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Burden of Proof Not Met: Supreme Court Overturns Murder Conviction.

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CASE TITLE – Sharanappa v. State of Karnataka

CASE NUMBER – Criminal Appeal No. 1673 of 2011

DATED ON – 04.10.2023

QUORUM – Justice Abhay S. Oka & Justice Pankaj Mithal

 

FACTS OF THE CASE

The appellant was convicted by the Trial Court for the offences punishable under Sections 302 and 201 of the Indian Penal Code (for short “IPC”). For the offence under Section 302, the Trial Court sentenced the appellant to undergo life imprisonment and to pay fine of Rs.25,000/- (Rupees twenty five thousand). In the appeal, by the impugned judgment, the High Court has confirmed the conviction. The deceased is Meenakshi with whom the appellant married on Basavajayanti day in the year 2003 in a mass marriage programme. The case of the prosecution is that on 28th May, 2004 PW-3 Alfred Mathai saw the appellant in the company of the deceased near Mariyapura Bus Stop. On 30th May, 2004 a body of a female person was recovered in a decomposed state. The body was identified as that of the deceased wife of the appellant. The prosecution case is that on 28th May, 2004 itself, the appellant informed his father-in-law that his wife was missing. However, he did not file a missing complaint. The appellant filed a missing complaint on 31st May, 2004. The First Information Report was registered on the basis of the complaint filed by appellant’s father-in-law on 1st June, 2004. The allegation made therein was that the appellant suspected that his wife was living an adulterous life and that was pleaded as a motive to kill the deceased. The case is based on circumstantial evidence. The first circumstance is of last seen together. The second circumstance is of the recovery of knife allegedly used as a weapon of offence by the appellant, at the instance of the appellant. The third circumstance is that though even according to the appellant, the deceased was missing since 28th May, 2004, he never filed a missing complaint till 31st May, 2004 and he did so after getting the knowledge of the fact that the dead body of his wife was found on earlier day.

 

ISSUE

Whether the prosecution has been able to successfully prove the guilt of the appellant beyond a reasonable doubt.

 

CONTENTIONS BY THE APPELLANT

The learned senior counsel appearing for the appellant submitted that the evidence of the witness, PW-3 Alfred Mathai is wholly unreliable. He also brought the Court’s attention to the evidence of the alleged witnesses to the Recovery Memorandum of alleged recovery of the knife at the instance of the appellant. He submitted that both the witnesses have not supported the prosecution. His submission was that both the important circumstances which constitute the chain of circumstances against the appellant have not been established.

 

CONTENTIONS BY THE RESPONDENT

The learned Additional Advocate General appearing for the respondent-State, while supporting the impugned judgment, submitted that the Trial Court and the High Court have analyzed the evidence of PW-3 and found that his version was reliable. His submission was that the appellant has not explained a very important circumstance against him that from 28th May, 2004 to 31st May, 2004 he did not lodge even a missing report with the police. He submitted that only after he came to know about the recovery of body of his wife, he lodged missing complaint.

 

COURT ANALYSIS AND JUDGMENT

The Hon’ble Supreme Court stated that it is the duty of the prosecution to establish all the circumstances forming a part of the chain, and noted that the first and the most important circumstance relied upon by the prosecution was of last seen together, the only witness examined to prove the said circumstance was PW-3 Alfred Mathai. In the cross-examination, The Court observed that the witness stated that he had not stated anything before the police which is found in his statement Exhibit D-1 which was recorded under Section 161 of the Code of Criminal Procedure, 1973. Further, he stated that only when he went to the police station he came to know who the accused was and also whose dead body it was. Thus, it was crystal clear that what was stated by the PW-3 Alfred Mathai in his examination-in-chief is a complete improvement. Therefore the Hon’ble Supreme Court held that it was impossible to believe his testimony. Hence, the theory of the prosecution about the last seen together must fail. So far as the case of the prosecution regarding recovery of the weapon of the offence at the instance of the appellant is concerned, the Court found that both PW-4 and PW-5 were allegedly the witnesses to the mazhar have not supported the prosecution. PW-4 stated that he signed the mazhar at the police station. PW-5 did not depose before the Court that the appellant, while in police custody, stated that he was aware about the place at which he had concealed the weapon of the offence. Therefore, even the second circumstance pleaded by the prosecution was not at all established. The Hon’ble Supreme Court stated that only on the basis of the third circumstance based on the conduct of the appellant, the appellant cannot be convicted. Hence, the appeal succeeded and was accordingly allowed. And the impugned judgments were set aside and also acquited the appellant of the offences alleged against him.

