High Court of Allahabad

Nupur Talwar and Ors. Vs. State of U.P. and Ors.

12.10.2017

Criminal

When any fact is especially within the knowledge of any person, the burden of proof to prove that fact is upon him

Present two criminal appeals have been preferred by the Appellants Dr. Nupul Talwar and Dr. Rajesh Talwar under Section 374(2) of the Code of Criminal Procedure, 1973 (Cr.P.C.), against the judgement passed by Additional Sessions Judge & Designated Judge, by which both the Appellants have been convicted and sentenced to rigorous imprisonment for life and a fine of Rs. 10,000/- each under Section 302/34 IPC, five years rigorous imprisonment and a fine of Rs. 5000/- each under Section 201/34 IPC. In addition Dr. Rajesh Talwar has been convicted and sentenced to one year simple imprisonment and a fine of Rs. 2000/- under Section 203 IPC. All the sentences were directed to run concurrently.

The applicability of Section 106 of the Indian Evidence Act, 1872 has been lucidly explained by the Apex Court in the case of State of Rajasthan versus Kashi Ram observing that, the provisions of Section 106 of the Evidence Act, itself are unambiguous and categoric in laying down that, when any fact is especially within the knowledge of a person, the burden of proving that fact is upon him. Thus, if a person is last seen with the deceased, he must offer an explanation as to how and when he parted company. He must furnish an explanation which appears to the Court to be probable and satisfactory. If he does so he must be held to have discharged his burden. Section 106 does not shift the burden of proof in a criminal trial, which is always upon the prosecution.

When an offence like murder is committed in secrecy inside a house, the initial burden to establish the case would undoubtedly be upon the prosecution. In view of Section 106 of the Evidence Act, there will be a corresponding burden on the inmates of the house to give cogent explanation as to how the crime was committed. The inmates of the house cannot get away by simply keeping quiet and offering no explanation on the supposed premise that, the burden to establish its case lies entirely upon the prosecution and there is no duty at all on the accused to offer.

Thus, prosecution has to establish guilt of the Accused filtered of all reasonable prognosis favourable to accused to secure conviction and it is never relieved of its initial duty. It is only when the initial burden has been discharged by the prosecution that, the defence of the accused has to be looked into. Section 106 of the Indian Evidence Act cannot be applied to fasten guilt on the accused, even if the prosecution has failed in its initial burden.

Section 101 to Section 114A of Chapter-VII of the Indian Evidence Act, 1872 deal with subject “Of The Burden Of Proof.” Section 106 of the Indian Evidence Act, provides that when any fact is especially within the knowledge of any person, the burden of proof to prove that fact is upon him. Section 106 is an exception to Section 101 of the Evidence Act which stipulates that, whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist. Section 106 of the Evidence Act has to be read in conjunction with and not in derogation of Section 101 Evidence Act. Section 106 of the Indian Evidence Act, does not relieve prosecution of it's primary and foremost duty to establish the guilt of the accused beyond all reasonable doubts independent of weaknesses of the defence. It is only when prosecution, for well perceptible and acceptable reasons, is unable to lead evidence because of circumstances beyond it's control including the reason that the fact required to be proved was “within the special knowledge of an accused alone” and prosecution could not have known it by due care and diligence, that Section 106 can be resorted to by shifting burden on the accused to divulge that fact which is “in his special knowledge” and if accused fails to offer any reasonable explanation to satiate judicial inquisitive scrutiny, he is liable to be punished. Section 106 of Act, is not meant to be utilized to make up for the prosecution's inability to establish its case by leading, cogent and reliable evidence.

However, once the prosecution establishes entire chain of circumstances together in a conglomerated whole unerringly pointing out that it was accused alone who was the perpetrator of the crime and the manner of happening of the incident could be known to him alone and within his special knowledge, recourse can be taken to Section 106 of the Evidence Act. Aid of Section 106 of the Evidence Act can be invoked only in cases where prosecution could produce evidence regarding commission of crime to bring all other incriminating circumstances and sufficient material on record to prima-facie probablise its case against the accused and no plausible explanation is forthcoming from the accused regarding fact within his special knowledge about the incident.

