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Rajasthan High Court Granted probation to convicted appellants in an attempted murder case

 Case title: Unknow VS State of Rajasthan

Case no.: S.B. Criminal Appeal No. 483/1993

Dated on:  February 19th 2024

Quorum:  Hon’ble. MR Justice GANESH RAM MEENA

FACTS OF THE CASE

The present criminal appeal has been preferred by the accused-appellants against the judgment of conviction and sentence dated 26.11.1993 passed by the Court of learned Special Judge, Prevention of Scheduled Castes/ Scheduled Tribes, Prevention of Atrocities, Jaipur (for short ‘the trial Court’) in Sessions Case No.88/1990. Five years Rigorous Imprisonment and fine of Rs.2,000/- and in default of payment of fine, to undergo 2 months imprisonment. Five years Rigorous Imprisonment and fine of Rs.2,000/- and in default of payment of fine, to undergo 2 months imprisonment. Fine of Rs.100/- each and in default of payment of fine each of the accused appellant has to undergo 15 days imprisonment. On filing of appeal, the sentence awarded to the accused appellants was suspended vide order dated 13.12.1993 and they were released on bail.

ISSUES

  • Whether the reformation of the accused-appellants and their peaceful conduct post-bail support the argument that they do not pose a risk to public safety and thus should be granted probation?
  • Whether the objections raised by the learned Public Prosecutor, opposing leniency and probation due to the nature and manner of the offense, should preclude the granting of probation to the accused-appellants?
  • Whether the prolonged duration of the trial and the resultant mental agony and harassment faced by the accused-appellants since 1993 warrant leniency in sentencing?
  • Whether the conviction and sentence of the accused-appellants by the trial court under Sections 307 and 323 read with Section 34 of the Indian Penal Code (IPC) were valid and justified?
  • Whether the accused-appellants are entitled to the benefit of probation under Section 4 of the Probation of Offenders Act, 1958, considering their age, lack of criminal antecedents, and behaviour post-conviction?

 LEGAL PROVISIONS

Indian Penal Code (IPC)

Section 307 IPC: This section pertains to the offense of attempt to murder. It deals with the intention or knowledge of committing murder, and the actions taken in furtherance of that intention. The maximum punishment under this section is imprisonment for up to 10 years, and if the act causes hurt, the punishment can extend to life imprisonment, along with a fine.

Section 323 IPC: This section addresses the punishment for voluntarily causing hurt. The punishment can be imprisonment for up to one year, or a fine up to one thousand rupees, or both.

Section 34 IPC: This section pertains to acts done by several persons in furtherance of common intention. When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act as if it were done by him alone.

Probation of Offenders Act, 1958

Section 4: This section allows the court to release certain offenders on probation of good conduct instead of sentencing them to imprisonment. The court can use this provision for offenders who have committed offenses not punishable with death or life imprisonment, and if the court deems it appropriate after considering the offender’s age, character, and the circumstances of the case.

CONTENTIONS OF THE APPELLANT

Mr. V.R. Bajwa, Senior Counsel assisted by Mr. Amar Kumar and Ms. Savita Nathawat, appearing for the accused appellants instead of arguing the appeal on its merits with regard to challenge to the conviction and sentence, confines his arguments for grant of benefit of probation to the appellants under the provisions of Probation of Offenders Act, 1958 (hereinafter referred to as ‘the Act of 1958’). Counsel further submits that except the present case, no case has been registered against the accused-appellants. Counsel further submits that the accused appellants are living peacefully in the society without there being any criminal antecedents to their discredit. Senior Counsel further submits that the accused-appellants have faced trial for about three years and against the impugned judgment, they preferred the appeal in the year, 1993. Thus, from the last 33 years, the accused-appellants are facing mental agony and harassment because of pendency of criminal case registered against them. Counsel further submits that the maximum sentence under Section 307 of IPC is 07 years but in the present case, the accused appellant No.1 Nawal Kishore has been convicted for offence under Section 307 of IPC and accused appellant No.2-Rajesh has been convicted for the offence under section 34 read with section 307 IPC and they been sentenced to undergo five years Rigorous Imprisonment and for the offence under section 323 read with section 34 IPC a fine of Rs.100/- has been imposed upon each of them. Senior Counsel further submits that the accused appellant No.1 is 59 years of age and the accused appellant No.2 is 56 years of age. Thus, taking into consideration the aforesaid facts, the accused-appellants may be given the benefit of probation under the provisions of the Act of 1958.

CONTENTIONS OF THE RESPONDENTS

Learned Public Prosecutor appearing for the State opposed the prayer made by the counsel appearing for the appellants and submits that looking to the allegations and the manner in which the incident took place, the appellants are not entitled for any kind of leniency in awarding sentence as well as the benefit of probation under Section 4 of the Act of 1958. Considered the submissions made by the Senior Counsel appearing for the appellants as well as the learned Public Prosecutor. Learned trial Court while considering the issue of granting leniency to the accused appellants, has rejected their prayer in regard to the leniency. Section 4 of the Act of 1958 nowhere says that the benefit of probation cannot be allowed to an accused who is above 21 years of age. The Act of 1958 deals with the powers of the Court to release certain offenders for good conduct.