 

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Judgment Reviewed by – Gnaneswarran Beemarao

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Kerala High Court Expands Spousal Testimony Rights in Civil Cases.

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Recently, the Kerala High Court ruled in Smitha v. Anil Kumar & Ors that spouses may testify on each other’s behalf during civil case trial proceedings under Section 120 of the Indian Evidence Act. Justice Kauser Edappagath noted that a husband and wife are competent to offer evidence under Section 120 of the Indian Evidence Act if it comes to both their own and their spouse’s knowledge.

The woman whose application was being considered by the court had filed a civil claim that was still pending in a trial court. The woman, who was the trial court’s plaintiff, had asked for authorization to call her husband as a witness or present evidence on her behalf. However, approval to do this was rejected by the trial court. According to the trial court, no one could be permitted to testify on behalf of another, and further stated that the husband may only be questioned as a witness for the plaintiff. The plaintiff filed an application with the High Court challenging the same. The counsel for the plaintiff claimed that the trial court erred in its ruling because it disregarded Section 120 of the Indian Evidence Act, which expressly permits spouses to testify on behalf of one another in civil cases. The husband was a crucial witness who may offer important testimony that would be pertinent to the case, the High Court was informed. In reaching a decision, the High Court reviewed Section 120 of the Indian Evidence Act, which stipulates that “In all civil proceedings, the parties to the suit, and the husband or wife of any party to the suit, shall be competent witnesses…”

The High Court noted that even in the absence of a power of attorney, this clause supersedes the standard procedural standards and permits non-litigating spouses to testify in lieu of their litigating spouses. Because of this, the High Court disapproved with the trial court’s conclusion in this regard and overturned the decision to deny the plaintiff’s request for her husband to testify in her place.

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Written By – Gnaneswarran Beemarao

 

 

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Supreme Court quashes petitions; States that without proving the said testamentary instrument, the petitioners cannot not challenge the judgment of the High Court.

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CASE TITLE –  Mohideen Abdul Khadar (Dead) Through Lrs. Versus Rahmath Beevi (D) Thr. Her Lrs. And Ors

CASE NUMBER – 2023 INSC 969 (Neutral Citation)

