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SUPREME COURT SET ASIDE THE JUDGEMENT OF HIGH COURT AND AWARDED BENEFIT OF DOUBT TO APPELLANT CONVICTED UNDER SECTION – 302 OF IPC.

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CASE NAME: PARSHURAM  VERSUS STATE OF M.P.

CASE NUMBER: CRIMINAL APPEAL NO.—– OF 2023.  [Arising out of SLP (Crl.) No. 1718 of 2022]

DATED ON: NOVEMBER 03, 2023

Quorum: HONOURABLE JUSTICE B.R. GAVAI, JUSTICE B.V.            NAGARATHNA & JUSTICE PRASHANT KUMAR MISHRA.

 INTODUCTION:

The appeals challenge the judgment and order of the Division Bench of the High Court of Madhya Pradesh at Gwalior, which upheld the judgment and order of 30th March 2005, passed by the 1st Additional Sessions Judge, Shivpuri. The High Court convicted the appellants and sentencing them to life imprisonment for offences punishable under Section 302 and Section 149 of the Indian Penal Code, 1860. The appellants were also sentenced to rigorous imprisonment for seven years, six months, three months, and three months for offences punishable under Section 323 and Section 148 of the IPC. The appeals seek to overturn the previous ruling.

FACTS OF THE CASE:

The prosecution alleges that appellant Jalim Singh built a shed in a village that was damaged by a buffalo belonging to the complainant party. Singh beat and drove the buffalo away, then entered Chironji’s house and broke the doors and beat Madan, Leelabai, and Kailash. Chironji fled, and when he returned, he was informed about the incident. The case highlights the dangers of allowing others to exploit vulnerable situations.

On 6th October 2001, a group of people, including the complainant party, were on a tractor to lodge a complaint when accused persons, armed with lethal weapons, waylaid them and caused injuries. The original First Information Report was registered for offences punishable under Sections 307, 323, 452, 147, 148, and 149 of IPC. The accused persons, nine of whom denied charges, were arrested and charged in a land dispute case.

The trial court found that the prosecution’s evidence proved that the accused formed an unlawful assembly and assaulted the complainant and his family members, killing one in furtherance of their unlawful assembly. The trial court convicted and sentenced the accused, Parshuram & Others and Jalim Singh, with all sentences running concurrently.

LEGAL PROVISIONS:

INDIAN PENAL CODE

  • Section – 147 Punishment for Rioting;

Whoever is guilty of rioting, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.

  • Section – 148 Rioting, armed with deadly weapon;

Whoever is guilty of rioting, being armed with a deadly weapon or with anything which, used as a weapon of offence, is likely to cause death, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.

  • Section – 149 Every member of unlawful assembly guilty of offence committed in prosecution of common object;

If an offence 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 offence, is a member of the same assembly, is guilty of that offence.

  • Section – 302 Punishment for murder;

Whoever commits murder shall be punished with death, or imprisonment for life, and shall also be liable to fine.

  • Section – 307 Attempt to murder;

Whoever does any act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and, if hurt is caused to any person by such act, the offender shall be liable either to imprisonment for life, or to such punishment as is hereinbefore mentioned.

  • Attempts by Life Convicts: When any person offending under this section is under sentence of imprisonment for life, he may, if hurt is caused, be punished with death.
  • Section – 323 Punishment for voluntarily causing hurt;

Whoever, except in the case provided for by section 334, voluntarily causes hurt, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both.

  • Section – 324 Voluntarily causing hurt by dangerous weapons or means;

Whoever, except in the case provided for by section 334, voluntarily causes hurt by means of any instrument for shooting, stabbing or cutting, or any instrument which, used as a weapon of offence, is likely to cause death, or by means of fire or any heated substance, or by means of any poison or any corrosive substance, or by means of any explosive substance or by means of any substance which it is deleterious to the human body to inhale, to swallow, or to receive into the blood, or by means of any animal, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.