COURT’S ANALYSIS AND JUDGEMENT

The Statement of Objects and Reasons of the said Act explains the rationale for the enactment and its amendments: to give the benefit of release of offenders on probation of good conduct instead of sentencing them to imprisonment. Thus, increasing emphasis on the reformation and rehabilitation of offenders as useful and self-reliant members of society without subjecting them to the deleterious effects of jail life is what is sought to be subserved. The main object of sentencing a convicted person is to bring in him certain character reformation and to keep him away from the society so as to see that the impact of his criminal character does not put any adverse impact on any other person. In the present case, after conviction of the accused appellants, their sentence was suspended and they were release on bail vide order dated 13.12.1993. Since after their release on bail, they are living in the society peacefully without there being any criminal antecedents to their discredit. There is no bar under law to extend the benefit of probation to convict of above 21 years age. After taking into due consideration the legislative intent of the Act and the decision as referred in above paragraphs, this Court deems it appropriate to extend the benefit of probation to the appellants under Section 4 of the Act of 1958. the present appeal is partly allowed. While maintaining the conviction of the present appellant No.1- Nawal Kishore for the offence under Section 307 of IPC and of accused appellant No.2-Rajesh for the offence under section 34 read with section 307 IPC and of both the accused appellants under section 323 read with section 34 IPC, as recorded by the learned Trial Court in the impugned judgment, this Court interferes only with the sentence part of the said judgment and directs that the appellants shall be released on probation under Section 4 of the Act of 1958 upon their furnishing a personal bond in a sum of Rs. 50,000/- each and two sureties in the sum of Rs. 25,000/- each to the satisfaction of the learned Trial Court with a further undertaking that they shall maintain peace and good behaviour for a period of two years and shall not repeat the offence. The appellants are allowed two months’ time to furnish the bail bonds, sureties and undertaking as ordered above. The appellants are on bail. They need not to surrender. Their bail bonds stand cancelled accordingly. The Registry is directed to send back record of the case to the trial court forthwith.

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Judgement Reviewed by – HARIRAGHAVA JP

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Karnataka HC Reverses Acquittal in Rs. 5 Lakh Loan Dispute.

Case Title: SRI. JITHENDRA KUMAR N.M vs. SRI. T. GURURAJ

Case No.: CRIMINAL APPEAL NO.2158/2018

Dated on: 27th MAY, 2024

Coram: HON’BLE MR JUSTICE RAJENDRA BADAMIKAR

Facts:

The appellant, Sri. Jithendra Kumar N.M., appealed against the acquittal of the respondent, Sri. T. Gururaj, by the trial court in a case under Section 138 of the Negotiable Instruments Act. The appellant claimed that the respondent, a relative, borrowed Rs. 5 lakhs in October 2013 and issued a cheque for repayment, which was dishonored due to insufficient funds. Despite admitting the loan and issuing the cheque, the respondent argued that the debt was repaid and the cheque was given as a blank security instrument. The trial court acquitted the respondent, but the HC, noting the respondent’s admissions and lack of evidence of repayment, found the acquittal erroneous and decided to interfere with the judgment.

Issue framed by the Court:

  1. Whether the impugned judgment of acquittal passed by the learned Magistrate is arbitrary, erroneous, and perverse so as to call for any interference by this Court.

Legal Provisions:

Section 138 of the Negotiable Instruments Act: It states about the offence of dishonouring a cheque for insufficiency of funds or exceeding the arranged amount.

Section 313 of Cr.P.C: It empowers the court to examine the accused.

Section 139 of the N.I. Act: Presumption in favour of holder.

Contentions of the Appellant:

The appellant, Sri. Jithendra Kumar N.M., contended that the respondent, Sri. T. Gururaj, had admitted to borrowing Rs. 5 lakhs and issuing a cheque for repayment, which bounced due to insufficient funds. The appellant argued that this admission and the presumption under Section 139 of the N.I. Act favored him, establishing the cheque as issued towards a legally enforceable debt. He asserted that the trial court erroneously acquitted the respondent by not properly considering these admissions and the legal presumptions. Therefore, he sought the reversal of the acquittal and the conviction of the respondent under Section 138 of the N.I. Act.

Contentions of the Respondent:

The respondent, Sri. T. Gururaj, contended that although he admitted to borrow Rs. 5 lakhs from the appellant and issuing a cheque, the loan had already been repaid. He argued that the cheque was given as a blank security instrument at the time of the loan’s advancement. The respondent’s counsel emphasized that the presumption in favor of the appellant had been rebutted by evidence elicited during cross-examination, including the assertion that blank cheques were obtained by the appellant. The respondent maintained that the trial court correctly acquitted him, having properly appreciated these aspects, and thus sought the dismissal of the appeal.

Court’s Analysis and Judgement:

The Court analyzed that the respondent had admitted to borrow Rs. 5 lakhs and issuing the cheque in his reply notice, thereby establishing the presumption of a legally enforceable debt under Section 139 of the Negotiable Instruments Act. The respondent failed to substantiate his claim of loan repayment as he did not provide evidence or enter the witness box. The trial court’s judgment was found to be erroneous as it overlooked these admissions and focused on irrelevant aspects, such as other criminal cases against the respondent’s wife. Consequently, the High Court found the acquittal arbitrary and erroneous, deciding to set it aside and convict the respondent for the offence under Section 138 of the N.I. Act, while also considering the conduct of both parties in determining the sentence.

