Supreme Court

Reena Hazarika Vs. State of Assam

MANU/SC/1249/2018

31.10.2018

Criminal

Prosecution is required to establish continuity in links of chain of circumstances, so as to lead to conclusion of Accused being the assailant

The Appellant is the wife of the deceased convicted under Section 302 of Indian Penal Code, 1860 (IPC) and sentenced to life imprisonment with fine of Rs. 1,000 and in default, imprisonment for one month. The Appellant submitted that, the Courts below have erred in holding that, the links in the chain of circumstances stood established leading to the only inescapable conclusion of the Appellant being the assailant and no other hypothesis of innocence being possible.

In a case of circumstantial evidence, the prosecution is required to establish the continuity in the links of the chain of circumstances, so as to lead to the only and inescapable conclusion of the Accused being the assailant, inconsistent or incompatible with the possibility of any other hypothesis compatible with the innocence of the Accused. Mere invocation of the last seen theory, sans the facts and evidence in a case, will not suffice to shift the onus upon the Accused under Section 106 of the Evidence Act, 1872 unless the prosecution first establishes a prima facie case. If the links in the chain of circumstances itself are not complete, and the prosecution is unable to establish a prima facie case, leaving open the possibility that the occurrence may have taken place in some other manner, the onus will not shift to the Accused, and the benefit of doubt will have to be given.

Section 313 of Code of Criminal Procedure, 1973 (CrPC) cannot be seen simply as a part of audi alteram partem. It confers a valuable right upon an Accused to establish his innocence and can well be considered beyond a statutory right as a constitutional right to a fair trial under Article 21 of the Constitution, even if it is not to be considered as a piece of substantive evidence, not being on oath under Section 313(2) of CrPC. If there has been no consideration of the defence taken under Section 313 of CrPC, in the given facts of a case, the conviction may well stand vitiated.

In the facts and circumstances of the case, the nature of evidence available coupled with the manner of its consideration, leaves to conclusion that, the links in the chain of circumstances in a case of circumstantial evidence, cannot be said to have been established. The possibility that the occurrence may have taken place in some other manner cannot be completely ruled out. The Appellant is therefore held entitled to acquittal on the benefit of doubt. We accordingly order the acquittal and release of the Appellant from custody forthwith, unless wanted in any other case. The appeal is allowed.

Tags : Circumstantial evidence Conviction Legality

Share :

Top

Customs, Excise and Service Tax Appellate Tribunal

Narayan Prasad Gour Vs. CGST, CE & ST, Bhopal

MANU/CE/0495/2018

30.10.2018

Service Tax

Activity of transporting of coal from pithead of mines to railway siding is classifiable under Transport of Goods by road services

The Appellants are engaged in providing taxable services under the category of "Goods Transport Agency Services" to Western Coal Field Ltd. during the period January 2009 to March 2011. Show Cause Notices were issued on the ground that, the Appellants were doing loading, transport and unloading of coal from mining under the category of "Cargo Handling Services".

The basic issue for adjudication is that whether the Department is correct in holding that, the service provided by the above mentioned Appellants falls under the category of cargo handling services as defined under Section 65(105)(zr) read with Section 105(23) of the Finance Act, 1994/Act or whether the service tax is correctly been paid by recipient of the service under Goods Transportation Agency service on reverse charge basis.

As per Section 65A(2)(b) of Act, the classification in the case of combined service is to be decided by analyzing the fact as to which service gives essential character to the service being performed. Further as can be seen from the above contract that, the essential character of the service for which contract has been entered by the service provider is that, the service received are for transportation of coal for mining area to the railway siding and the activity of loading/unloading mechanically or otherwise is only incidental to the activity of transportation of the cargo in these cases. The service provided by the Appellants has rightly been classified in the Goods Transportation Agency service.

This issue has already been examined by the Hon'ble Supreme Court in their decision in the case of CCE & ST Raipur Vs. Singh Transporters wherein the Hon'ble Supreme Court has held that, activity undertaken by the Assessee of transporting of coal from the pithead of the mines to railway siding is more appropriately classifiable under service head of Transport of Goods by road services. There is no merit in the impugned order, the same is set-aside and the appeal is allowed.

Relevant

CCE & ST Raipur Vs. Singh Transporters [MANU/SC/1177/2017
: (2017 (4) GSTL 3 (SC)]

Tags : Goods Transportation Services Category

Share :

Top

High Court of Allahabad

Amir and Ors. Vs. Seerat Jahan

MANU/UP/3962/2018

29.10.2018

Criminal

High Court had power to prevent abuse and quash confronted proceeding, if any attempt is made to abuse the authority

The present petition has been filed to set aside the order convicting Petitioner under Section 376, 323 of Indian Penal Code, 1860 (IPC), and the order in the revision arising therefrom, passed by the Additional Sessions Judge. The principle argument advanced by the learned counsel for the Petitioner is that, the criminal prosecution had been lodged in gross abuse of the process of Court and the criminal prosecution if allowed to continue would only defeat the ends of justice.