Before Section 106 of the Evidence Act could be applied in the instant case, it was incumbent upon the prosecution to establish by cogent and reliable evidence that, the Appellants were awake in the night of occurrence; when PW10 Bharti Mandal arrived at the Appellant’s flat at about 6 am on 16th May, 2008, the outer most iron grill door was latched/locked from inside; thirdly even if the outer most iron and grill door was not latched/locked from inside, the Appellants if proved to be awake could have heard noise/sounds in their room at the time of assault in their daughter's bedroom; the deceased Aarushi and Hemraj were assaulted by the Appellants in Aarushi's bedroom and thereafter they had dragged the dead body of Hemraj from the bedroom of Aarushi upto the terrace after wrapping it in a bed sheet; and the injuries found on the dead body of Aarushi and Hemraj inflicted on them by golf club number no. 5 and surgical scalp. The prosecution has failed to prove the aforesaid circumstances which the prosecution was required to prove which could have justified the application of Section 106 of Act to the facts and circumstances of the present case for the purpose of convicting the Appellants for the double murder of their daughter Aarushi and domestic help Hemraj.

During the course of investigation the CBI had arrested and interrogated Krishna Thadarai, Rajkumar and Vijay Mandal, who had remained suspects of the double murder for a considerably long time during the investigation of the case by CBI. Thus, there is no reasonable basis for holding that what had actually happened in the Appellants' flat in the intervening night of 15th/16th May, 2008 was a fact within the special knowledge of the Appellant and since the same was not a fact within their special knowledge Section 106 of the Indian Evidence Act, could not be invoked against Appellants for the purpose of convicting them for the double murder of their daughter Aarushi and domestic help Hemraj on account of their failure to come up with any explanation for the circumstances under which the double murder were committed in their flat in the intervening night of 15/16th May, 2008.

High Court is not satisfied that, the prosecution could not have due knowledge of what had happened inside the flat on the fateful night in spite of due diligence as there was clinching evidence on record which pointed at the presence of outsiders in the flat of the Talwars in the intervening night of 15th/16th May, 2008. Absence of explanation or false explanation or a false plea would merely be an additional link only when it is proved that all other links in the chain are complete and do not suffer from any infirmity. Here, the chain of circumstances is grossly incomplete and broken.

Thus, High Court found that, neither the circumstances from which the conclusion of guilt is sought to be drawn have been fully established nor the same are consistent only with the hypothesis of the guilt of the Appellants. High Court is of opinion that, the circumstances are neither conclusive in nature nor they exclude every possible hypothesis except the one of the guilt of the appellant. The chain of circumstances in this case is not complete so as not to leave any reasonable ground for the conclusion consistent with the innocence of the Appellant. The chain of circumstances stood snapped the moment, the prosecution failed to prove by any cogent and reliable evidence that the Appellants' flat was locked from inside when PW10 Bharti Mandal rang the door bell of their flat in the morning of 16th May, 2008 and a strong possibility of outsiders having accessed into the Appellants' flat and left after committing the double murder and in the process latched the middle iron mesh door of the Appellants' flat from outside and left the outer grill door of their flat open evinced from the evidence adduced by the prosecution itself. There is no reason to fasten the Appellants with the guilt of double murder merely on the proof of the deceased being last seen alive with the Appellants in their flat in the night of 15th May, 2008 specially in view of the alternative hypothesis of the double murder covenanted in the prosecution case itself. The conclusion drawn by the learned trial judge to the contrary are per se illegal and vitiated by non consideration of material evidence on record. Suspicion, however grave it may be, cannot take the place of proof.

In Kali Ram v. State of Himachal Pradesh, the Apex Court observed as under : "Another golden thread which runs through the web of the administration of justice in criminal cases is that, if two views are possible on the evidence adduced in the case one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the Accused should be adopted. This principle has a special relevance in cases where in the guilt of the Accused is sought to be established by circumstantial evidence." In M.G. Agarwal v. State of Maharashtra, the Apex Court held, that if the circumstances proved in a case are consistent either with the innocence of the Accused, or with his guilt, then the Accused is entitled to the benefit of doubt. When it is held that a certain fact has been proved, then the question that arises is whether such a fact leads to the inference of guilt on the part of the Accused person or not, and in dealing with this aspect of the problem, benefit of doubt must be given to the Accused, and a final inference of guilt against him must be drawn only if the proved fact is wholly inconsistent with the innocence of the Accused, and is entirely consistent with his guilt.