DATED ON – 01.11.2023

QUORUM – Justice Aniruddha Bose & Justice Sudhanshu Dhulia

FACTS OF THE CASE

Petitions have been filed by two nephews of Mohideen Abdul Khadar, who died on 14.06.2019. He had interest in two blocks of lands, adjacent to each other located in Thenkasi Taluk, Kadayanallurpet within the Kadayanallur municipal limits in the State of Tamil Nadu. The petitioners bring this action in the capacity of legatees of said Mohideen. The dispute relates to title of Mohideen in respect of one block out of the two, described as first scheduled property in his plaint which triggered off the suit giving rise to this proceeding. The other part of the dispute is over retention of his possession and tenancy right in respect of second scheduled property, as described in his plaint. The first scheduled property measures approximately 15×15 sq. feet over which Mohideen claimed title whereas the second scheduled property measures approximately 15×18 sq. feet. There is some dispute on its measurement. In respect of the latter block of land, one Rahmath Beevi sued for delivery of vacant possession whereas Mohideen asked for protection of his possession in his suit. The original owner of both these properties was one Ameenal Beevi (since deceased) and she had conveyed the first scheduled property to Mohideen on 16.08.1989 through a deed of sale. So far as the second scheduled property is concerned, the case of the petitioners is that it was rented out to their predecessor by Ameenal Beevi only. Said Ameenal Beevi had conveyed this property to Rahmath Beevi (since deceased) on 30.05.1995 through another deed. Original Suit No. 172 of 1995 was instituted by Mohideen in the Court of Principal District Munsif Judge, Thenkasi. In this suit Mohideen claimed benefit of Tamil Nadu City Tenants Protection Act, 1921. This Statute gives certain additional protection to a class of tenants beyond what is contained in the Transfer of Property Act, 1882 (hereinafter ‘1882 Act’). Mohideen along with one Sahul Hameed, who also appears to have had been in occupation of part of the land conveyed to Rahmath Beevi by Ameenal Beevi had been served with notices to quit by Rahmath Beevi in terms of Section 106 of the 1882 Act both dated 11.08.1995. Mohideen wanted declaration of title to the first scheduled land and permanent injunction restraining the defendants from disturbing his peaceful possession over the second scheduled property. So far as status of first scheduled property is concerned, Mohideen’s title is not in much dispute. In their counter-affidavit, petitioners claiming to be the legal representatives of Rahmath Beevi (henceforth referred to as the respondents) have taken a plea that Mohideen himself had sold the first scheduled property on 06.12.2017 to his two nephews. They appear to be the petitioners before us. Rahmath Beevi’s (second defendant in O.S. No.172 of 1995, represented by her legal representatives before us) stand has been that she had become owner of the second scheduled property on the basis of the aforesaid registered sale deed. Rahmath Beevi, in the suit instituted by her (O.S. No.464 of 1995) in the same Court claimed relief of mandatory injunction seeking removal of Mohideen and Sahul Hameed from the properties specified by her. They were the first and the second defendants respectively in Rahmat Beevi’s suit. In this suit, she also claimed ground rent from the defendants in that suit. In her suit, she referred to four schedules to describe the suit property representing different interests. The first schedule in O.S. No.464 of 1995 matches with the first schedule of O.S. No.172 of 1995. As regards the second scheduled property, it was Rahmath Beevi’s case that it involved an area of 15×18 sq. feet. The third scheduled property in her plaint comprised of an area of 6.2×6.9 sq. feet within second scheduled land. As recorded in the judgment of the Trial Court in respect of the third scheduled property, Sahul Hameed was the tenant thereof, but he did not contest the suit. It was held by the Trial Court that three-fourth portion of the third scheduled property was within the second scheduled land and the rest of the third scheduled property fell in the first scheduled land. Said Sahul Hameed, as it appears from the cause title of this petition, is the son of Rahmath Beevi. It was the case of Rahmath Beevi that Mohideen had taken on rent the fourth scheduled land from Ameenal Beevi and put up a “temporary shop” there. The pleading in the plaint gives an impression that it was a temporary structure. In her suit, Rahmath Beevi wanted vacant possession of the fourth scheduled property and removal of the construction set up thereon. The Trial Court granted declaration in favour of Mohideen in respect of first scheduled property. His claim on second scheduled property was dismissed.

 

ISSUES

  1. Whether the notice under Section 106 of the 1882 Act is valid.
  2. Whether the petitioners were entitled to protection of the Tamil Nadu City Tenants Protection Act or not.

COURT ANALYSIS AND JUDGEMENT

Mohideen appealed against the judgment and decree in both the suits. The First Appellate Court sustained the Trial Court’s finding in O.S. No.172 of 1995 as regards first scheduled property, but the Trial Court’s judgment on second scheduled property was set aside. The judgment and decree of the Trial Court in O.S. No.464 of 1995 was set aside. Both the Trial Court and the First Appellate Court had dealt with the matters by a common judgment (of each Court). Rahmath Beevi had filed two appeals before the High Court under Section 100 of the Code of Civil Procedure, 1908 and the High Court also disposed of both the appeals by a common judgment delivered on 25.09.2018. It is this judgment which is assailed before the Hon’ble Supreme Court by the petitioners. Respondents argued that without proving the said testamentary instrument, the petitioners could not challenge the judgment of the High Court in the capacity of legatees. It was further argued that tenancy could not be a subject of disposition under any testamentary instrument. So far as locus of the petitioners is concerned, the Supreme Court had allowed their plea for substitution by an order passed on 31.08.2021. Now by proceeding on the basis that the petitioners were substituted would not determine finally their locus to maintain the present petitions deriving their right from the said testamentary instrument. But as the court have held against the petitioners on merit, the Hon’ble Supreme Court did not find the need to examine the issues. The present petitions were accordingly dismissed.

