial Court’s order convicting them for the offence of murder of Madhavji, was upheld. On the morning of 18^th August 1993, Madhavji- the deceased and his son Bhawarlal (PW3) were present on the field, when PW3 suddenly heard his father cry out loud and saw Karulal, Amra, Kachru, Suratram, Bhagirath and Lala attacking his father with weapons, Shyamkalabai (PW 12)- the daughter of the deceased hearing the commotion along with PW9 and Babulal reached the spot, seeing them the accused persons ran away. PW3 arranged a bullock cart to take his injured father to Narayangarh, on the way they were stopped by some women to prevent them from filing the police report and threatened to kill, however they manage to proceed but Madhavji died on the way.

Bhawarlal and Babulal reached Narayangarh Police Station with the dead body and filed a report against accused u/s- 148, 302 read with 149 of the Indian Penal Code. The women were charged u/s 506 of the IPC, but the charges of obstruction and threats to kill were not proved and so they were acquitted. The prosecution examined 15 witnesses, out of which four did not support the prosecution case. PW2 was the doctor who performed the autopsy of the deceased’s body and stated the death was was due to bleeding from the injuries inflicted by hard, blunt, sharp-edged weapons and the subsequent shock. The Trial Court went through the testimonies of Bhawarlal (PW3), Babulal (PW11) and Shyamkalabai (PW12) and found that the six accused were armed and assemble to attack Madhavji. The court noted that the eye witnesses PW3 and PW12 were the children of the decease and found that PW11 who was not related and his testimony was found to be consistent with other two eyewitnesses, evidence of PW12 was found reliable as her presence at the place of incident was confirmed by PW3 and PW11, they corroborated each other on all material particulars. Ram Singh (DW1) and Mangi Lal (DW2), stated that Madhavji accidentally fell into the nullah and suffered the injuries.

The Trial Court noted that DW2, the village chowkidar did not visit the place of occurrence nor did he report the accident of Madhavji to the Police, which he ought to have in normal course of his duty as the village chowkidar; DW1’s evidence was also found to be untrustworthy as his claim to have accompanied PW3 to the Police Station was found to be false. The court noted that the doctor merely accepted that the injury could have resulted from a fall but never stated that the injury was the result of the accidental fall, the doctor also never suggested that the injuries were not a result of violent attack by the accused persons on the deceased. The court noted that the accused inflicted injuries on vital parts in furtherance of their common objective. The accused pleaded false implication by the deceased’s family due to old enmity, the Trial Court considered it and evaluated evidence of the eyewitness and the post-mortem report and found the plea to be untrue. The Trial Court held that the accused persons intentionally caused fatal injuries to the deceased and were therefore convicted u/s- 302, 148 read with section 149 of the IPC, out the six accused Lala died during the trial. The accused persons then approached the Madhya Pradesh High Court, who found the evidence of the eyewitness to be consistent and noted that it was corroborated by medical evidence. They found no infirmity in the Trial Court’s judgement of convicting the accused and dismissed the appeal filed by the accused person.

Issues:

• Whether the enmity between the parties, led to false implication of the accused persons.
• Whether the accused persons were rightly convicted by the Trial Court

Legal Provisions:

• Indian Penal Code, 1860 Sections 302- Punishment for murder.
• Indian Penal Code, 1860 Sections 148- Rioting, armed with deadly weapon.
• Indian Penal Code, 1860 Sections 149- Every member of unlawful assembly guilty of offence committed in prosecution of common object.

 Appellant’s contention:

 The appellant’s counsel submitted that the evidence of PW3 and PW12 should be discarded as they are the deceased’s children, and that the accused persons were being implicated due to past enmity, and that a few witnesses did not support the prosecution’s version. The counsel also showed that the injuries were caused through the deceased’s accidental fall in the nullah. 