  • Section – 326 Voluntarily causing grievous hurt by dangerous weapons or means;

Whoever, except in the case provided for by section 335, voluntarily causes grievous hurt by means of any instrument for shooting, stabbing or cutting, or any instrument which, used as a weapon of offence, is likely to cause death, or by means of fire or any heated substance, or by means of any poison or any corrosive substance, or by means of any explosive substance, or by means of any substance which it is deleterious to the human body to inhale, to swallow, or to receive into the blood, or by means of any animal, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.

ISSUES RAISED:

  1. whether the common object of the unlawful assembly was to cause the death of the deceased or not.
  1. whether, the prosecution has brought on record the real genesis of the incident or not.
  1. whether, the conviction under Section 302 of IPC would be tenable or not.

CONTENTION OF THE APPELLANTS:

Shri Malhotra argued that the High Court and trial court erred in convicting the appellants, claiming that the prosecution failed to attribute a specific role to them. He argued that the conviction under Section 302 of IPC would not be tenable without this information. The counsel argued that the appellant’s role was only holding the lathi, and no injuries caused the deceased’s death could be attributed to him. The counsel also argued that the trial court acquitted two accused persons who were attributed to holding hand-bombs, making the appellants conviction unsustainable. The counsel cited a recent judgment in Nand Lal and Others v. State of Chhattisgarh 2023 SCC Online SC 262, which ruled that non-explanation of injuries is fatal to the prosecution case. Shri Sirajudeen, learned Senior Counsel for the appellant-Jalim Singh in appeal in the same case also advanced arguments on the same lines.

CONTENTION OF RESPONDENT:

Shri Singh argued that both the trial court and the High Court found the prosecution’s case beyond reasonable doubt, and that the appellants were part of an unlawful assembly. He argued that the unlawful assembly’s purpose was to kill the complainant party members, and no interference was warranted in the trial court’s conviction. Singh also argued that the deceased’s injuries were caused by deadly weapons.

COURT’S ANALYSIS:

Chironji is the first informant about an incident involving accused persons assaulting Madan, Lila, and Kamlesh. They were waylaid by Mangal, Roopa, Sewak, Ram Sahai, Parshuram, Lakhan, Jalim, Diwan, Siya, and 4-5 others while on a tractor to the Police Station for complaint lodging. Sewak beat Gupti, Roopa stabbed him, and Lakhan stabbed Madan, causing him to become unconscious. Madan died at the Police Station.

In Masalti v. State of U.P. [1964] 8 SCR 133, a Constitution Bench discussed the law regarding conviction under Section 302 and Section 149 of IPC. The bench ruled that not all individuals in an unlawful assembly must be active for convicting, but must be a member of the assembly and have entertained the common object.

The appellants and accused persons claimed they first reported the attack by the complainant party, who assaulted them upon returning from the police station. They claimed they tried to save themselves, leading to a free fight resulting in injuries, including Madan’s death. The trial court ruled that the complainant party did not use fatal weapons, while the accused used fatal weapons. However, the court disagreed, as Ramrup @ Roopa sustained injuries with a sharp weapon.

In the case of Lakshmi Singh and Others v. State of Bihar (1976) 4 SCC 394, the court observed that non-explanation of injuries sustained by the accused during a murder case can lead to inferences such as the prosecution suppressing the genesis and origin of the occurrence, unreliable witnesses, and a defence version that explains the injuries, potentially tarnishing the prosecution case.

Witnesses are interested in the case, but the prosecution’s failure to explain the injuries sustained by three accused persons raises doubts about the incident’s true origin. A cross case was registered against the complainant party for the injuries sustained by the accused.
The accused claim the complainant party assaulted them after returning from the police station, leading to a fight resulting in injuries, including Madan’s death. The incident was caused by a buffalo, possibly to teach a lesson.

JUDGEMENT

The court considered the view that, the appellants are entitled to benefit of doubt. The conviction under Section 302 IPC would not be sustainable. The prosecution has failed to prove beyond reasonable doubt that the unlawful assembly had an intention to cause the death of the deceased. As such, we find that the case would fall under Part-II of Section 304 of IPC.