 

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Wrong Turn on the Legal Road? Supreme Court Corrects High Court’s Order in Ex Parte Case.

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CASE TITLE – The Koushik Mutually Aided Cooperative Housing Society v. Ameena Begum & Anr.

CASE NUMBER – 2023 INSC 1065 (Neutral Citation)

DATED ON – 01.12.2023

QUORUM – Justice B.V. Nagarathna & Justice Ujjal Bhuyan

 

FACTS OF THE CASE

In the said suit, the respondent(s) herein were set ex-parte. Thereafter, an ex-parte decree was passed on 15.02.1999. It is stated that execution proceedings as against the ex-parte decree are still pending before the Executing Court. However, the first respondent herein filed an application on 07.01.2016 seeking setting aside of ex-parte decree dated 15.02.1999 along with an application under Section 5 of the Limitation Act, 1963 seeking condonation of 5767 days delay in filing the said application seeking setting aside of ex-parte decree. By order dated 07.06.2018, the V-Senior Civil Judge, City Civil Court, Hyderabad dismissed I.A. No.30/2016 filed for seeking condonation of delay of 5767 days in filing the application seeking setting aside of the ex-parte decree under Oder IX Rule 13 Code of Civil Procedure, 1908 (‘CPC’ for the sake of convenience). The said application was considered by the Trial Court and by order dated 07.06.2018, the application seeking condonation of delay was dismissed. Consequently, the petition filed under Order IX Rule 13 CPC seeking setting aside of the ex-parte decree also stood dismissed. Being aggrieved, the first respondent herein filed a Civil Revision Petition under Section 115 of the CPC before the High Court contending that Trial Court was not right in dismissing the application seeking condonation of delay of 5767 days in filing the petition to set aside the ex-parte decree dated 15.02.1999. By the impugned order dated 08.01.2021, the High Court has set aside Order dated 07.06.2018 passed in I.A. No.30/2016 in O.S. No.1144/1988, which also implies that the petition filed under Order IX Rule 13 CPC which had also stood dismissed has been allowed. In the Civil Revision Petition, the High Court condoned the delay of 5767 days in filing the petition filed under Order IX Rule 13 CPC seeking setting aside the ex-parte decree dated 15.02.1999 by directing the Trial Court to dispose of the petition filed under Order IX Rule 13 CPC and to complete the trial of the suit expeditiously. Being aggrieved by the said order passed in Civil Revision Petition by the High Court, the plaintiff/appellant has preferred this appeal.

 

ISSUE

Whether a civil revision petition under Section 115 of the CPC is the appropriate remedy to challenge the dismissal of an application filed under Order IX Rule 13 CPC seeking to set aside an ex-parte decree.

 