 Observations of the court:

The case was heard before the Supreme Court Bench of N.V. Ramana, Surya Kant and Hrishikesh Roy, JJ. The court went through the law on evidentiary value of related witnesses and referred to the case of the Dalip Singh and Ors. v. State of Punjab (1960) whereby it was observed that unless a witness comes from a tainted source or as a cause for enmity against the accused, he will be considered to be independent and that close relatives were less likely to protect the real culprit and falsely implicate an innocent person. The Court in the present case noted that Babulal PW11 being unrelated to the deceased, his evidence corroborates evidence given by PW3 and PW12. The court also noted that by reason of being related to the deceased, one will not falsely implicate an innocent person, the court referred to the case of State of Uttar Pradesh v. Samman Das (1972) where it was held that close relatives of the deceased would be reluctant to spare the real culprit and falsely implicate an innocent person. The court thus noted that, evidence given by related witnesses if found to be truthful can be the basis of conviction and that the court had sufficient reason to believe PW3 and PW12.

The court referred to the observation in Sushil and Ors. V. State of Uttar Pradesh (1995), that enmity can go both ways, it can also be considered a motive for committing a crime and it can also provide motive for false implication. The evidence of related witnesses cannot be discarded for if it is found to be reliable and supported by independent witnesses. The court noted that past enmity will not discredit testimony of witnesses if they are found to be otherwise trustworthy. They held that in the present case the history of bad blood gives clear motive for the crime, and this aspect does not aid the appellants. The court also held that there was sufficient evidence and trustworthy testimonies which clearly support the prosecution’s case against the accused.  be noted that although some witnesses may not support the prosecution’s version, it is then necessary for the court to determine whether other evidence comprehensively proves the charges. The Court noted that the Trial Court had elaborately considered the evidence that came to a logical conclusion, and held that hostile witnesses would not affect the appearance conviction.

Judgement:

 The court held that the high court had rightly upheld the order or the trial court order of converting opinion it was accordingly declared the pin was dismissed.

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Prakash Dehury v. State of Orissa

Facts:

The appellant- Prakash Dehury aggrieved by the judgment of the Trial Court dated 2^nd July 1999, convicting him for offence under sec-302 of the Indian Penal Code, has approached the Orissa High Court. One Bijaya Kumar Pradhan filed an FIR before the Handapa Police Station on 13^th March 1995, alleging that on 12/13 March 1995, at about 1:00 AM, the appellant had cut the throat of his own wife Saudamini (the deceased), and had requested him to provide a truck to carry her to a nearby hospital, the informant had seen the injury inflicted on the throat of the deceased and was involved in arranging the transport facilities to take the deceased to the hospital for treatment. The case was registered under sec-307 of the IPC, the prosecution examined 13 witnesses. On the night of the occurrence, the accused/appellant accompanied by his brother- Prahlad and some other villagers had gone to watch the danda nata (opera) in a nearby village. The appellant and others present at the venue were informed about the sharp cut injuries on the deceased neck inflicted by someone, they then took her to the hospital but unfortunately, she passed away. There was no eyewitness who could give evidence that the appellant tried to kill the deceased. The Trial Court held the accused guilty of slitting his own wife’s throat which lead to her death, and convicted him for offence u/s-307 of the IPC.

Issues:

• Whether the appellant committed the offence though he was not present at the spot of occurrence at the time of the incident.
• Whether the prosecution proved beyond reasonable doubt guilt of accused.
• Whether the Trial Court erred in convicting the appellant for offence u/s-307 of the IPC.

Legal Provisions:

• Indian Penal Code, 1860 Section 302 – Murder.
• Indian Penal Code, 1860 Section 307 – Attempt to murder.

