Judgments
Supreme Court
Machindra v. Sajjan Galpha Rankhamb and Ors.
MANU/SC/0458/2017
19.04.2017
Criminal
Guilt of Accused must be proved beyond all reasonable doubts
Instant appeal is against judgment passed by High Court, whereby High Court while allowing appeal of Respondent Nos. 1 & 2, set-aside judgment conviction and sentence passed by Sessions Judge, and acquitted them of offence punishable under Section 302 read with Section 34 of Indian Penal Code, 1860. High Court reversed order of conviction while holding that, no reliance could be placed on evidence of PW-3. High Court further held that, both PW-4 and PW-10 had falsified evidences of each other. Non-examination of weapon recovered from place of incident by Chemical Analyzer also made the case doubtful as per opinion of High Court.
In case of Yogesh Singh v. Mahabeer Singh and Ors. Supreme Court observed that, it is a cardinal principle of criminal jurisprudence that guilt of Accused must be proved beyond all reasonable doubts. However, burden on prosecution is only to establish its case beyond all reasonable doubt and not all doubts. In present case, there are contradictions in depositions of PW-4 and PW-10 and none of them is eye-witness to alleged incident. Furthermore, PW-20 has proved in his deposition that he medically examined Respondent Nos. 1 & 2, when they were arrested. Prosecution had not examined one Sanjay Jetithor in whose field, alleged incident occurred. Non-examination of this material witness, who could have unfolded relevant facts of case necessary for adjudication, makes prosecution version doubtful. There was six days' delay in lodging FIR which remained unexplained throughout trial and in appeal before High Court. One Opinion on the cause of injuries was neither mentioned by doctor PW-6 in his deposition, nor in post-mortem report. In criminal cases, pertaining to offences against human body, medical evidence has decisive role to play. A medical witness who performs a post-mortem examination is a witness of fact though, he also gives an opinion on certain aspects of the case.
In post-mortem report, cause of injuries was not stated nor was any opinion formed to create independent testimony. Expert's opinion should be demonstrative and should be supported by convincing reasons. Court cannot be expected to surrender its own judgment and delegate its authority to a third person, however great. If report of an expert is slipshod, inadequate or cryptic and information on similarities or dissimilarities is not available in report of an expert then, his opinion is of no value. Such opinions are often of no use to Court and often lead to breaking of very important links of prosecution evidence which are led for purpose of prosecution. Therefore, prosecution has failed to prove that death was caused due to injuries inflicted by recovered weapons. PW-3, eye-witness to incident has neither stated as to when Accused came with alleged weapons nor he extended any help to deceased. Rather he fled away from spot as per his deposition, and came to know about death of deceased in evening. This peculiar fact of case completely over-rides direct evidence rule, because ultimately probabilities creating doubts with respect to cause and modus-operandi of offence increases, when alleged eye-witness flee away from place of occurrence. Where medical evidence is such that, it does not give any clear opinion with respect to injuries inflicted on body of victim or deceased, as case may be, possibilities that, injuries might have been caused by Accused are also ruled out. Such medical evidence is also very important in assessing testimony of eye-witnesses and in determining whether testimony of eye-witnesses can be safely accepted.
It is settled law of criminal jurisprudence as has been recognized by this Court in State of U.P. v. Krishna Gopal, that "A person has, no doubt, a profound right not to be convicted of an offence which is not established by evidential standard of proof beyond reasonable doubt." In view of proposition of law as observed in Yogesh Singh v. Mahabeer Singh and Ors., Supreme Court opined that there are not only actual but substantial doubts as to the guilt of the Respondents herein. We are, therefore, unable to find any evidence as to how the deceased was killed and by whom. The unfortunate man succumbed to injuries but the substantial doubts, mentioned above, confer a right upon the Accused-Respondents to be held not guilty. Supreme Court dismissed the appeal and held that, there is no reason to interfere with findings of High Court as, High Court after correct appreciation of evidence has rightly acquitted Accused-Respondents, giving them benefit of doubt.