Similarly, Sharad Birdichand Sarda v. State of Maharashtra, this Court held that, graver the crime, greater should be the standard of proof. An Accused may appear to be guilty on the basis of suspicion but that cannot amount to legal proof. When on the evidence two possibilities are available or open, one which goes in the favour of the prosecution and the other benefits an Accused, the Accused is undoubtedly entitled to the benefit of doubt. The principle has special relevance where the guilt or the Accused is sought to be established by circumstantial evidence.

The circumstances of present case upon being collectively considered do not lead to the irresistible conclusion that, the Appellants alone are the perpetrators of crime in question and on the evidence adduced in this case certainly two views are possible; one pointing to the guilt of the Appellants; and the other to their innocence and in view of the principles expounded by the Apex Court in the case of Kali Ram, High Court proposed to adopt the view which is favourable to the Appellants. Allahabad High Court held that, the prosecution has failed to prove its case against the Accused-Appellants beyond all reasonable doubts. The conviction of the Appellants recorded by the trial Court under Sections 302/34 and 201/34 of IPC and that of Appellant Dr. Rajesh Talwar under Section 203 of IPC and the sentences awarded to them, are set aside.

Relevant

State of Rajasthan versus Kashi Ram, Kali Ram v. State of Himachal Pradesh, M.G. Agarwal v. State of Maharashtra, Sharad birdichand sarda v. State of Maharashtra

Tags : Acquittal Circumstantial evidence Benefit of doubt

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Supreme Court

Sukhendu Das Vs. Rita Mukherjee

MANU/SC/1275/2017

09.10.2017

Family

Refusal to participate in proceeding for divorce and forcing the Appellant to stay in a dead marriage constitutes mental cruelty

The Appellant and the Respondent are District Judges working in the State of West Bengal. Their marriage was performed on 19th June, 1992 as per the Special Marriage Act, 1954. A girl child was born out of the wedlock on 14th April, 1993. There was matrimonial discord between the Appellant and the Respondent and they were living separately since the year 2000. The Appellant filed an application under Section 27 of the Act, seeking a divorce. The Appellant alleged that, the differences arose because of the improper behaviour of the Respondent in not showing due respect to his ailing father. It was further alleged that, the Respondent deserted him and refused to give the custody of the child to him. The Appellant further averred in the application that, the Respondent did not visit him, even when he was seriously ill. The Respondent is Accused of using intemperate language and threatening the Appellant with filing of criminal cases, if he perused the petition for divorce which he proposed in the year 2005.

Trial Court found that, the Appellant failed to prove cruelty on the part of the Respondent. The evidence adduced by the Appellant was scrutinized by the trial Court to come to a conclusion that, the Appellant did not make out a case for divorce. The High Court, taking note of the fact that, the Appellant and the Respondent are judicial officers, made an attempt for conciliation between the parties. However, in spite of the effort of the High Court, both the Appellant and the Respondent did not appear personally before the High Court. Despite taking note of the fact that, the Appellant and the Respondent were living separately since the year 2000, the High Court dismissed the Appeal by holding that, irretrievable breakdown of marriage cannot be a ground for divorce. The High Court held that, the Appellant failed to prove mental cruelty on the part of the Respondent.

The Respondent, who did not appear before the trial Court after filing of written statement, did not respond to the request made by the High Court for personal appearance. In spite of service of Notice, the Respondent did not show any interest to appear in this Court also. This conduct of the Respondent by itself would indicate that, she is not interested in living with the Appellant. Refusal to participate in proceeding for divorce and forcing the Appellant to stay in a dead marriage would itself constitute mental cruelty. The High Court observed that, no attempt was made by either of the parties to be posted at the same place. Without entering into the disputed facts of the case, Court is of Opinion that, there is no likelihood of the Appellant and the Respondent living together and for all practical purposes there is an irretrievable breakdown of the marriage.