COURT ANALYSIS AND JUDGEMENT

The Hon’ble Supreme Court stated that the filing of an application under Order IX Rule 13 CPC as well as the filing of appeal under Section 96(2) of the CPC against the ex-parte decree are concurrent remedies available to a defendant. However, once the appeal preferred by the defendant against the ex-parte decree is dismissed, except when it is withdrawn, the remedy under Order IX Rule 13 CPC cannot be pursued. Conversely, if an application filed under Order IX Rule 13 CPC is rejected, an appeal as against the ex-parte decree can be preferred and continued under Section 96(2) of the CPC. Thus, an appeal against an ex-parte decree even after the dismissal of an application under Order IX Rule 13 CPC is maintainable. They further stated that the rejection of a petition filed under Order IX Rule 13 CPC is an appealable order and, therefore under Order XLIII Rule 1(d) CPC, an appeal ought to have been filed before the High Court rather than a Civil Revision Petition under Section 115 of the CPC. The hon’ble Supreme Court held that when an application or petition filed under Order IX Rule 13 CPC is dismissed, the defendant can avail a remedy by preferring an appeal in terms of Order XLIII Rule 1 CPC. Thus, Civil Revision Petition under Section 115 of the CPC would not arise when an application/petition under Order IX Rule 13 CPC is dismissed. Thus, when an alternative and effective appellate remedy is available to a defendant, against an ex-parte decree, it would not be appropriate for the defendant to resort to filing of revision under Section 115 of the CPC challenging the order refusing to set aside the order of setting the defendant ex-parte. In view of the appellate remedy under Order XLIII Rule 1(d) CPC being available, revision under Section 115 of the CPC filed in the instant case was not maintainable. The Court stated that In the circumstances, they have chosen to set aside the impugned order on the ground that the said order was passed in a Civil Revision Petition which was not at all maintainable under Section 115 of the CPC. However, liberty is reserved to the first respondent herein to file an appeal under Order XLIII Rule 1(d) CPC, if so advised, on or before 31.12.2023, and If such an appeal is filed before the High Court, the point of limitation ought not to be raised by the High Court.

 

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Reversal of Reversal: Supreme Court Acquits Accused After Faulty Appeal Process; Upholds Trial Court’s Decision.

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CASE TITLE – Babu Sahebagouda Rudragoudar & Ors. v. State Of Karnataka

CASE NUMBER – Criminal Appeal No. 985 of 2010

DATED ON – 19.04.2024

QUORUM – Justice Sandeep Mehta & Justice B.R. Gavai

 

FACTS OF THE CASE

The complainant, Chanagouda (PW-1) owns agricultural lands and a house in the village, Babanagar, Bijapur, Karnataka. It is alleged by the prosecution that in the morning of 19th September, 2001, the deceased Malagounda, son of the complainant, along with labourers/servants Revappa (PW-2), Siddappa (PW-3), Hiragappa (PW-4) and Suresh (PW-5) had gone to put up a bund (check dam) in their land. The work continued till 3.30 p.m. and thereafter, the four servants (PW-2, PW-3, PW-4 and PW-5), along with the deceased Malagounda and the complainant(PW-1) proceeded to the village. They had reached near the land of one Ummakka Kulkarni at about 4.00 pm, where A-1, A-2, A-3 and A-4 suddenly came around and exhorted that the way the complainant party had murdered Sangound, they would take revenge upon the members of the complainant party in the same manner. A-1 holding a jambai, A-2 holding an axe, A-3 holding a sickle and A-4 holding an axe, belaboured Malagounda, as a result of which he fell down. The assailants thereafter threatened the complainant(PW-1) that if he tried to intervene, he too would meet the same fate as his son. Fearing for his own life, the complainant(PW-1) ran away and hid behind the bushes in order to avoid being beaten by the accused. After sunset, the complainant(PW-1) returned to the village and narrated about the incident to his family members. A written complaint of this incident came to be submitted by the complainant(PW-1) at Tikota Police Station on 20th September, 2001 at 4.00 am in the morning whereupon FIR(Exhibit P-10) was registered and investigation commenced. After conclusion of investigation, a charge sheet came to be filed against the appellants(A-1, A-2, A-3) and other accused(A-4, A-5 and A-6) for the offences punishable under Sections 143, 147, 148, 506(2) and Section 302 read with Section 149 IPC in the Court of jurisdictional Magistrate. Upon hearing the arguments advanced by the prosecution and the defence counsel and after thoroughly appreciating the evidence available on record, the trial Court proceeded to hold that the prosecution could not prove the charges levelled against the accused beyond all manner of doubt and acquitted all the six accused vide judgment dated 23rd July, 2005. The State preferred an appeal under Section 378(1) read with 378(3) CrPC challenging the acquittal of the accused. The learned Division Bench of High Court of Karnataka partly allowed the said appeal vide judgment dated 14th September, 2009 and while reversing the acquittal of the accused A-1, A-2 and A-3 as recorded by the trial Court, convicted and sentenced them to life imprisonment and a Rs.50,000 fine for each of the convicts.