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Judgement Reviewed By- Shramana Sengupta

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Karnataka High Court Upholds Lower Courts’ Decision on Section 138 of Negotiable Instruments Act 1881 in Cheque Dishonor Case

Karnataka High Court Upholds Lower Courts’ Decision on Section 138 of Negotiable Instruments Act 1881 in Cheque Dishonor Case

Case title: MR. B H SHIVANANDA VS MR S SATHISH CHAWLA

Case no.: CRIMINAL REVISION PETITION NO. 824 OF 2016

Dated on: 28th May 2024

Quorum:  Hon’ble. MR JUSTICE S RACHAIAH

FACTS OF THE CASE

It is the case of the complainant that the accused is an absolute owner of the property situated at Mudhugurki Village, Vijipura Hobli, Devanahalli Taluk, Bengaluru Rural District and he intended to sell it to the complainant. The complainant on negotiation, paid a sum of Rs.2,96,000/- and got the sale agreement executed. Due to some misunderstanding, the said sale agreement needed to be cancelled and the accused agreed to return the amount which he had received towards the sale agreement. Accordingly, a cheque for a sum of Rs.3,16,000/- was issued to the complainant. The cheque was presented on 04.01.2010 by the complainant for encashment, however, it came to be dishonoured with an endorsement as ‘payment stopped’. The complainant issued a legal notice calling upon the accused to repay the amount. Despite the notice being served, the accused failed to repay the amount. Hence, the complaint came to be filed before the Jurisdictional Magistrate. To prove the case of the complainant, he himself examined as P.W.1 and got marked 16 documents as Exs.P1 to P16. On the other hand, the accused did not choose to examine any witnesses.

 ISSUES

  1. Whether the accused issued the cheque in question to the complainant for the discharge of a legally enforceable debt or liability?
  2. Whether the dishonor of the cheque with the endorsement ‘payment stopped’ constitutes an offence under Section 138 of the Negotiable Instruments Act?
  3. Whether the accused successfully rebutted the presumption that the cheque was issued for the discharge of a debt or liability?
  4. Whether the complainant proved the existence of the sale agreement and the transaction leading to the issuance of the cheque?

LEGAL PROVISIONS

Section: 397 of CR.P.C: The High Court or any Sessions Judge may call for and examine the record of any proceeding before any inferior Criminal Court situate within its or his local jurisdiction for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding.

Section: 401 CR.P.C: Where under this Code an appeal lies but an application for revision has been made to the High Court by any person and the High Court is satisfied that such application was made under the erroneous belief that no appeal lies thereto and that it is necessary in the interests of justice so to do, the High Court may treat.

SECTION 138 OF NEGOTIABLE INSTRUMENTS ACT: It states that returning of a cheque unpaid constitutes an offence only if such return is due to want of funds. Where the cheque is returned by the bank for want of full signature of the drawer, it does not constitute an offence U/S 138.

CONTENTIONS OF THE APPELLANT

It is the submission of learned counsel for petitioner that the findings of the Courts below in recording the conviction are not proper, therefore, the findings are required to be set aside. It is further submitted that the complainant contended that the accused was intending to sell the property and entered into an agreement of sale, therefore, he paid the amount. However, the said agreement stood cancelled due to some unavoidable circumstances and the accused agreed to repay the amount and issued the cheque. In fact, the complainant did not produce the said sale agreement. In the absence of the sale agreement, the liability to repay the amount would not arise. However, the Courts below failed to consider the said aspect and recorded the conviction, which is against the evidence on record. It is further submitted that even though the accused contended that he did not enter into any contract or any agreement with the complainant, the said contention was not considered by the Courts below. Further, the accused contended that he had no account in the ICICI Bank and the cheque did not belong to him, the said contention was also not considered by the Courts below. As a result, the impugned judgments have been passed and the same is liable to be set aside. It is further submitted that the complainant must have established that the cheque belonged to the accused, when the specific contention was taken by the accused that it did not belong to him. However, the complainant has not made any efforts to prove that the cheque belongs to the accused. The said contention of the accused has been uncontroverted. However, the Courts below failed to consider the said contention and passed the impugned judgments. Therefore, the said findings of conviction are required to be set aside. Making such submission, the learned counsel for petitioner prays to allow the petition.

CONTENTIONS OF THE RESPONDENTS

The learned counsel for respondent vehemently justified that the accused being an owner of the property was intending to sell the property. Accordingly executed the sale agreement after having received the part of sale consideration. Ex. P8 is an affidavit executed by the accused herein has admitted that he had sold four sites to the complainant. Similarly, the accused admitted that the complainant had paid part payment by way of cheque as well as cash. When the transaction is admitted by the accused and the affidavit executed to that effect, it can be said that the complainant has proved the transaction. It is further submitted that since the accused had admitted the transaction regarding the sale of sites, the issuance of the cheque after cancelling the said sale transaction cannot be denied at a later stage. Moreover, when the cheque was presented for encashment, the complainant received an endorsement as ‘payment stopped’. If the cheque did not belong to the accused, the banker would have issued an endorsement either as the signature differs or does not belong to the signatory. In the absence of this endorsement, the burden obviously lies on the accused to prove that the cheque did not belong to him. However, the accused had not made any efforts to prove that the cheque did not belong to him. In the absence of proof regarding the cheque which did not belong to him, the inference could be drawn that the cheque belongs to the accused. It is further submitted that the Courts below after appreciating the oral and documentary evidence on record, recorded the conviction which appears to be appropriate and relevant. Therefore, there are neither infirmities nor errors in the findings of the Courts below. Hence, it is not required to be interfered with the findings. Making such submission, the learned counsel for the respondent prays to dismiss the petition.