This Court in a series of judgments has exercised its inherent powers under Article 142 of the Constitution, for dissolution of a marriage where the Court finds that, the marriage is totally unworkable, emotionally dead, beyond salvage and has broken down irretrievably, even if the facts of the case do not provide a ground in law on which the divorce could be granted. Admittedly, the Appellant and the Respondent have been living separately for more than 17 years and it will not be possible for the parties to live together and there is no purpose in compelling the parties to live together in matrimony. The daughter of the Appellant and the Respondent is aged about 24 years and her custody is not in issue. In the peculiar facts of this case and in order to do complete justice between the parties, the Appeal is allowed and the application for divorce filed by the Appellant under Section 27 of the Act is allowed.

Relevant

Samar Ghosh v. Jaya GhoshMANU/SC/1386/2007
: (2007) 4 SCC 511; Manish Goel v. Rohini Goel MANU/SC/0106/2010
: (2010) 4 SCC 393; Rishikesh Sharma v. Saroj Sharma (2007) 2 SCC 263

Tags : Marriage Dissolution Grant

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Supreme Court

Meters and Instruments Private Limited and Ors. Vs. Kanchan Mehta

MANU/SC/1256/2017

05.10.2017

Banking

Court has discretion to close the proceedings on being satisfied that, complainant has been duly compensated even in absence of consent for compounding of offence

Present appeals have been preferred against the order of the High Court rejecting the prayer of the Appellants for compounding the offence under Section 138 of the Negotiable Instruments Act, 1881 on payment of the cheque amount and in the alternative for exemption from personal appearance. The Respondent filed complaint dated 15th July, 2016 alleging that, the Appellants were to pay a monthly amount to her under an agreement. Cheque dated 31st March, 2016 was given for Rs. 29,319/- in discharge of legal liability but the same was returned unpaid for want of sufficient funds. In spite of service of legal notice, the amount having not been paid, the Appellants committed the offence under Section 138 of the Act. The Magistrate vide order after considering the complaint and the preliminary evidence, summoned the Appellants. The Magistrate observed that, the case could not be tried summarily as sentence of more than one year may have to be passed and be tried as summons case. Notice of accusation dated 9th November, 2016 was served under Section 251 of Code of Criminal Procedure,1973 (Cr. PC).

Appellant No. 2, who is the Director of Appellant No. 1, made a statement that, he was ready to make the payment of the cheque amount. However, the complainant declined to accept the demand draft. The Appellants filed an application under Section 147 of the Act. The application was dismissed in view of the judgment of this Court in JIK Industries Ltd. v. Amarlal V. Jumani, which required consent of the complainant for compounding. The High Court did not find any ground to interfere with the order of the Magistrate. Hence present appeals.

Offence under Section 138 of the Act, is primarily a civil wrong. Burden of proof is on Accused in view presumption under Section 139 of Act, but the standard of such proof is "preponderance of probabilities". The same has to be normally tried summarily as per provisions of summary trial under the Cr. PC but with such variation as may be appropriate to proceedings under Chapter XVII of the Act. Thus read, principle of Section 258 of Cr. PC, will apply and the Court can close the proceedings and discharge the Accused on satisfaction that, the cheque amount with assessed costs and interest is paid and if there is no reason to proceed with the punitive aspect. The object of the provision being primarily compensatory, punitive element being mainly with the object of enforcing the compensatory element, compounding at the initial stage has to be encouraged but is not debarred at later stage subject to appropriate compensation as may be found acceptable to the parties or the Court.

Though compounding requires consent of both parties, even in absence of such consent, the Court, in the interests of justice, on being satisfied that the complainant has been duly compensated, can in its discretion close the proceedings and discharge the Accused.

Procedure for trial of cases under Chapter XVII of the Act has normally to be summary. The discretion of the Magistrate under second proviso to Section 143 of Act, to hold that it was undesirable to try the case summarily as sentence of more than one year may have to be passed, is to be exercised after considering the further fact that apart from the sentence of imprisonment, the Court has jurisdiction under Section 357(3) of CrPC to award suitable compensation with default sentence under Section 64 of Indian Penal Code,1860 and with further powers of recovery under Section 431 of Cr. PC. With this approach, prison sentence of more than one year may not be required in all cases.