Relevant
Yogesh Singh v. Mahabeer Singh and Ors. MANU/SC/1349/2016
: AIR 2016 SC 5160 : 2016 (10) JT 332
Tags : Acquittal Validity Evidence Credibility
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Supreme Court
Kalyan Dey Chowdhury v. Rita Dey Chowdhury Nee Nandy
MANU/SC/0457/2017
19.04.2017
Family
Maintenance is dependant on factual situation of case and Court can moulding claim for maintenance based on various factors
Challenge in present appeal is to order passed by High Court reviewing an order passed earlier in an application filed under Section 25(2) of Hindu Marriage Act, 1955, thereby enhancing amount of maintenance from Rs. 16,000/- per month to Rs. 23,000/- per month. Appellant submitted that, in exercise of review jurisdiction, the High Court ought not to have enhanced the maintenance amount from Rs. 16,000/- to Rs. 23,000/-. It is also submitted that, Respondent is a qualified beautician and Montessori teacher and earns Rs. 30,000/- per month and son has also attained eighteen years of age and hence, enhanced maintenance amount is on higher side and prayed for restoring original order.
Section 25 of Hindu Marriage Act, 1955 confers power upon Court to grant a permanent alimony to either spouse who claims the same by making an application. Sub-section (2) of Section 25 of Hindu Marriage Act, confers ample power on Court to vary, modify or discharge any order for permanent alimony or permanent maintenance that may have been made in any proceeding under Act under provisions contained in Sub-section (1) of Section 25. In exercising power under Section 25 (2), Court would have regard to "change in circumstances of parties". There must be some change in circumstances of either party which may have to be taken into account, when an application is made under Sub-section (2) of Section 25 for variation, modification or rescission of order as Court may deem just.
Review petition under Order XLVII Rule 1 Code of Civil Procedure,1908 (CPC) was filed by Respondent-wife pursuant to liberty granted by this Court, when earlier order awarding a maintenance of Rs. 16,000/- to Respondent-wife as well as to her minor son was under challenge before this Court. As pointed out by High Court, in February 2015, Appellant-husband was getting a net salary of Rs. 63,842/- after deduction of Rs. 24,000/- on account of GPF and Rs. 12,000/- towards income-tax. In February, 2016, net salary of Appellant is stated to be Rs. 95,527/-. Following Dr. Kulbhushan Kumar v. Raj Kumari and Anr., in this case, it was held that 25% of husband's net salary would be just and proper to be awarded as maintenance to Respondent-wife. Amount of permanent alimony awarded to wife must be befitting status of parties and capacity of spouse to pay maintenance. Maintenance is always dependant on factual situation of case and Court would be justified in moulding claim for maintenance based on various factors. Since in February, 2016, net salary of husband was Rs. 95,000/- per month, High Court was justified in enhancing maintenance amount. However, since Appellant has also got married second time and has a child from second marriage, in interest of justice, Supreme Court reduced amount of maintenance of Rs. 23,000/- to Rs. 20,000/- per month and modified impugned judgment.
Relevant
Dr. Kulbhushan Kumar v. Raj Kumari and Anr.MANU/SC/0349/1970
: (1970) 3 SCC 129
Tags : Maintenance Enhancement Validity
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Supreme Court
Dagadabai (dead) by L.Rs. v. Abbas
MANU/SC/0438/2017
18.04.2017
Property
Person, who claims title over property on strength of adverse possession is required to prove his case only against true owner of property
Dispute in instant Appeal relates to an agricultural land. Trial Court, by judgment/decree decreed Appellant's suit. It was held that, Appellant (Plaintiff) is owner of suit land; Defendant failed to prove his adoption; there is no concept of adoption in Muslims and hence, there could be no valid adoption of Respondent by Rustam and nor such adoption is recognized in Mohammadan Law; Defendant has failed to prove his title over suit land on basis of his alleged possession over suit land; the Defendant is, therefore, in illegal and unauthorized possession of suit land for want of any right, title and interest and hence, liable to be dispossessed from the suit land. Felt aggrieved, Defendant filed first appeal before Additional District Judge. First Appellate Court affirmed judgment and decree of trial Court and dismissed the appeal. Felt aggrieved, the Defendant carried the matter in Second Appeal before the High Court. High Court allowed the appeal and while setting aside judgment/decree of two Courts below, dismissed the suit giving rise to filing of this appeal by special leave by Plaintiff.