COURT’S ANALYSIS AND JUDGEMENT

THIS CRL.RP IS FILED U/S. 397 R/W 401 CR.P.C PRAYING TO SET ASIDE THE ORDER OF CONVICTION AND SENTENCE PASSED BY THE XIV ADDITIONAL CHIEF METROPOLITAN MAGISTRATE BENGALURU, IN C.C.NO.26550/2011 DATED 01-03-2014 FOR THE OFFENCES PUNISHABLE UNDER SECTION 138 OF NEGOTIABLE INSTRUMENTS ACT. After having heard the learned counsel for the respective parties and also perused the findings of the Courts below, it is necessary to have a cursory look upon the evidence of P.W.1. According to P.W.1, the accused intended to sell the property. After negotiation, the complainant paid the amount to the accused as a part payment and got the sale agreement executed in respect of the property. However, due to some unavoidable circumstances, the sale agreement had to be cancelled. Further, P.W.1 stated that in lieu of the said cancellation, the accused stated to have issued a cheque for a sum of Rs.3,16,000/-. When it was presented it for encashment, it came to be dishonored as ‘payment stopped’. Before adverting to the facts of the case, it is necessary to refer the proposition of law regarding the Negotiable Instruments Act and also dictum of the Hon’ble Supreme Court on the said law. It is the settled principle of law that once the execution of the cheque is admitted by the accused, the Court has to raise a presumption that the said cheque has been issued for the discharge of debt or liability. The said presumption is rebuttable in nature, it can be rebutted by raising a probable defence by the accused. In the present case, the accused denied the issuance of the cheque and its execution, however, he has not made any efforts to prove that the cheque did not belong to him and he has not issued the cheque for any transaction with the complainant. It is also settled principle of law that mere denial of the transaction and issuance of the cheque is not sufficient to rebut the presumption. The accused except denial, he has not made any efforts to substantiate and prove the said denial. Therefore, I am of the considered opinion that the accused did not rebut the presumption. Moreover, the complainant produced several documents and got them marked to substantiate the transaction. When the accused failed to rebut the presumption, it is necessary to draw the adverse inference that the cheque has been issued for the purpose of discharge of legally recoverable debt or liability. In such a way, it can be conferred that the Courts below rightly appreciated the evidence and recorded the conviction. Therefore, interference with the said findings did not arise. Hence, I decline to interfere with said findings. The Criminal Revision Petition is dismissed.

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Judgement Reviewed by – HARIRAGHAVA JP

 

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Patna High Court: Acquits Convicts in 2011 Murder Case Due to Lack of Evidence and Witness Credibility

Patna High Court: Acquits Convicts in 2011 Murder Case Due to Lack of Evidence and Witness Credibility

Case title:  Rajendra Yadav VS The State of Bihar

Case no.:  CRIMINAL APPEAL (DB) No.940 of 2018

Dated on: 14th May 2024

Quorum:  Hon’ble. MR JUSTICE VIPUL M. PANCHOLI and Hon’ble. MR. JUSTICE RAMESH CHAND MALVIYA.

FACTS OF THE CASE

The present appeals have been filed under Section 374(2) of the Code of Criminal Procedure, 1973 (hereinafter referred as ‘Cr.P.C.’) challenging the impugned judgment of conviction dated 13.06.2018 and order of sentence dated 14.06.2018 passed by the learned 3rd Additional District and Sessions Judge, Araria, in connection with Sessions Trial No. 1151/2012, T.R. No.64/2017 (arising out of Bhargama P.S. Case No. 43/2011) by which all the appellants have been convicted and appellant/convict Rajendra Yadav has been sentenced to undergo rigorous imprisonment for life with a fine of Rs. 50,000/- (fifty thousand) for the offence punishable under Section- 302 of I.P.C. In default of payment of fine, the convict will have to undergo further one year imprisonment. He has further been sentenced to undergo rigorous imprisonment for three years with a fine of Rs. 5000/- (five thousand) for the offence punishable under Section 27 of the Arms Act. In default of payment of fine, he will have to under further imprisonment for six months. The sentences have been directed to run concurrently. Appellants/convicts Badri Yadav, Kailash Yadav and Mithilesh Yadav @ Akhilesh Yadav have been sentenced to undergo rigorous for life with a fine of Rs.50,000/- (fifty thousand) each for the offence punishable under Section -302/149 of I.P.C. In default of payment of fine, the convicts will have to further undergo one year imprisonment. They have also been sentenced to undergo rigorous imprisonment for 2 years and 6 months with a fine of Rs.5000/ each for the offence punishable under Section-148 of I.P.C. In default of payment of fine, they will have to undergo further imprisonment for three months each. All the sentences have been directed to run concurrently. At the outset, it is relevant to note that Mr. Amarnath Jha, learned counsel, earlier appearing for the appellants, states that he has already given no objection to the appellants. However, nobody has filed appearance in Cr. Appeal (D.B.) No. 931 of 2018, which is pending for hearing since long. The present appeal is of the year 2018 and out of three appeals, in one appeal, appellant/convict is in custody for more than 12 years. Therefore, we have no option, but to proceed with the matter and, therefore, we have requested Mr. Sandeep Kumar Pandey to assist the Court in the matter and, with his consent, he is appointed as Amicus Curiae. “On 08.05.2011, the informant was returning from Parsa Haat by his brother-in-law’s motorcycle bearing Regn. No. BR 38 A-8010. After reaching the door of Satya Narayan Mandal, S/o Late Moti Mandal of his village at around at 6 O’clock, he was having a discussion about farming activities. All on a sudden 1. Rajendra Yadav S/o- Jagdeesh Yadav 2. Badri Yadav S/o- Late Janak Yadav 3. Kailash Yadav S/o- Badri Yadav 4. Shaili Devi, w/o Badri Yadav 5. Gajen Yadav S/o- Mohan Yadav Vill- Jahad and 6. Badri Yadav’s Son-in-law Mithilesh Yadav S/o- Not known, Vill- Belodih, P.S not known, Dist. Madhepura came there, out of whom Rajendra Yadav S/o Late Jagdeesh Yadav had a country-made rifle in his hand and others had sticks in their hands. They surrounded the informant and started beating him at Satyanarayan Mandal’s door.