In the result, the appeals are disposed of with the following directions:

(i) The conviction under Section 302 IPC is altered to Part-II of Section 304 of IPC;

(ii) The appellants are sentenced to suffer rigorous imprisonment for 7 years.

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Click here to view the full judgement: PARSHURAM VERSUS STATE OF M.P.

JUDGEMENT REVIEWED BY: ABHISHEK SINGH

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HIGH COURT’S DECISION TO RESERVE IS DEEMED “UNUSUAL” BY THE SC, WHICH ADJOURNS ARVIND KEJRIWAL’S CASE AGAINST STAY ON BAIL.

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In his appeal against the Delhi High Court’s suspension of his bail, Chief Minister Arvind Kejriwal sought quick relief from the Supreme Court on Monday, but the court denied him. Although the High Court’s conduct was seen somewhat “unusual,” a vacation bench consisting of Justices SVN Bhatti and Manoj Mishra decided to postpone the case until June 26.

Orders in stay applications are often not reserved. They are immediately passed. It is quite peculiar. Judge Mishra stated, “Anyway, we will have it day after tomorrow,” as the bench opted to hold off until the High Court issued an order.

Kejriwal was given regular bail in the Liquor Policy Scam Case by the Delhi High Court, which had granted a stay of the lower court’s ruling. His attorneys contended today that the High Court disregarded the established rule that there is a distinction between “bail granted” and “bail declined” while granting the stay, calling the action “unprecedented.”

A bail grant is not the same as a bail reversal. On the first day, there is a new method for staying bail. In my advantage is the convenience balance. Senior Advocate Abhishek Manu Singhvi stated during the arguments that “if the plea is denied, he goes back to jail and ends up back where he was when he surrendered under Supreme Court order three weeks ago.”

He further claimed that the challenged decision was given without any justification, and it is after the order that arguments were heard while noting that once bail is granted. It is not so simply undone.

“We suggest that the HC order be entered into the record so that we can continue the matter the following week. The court asked, “How do we proceed without the order?” as it deferred the case and declined to comment on the merits.

“PRIME LEGAL is a full-service law firm that has won a National Award and has more than 20 years of experience in an array of sectors and practice areas. Prime legal falls into a category of best law firm, best lawyer, best family lawyer, best divorce lawyer, best divorce law firm, best criminal lawyer, best criminal law firm, best consumer lawyer, best civil lawyer.”

WRITTEN BY: ABHISHEK SINGH

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SC SET ASIDE THE IMPUGNED JUDGEMENT PASSED BY THE HIGH COURT IN RESPECT OF DYING DECLARATION

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Case Name: NAEEM. Versus STATE OF UTTAR PRADESH.

Case Number: CRIMINAL APPEAL No. 1978 of 2024

Dated: March 05, 2024

Quorum: Honourable Justice B.R. Gavaskar & Justice Sandeep Mehta

FACTS OF THE CASE:

The appeals challenge the judgement and order dated December 17, 2019, passed by the Division Bench of the High Court of Judicature at Allahabad in Criminal Appeal Nos. 1589 of 2018 and 7393 of 2017. The appeals relate to the case of Shahin Parveen, who was admitted to the District Hospital with 80% deep thermal and facial burns on 1st December 2016. She claimed that she was set ablaze by the accused/appellants who pressured her into entering the profession of immoral trafficking and prostitution. A First Information Report was registered at Police Station Katghar, District Moradabad, and Shahin was admitted to Safdarjung Hospital, New Delhi, where she died at 7:55 pm. The case was altered to the offence punishable under Section 302 of the Indian Penal Code, 1860.

The prosecution case alleged that after the death of Shahin’s husband two years prior, the accused/appellants began pressuring her into entering the profession of immoral trafficking and prostitution. The accused/appellants caught hold of Shahin and poured kerosene on her, igniting a matchstick and throwing it at her. The accused/appellants surrounded her, and she was set ablaze. Her neighbours put out the fire, and her mother and brother, Islam @ Babli, took her to the hospital.