High Court erred in admitting second appeal in first instance and then further erred in allowing it by answering question framed in Defendant's favour. When trial Court and First Appellate Court concurrently decreed Plaintiff's suit by recording all findings of facts against Defendant, then, such findings of facts were binding on High Court. Findings were neither against the pleadings nor evidence and nor against any provisions of law. They were also not perverse on facts to extent that, no average judicial person could ever record. In this view of matter, Supreme Court opined that, second appeal did not involve any question of law much less substantial question of law within meaning of Section 100 of Code of Civil Procedure, 1908(CPC) to enable High Court to admit appeal on any such question much less answer it in favour of Defendant. Question which was formulated by High Court did not involve any question of law much less substantial question of law within meaning of Section 100 of CPC requiring interference in First Appellate Court's judgment.
Plea of adverse possession being essentially a plea based on facts, it was required to be proved by party raising it, on basis of proper pleadings and evidence. Burden to prove such plea was, therefore, on Defendant who had raised it. When both Courts below held that, Defendant has failed to prove plea of adverse possession in relation to suit land then such, concurrent findings of fact was un-impeachable and binding on High Court.
It is a settled principle of law of adverse possession that person, who claims title over property on strength of adverse possession and thereby wants Court to divest true owner of his ownership rights over such property, is required to prove his case only against true owner of property. It is equally well-settled that, such person must necessarily first admit ownership of true owner over property to knowledge of true owner and secondly, true owner has to be made a party to suit to enable Court to decide plea of adverse possession between two rival Claimants.
It is only thereafter and subject to proving other material conditions with aid of adequate evidence on issue of actual, peaceful, and un-interrupted continuous possession of person over suit property for more than 12 years to exclusion of true owner with element of hostility in asserting rights of ownership to knowledge of true owner, a case of adverse possession can be held to be made out which, in turn, results in depriving the true owner of his ownership rights in property and vests ownership rights of property in person who claims it. In this case, Defendant did not admit Plaintiff's ownership over suit land and, therefore, issue of adverse possession, could not have been tried successfully at instance of Defendant as against Plaintiff. That apart, Defendant having claimed ownership over the suit land by inheritance as an adopted son of Rustum and having failed to prove this ground, he was not entitled to claim title by adverse possession against Plaintiff.
In light of settled legal position, plea taken by Defendant about adoption for proving his ownership over suit land as an heir of Rustum was rightly held against him. As Defendant failed to prove that, he was adopted son of Rustum, he would suffer decree of dispossession from suit land. It is a settled principle of Mohammadan Law that, Mohammadan Law does not recognize adoption. Supreme Court set aside impugned judgment and allowed the appeal.
Tags : Land Ownership Proof
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Customs, Excise and Service Tax Appellate Tribunal
Agarwal Marbles & Industries Pvt. Ltd. V. C.C.E., Jodhpur
MANU/CE/0280/2017
18.04.2017
Customs
Enhancement of value based upon weekly average price is held as bad in law
In facts of present case, Appellant filed Bill of Entry for import of rough marble blocks imported from Turkey along with other relevant documents. As value declared by Appellant was at rate of US$ 253.48 per MT and as such was below floor price of US$ 275 per MT, as required in import license, Revenue took up matter for adjudication on ground that, value declared by Appellant was less as also on ground that, condition of the import license stand violated. Original Adjudicating Authority held that, Appellant had undervalued goods. He further observed that, as Appellant had not fulfilled condition of Notification, goods are liable to confiscation and Appellant liable to penalty. Accordingly, along with enhancing assessable value, he confiscated the same with an option to Appellant to redeem same on payment of redemption fine. In addition penalty was imposed upon Appellant in terms of provisions of Section 112 (a) of Customs Act 1962. On appeal against above order, Commissioner (A) upheld the same.