Since, evidence of the complaint can be given on affidavit, subject to the Court summoning the person giving affidavit and examining him and the bank's slip being prima facie evidence of the dishonor of cheque, it is unnecessary for the Magistrate to record any further preliminary evidence. Such affidavit evidence can be read as evidence at all stages of trial or other proceedings. The manner of examination of the person giving affidavit can be as per Section 264 of Cr. PC. The scheme is to follow summary procedure except where exercise of power under second proviso to Section 143 of Act, becomes necessary, where sentence of one year may have to be awarded and compensation under Section 357(3) of Cr. PC, is considered inadequate, having regard to the amount of the cheque, the financial capacity and the conduct of the Accused or any other circumstances.

In view of the above, Court held that, where the cheque amount with interest and cost as assessed by the Court is paid by a specified date, the Court is entitled to close the proceedings in exercise of its powers under Section 143 of the Act read with Section 258 of Cr. PC. As already observed, normal Rule for trial of cases under Chapter XVII of the Act is to follow the summary procedure and summons trial procedure can be followed where sentence exceeding one year may be necessary taking into account the fact that compensation under Section 357(3) Cr. PC with sentence of less than one year will not be adequate, having regard to the amount of cheque, conduct of the Accused and other circumstances.

In every complaint under Section 138 of the Act, it may be desirable that, the complainant gives his bank account number and if possible e-mail ID of the Accused. If e-mail ID is available with the Bank where the Accused has an account, such Bank, on being required, should furnish such e-mail ID to the payee of the cheque. In every summons, issued to the Accused, it may be indicated that, if the Accused deposits the specified amount, which should be assessed by the Court having regard to the cheque amount and interest/cost, by a specified date, the Accused need not appear unless required and proceedings may be closed subject to any valid objection of the complainant. If the Accused complies with such summons and informs the Court and the complainant by e-mail, the Court can ascertain the objection, if any, of the complainant and close the proceedings unless it becomes necessary to proceed with the case. In such a situation, the Accused's presence can be required, unless the presence is otherwise exempted subject to such conditions as may be considered appropriate. The Accused, who wants to contest the case, must be required to disclose specific defence for such contest. It is open to the Court to ask specific questions to the Accused at that stage. In case the trial is to proceed, it will be open to the Court to explore the possibility of settlement. It will also be open to the Court to consider the provisions of plea bargaining. Subject to this, the trial can be on day to day basis and endeavour must be to conclude it within six months. The guilty must be punished at the earliest as per law and the one who obeys the law need not be held up in proceedings for long unnecessarily.

Tags : Offence Compounding of Grant

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High Court of Bombay

Percy Meher Master Vs. The State of Maharashtra

MANU/MH/2313/2017

04.10.2017

Criminal

Judge must discharge Accused, if on examination of record, there is no sufficient ground for proceeding against him

Present petition challenges impugned judgment passed by Additional Sessions Judge, thereby dismissing the same filed by the Petitioner against the order of Chief Judicial Magistrate, rejecting application filed by the Petitioner for his discharge of the offence registered against him under Sections 406, 409, 420, 467, 468, 471 and 472 read with Section 34 of Indian Penal Code, 1860 (IPC). Principal contention of Petitioner is that, amount of UAPIL in current account at Nagpur was transferred to its loan account at Mumbai to clear the loan liability of the same company, as both these accounts are in the name of UAPIL which admittedly is not disputed fact and as such demonstrates that, by satisfying such loan liability, the Petitioner has not utilized or misappropriated the amount for his personal interest.

With regard to registration of crime against the Petitioner under Sections 467, 468, 471 and 472 of IPC are concerned, it is to be noted that, for attracting those sections, making of false document is an essential element for committing forgery. Section 464 of IPC provides that, a person is said to make false document if he makes signs, seals or executes a document dishonestly and fraudulently with an intention to create an impression that the document was signed, sealed or executed by or under authority of a person who has not signed, sealed or executed the said document or given authority for the same. A dishonest and fraudulent intention is an essential element to make out an offence of forgery. Similarly, terms "dishonestly and fraudulently", when considered to provide that an act is done with intention causing wrongful gain or wrongful loss to any person, same is to be an dishonest act. Wrongful gain means receiving property by unlawful means, which the person receiving is not legally entitled for. Likewise, wrongful loss means loss of property by unlawful means to which the person loosing is legally entitled for.