The deceased, who had been a victim of a dispute with her husband, was allegedly set on fire by two accused individuals. The incident occurred on December 1, 2016, and the deceased’s dying declaration revealed that the dispute was related to their shared residence. The accused poured kerosene on the deceased, who was later taken to a hospital in New Delhi. The accused pleaded not guilty and claimed to be tried. The prosecution examined eight witnesses, with Papi @ Mashkoor claiming he was absent at the time and the deceased committed suicide. The trial court convicted the accused and sentenced them to life imprisonment and a fine. The accused appealed to the High Court, which dismissed their appeal and affirmed the conviction and sentence.

LEGAL PROVISIONS:

  1. INDIAN PENAL CODE, 1860;

● Section-34 (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 in the same manner as if it were done by him alone.

● Section 302 (Punishment for Murder): Whoever commits murder shall be punished with death, or imprisonment for life, and shall also be liable to a fine.

● Section-307 (Attempt to murder): Whoever does any act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and, if hurt is caused to any person by such act, the offender shall be liable either to imprisonment for life, or to such punishment as is hereinbefore mentioned.

● Attempts by Life Convicts: When any person offending under this section is under sentence of imprisonment for life, he may, if hurt is caused, be punished with death.

  1. INDIAN EVIDENCE ACT 1872;

● Section 32(1) [ Dying Declaration]: This section states that when a statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person’s death comes into question. Such statements are relevant whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question.

ISSUES RAISED:

  1. Whether the dying declaration is cogent, trustworthy, and reliable to base the conviction on the accused or frivolous and vexatious.
  2. Whether the dying declaration can be considered as sole evidence for the conviction of the accused persons.
  3. whether the conviction of all three accused is tenable or not.

CONTENTION OF APPELLANT:

Shri Mohd. Siddiqui, the learned counsel for the appellants, submits that the conviction is based only on the dying declaration of the deceased. He submits that the dying declaration is not free from doubt. It is submitted that the discharge slip would show that the deceased was discharged from the District Hospital, Moradabad, on December 1, 2016 at 5:00 pm. It is therefore impossible that the dying declaration could have been recorded between 8:48 pm and 9:15 pm. The learned counsel therefore submits that the said dying declaration cannot be said to be trustworthy, reliable and cogent so as to base the conviction solely on the same.

CONTENTION OF RESPONDENTS:

Shri Thakur, counsel for the respondent, submits that both the trial court and the High Court, on the correct appreciation of evidence, rightly convicted the accused and appellants, and as such, no interference would be warranted with the concurrent findings of the trial court and the High Court. The learned AAG submits that Raj Kumar Bhaskar, the then Naib Tehsildar, has deposed about the dying declaration. Shri Thakur submits that the dying declaration also contains the certification by Dr. A.K. Singh, Emergency Medical Officer, District Hospital, Moradabad, regarding the medical fitness of the victim both prior to and after recording the dying declaration.

COURT ANALYSIS AND JUDGEMENT:

The conviction in this case is based solely on the dying declaration, as per the law outlined in the Atbir v. Government of NCT of Delhi case. The court has held that a dying declaration can be the sole basis of conviction if it inspires the full confidence of the court, and if the deceased was in a fit state of mind at the time of making the statement, it was not the result of tutoring, prompting, or imagination. If the court is satisfied about the dying declaration being true and voluntary, it can base its conviction without further corroboration. The court has observed that if the dying declaration is true, coherent, and free from any effort to induce the deceased to make a false statement, there is no legal impediment to make it the basis of conviction, even if there is no corroboration.

The testimony of Raj Kumar Bhaskar, the then Naib Tehsildar, reveals that he was directed by the Tehsildar to record the statement of the victim, Shahin Parveen, at the District Hospital, Moradabad. He deposed that he was in full sense and understood the questions, and that none of the relatives of the deceased were present during the recording.

 

The dying declaration is deemed true and coherent, making it a reliable basis for conviction without independent corroboration. The victim’s statement reveals that the deceased’s motive is attributed to accused No. 1 Pappi @ Mashkoor, who allegedly poured kerosene on her and set her ablaze. The statement of Naeema and her brother Naeem, the wife of accused No. 1 Pappi @ Mashkoor, also reveals their assistance to her devar Pappi @ Mashkoor.