An identical dispute was subject matter of Tribunal's decision in case of R.K. Marble Pvt. Ltd. Vs. CCE Jaipur, wherein enhancement of value based upon weekly average price was held as bad in law. In present case also, it is the weekly average price of goods which has been adopted as assessable value, which was case in appeal of R.K. Marble Pvt. Ltd. As such, there is no distinction between two and law declared by R.K. Marble has to be followed.
It is well settled law that, NIDB data cannot be considered as reliable source for purpose of enhancement. Issue is no more res integra and has been settled by number of decisions of Tribunal. In case of Kelvin Infotech Pvt. Ltd. v. CCE Meerut, Revenue's reliance on NIDB data, for purpose of enhancement of value was not favored. There is no justifiable reasons to enhance value and hold that, transaction value declared by Appellant be adopted as assessable value for purpose of payment of Customs duty.
Regarding contravention of licenses, as per licenses given to Appellant, imports should be at floor price of USD 275 per MT. Same was situation in case of R.K. Marbles and it was held that, even though assessment for purpose of customs duty is to be done on transaction value but as said transaction value was below floor price, there is violation of policy and goods are liable to confiscation and Appellant liable to penalty. In present case also, Learned Advocate appearing for Appellant has accepted violation of condition of policy. Accordingly, confiscation is upheld but following decision in case of R.K. Marbles, redemption fine and penalty is reduced.
Relevant
R.K. Marble Pvt. Ltd. Vs. CCE Jaipur MANU/CE/0027/2007
: 2009 (245) ELT 383 (Tri-Del), Kelvin Infotech Pvt. Ltd. vs. Commissioner of Cus., C. Ex. and S.T. MANU/CE/0622/2014
Tags : Valuation Confiscation Penalty
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High Court of Chhattisgarh
Ranjeet Kumar Gupta v . State of Chhattisgarh and Ors.
MANU/CG/0158/2017
17.04.2017
Excise
Order of confiscation can only be challenged, when it reaches it's finality
Instant petition is against order passed by Collector, wherein an application for interim custody of vehicle preferred by Petitioner while proceeding under confiscation was continuing was dismissed. It was alleged by State that, vehicle was being used for transporting illicit liquor, as such proceeding under Section 47 (A) of Chhattisgarh Excise Act, 1915/Act was drawn for confiscation of vehicle. Collector started confiscation proceeding for vehicle. Petitioner submitted that, confiscation proceeding though having been commenced, it do not put any bar to release vehicles on interim custody.
Section 47 (2) of Act, would show that, power has been given to Collector upon production of article and on having satisfied that, offence covered under clause (a) or clause (b) of sub-section (1) of Section 34 has been committed and if liquor is more than 5 bulk liters, he may order for confiscation of articles, intoxicants, implements, utensils including the conveyance so seized. It also records that, he may during pendency of proceeding may pass an order of interim nature for custody, disposal etc. of confiscated intoxicants, articles, implements, conveyance, as may appear to be necessary in facts of case.
Section 47 (B) of Chhattisgarh Excise Act, 1915 provides for appeal against order of confiscation. Therefore, it necessarily leads that, order of confiscation can only be challenged when it reaches it's finality and statute do not give any space to challenge any other order except final one. In view of this, necessary implication would be that, any order of interim nature if any passed, High Court in exercise of it's power vested in it, under Article 227 can always test propriety or legality of order. It is a settled proposition of jurisprudence that, every wrong will have a remedy. If order is found to be wrong then certainly the High Court would have all power to correct the same.