In the circumstances, when the case of Petitioner along with the property involved in this petition is concerned, which is money under the cheque in question belonging to UAPIL, same is found to be utilized for clearing loan liability of UAPIL itself. In fact, the Petitioner/company was legally bound to pay the debt of Bharat Cooperative Bank Limited and as such, it is found that by making such payment, UAPIL has only discharged its legal liability and by no stretch of imagination, it can be said that, by issuing cheque, the Petitioner has either forged the document or due to his act caused monetary loss or wrongful loss to UAPIL. Apart from transfer of amount of Rs. 81,00,000/-, Petitioner has deposited further amount of Rs. 1,33,19,254/- to clear the loan liability. Moreover, it is no case of prosecution that, the Petitioner had forged the signature of Chairman-cum-Managing Director on the disputed cheque.

The case of prosecution as is apparent from the record is that, Petitioner by issuing said cheque under his signature had written to the authorities of Federal Bank that signature of Chairman-cum-Managing Director would be obtained on the cheque later on. Said conduct of Petitioner in fact further establishes that, at no point of time, he had misled the bank by making false or misleading statement. In that view of the matter, even provision of Section 420 of IPC, cannot be attracted in the present case as under the transaction in question, amount from current account of UAPIL was transferred to its loan account and as such there is nothing to establish that, the Petitioner in any manner had cheated the company of which he himself was a director.

Sections 406 and 409 of IPC, can be said to be attracted only in case of dishonest misappropriation. In the petition in hand, admittedly, the Petitioner had not received any amount under the cheque in question. In that view of the matter, there is no question of his misappropriating any amount nor it is the case of prosecution that, the Petitioner has converted amount under the cheque for his personal use. From the conduct of Petitioner, it is crystal clear that, there was no dishonest intention on the part of Petitioner. On the contrary, he had acted by transferring amount to clear the loan liability. In that view of the matter, no provisions of Sections 406, 409 of IPC are found to be attracted against the petitioner.

It is well established that under Section 227 of Code of Criminal Procedure, 1973 (Cr.PC), a duty is cast on the judge to apply his mind to the material on record and if on examination of the record, he does not find sufficient ground for proceeding against the Accused, he must discharge him. On the other hand, if after such consideration and hearing he is satisfied that, a prima facie case is made out against the Accused, he must proceed to frame a charge as required by Section 228 of the Cr.PC. At the stage of Sections 227-228 of Cr.PC, the Court is required to evaluate the material and documents on record with a view to find out if the facts emerging therefrom taken at their fact value disclose the existence of all the ingredients constituting the alleged offence.

In Union of India v. Prafulla Kumar Samal, wherein the Apex Court after considering the scope of Section 227 of Cr.PC observed that, the words 'no sufficient ground for proceeding against the Accused' clearly show that the Judge is not merely a post office to frame charge at the behest of the prosecution but he has to exercise his judicial mind to the facts of the case in order to determine that a case for trial has been made out by the prosecution. In assessing this fact, it is not necessary for the Court to enter into the pros and cons of the matter or into weighing and balancing evidence and probabilities but he may evaluate the material to find out if the facts emerging therefrom taken at their fact value establish the ingredients constituting the said office.

It seems well settled that, at the stage of Sections 227-228 of Cr.PC, the Court is required to evaluate the material and documents on record with a view to finding out if the facts emerging therefrom, if taken at their face value disclose the existence of all the ingredients constituting the alleged offence. In view of facts involved in the petition and the law, the Courts below have miserably failed to appreciate the case of Petitioner in its true perspective, who, is found to be entitled for order of discharge. Impugned order passed by Additional Sessions Judge, and order passed by Chief Judicial Magistrate, are quashed. Petition is allowed.

Relevant

Union of India v. Prafulla Kumar Samal (MANU/SC/0414/1978
: 1979 (3) SCC, 4)

Tags : Application Discharge Grant

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High Court of Bombay

Jitendra and Ors. Vs. The State of Maharashtra

MANU/MH/2312/2017

04.10.2017

Criminal

Conviction cannot be based on a DNA report when it is established that there has been no quality control or quality assurance and the sampling has been improper

By the impugned judgment and order, the Sessions Court held four Accused persons guilty under Sections 363 and 376(D) read with 34 of the Indian Penal Code, 1860 (IPC), while acquitting them for offences under the SC and ST (Prevention of Atrocities) Act, 1989 and under Section 6 of the Protection of Children from Sexual Offences Act. Present four appeals have been filed by the four Accused persons challenging the said judgment and order of the Sessions Court. Appellant submitted that, there were contradictions in the evidences and that entire story of the prosecutrix was false.