 

However, no specific role for how they assisted was found in the dying declaration. The court finds that the dying declaration can be the sole basis for maintaining the conviction of accused No. 1 Pappi @ Mashkoor, but in the absence of any specific role attributed to accused No. 2 Naeema and accused No. 3 Naeem, they are entitled to the benefit of doubt.

As a result, the court passed the following order:

(i) The criminal appeals of Naeem and Naeema, quashed and set aside, are allowed. The trial court’s conviction and sentence from October 24, 2017, and the High Court’s judgement from December 17, 2019, are quashed and set aside. The appellants are acquitted of all charges and are directed to be released immediately, unless required in any other case.

(ii) Criminal Appeal No. 1979 of 2022, qua appellant Pappi @ Mashkoor, is dismissed.

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Judgement Reviewed by- Abhishek Singh

Click here to view the full judgement: NAEEM. Versus STATE OF UTTAR PRADESH.

 

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Supreme Court ruled that in recovery cases, the burden of proof lies on custodian to hold debtors liable to pay alleged dues

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Supreme Court ruled that in recovery cases, the burden of proof lies on custodian to hold debtors liable to pay alleged dues

CASE TITLE- Suman L. Shah Vs The Custodian & Ors

CASE NUMBER- Civil Appeal No(S).4583 Of 2011

DATED ON- 05.03.2024

QUORUM- Hon’ble Justice Pamidighantam Sri Narasimha and Hon’ble Justice Sandeep Mehta

FACTS OF THE CASE

Fairgrowth Financial Services Limited was notified under Section 3(2) (person found involved in offence relating to transactions in securities) of the Trial of Offences relating to transactions in Securities Act and all its properties stood attached. The Custodian filed application in the Special Court for the recovery of various sums of money belonging to FFSL from respondent No. 2. The appellant-Suman L. Shah had borrowed a sum of Rs.50 lakhs from respondent 4 and No. 6 and a sum of Rs. 25 lakhs from respondent No. 7 whereas appellant Laxmichand Shah had borrowed Rs.45 lakhs from respondent No. 8. These respondents were the benami companies of respondent No. 2 who had illegally parked the tainted money received from FFSL, the notified company in these benami companies created by himself. All the assets and properties of respondent no. 2 got vested in the Official Assignee. The Special Court directed Suman L. Shah and Laxmichand Shah to pay a sum of Rs. 50 lakhs and Rs. 25 lakhs to the Custodian with interest @ 12% per annum respectively due to respondent no. 2 till realisation of the amount. Aggrieved by the judgments both of them instituted Civil Appeal. The IAs seeking restoration of these Civil Appeals were accepted subject to deposit of a total sum to the tune of Rs. 2.20 crores by the appellants with the Officer on Special Duty, Special Court. The amount has been deposited and accordingly the appeals were taken on board.

LEGAL PROVISIONS

Section 3(2) of the Trial of Offences relating to transactions in Securities Act, 1992.

Section 101 of Evidence Act.

CONTENTIONS OF THE APPELLANT

It was contented that the Special Court committed error in holding that the appellants were the garnishees of Pallav Sheth. No documentary proof relating to the questionable transactions between the appellants and respondent was provided by the Custodian, the statement of appellants that the entire amounts of loan taken from respondent Nos. 6, 7 and 8 were repaid ought not to have been brushed aside. The appellants had taken the loans long before Pallav Sheth came to be notified under Section 3(2) and thus, the burden of proof regarding the existence of liability could not have been shifted on to the appellants and the onus lay upon the Custodian to prove that these amounts had not been repaid and were still recoverable Learned counsel urged that the since the Custodian failed to bring the letter of the Income Tax Department on record, either by summoning the income tax officials or by producing any other admissible evidence, the Special Court  committed a grave error on placing implicit reliance on such communication. it could not be said with any degree of certainty thaSuman L. Shah Vs The Custodian & Orst the amounts borrowed remained unpaid.