Appellant’s Contention:

The appellant maintained his plea of innocence as he did not have any ill motive towards his deceased wife. The accused stated that the prosecution story is tainted and that the eye witnesses turned hostile, but this aspect was not rightly considered by the Trial Court. It was a submitted that since appellant along with his brothers and other villages had gone to see the danda nata, no motive can be ascribed to him. Independent witnesses did not support the prosecution’s case, they denied the prosecution story and turned hostile. They stated that the Additional Session Judge erred in relying on the evidence of PW8 to prove appellant’s motive, and evidence of PW11 to prove discovery of alleged weapon using the offence under section 27 of the Indian Evidence Act. They further stated that the Sessions Judge did not to consider the statement of PW9 in the Court, that they were informed about the incident in the venue of the opera and on return went to PW8’s house to request him to arrange a truck to take the victim to the hospital. It was unknown why the statement of the victim was neither recorded by the doctor or the police, though she was alive till she was treated at Angul Hospital.

The council for the appellant submitted that there was no eyewitness to the incident and the present case was based on circumstantial evidence, the Trial Court solely relied on circumstances namely- accused had motive to kill his wife, and secondly, the accused led to the recovery of the weapon of offence while in police custody. Both observations were said to be wrong and not supported by proper evidence, and so cannot be a strong piece of evidence to convict appealing. There was no evidence or proof of disagreement between the appellant and the deceased, the witnesses did not say anything relating to quarrels or disturbances in their relationship. The appellant referred to the case of Navaneetha Krishnan v. The State by the Inspector of Police (2013), whereby the Supreme Court laid down that section 27 of the Indian Evidence Act states that statements made in police custody can be admitted only to the extent that they can be proved by subsequent discovery of facts, and such link was missing in the present case. They also submitted that there is a complete absence of Mens Rea on part of the appellant for planning to kill his own wife and that there is still suspicion as to who caused the grievous injury to the deceased. Further it was found that PW 11 in his statement mentioned that the victim died before she was brought to PW8’s house, but as PW 8 stated that the victim was alive when she was brought to his house.

Respondent’s Contention:

The Investigation Officer (IO) examining the informant and other witnesses, also examined the appellant who confessed his guilt and provided information that he had concealed weapon of office i.e. an axe near a ‘dimri’ tree, at Rajabandha nala, the bloodstained axe was recovered from that spot, the IO also seized a bloodstained lungi, a blood stained napkin belonging to the accused/appellant, also one red color saree, some bangles and two steel rings were recovered and sent for examination. The Medical Officer was of the opinion that the sharp weapon like the axe produced by the appellant could have caused the injury on the deceased’s body. The chemical examination report showed the presence of human blood of ‘O’ group from the axe, napkin of the appellant and the deceased’s clothes, which point to the involvement of the appellant and establishes him as the author of the crime.

The counsel for the state said that there were no eyewitnesses present at the spot of occurrence and the present case is purely based on circumstantial evidence. They stated that considering the absence of Mens Rea and ill-motive on part of the accused for committing a heinous crime, how did the deceased get such a severe injury and who committed the murder, this was a large issue to be resolved and the Trial Court rightly resolved issue. The Trial Court in its judgement noted that it was unlikely that some unknown culprit committed the offense. The deposition of the deceased’s family members before the court did not mention anything about the real culprit. During investigation it was found that the appellant had love affair with another girl and tortured the deceased out of anger and committed the murder. They submitted that there was no doubt on the findings of the Trial Court of appellant being the offender and hence the High Court should not interfere with the justifiable findings of the Trial Court.

Observations of the court:

 The case was heard before the Orissa High Court Bench of S. Panda and S.K. Panigrahi, JJ. The court heard both the parties and went through the facts and circumstances of the case. It was noted that the appellant had consistently stated that he was he had no ill motive and was not even present at the spot of occurrence at the time of the incident. The court was curious how the IO was able to recover the weapon of offence used by the accused from his statement and the same was found to be doubtful and uncorroborated. PW9 was declared hostile during the course of examination and still the Sessions Judge relied on his evidence to come to the conclusion of the appellant’s motive to kill his wife was said to be unacceptable in the eyes of law, the court noted that the motive is absent in the present case. PW3 and PW7 (seizure witness and post-occurrence witness) did not mention about the seizure of weapon of offence in their cross-examination, so it cannot be concluded that the weapon of offence is recovered.