ISSUES

  1. Whether the delay in sending the First Information Report (FIR) to the Magistrate was justified and whether it affected the prosecution’s case.
  2. Whether the appellants were falsely implicated in the occurrence due to an election dispute, as claimed by the defence.
  3. Whether the testimonies of the prosecution’s eye-witnesses, who were relatives of the deceased, were reliable and trustworthy, given the contradictions and inconsistencies in their statements.
  4. Whether the medical evidence, including the post-mortem report, supported the prosecution’s timeline and version of events.

LEGAL PROVISIONS

Section 302 of the Indian Penal Code (IPC): Punishment for Murder

This section deals with the punishment for murder. It states that whoever commits murder shall be punished with death or imprisonment for life and shall also be liable to a fine.

Section 149 of the Indian Penal Code (IPC): Every member of unlawful assembly guilty of offense committed in prosecution of common object

This section states that if an offense is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of the committing of that offense, is a member of the same assembly, is guilty of that offense.

Section 148 of the Indian Penal Code (IPC): Rioting, armed with a deadly weapon

This section deals with the punishment for rioting, armed with a deadly weapon or with anything which, used as a weapon of offense, is likely to cause death. The punishment can extend to imprisonment for three years, or with a fine, or with both.

Section 27 of the Arms Act, 1959: Punishment for using arms, etc. This section prescribes the punishment for using arms in contravention of Section 5 of the Arms Act, 1959, which deals with the requirement of a license to possess or carry any firearm or ammunition. The punishment can range from imprisonment for not less than three years, which may extend to seven years, and also with a fine.

Section 374(2) of the Code of Criminal Procedure, 1973 (Cr.P.C.): Appeals from convictions This section allows any person convicted on a trial held by a Sessions Judge or an Additional Sessions Judge to appeal to the High Court.

 

CONTENTIONS OF THE APPELLANT

Heard Mr. Ravindra Kumar, assisted by Mr. Rajesh Roy, Manoj Kumar and Mr. Sandeep Kumar Pandey, learned counsels for the appellant, Mr. Sujit Kumar Singh, learned A.P.P. for the respondent State and Mr. Shashi Bhushan Kumar, learned counsel for the informant (in Cr. Appeal (D.B.) No.940 of 2018, Mr. Kumar Dhirendra, assisted by Mr. Diwanshu Kumar, learned counsel for the appellants, Mr. Sujit Kumar Singh, learned A.P.P. for the respondent State (in Cr. Appeal (D.B.) No.880 of 2018 and Mr. Sandeep Kumar, learned Amicus Curiae, for the appellant and Mr. Ajay Mishra, learned A.P.P. for the respondent-State in

Cr. Appeal (D.B.) No. 931 of 2018). Learned advocates appearing for the respective appellants have submitted that there is a delay in sending the F.I.R. to the Magistrate Court and the appellants have been falsely implicated in the occurrence in question. Though the informant has stated that six accused persons named in the F.I.R. came with weapons and assaulted the informant as well as one Samindo and they sustained injuries, the injury report of the aforesaid persons were not produced before the Court nor the Doctor was examined. It is further submitted that the informant and Samindo Yadav are not the eye-witnesses, despite which they were projected as eye-witnesses by the prosecution. The aforesaid witnesses are near relatives of the deceased and, therefore, their deposition is required to be scrutinized carefully. It is submitted that looking to the major contradictions in the depositions of the so-called eye-witnesses, it can be said that they are not trustworthy and, therefore, their depositions be discarded. At this stage, it is also submitted that P.Ws. 2, 3 and 4 are projected as eye-witnesses to the occurrence by the prosecution however, from the deposition given by P.W. 10 Bhola Singh, who was the 1st Investigating Officer, it is revealed that he had recorded the statements of the informant Mahesh Yadav and Simindo Yadav only and thereafter he was transferred and the charge of investigation was handed over to another officer namely Arvind Kumar Yadav. Surprisingly, Arvind Kumar Yadav has also not been examined by the prosecution. It is further submitted that thereafter P.W. 9 Dev Raj Ray took over the charge of investigation on 30th of June, 2011 and from the deposition of the said witness, it is revealed that the said I.O. has recorded the statements of the other so-called eye-witnesses only on 01.08.2011. It is, thus, contended that Rajendra Yadav, Bindeshwari Yadav, Garib Yadav and Manoj Yadav are not the eye-witnesses. Even otherwise, there are major contradictions in their deposition and, therefore, the Trial Court ought to have discarded the depositions given by the aforesaid witnesses. Even P.W.11, the doctor Binod Bisnoi who had conducted the post mortem of the dead body of the deceased, has stated that the post mortem was conducted on 09.05.2011 and the said witness has further stated that the time elapsed since death is within 48 hours. Learned counsels, therefore, submitted that the medical evidence does not support the version given by the informant and the so-called eye-witnesses. Learned advocates for the appellants, therefore, urged that the Trial Court has committed grave error while recording the judgment of conviction and order of sentence. Therefore, this Court may quash and set aside the same and thereby allow all the appeals