CONTENTIONS OF THE RESPONDENT

learned counsel for the respondents submitted that the bald statements of the appellants that the amount borrowed from the benami companies had been returned by way of adjustment towards material supplied was rightly discarded by the Special Court because such statements were not supported by any tangible proof, either oral or documentary. He implored the Court to affirm the impugned judgments and dismiss the instant appeals.

COURT’S ANALYSIS AND JUDGEMENT

The miscellaneous applications were filed by the Custodian for recovery of amount due. The respondent Nos.6, 7 and 8 are alleged to be the benami companies of the Pallav Sheth. There could not have existed any justifiable reason for the appellants to have entertained a belief that these were the benami companies of respondent No. 2-Pallav Sheth or that there was any breach of the provisions of the Act of 1992 by Pallav Sheth. Even if it is assumed the foundation behind the assertion made by the Custodian based entirely on a communication purportedly issued by the Income Tax Department. No reference was annexed with the affidavit, no witness from the Income Tax Department was examined in evidence before the Special Court in miscellaneous applications for recovery. The appellants had returned the amounts borrowed from the respondents but the books of accounts were not available because of lapse of time. It was not expected from the appellants to retain the books of accounts after more than a decade of the alleged suspicious transactions. Therefore, the appeal was allowed and the impugned judgments are hereby quashed and set aside.

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Judgement Reviewed By- Shreyasi Ghatak

Click here to read the Judgement

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Review Report on Madras High Court Decision Regarding Woman’s Marital Status in Adoption

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The recent ruling by the Madras High Court, asserting that a woman’s marital status should not be a determining factor when giving up her child for adoption, marks a significant milestone in Indian legal jurisprudence. This decision comes amidst a broader societal shift towards recognizing the rights and autonomy of women, particularly in matters concerning parenthood and adoption.

In Indian law, the adoption process traditionally places considerable emphasis on the marital status of the biological parents. However, this landmark judgment challenges this norm by prioritizing the best interests of the child over outdated societal norms. The court’s stance underscores a progressive interpretation of legal principles, advocating for a more inclusive and rights-based approach.

The High Court’s ruling explicitly declares that a woman’s marital status should not hinder her ability to voluntarily relinquish her child for adoption. This is a crucial departure from previous interpretations where unmarried mothers faced legal barriers or discrimination in adoption procedures. Emphasizing the welfare of the child, the court’s decision aligns with international human rights standards and modern legal frameworks that prioritize the child’s well-being and best interests above all else. By recognizing a woman’s right to choose adoption irrespective of marital status, the judgment promotes gender equality and challenges stereotypes that may stigmatize unmarried mothers or restrict their reproductive choices.

The Madras High Court’s progressive stance is likely to have far-reaching implications: This decision sets a precedent for future cases across India, encouraging other courts to adopt a more inclusive approach in matters of adoption and reproductive rights. It reflects evolving societal attitudes towards single parenthood and the recognition of diverse family structures, thereby contributing to a more tolerant and inclusive society. The judgment may prompt legislative reforms aimed at aligning adoption laws with contemporary social realities and human rights principles.

In conclusion, the Madras High Court’s ruling represents a significant step towards gender equality and the protection of individual rights in the context of adoption. By affirming that a woman’s marital status should not be a barrier to her decision to place her child for adoption, the court has reinforced the principles of autonomy and dignity. This decision not only addresses legal inconsistencies but also fosters a more compassionate and equitable approach to family law in India.

As this decision resonates through legal circles and civil society, it underscores the judiciary’s role in advancing progressive interpretations of law that uphold fundamental rights and promote social justice.

“PRIME LEGAL is a full-service law firm that has won a National Award and has more than 20 years of experience in an array of sectors and practice areas. Prime legal fall into a category of best law firm, best lawyer, best family lawyer, best divorce lawyer, best divorce law firm, best criminal lawyer, best criminal law firm, best consumer lawyer, best civil lawyer.”

Written by- Shruti Gattani

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