There can be no dispute that, the scope for interference in such proceedings is limited and has to remain confined to rare cases where without reaching any finding as to the truthfulness or correctness of the allegations made, it appears to the Court that the ends of the justice would be defeated if the proceedings were to be allowed to continue, or if a proceeding needs to be dropped to secure the ends of justice.

The criminal prosecution appears to be the only exercise to cause harassment or to persecute the Petitioners only to achieve the collateral purpose of success in the civil proceedings pertaining to the house property. Moreover the stand taken in the counter affidavit and the document annexed there to clearly and undoubtedly bring out the serious civil dispute existing between the parties with respect to the house property.

Thus referring to the case in the judgment in the case on State of Karnataka Vs. M. Devenderappa and another, it was observed that jurisdiction under Section 482 of Code Of Criminal Procedure, 1973 (CrPC) exists to advance justice and if any attempt is made to abuse that authority so as to produce injustice, the High Court had the power to prevent such abuse and quash the confronted proceeding.

In the present case, upon appraisal of all facts and admitted material, it appears, that the prosecution story represents nothing more than an effort to wriggle out of the registered sale deed executed by the Rizwan Ali (father of the Respondent No. 2) in favour of the said Afzal Chaudhary and Mohd. Monis and to thereby escape the civil and criminal consequences being forced against Rizwan Ali by the Smt. Akleema Parveen who claims under a 'hibbanama' executed by the said Rizwan Ali. In view of the inordinate delay in lodging the F.I.R., to allow such prosecution to proceed in the face of the case-diary material as has been noted above and the grave inconsistencies and contradictions that exist there in, would be allowed abuse of process of the Court and to allow the ends of justice to be defeated. Therefore, the Court has no hesitation in allowing the writ petition and quashing the prosecution. The present petition is accordingly allowed.

Relevant

State of Karnataka Vs. M. Devenderappa and another, MANU/SC/0027/2002
: (2002) 3 SCC 89

Tags : Proceedings Quashing of Jurisdiction

Share :

Top

High Court of Madras

Murugan Vs. State

MANU/TN/6408/2018

29.10.2018

Criminal

Accused is entitled to get discharge, if there is no material on record to attract ingredients of offences alleged

The Petitioner herein has filed Petition under Section 227 of Code of Criminal Procedure, 1973 (CrPC) praying to discharge him from case pending on the file of the learned Assistant Sessions Judge. Moreover the case of the Petitioner is that, he is a practising Advocate and he has been impleaded in the case only on the strength of the confession statement given by the First Accused, in which, the First Accused alleged to have confessed during the police custody that, the Petitioner handed DVD player, tape recorder, modem and some pamphlets and booklets to him at Madurai Mattuthavani Bus stand for the use of banned CPI (Maoist) party.

The law is well settled that if there was no materials on record to attract ingredients of the offences alleged, the Accused is entitled to get discharge in the case. In the case on hand, admittedly, the Petitioner was not named in the FIR. He was arrayed as Accused (A5) at a later stage based on the confession statement of the First Accused.

In Mohd. Chand Hussain v. State of Maharashtra, it has been held that the statement of the Accused leading to the discovery cannot be used as against the Co-Accused. It has also been held that, informatory statement amounting to confession of the Accused cannot be used against the Co-Accused with the aid of Section 30 of the Indian Evidence Act, 1872.

On the facts and material available on record, in the instant case, the Court has to consider whether there was subsequent material available on record so as to implicate the Petitioner in this case. However, it is the duty of the prosecution to establish prima facie case against the Petitioner based on the materials since he was subsequently arrayed as Accused in this case. Admittedly, except the confession statement given by the Co-Accused/A1, there was no other material available against the Petitioner/A5 and there was no identification parade conducted and the Petitioner was not identified by any eyewitness.

The Petitioner is a practising Advocate and he was appearing for the Maoists. Appearing for a Maoist is not a crime. On the other hand, if a Maoist accused of an offence seeks the professional assistance of a lawyer, it is his duty to defend. As a lawyer, the Petitioner is said to have contacted the Accused persons and during meeting some conversations took place between them. For example, meeting of an Accused person in the prison by a lawyer, would not mean that there was criminal conspiracy between them.

Absolutely, there was no materials to show that, the Petitioner is a member of terrorist gang or terrorist organization or involved in terrorist Act to constitute the offence said to have been committed by him in the case on hand. In order to implicate the Petitioner subsequently as Accused in the case, there must be materials to show that there is prima facie case made out against him. In the instant case, the learned Assistant Sessions Judge erred in dismissing the discharge petition filed by the Petitioner. Accordingly, the Petitioner is entitled to get discharge.

Relevant

Mohd. Chand Hussain v. State of Maharashtra, reported in MANU/MH/0279/1979
: 1980 Crl. L.J. 860, P. Vijayan vs. State of Kerala and Anr. MANU/SC/0058/2010

Tags : Proceedings Discharge Grant

Share :

Top

High Court of Madhya Pradesh

Mohd. Akram Vs. The State of Madhya Pradesh

MANU/MP/0523/2018

29.10.2018

Criminal

Mere breach of promise without mala fide intention cannot amount to deception

The Appellant has preferred present appeal against the judgment passed by the trial Court whereby the Appellant has been convicted for the offence under Section 376(2)(n) of the Indian Penal Code, 1860 (IPC) and sentenced to undergo RI for 10 years with fine of Rs. 2,500, in case of default further undergo 3 months R.I. the only question for consideration is that whether the Applicant committed sexual intercourse with the prosecutrix with her consent or will.