CONTENTIONS OF THE RESPONDENTS

Learned counsel for the informant and the learned Additional Public Prosecutors have opposed the appeals filed by the appellants. It is submitted that P.W.1 to P.W.5 and P.W. 7 are the eye-witnesses to the occurrence in question and all of them have supported the case of the prosecution. The specific allegation is levelled against the appellant Rajendra Yadav that he fired from his country-made rifle and the bullet hit the chest of the deceased causing his death. The medical evidence also supports and corroborates the case of the eye-witnesses. The Investigating Officers have also deposed the manner in which the investigation was carried out by them and, therefore, there is ample material on record which suggests that the appellants have killed the deceased. It is further submitted that the prosecution has also proved the motive on the part of the appellants to kill the deceased and thereby the prosecution has proved the case against all the appellants beyond reasonable doubt. Hence, no error is committed by the Trial Court while passing the impugned judgment and order. Learned counsels for the respondents, therefore, urged that all these appeals be dismissed. learned counsel for the informant and the learned Additional Public Prosecutors have opposed the appeals filed by the appellants. It is submitted that P.W.1 to P.W.5 and P.W. 7 are the eye-witnesses to the occurrence in question and all of them have supported the case of the prosecution. The specific allegation is levelled against the appellant Rajendra Yadav that he fired from his country-made rifle and the bullet hit the chest of the deceased causing his death. The medical evidence also supports and corroborates the case of the eye-witnesses. The Investigating Officers have also deposed the manner in which the investigation was carried out by them and, therefore, there is ample material on record which suggests that the appellants have killed the deceased. It is further submitted that the prosecution has also proved the motive on the part of the appellants to kill the deceased and thereby the prosecution has proved the case against all the appellants beyond reasonable doubt. Hence, no error is committed by the Trial Court while passing the impugned judgment and order. Learned counsels for the respondents, therefore, urged that all these appeals be dismissed.

COURT’S ANALYSIS AND JUDGEMENT

We have considered the submissions canvassed by the learned counsels for the parties. We have also perused the evidence of prosecution witnesses and also perused the documentary evidence exhibited. P.W. 1 is Simindo Yadav. He has stated in his examination-in-chief that the incident took place one and a half years ago at 06:00 p.m. He was returning from Parsa Haat when he saw that Badri Yadav, Kailash, Shaili Devi, Mithilesh Yadav, Rajendra and Gajen Yadav were present at the door of Badri Yadav. Badri Yadav had caught hold of Ramesh and ordered to shoot him. Ramesh was shot at and he died. The witness was also beaten. Police had come to the place of occurrence. Post Mortem was done. He claims to identify all the accused persons by face and identifies accused Rajendra Yadav present in Court. Death, in my opinion, due to Hemorrhage and shock as a result of above-mentioned firearm injury, we have considered the submissions canvassed by the learned counsels for the parties. We have re appreciated the entire evidence led by the prosecution. We have also perused the material placed on record. It would emerge from the record that P.W. 5 Mahesh Yadav is the informant whose fardbeyan was recorded on 01.08.2011 at 09:00 p.m., wherein he has stated that at about 06:30 p.m., when he was returning on his motorcycle with one Anil Yadav and they came near the house of Satya Narain Mandal, they saw that all the accused named in the F.I.R. came at the place with deadly weapons and they started beating the informant near the house of Satya Narain Mandal. At that time, his brother Ramesh Yadav and Simindo Yadav came there with a view to rescue the informant. Thereafter, Badri Yadav dragged Ramesh Yadav near his house. At that time, Rajendra Yadav fired from his country-made rifle and the bullet hit the chest of the brother of the informant. When Simindo Yadav tried to intervene, all the other accused persons gave stick blows to him. At that time, the other persons came upon hearing the commotion and sound of firing. When they saw, they found that Ramesh Yadav had died because of the gun-shot injury. At this stage, if the deposition given by P.W. 1 Simindo Yadav is carefully examined, in his examination-in chief they said witness has only stated that when he was returning from Parsa Haat, he saw that near the house of Badri Yadav, all the named accused were present and Badri Yadav caught hold of Ramesh Yadav and ordered to shoot him. Thereafter, he was shot at. The said witness was also assaulted. He has further stated that the police were informed after one and a half hours of the occurrence and police came at the place of occurrence around 10-11 p.m. Thus, from the deposition of the said witness, it is revealed that this witness has not given the name of the accused who had fired on the deceased. At this stage, the deposition of P.W. 5 is also required to be examined carefully. P.W. 5 is the informant. The said witness in his examination-in-chief has also given the name of all the accused. He has stated that he also sustained injury because of the assault made by the accused. He has also stated that there was huge blood spilled over the earth and the clothes were also blood-stained. However, he is not aware whether the same were seized by the Investigating Officer or not. It is pertinent to note that merely because the witnesses are near relatives and interested witnesses, their deposition cannot be discarded simply on that very ground. However, deposition of said witnesses requires to be scrutinized closely and carefully. If a witness is trustworthy, his version can be accepted. However, in the present case, from the deposition of the aforesaid two witnesses and the conduct of the said witnesses, we are of the view that they are not trustworthy and there are major contradictions and inconsistencies in their deposition. Hence, we are of the view that they are projected as eye-witnesses, but their presence at the place of occurrence is doubtful. Further, P.W.11 is Dr. Binod Bisnoi who had conducted the post mortem of the dead body of the deceased. The said doctor conducted the post mortem on 09.05.2011 when he was posted at Sadar Hospital. The said witness has stated the time elapsed since death to be within 48 hours. He had conducted the post mortem at 10:15 a.m. Thus, the post mortem was conducted within 16 hours. However, the doctor has stated the time elapsed since death to be within 48 hours. Thus, we are of the view that the medical evidence does not support the version given by the so-called eye-witnesses that the occurrence took place on 08.05.2011 at about 06:30 p.m. From the evidence led by the prosecution, it is further revealed that the Investigating Officer did not seize the blood-stained soil from the place of occurrence nor the blood-stained clothes of the deceased were sent for necessary analysis to the Forensic Science Laboratory. Even there is no recovery/discovery of the weapon allegedly used in commission of the alleged incident from any of the appellants. It is further revealed that it is the specific defence of the appellants that they have been falsely implicated in the present case because of the election dispute. Thus, from the aforesaid evidence led by the prosecution, we are of the view that the prosecution has failed to prove the case against the appellants beyond reasonable doubt, despite which the Trial Court has recorded the impugned judgment of conviction and order of sentence. We have also gone through the reasoning recorded by the Trial Court and we are of the view that the Trial Court has committed grave error while passing the impugned judgment and order. Hence, the same deserve to be quashed and set aside. Accordingly, the impugned judgment of conviction dated 13.06.2018 and order of sentence dated 14.06.2018 passed by the learned 3rd Additional District and Sessions Judge, Araria, in connection with Sessions Trial No. 1151/2012, T.R. No.64/2017 (arising out of Bhargama P.S. Case No. 43/2011) are quashed and set aside. The appellants are acquitted of the charges levelled against them by the learned Trial Court. Since the appellant, namely Rajendra Yadav (in Cr. Appeal (D.B.) No. 940 of 2018) is in jail, he is directed to be released from custody forthwith, if his presence is not required in any other case. Rest all the appellants are on bail. They are discharged from the liabilities of their bail-bonds. he Patna High Court Legal Services Committee is, hereby, directed to pay ₹ 3,000 (Rupees Three Thousand) to Sandeep Kumar Pandey, learned Amicus Curiae as consolidated fee for the services rendered by him.