The court held that the Sessions Judge was prejudiced and that the prosecution failed to prove charges against appellant as there is no evidence to prove that the patient was even remotely connected with the about crime, and there was no discord between the appellant and the deceased and they had a normal relationship which cannot be attributed to such a heinous crime. The court held that Mens Rea is a legally essential ingredient in determining criminal liability and it is not visible in the present case. The court noted that the present case is based on circumstantial evidence not substantiated by strong evidence, it referred to the case of Sharad Bhirdi Chand Sarda v. State of Maharashtra (1984) whereby it was held that before concluding the guilt of the appellant, the circumstances should be established; fact should be consistent with the hypothesis of the guilt of the accused; conclusive circumstances; it should exclude every possible hypothesis except the one to be proved; complete chain of evidence; and there should not be any reasonable ground for proving accused’s innocence and it must be shown that in all probability the act was done by the accused.

The Trial Court’s finding that the circumstances are sufficient to instill reasonable doubt was found to be unacceptable. The court also noted that though the witnesses turned hostile, it is not necessary to reject their statements, as established in the case of Rabinder Kumar Dey v. State of Orissa (1997), whereby the court held that it may choose to rely on the credible parts of the testimony if it is consistent with other reliable evidence. The court noted that the investigation officer failed to corroborate the prosecution story, the circumstantial evidence failed to prove beyond reasonable doubt the involvement of the accused and to get sec-302 attracted, the accused was held entitled to the benefit of doubt. 

Judgment:

The High Court found reasonable ground to differ from the judgment of the Trial Court. The appeal was allowed, and the judgment of the Trial Court dated 2^nd July 1997, convicting the accused was set aside. The bail bond of appellant was discharged.

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Subed Ali v. State of Assam

Facts:

The appellants aggrieved by the decision of the Trial Court convicting them for offences u/s- 302/34 of the Indian Penal Code, and sentencing them to life imprisonment approached the Supreme court. The two deceased- Abdul Motin and Abdul Bareek, on 5-08-2005 were returning from the market on their bicycles along with PW5, PW6, PW7 and PW9, when at around 6 p.m. they were stopped by the accused/appellants and assaulted. Abdul Bareek died on the spot while Abdul Motin was injured and taken to a hospital where he died on the same night. Originally five accused were named, however, two co-accused were acquitted by the Trial Court by giving them the benefit of the doubt, there was no appeal preferred against their acquittal. PW1 informed the North Lakhimpur Police Station and give oral evidence on which a GD entry was made stating that some unknown person has assaulted the two individuals leading to their death. The brother of the deceased lodged a formal FIR on 6-08-2005 at 3:15 p.m., naming five accused which included the appellants. The Trial Court convicted the accused/appellants which is why they have approached the Supreme Court raising a plea for acquittal.

Issues:

• Whether the appellants nos.2 and 3 are entitled to the same benefit of doubt given to acquit the other two co-accused.
• Whether appellant no.1 had common intention with appellants no. 2 and 3 to assault the two deceased.

Legal Provisions:

• 302- Punishment for murder.
• Indian Penal Code, 1860, Section 34- Acts done by several persons in furtherance of common intention

Appellant’s contention:

The counsel for the appellants submitted that their conviction is unjustified and they should also get the benefit of the doubt on the basis of same evidence which acquitted two of the accused, they stated inconsistencies in evidence of the eyewitnesses and the fact that the incident took place after dark making identification doubtful, relying on cross examination of PW 6. PW1 deposed that he was informed by Babulal and Asgar Ali that the appellants were assailants, but the prosecution did not examine them. They further stated that the eyewitnesses gave evidence of assault inflicted upon the two decease by appellants 2 and 3 only, there was no allegation on appellant no.1 for carrying a weapon or assaulting any other two deceased, so there is no material to show common intention on part of appellant no.1.  Appellants no. 2 and 3 were said to be individually liable for their respective assault upon the decease, they further submit that no charge was framed u/s- 34 IPC.