The medical examination of the prosecutrix shows that, there are no injuries found on her body, there is absence of injury on the hymen and no injuries on the genitals. The case of the prosecutrix is that, the four accused persons one after the other forcibly had sexual intercourse with her and yet there is no physical injury on her body or her genitals. This factor also raises some doubt about the story of the prosecution.

Even if some doubts arise in the story of the prosecution due to inconsistencies in the oral evidence and the result of the medical examination, the strongest incriminating circumstance against the accused persons is the DNA report. The presence of DNA of all the accused persons on clothes of the prosecutrix is a highly incriminating circumstance pointing towards their guilt. The significance of the said DNA report is obvious when DNA analysis has been accepted as a reliable scientific method of investigation for proving involvement of the accused. It has been held by Supreme Court in its judgment in the case of Mukesh and another v. State (NCT of Delhi) and others that, DNA report deserves to be accepted unless it is absolutely dented and for non-acceptance of the same, it is to be established that, there had been no quality control or quality assurance. If the sampling is proper and if there is no evidence as to tampering of samples, the DNA test report is to be accepted.

The clinching nature of the evidence in the form of DNA analysis report is undeniable and it has to be accepted as a very strong proof of the involvement of the accused in the crime. But, as observed by the Supreme Court in the above mentioned judgment, if the DNA report is absolutely dented and it is established that there has been no quality control or quality assurance and if the sampling has been improper and that there is evidence to show tampering of the samples, the DNA test report would be unsafe to be made a basis for convicting the accused.

The material on record, therefore, shows that, there has been lack of quality control in maintaining the sealed condition of the clothes while sending them for chemical analysis and DNA report. There is also lack of evidence on collection of fresh blood samples of the accused. On the second aspect, a feeble attempt was made on behalf of the Respondent-State by filing an application under Section 391 of the Code of Criminal Procedure, 1973 (Cr.P.C.), placing on record certain documents, claiming that, such documents proved that, the fresh blood samples of the four accused persons were indeed collected in the presence of witnesses on 14th September, 2015, in pursuance of the order passed by the Sessions Court. It was submitted that, this Court may allow the application for additional evidence in the interest of justice.

The power under Section 391 of the Cr.P.C. can be exercised for ascertaining the truth and for removing an irregularity in the evidence. But, in the facts of the present case, even if the said application is allowed and the prosecution is permitted to lead additional evidence to prove collection of fresh blood samples on 14th September, 2015, it would still not help the prosecution beyond a certain point. Even if it is held that, fresh blood samples were indeed collected on 14th September, 2015 and those were the very samples received on 15th September, 2015 by the Chemical Analyser, the DNA report and analysis cannot be held to be free from doubt. This is essentially because the evidence on seizure and proper sealing of the clothes of the prosecutrix is not on record. In fact, the evidence indicates that, there was every possibility of tampering with the clothes of the prosecutrix because the seal put by the Medical Officer was opened in the Police Station as per seizure panchanama and there is no evidence on record to show, when the cuttings of the knicker and jeans of the prosecutrix were made and when such cuttings were forwarded to the Chemical Analyser for DNA analysis. In the face of such material showing lack of evidence of proper sealing and sampling as also quality control in the clothes and cuttings of the clothes of the prosecutrix, even if the evidence regarding fresh samples sought to be brought on record by the prosecution is accepted, the serious doubt about the DNA report and its interpretation is not taken away.

In order to convict the accused persons on the basis of DNA analysis and report, it is an absolute necessity that, the collection of samples and quality control as regards testing is of the highest standard. This is because DNA evidence has been accepted as conclusive proof. Any material on record creating doubt about the sampling being proper and showing that, there has not been adequate quality control and further that possibility of tampering of samples cannot be ruled out, creates serious doubt about the veracity of the DNA report and its analysis. In the instant case, the evidence of Assistant Chemical Analyser, read with other material evidence on record shows that, quality control and proper sampling of the expected standard has not been maintained, thereby rendering the DNA report doubtful.