The Hon'ble Apex Court in the case of Deepak Gulati Vs. State of Haryana has held that, the prosecution has to prove the fact that, the Accused acted with mala fide intention of seducing prosecutrix by making false promise of marriage and not keeping his promise. But mere breach of promise without mala fide intention cannot amount to deception. Prosecutrix (PW-3) has categorically stated that, the sexual intercourse was committed by the Applicant with her consent, but she give her consent because the Applicant promised her to marry her and thereafter he refused to marry with her.

The prosecutrix was 21 years old, who had adequate intelligence and maturity to fully understand the significance and morality associated with the act she was consenting and she was conscious of the fact that, her marriage may not take place in case of refusal of the parent of the Applicant. Further, it was difficult to impute to the Applicant, knowledge of the fact that the prosecutrix had consented as a consequence of a misconception of fact, that had arisen from his promise to marry her. Further, there is no evidence on record to establish the fact that, the Applicant had never intended to marry the prosecutrix and made promise simply to get her consent only to satisfy her lust.

It can't be held that, the prosecution has succeeded to establish the fact beyond the reasonable doubt that the Applicant committed sexual intercourse with the prosecutrix without her consent or will. Hence, the finding of the learned trial Court with regard to commission of rape by the Applicant cannot be upheld. Therefore, Applicant’s conviction and sentence under Sections 376(2) (n) of the IPC is set aside and he is acquitted of the aforesaid charge. Accordingly, this appeal is allowed.

Relevant

Deepak Gulati vs. State of Haryana MANU/SC/0546/2013

Tags : Conviction Consent Legality

Share :

Top

High Court of Madras

R.M. Karuppannan Vs. S. Sakthi

MANU/TN/6512/2018

29.10.2018

Banking

Accused had to prove in the trial by leading cogent evidence that, there was no debt or liability

It is the case of the Complainant that, the Accused borrowed a sum of Rs. 25,000 from him and in discharge of the said loan, the Accused issued the cheque in favour of the Complainant. When the Complainant presented the said cheque for encashment through his banker, the same has been returned as funds insufficient. Hence, the Complainant had issued a legal notice to the Accused to pay the cheque amount, but the Respondent refused to pay the same. Thereafter, the Complainant has filed the complaint under Section 138 of Negotiable Instruments Act, 1881 (N.I. Act).

The trial Court convicted the Accused under Section 138 of the NI Act and sentenced him to undergo three months simple imprisonment and to pay compensation of Rs. 50,000. Aggrieved by the conviction and sentence, the Accused filed appeal before the learned Additional District Judge, who by the judgment has acquitted the Accused. Aggrieved by the same, the Complainant had filed the present appeal against acquittal.

It is settled that, Sections 138 and 139 of the N.I. Act introduced exceptions to the general rule as to the burden of proof in criminal cases and shifted the onus on the Accused. Such a presumption is a presumption of law, as distinguished from a presumption of fact which describes provisions by which the Court "may presume" a certain state of affairs. Presumptions are rules of evidence and do not conflict with the presumption of innocence, because by the latter all that is meant is that the prosecution is obliged to prove the case against the Accused beyond reasonable doubt. The obligation on the prosecution may be discharged with the help of presumptions of law or fact unless the Accused adduces evidence showing the reasonable possibility of the non-existence of the presumed fact.

It is also settled that, the Accused had to prove in the trial by leading cogent evidence that, there was no debt or liability and that the Accused not having led any evidence could not be said to have discharged the burden cast on him. Existence of legally recoverable debt or liability is a matter of presumption under Section 139 of the N.I. Act. In the case on hand, the Accused has not gone into the witness box. In Rangappa vs. Mohan, it has been held that when once the execution of the cheque is admitted, the presumption under Section 138 of the N.I. Act will work backwards to cover the debt also.

In a complaint filed under Section 138 of the N.I. Act, presumption is the Accused has to pay the cheque amount to the Complainant and to rebut the same the Accused has to produce documents and evidence and make a clear picture that the claim of the Complainant is not true. In the case on hand, the Accused has failed to do so.

Since, issuance of cheque by the Accused and his signature therein are admitted by the Accused and the Complainant has proved his case by way of preponderance of evidence to show that, cheque returned with an endorsement funds insufficient, it is to be held that, the Complainant has proved his case and that the lower appellate Court went wrong in setting aside the judgment of the trial Court, which is a well founded. The acquittal of the Accused by the lower appellate Court deserves interference and accordingly, the appeal is allowed and the judgment of the trial Court is restored.

Relevant

Rangappa vs. Sri Mohan MANU/SC/0376/2010

Tags : Cheque Dishonour Acquittal Validity

Share :