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Judgement Reviewed by – HARIRAGHAVA JP

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Karnataka High Court : Upholds Denial of Bail to Orissa-Origin Trial in Bengaluru Drug Seizure Case

Karnataka High Court : Upholds Denial of Bail to Orissa-Origin Trial in Bengaluru Drug Seizure Case

Case title: KUNNA SUNNA AND ORS VS THE STATE OF KARNATAKA

Case no.: CRIMINAL PETITION NO. 4191 OF 2024

Dated on: 16nd May 2024

Quorum:  Hon’ble. MR JUSTICE H.P. SANDESH

FACTS OF THE CASE

The present petition is filed under Section 439 of Cr.P.C seeking regular bail by these the petitioners/accused Nos.1 to 3 in Crime No.359/2023 (Spl.C.C.No.637/2024) of Cotton pet Police Station, Heard the learned counsel for the petitioners and the learned High Court Government Pleader appearing for the respondent-State. Cotton pet sub-division, Bengaluru City for the offence punishable under Section 2(b)(ii)(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (‘the NDPS Act’ for short). The factual matrix of case of prosecution is that on 14.09.2023 at about 8.00 p.m., the complainant has received credible information that within the limits of Cotton pet Police Station, Cotton pet main road, Cotton pet, Bengaluru City, the persons of Orissa origin are carrying contraband in their Swift Dezire Car bearing No. OD-24-J 5932. On receipt of information, he has informed the matter to ACP, obtained permission to conduct the raid, informed the matter to panchas and staff, proceeded to the spot. In the spot three persons were found and when the vehicle of accused was checked in that several ganja packets were found packed in a khaki colour cello tape, the total ganja found in the car is 161 K.Gs. The said ganja was kept in the cement bags. A detail mahazar was drawn by seizing the ganja. The report is submitted and case is registered and investigation is also completed and accused Nos.1 to 3 were found with conspicuous position of ganja worth of Rs.1,40,00,000/-, the same is transported from Orissa to Bangalore. The Police have investigated the matter and filed the Charge sheet.

ISSUES

  1. Whether the petitioners are entitled to bail under Section 439 of the Criminal Procedure Code (Cr.P.C.)?
  2. Whether the allegations against the petitioners regarding the transportation of contraband substances are substantiated?
  3. Whether the quantity of ganja seized, the involvement of an Orissa-registered vehicle, and the duration of custody weigh against granting bail?

LEGAL PROVISIONS

Criminal procedure code 1973

Section 439 of Cr.P.C.: This section deals with the special powers of High Court or Court of Sessions regarding bail.

Section 2(b)(ii)(C) of the NDPS Act: Pertains to the possession, sale, purchase, transport, warehousing, use, consumption, import inter-State, export inter-State or import into India or export from India of narcotic drugs and psychotropic substances.

Section 42 of NDPS Act: Deals with the power of an authorized officer to seize drugs and substances, the procedure for making such seizure, and the safeguards to be followed.

Section 37 of NDPS Act: This section pertains to the presumption as to offences under certain sections of the Act, including the possession of illicit drugs in small quantities.