Order under challenge would show that, it is cryptic order. No reasons have been assigned for rejection and only it is stated that, since vehicle was found in transporting illicit liquor as such, it is not feasible to hand over vehicle to Petitioner. So for all practical purposes, vehicle is lying at disposal of authorities or at police station. Therefore, if it is kept in police station, it must be occupying space or is prone to cause natural decay and may loose its roadworthiness, when kept in stationery position. In facts of case and in view of law laid down in case of General Insurance Council and others v. State of Andhra Pradesh and others reported wherein earlier principles laid down in case of Sunderbhai Ambalal Desai v. State of Gujarat was reiterated, order of rejection of application for interim custody cannot be allowed to remain. Consequently, applying said principles, it is directed that, vehicle be released in favour of Petitioner by way of interim measure, if confiscation proceedings have not been concluded till date of production of this order.
Relevant
General Insurance Council and others v. State of Andhra Pradesh and others reported in MANU/SC/0271/2010
: (2010) 6 SCC 768, Sunderbhai Ambalal Desai v. State of Gujarat reported in MANU/SC/1110/2002
: (2002) 10 SCC 283
Tags : Vehicle Release Interim custody
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High Court of Calcutta
J.H. Industrial Corporation v. Vijendra Kumar Goel
MANU/WB/0253/2017
13.04.2017
Civil
Term 'sufficient cause' should be construed liberally but that does not mean every cause should be accepted as sufficient cause
Instant application has been taken out by Defendant for recalling of a decree for Rs. 26,54,355.74 along with pendente lite interest at rate of 18 per cent per annum and interest on judgment at rate of 12 per cent per annum. By said decree, costs assessed at Rs. 60,000/- was also awarded in favour of Plaintiff. Said decree was passed, when suit appeared in defended list in view of fact that, Defendant did not enter appearance in suit as certified by Department of this Court. It is not in dispute that, writ of summons was duly served on Defendant.
According to Order 9 Rule 13 of Code of Civil Procedure, 1908 (CPC), an ex parte decree may be set aside, if Court is satisfied that, writ of summons was not duly served or that Defendant was prevented by any sufficient cause from appearing when suit was taken up for hearing. Admittedly, writ of summons in present case was duly served on Defendant. Hence, only ground available to the defendant is one of sufficient cause for his non-appearance. Power of Court under Order 9 Rule 13 of CPC is a discretionary power. Apex Court in various judgments observed that, power should be exercised judiciously. No doubt, term 'sufficient cause' should be construed liberally but that does not mean any and every cause should be accepted as a sufficient cause. Emphasis of Defendant's submission has been on his illness. Almost all hospitals and medical centers that, Defendant attended are all in Calcutta. Defendant has annexed Xerox copy of a registration card issued by Tata Memorial Centre, Department of Oncology, Mumbai. However, no document has been brought on record to show that, Defendant underwent any treatment at Bombay Tata Memorial Centre for any appreciable period of time or at all. Documents on record disclosed by Defendant do not support case that, Defendant had to leave Calcutta frequently for treatment.
Further, documents disclosed that, Defendant was living an active life and it was not that he was confined to his home or has been brought down altogether by his ailment so as to be incapable of attending to his business affairs, an impression that, Defendant has sought to portray in recalling application. Defendant was not as much handicapped by his ailments as he has sought to portray himself before this Court. He has been carrying on his business activities actively. Hence, his illness could not have been a sufficient cause or any cause at all which prevented him from contesting suit. There is no iota of evidence in support of Defendant's claim that, he indeed briefed learned Advocate or to show that he paid fees to learned Advocate. No correspondence exchanged between Defendant and Learned Advocate has been disclosed. Case run by Defendant in present application is not credible therefore, Court dismissed the application.
Tags : Decree Ex-parte Validity
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