 

ISSUE

Whether the Learned Division Bench of the Karnataka High Court was justified in overturning the Trial Court’s Decision.

 

CONTENTIONS BY THE APPELLANTS

The Learned counsel representing the appellants urged that the view taken by the High Court in reversing the acquittal of the appellants recorded by the trial Court by a well-reasoned judgment is totally contrary to the settled principles laid down by the same Court regarding scope of interference in an appeal against acquittal. It was also contended that neither the disclosure statements nor the recovery memos bear the signatures/thumb impressions of the accused and hence, the recoveries cannot be read in evidence or attributed to the accused/appellants. He also stated that the acquittal can be reversed only if the findings recorded by the trial Court are found to be patently illegal or perverse or if the only view possible on the basis of the evidence available on record points towards the guilt of the accused. If two views are possible, the acquittal recorded by the trial Court should not be interfered with unless perversity or misreading of evidence is reflected from the judgment recording acquittal. The Learned counsel further urged that the learned Division Bench of the High Court, while rendering the judgment reversing acquittal of the appellant barely referred to the findings on the basis of which the trial Court had acquitted the accused by extending them the benefit of doubt. Rather, the High Court went on to record its own fresh conclusions after re-appreciation of the evidence and hence, the impugned judgment deserved to be set aside.

 

CONTENTIONS BY THE RESPONDENT

The learned counsel appearing for the respondent State vehemently and fervently opposed the submissions advanced by learned counsel for the appellants. He urged that learned Division Bench of the High Court, while considering the appeal against acquittal, thoroughly reappreciated the evidence available on record and arrived at an independent and well considered conclusion that the depositions of the eye witnesses PW-1, PW-2, PW-4, PW-6 and PW-15 were convincing and did not suffer from any significant contradictions or infirmities so as to justify the decision of the trial Court in discarding their evidence and acquitting the accused of the charges. He stated that the so called contradictions and discrepancies highlighted by the trial Court in the evidence of the eyewitnesses for doubting their evidentiary worth are trivial and insignificant and acquittal of accused as recorded by the learned trial Court disregarding the testimony of the eyewitnesses is based on perverse and unacceptable reasoning. Learned counsel thus urged that the High Court was perfectly justified in reversing the acquittal of the accused appellants by the impugned judgment which does not require interference in this appeal.

 

COURT ANALYSIS AND JUDGEMENT

The Hon’ble Supreme Court after going through the impugned judgement of a Division Bench of the Karnataka High Court stated that none of the essential mandates governing an appeal against acquittal were adverted to by the learned Division Bench which proceeded to virtually decide the appeal as a first Court on independent appreciation of evidence and recorded its own findings to hold the accused appellants(A-1, A-2 and A-3) guilty of the charge under Section 302 read with Section 34 IPC and sentenced them to imprisonment for life, and thus, on the face of record, the judgment of the High Court causing interference with the acquittal of the accused appellants as recorded by the trial Court is contrary to the principles established by law. They were of the firm opinion that neither the disclosure memos were proved in accordance with law nor the recovery of the weapons from open spaces inspire confidence and were wrongly relied upon by the High Court as incriminating material so as to reverse the finding of the acquittal recorded by the trial Court, and also stated that that the view taken by the trial Court in the judgment dated 23rd July, 2005 recording acquittal of accused is a plausible and justifiable view emanating from the discussion of the evidence available on record, and that the trial Court’s judgment does not suffer from any infirmity or perversity. Hence, the High Court was not justified in reversing the well-reasoned judgment of the trial Court and that the impugned judgment dated 14th September, 2009 rendered by the High Court could be not be sustained and was reversed, and held that the accused/appellants were hereby acquitted of all the charges.

 

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Judgement Reviewed by – Gnaneswarran Beemarao

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