Respondent’s contention:

The Council for the state submitted that the evidence given by PW’s- 5,6,7 and 9 was consistent regarding the appellants participation in the assault. They stated that considering the nature of evidence available against the appellants nos. 2 and 3, they cannot avail the benefit of doubt given to the other co-accused. They further submitted that common intention was established from the fact that the appellants were armed while they waited for the two deceased to return from the market, then assaulted them which led to their death.

Observations of the court:

The court went through the submissions of both parties as well as the post mortem report of the deceased. A formal FIR was filed 6-08-2005, charges were filed against the five accused u/s- 147, 341 and 302 of the IPC, charge u/s- 34 was not proved against the accused. The Trial Court based on the evidence of PW1 acquitted two co-accused giving them the benefit of doubt regarding their presence and participation. Since the number of accused fell under five, the appellants were convicted u/s- 302/34 of the IPC. The court held that their acquittal can be of no avail to the appellants due to the consistent nature of evidence available against them. The court observed that minor contradiction in the evidence of the witnesses to be inconsequential, as their statements regarding material aspects were consistent lending credibility to their evidence as eye-witnesses.

The court noted that PW1 was not an eyewitness and the prosecution not examining Babulal and Asgar Ali is irrelevant as regards evidence of Investigation Officer during cross-examination, who stated that PW1 did not make any such statement. PW5 was an eyewitness, he deposed that appellant no.1 stopped the two deceased, after which appellant no.2 assaulted Abdul Bareek on his leg with a sharp cutting tool, Abdul Motin tried to flee after being injured by appellant no.3 but was chased by appellant no.1 and other accused near Mamud Ali’s house, at which point PW5 ran away fearing for his own safety. PW’s 6, 7 and 9 gave similar evidence, however, PW6’s evidence regarding darkness affecting identification was held inconsequential as the consistent evidence given by PW’s 5, 7 and 9 stated that it was evening after sunset but not dark, making identification possible. It was apparent that the parties knew each other from before, and so identification was not to be doubted.

The court therefore, found no reason to doubt the presence of and assault by the appellants no. 2 and 3 on the two deceased, to grant them any benefit of doubt on parity with the acquitted co-accused. The court considered the submission that appellant no.1 should be entitled to acquittal, as he cannot be said to have common intention with appellant nos. 2 and 3, who are liable for individual acts. Common intention is several persons acting in furtherance of a common purpose, though their roles may be different, their roles being active or passive is irrelevant. Once common intention is established, there is rarely direct evidence for the same, it has to be inferred from facts and circumstances of the case and based on evaluation of evidence available against accused. Conviction on the ground of common intention is based on the foundation of the principle of vicarious responsibility, by which a person is answerable for the acts of others with whom he shares common intention.

The presence of mental element or intention to commit the act if properly established, is sufficient to convict an accused without his actual participation in the assault. Thus, it is not necessary, that a person convicted on the ground of common intention was actively involved in the physical activity of assault, so if the evidence shows a pre-arranged plan, and acts pursuant to the plan, common intention can be inferred. Hence, the court observed that appellant no.1 waited with the other armed appellants, he stopped the two deceased, who were then assaulted. When an injured Abdul Motin tried to flee, appellant no.1 chased him with the other appellants near Mamud Ali’s house, where he was brutally assaulted and dragged back to the place where Abdul Bareek laid motionless. The court said that they did not require any further evidence regarding common intention in appellant no.1 to commit the offence in question. They found no reason to grant him benefit of doubt on the plea that he had no role or act of assault attributed to him, denying the existence of common intention for that reason.

Judgment:

The court found more reason to do clear with the conviction and sentence of the opinions that appeal was dismissed.

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