 

CONTENTIONS OF THE APPELLANT

The counsel appearing for the petitioner would vehemently contend that the petitioners are innocent and they have not committed the said offence. It is contended that the police arrested the accused Nos.1 to 3 from the native Orissa and fit the case against the present petitioners and implicated them in the present case. They have not transported the same as alleged by the prosecution. The entire CCB office is surrounded by the C.C.T.V footage but there is no description of parking of vehicle Infront of CCB office. No such transportation through the Cotton pet main road. The council also would vehemently contend that even an alleged mahazar is not in compliance with Section 42 of NDPS Act. It is also contended that the complainant police is not made any local witnesses as panchas and there is no bar to make them as local witnesses by seizing the same. The seizure of mahazar in police station is invalid. The counsel also would vehemently contend that these petitioners are in custody from last 10 months. The Counsel also submits that this Court has enlarged the accused persons in a similar set of facts wherein the seized ganja was to an extent of 122.60 Kgs of contraband narcotic substance having the market value of Rs.30,65,000/- was recovered from the vehicle since investigation has been completed and the petitioners are also entitled for bail.

CONTENTIONS OF THE RESPONDENTS

the counsel appearing for the State/respondent would contend that the seizure of ganja is 161 Kgs, the same is worth about Rs.1,40,00,000/- and also the counsel would vehemently contend that they are the residents of Orissa and they are not the local persons. Apart from that even the vehicle which is seized is registration of Orissa i.e., OD-24-J-5932. Hence, it is clear that the ganja is transported from Orissa to Bangalore. The counsel also would submit that along with 161 Kgs of ganja other articles were also seized by drawing the mahazar. The contention that not complied the mandatory provisions cannot be considered at this juncture and only Court has to take note of Section 37 of NDPS Act and accused persons have made out the case for granting the bail. Having heard the petitioners’ counsel and also the counsel appearing for the State/respondent and also the specific allegation made against the petitioners that they are the persons of Orissa origin and they are carrying contraband in their Swift Dezire car bearing No.OD-24-J 5932 considered the vehicle in which the ganja was seized is also having the registration of Orissa. It is also the case of the prosecution that they are the residents of Orissa and they transported the same. The fact that the ganja was seized in the conspicuous possession of these petitioners is not in dispute. It is also emerged during the investigation that the same was handed over by one Suresh to transport the same and admittedly the said Suresh was not arrested. No doubt this Court made an observation in the earlier order also that non arrest of the accused cannot be a ground to reject the same. But, in the case on hand, quantity of ganja seized is 161 Kgs and this Court granted bail in Crl.P.No.4619/2022 wherein the seized quantity is 122.60 Kgs. This Court earlier rejected the bail petition of the said petitioner. He is a resident of Karnataka and not from Outside. It is also important to note that the Court has to see the quantity of ganja seized and Orissa registration vehicle is involved in the incident for transportation of ganja and the quantity in this case is higher than the ganja seized in Crl.P.No.4619/2022, exercising the jurisdiction in respect of other case is concerned, the same cannot be a ground. The Court has to take note of the gravity of the offence as well as the offence is against the society at large, the ganja seized is more than 8 times of commercial quantity and they are in custody from last 8 months cannot be a ground to enlarge them on bail and it affects the society at large. Hence, the counsel for petitioners not made out any ground to enlarge them on bail.

COURT’S ANALYSIS AND JUDGEMENT

THIS CRL.P. IS FILED U/S.439 OF CR.P.C., PRAYING TO ENLARGE THE PETITIONERS ON BAIL IN SPL. C.C. No.637/2024 (CRIME No.359/2023) OF OFFENCE PUNISHABLE UNDER SECTION 20(b)(ii)(C) OF NDPS ACT, 1985, OF RESPONDENT COTTONPETE POLICE STATION, BANGALORE PENDING ON THE FILE BEFORE COURT OF THE CITY CIVIL AND SESSIONS JUDGE AND SPECIAL JUDGE, (NDPS), (CCH-33) AT BENGALURU, IN THE ENDS OF JUSTICE. Having heard the petitioners’ counsel and also the counsel appearing for the State/respondent and also the specific allegation made against the petitioners that they are the persons of Orissa origin and they are carrying contraband in their Swift Dezire car bearing No.OD-24-J 5932 considered the vehicle in which the ganja was seized is also having the registration of Orissa. It is also the case of the prosecution that they are the residents of Orissa and they transported the same. The fact that the ganja was seized in the conspicuous possession of these petitioners is not in dispute. It is also emerged during the investigation that the same was handed over by one Suresh to transport the same and admittedly the said Suresh was not arrested. No doubt this Court made an observation in the earlier order also that non arrest of the accused cannot be a ground to reject the same. But, in the case on hand, quantity of ganja seized is 161 Kgs and this Court granted bail in Crl.P.No.4619/2022 wherein the seized quantity is 122.60 Kgs. This Court earlier rejected the bail petition of the said petitioner. He is a resident of Karnataka and not from Outside. It is also important to note that the Court has to see the quantity of ganja seized and Orissa registration vehicle is involved in the incident for transportation of ganja and the quantity in this case is higher than the ganja seized in Crl.P.No.4619/2022, exercising the jurisdiction in respect of other case is concerned, the same cannot be a ground. The Court has to take note of the gravity of the offence as well as the offence is against the society at large, the ganja seized is more than 8 times of commercial quantity and they are in custody from last 8 months cannot be a ground to enlarge them on bail and it affects the society at large. Hence, the counsel for petitioners not made out any ground to enlarge them on bail. The Criminal Petition is Rejected.

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