The entire oral, documentary, medical and expert evidence on record, creates serious doubts about the prosecution story and the claims of the prosecutrix. Any doubt must necessarily ensure to the benefit of the accused. As cogent and clinching evidence is not on record to prove the guilt of the accused, it would not be safe to uphold the conviction and sentence awarded by the Sessions Court. The appeals filed by the four accused persons are allowed. Accordingly, judgment and order of the Sessions Court are set aside.

Relevant

Mukesh and another v. State (NCT of Delhi) and others -MANU/SC/0575/2017
: (2017)

Tags : Conviction Evidence Credibility

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National Consumer Disputes Redressal Commission

Narinder Kumar Jain Vs. Punjab State Electricity Board

MANU/CF/0632/2017

03.10.2017

Consumer

Once an act was done in accordance with law, the presumption was in favour of such act or document and not against the same

Instant revision petition has been filed under Section 21(b) of the Consumer Protection Act, 1986 against the impugned order, passed by the State Commission, vide which, while dismissing the said appeal, passed by the District Forum, dismissing consumer complaint, filed by the present Petitioner, was upheld. The District Forum held that, the electricity was being used for commercial purpose and hence, the complainant could not be stated to be consumer. Being aggrieved against the order of the District Forum, the Petitioner/complainant challenged the same by way of an appeal before the State Commission which was dismissed vide impugned order. The State Commission held that, from the facts and circumstances on record, the Petitioner/complainant/appellant had failed to prove that, the premises in question were two distinct and different premises owned by two different persons. The demand raised by the OP Electricity Board was in accordance with law. The main issue that merits consideration in the matter is whether the extra demand made by the OP Electricity Board/Power Corporation Limited for payment of 1,51,096/- on account of clubbing of two connections is justified or not.

As per the record, there are copies of the checking report made by the Senior Executive Engineer (Enforcement). It has been stated for Connection No. HB16/0040 in the inspection report that, "In between both these connections, after putting the wire through common wall, the supply has been inter-mixed. These wires have been concealed/covered with plastic bags/goods and arrangement for single point supply be made. There is a common office for both these connections and the supply and wires are also intermixed." It has been stated in the checking report for Connection No. HB16/0042 that, the supply of both these connections is given after putting the wires through common walls meaning thereby that the above said load is got with the above said both the connections. Action regarding clubbing be taken and single point supply be given."

The copies of these reports showed that, Representative of Petitioner has signed these reports and obtained a copy of the same as well. Further, the internal auditor of the OP has written a letter that, a sum of 1,51,096/- be charged from the complainant including the electricity duty. Although the complainant has stated that, the said inspection was never conducted, the documentary evidence produced on behalf of the OP belies the version given by the complainant. Moreover, the complainant has not been able to provide any explanation as to how the supply for the two connections had been inter-mixed. The premises in question, could be separate, having separate entries, but since there is a common wall between the two, there could be the possibility of inter-mixing of the two connections. In any case, the complainant has not been able to provide any evidence to controvert the allegations levelled by the OP regarding the clubbing of two connections. The State Commission rightly relied upon the judgment of the Apex Court in the case, "Punjab State Electricity Board & Anr. v. Ashwani Kumar ", in which, it has been made clear that, the inspection report was a document prepared in exercise of official duty by the officers of the Corporation. Once an act was done in accordance with law, the presumption was in favour of such act or document and not against the same. The onus was upon the consumer to rebut by proper and cogent evidence that the report prepared by the officers was not correct. As observed already, the inspection reports have been made in the presence of the representative of the Petitioner and no solid evidence has come forward to rebut the support.

It is a settled legal preposition that, powers in the exercise of revisional jurisdiction should be used only, if there is a jurisdictional error or material defect in the orders passed by the consumer fora below. This view has been expressed by the Apex Court in their judgment in "Rubi (Chandra) Dutta v. United India Insurance Co. Ltd.". In the present case, therefore, there is nothing on record to justify any modification in the orders passed by the consumer fora below. This revision petition is therefore, ordered to be dismissed and the order passed by the State Commission is upheld.

Relevant

Punjab State Electricity Board and Anr. vs. Ashwani Kumar MANU/SC/0469/2010
; Mrs. Rubi (Chandra) Dutta vs. United India Insurance Co. Ltd. MANU/SC/0409/2011

Tags : Power connection Clubbing Demand Validity

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