Supreme Court

Thangasamy Vs. The State of Tamil Nadu

MANU/SC/0249/2019

20.02.2019

Criminal

Imposition of appropriate sentence must commensurate with nature and gravity of crime and manner in which crime is done

In present appeal, the Appellant-Accused has called in question the judgment and order whereby, Madras High Court while dismissing criminal revision petition, had upheld the conviction of Appellant for offences under Sections 279, 337 and 304A of Indian Penal Code, 1860 (IPC).

The grounds on which the Appellant seeks exoneration in present case are twofold: one, that there was no evidence to prove that, he was driving the bus involved in the accident; and second, in the alternative, that the incident in question took place for the reason of the vehicle from the opposite side approaching in a negligent manner and if the driver of the bus in question had not taken to the northern side, the passengers of the bus would have been at the greater risk because of a valley like slope on the southern plank of the road.

So far the question of identity of the Appellant as driver of the offending bus is concerned, the trial Court, the Appellate Court and then the High Court has found the fact duly proved with reference to the overwhelming evidence on record, including the testimony of PW1 to PW5. The suggestion that, the accident in question occurred for the fault of the on-coming vehicle from the opposite direction has also been rejected with reference to the evidence on record wherein the witness, including the injured persons, uniformly stated that ,the accident occurred for rash and negligent driving of the offending vehicle by the Appellant.

The accident occurred for rash and negligent driving of the vehicle by the Appellant that resulted in the death of four persons apart from causing injuries to three. The devastation in terms of casualties and injuries, as brought about by the Appellant, was bound to result in his conviction for the offences under Sections 304-A and Section 337 of IPC.

In Dalbir Singh v. State of Haryana, present Court found no justification for extending the benefit of probation or for reduction of sentence. On the question of sentencing, this Court re-emphasised that, sentencing is an important task in the matters of crime. One of the prime objectives of the criminal law is imposition of appropriate, adequate, just and proportionate sentence commensurate with the nature and gravity of crime and the manner in which the crime is done. There is no straitjacket formula for sentencing an Accused on proof of crime. The courts have evolved certain principles: the twin objective of the sentencing policy is deterrence and correction. The principle of proportionality in sentencing a crime-doer is well entrenched in criminal jurisprudence. As a matter of law, proportion between crime and punishment bears most relevant influence in determination of sentencing the crime-doer. The Court has to take into consideration all aspects including social interest and consciousness of the society for award of appropriate sentence.

In the light of the principles enunciated by present Court, in facts of the present case, it is noticed that, for rash and negligent driving by the Appellant, as many as four persons died and three other sustained injuries. Yet, trial Court had been considerate in awarding the sentence only of four months' imprisonment for each count of the offence under Section 304-A of IPC and only fine of Rs. 100 for each count of the offence under Section 337 of IPC and Rs. 200 for the offence under Section 279 of IPC. The punishment awarded in this matter had been rather on the lower side. No case for reducing the punishment awarded to the Appellant is made out. Appeal dismissed.

Relevant

Dalbir Singh v. State of Haryana MANU/SC/0345/2000

Tags : Conviction Sentence Legality

Share :

Top

Supreme Court

Md. Rojali Ali and Ors. Vs. The State of Assam, Ministry of Home Affairs

MANU/SC/0234/2019

19.02.2019

Criminal

A related witness cannot be said to be an 'interested' witness merely by virtue of being a relative of victim

Present appeal is presented by the convicted Accused against the concurrent judgments of conviction and sentence passed by the Additional Sessions Judge and the judgment passed by the Gauhati High Court. The Trial Court after following due procedure convicted the Appellants under Sections 148, 323 and 302 read with 149 of the Indian Penal Code, 1860 (IPC) and acquitted the other Accused.

The evidence of all eye-witnesses is consistent with the case of the prosecution with respect to all material particulars, and is credible and trustworthy. Their presence on the spot can also not be doubted as they are family members of the deceased, who could reasonably be expected to be in their respective houses at the relevant point of time, i.e., the early hours of the day.

It is by now well-settled that a related witness cannot be said to be an 'interested' witness merely by virtue of being a relative of the victim. In criminal cases, it is often the case that the offence is witnessed by a close relative of the victim, whose presence on the scene of the offence would be natural. The evidence of such a witness cannot automatically be discarded by labelling the witness as interested.

In the instant matter, the testimony of the eye-witnesses is consistent and reliable. There is no major contradiction in the evidence of the eye-witnesses. Their evidence is fully supported by the version of the doctors who conducted the post-mortem examinations.

The evidence clearly reveals that, the Accused are the aggressors who came in a group to the house of deceased, trespassed into their houses, dragged the deceased out and mercilessly assaulted the deceased with sharp spears, arrows and lathis. The incident had taken place at about 6.00 a.m., which suggests that, all the Accused came with the clear intention to commit the murder of the four persons in the early hours of the day. The Accused were armed with deadly weapons and they came with prior preparation and pre-meditation. There was no provocation by the deceased or by the injured. In view of the same, it cannot be said that there was no intention on the part of the Accused to commit murder. There is no ground to interfere with the impugned judgment. The appeal is dismissed.

Tags : Conviction Testimony Eye-witnesses Validity

Share :

Top

High Court of Patna

Mukesh Kumar Vs. The State of Bihar and Ors.

MANU/BH/0207/2019

18.02.2019

Criminal

Mere fact of taking of cognizance in no way can be said to be "commencement of proceeding"

The Petitioner has moved the Court under Section 482 of the Code of Criminal Procedure, 1973 (CrPC) for quashing the order passed by learned Sub-divisional Judicial Magistrate, passed in compliant case, where under the said learned court has taken cognizance against the Petitioner for the offences under Section 498A, 304B of the Indian Penal Code, 1860 (IPC) and Section 4 of the Dowry Prohibition Act, upon the complaint of the complainant. The allegation in the complaint filed by the opposite party No. 2 against the Petitioner is of killing the daughter of the opposite party No. 2, who was the wife of the petitioner, in the State of Maharashtra.

The opposite party No. 2 had gone to Maharashtra to a Hospital where his daughter was initially admitted and later shifted to another Hospital in Pune, where she died later on and, thus, it cannot be said that, the opposite party No. 2 was not aware of there being a criminal case instituted there.

This not having been done by him in the complaint, clearly would amount to major suppression of fact as it would have changed the picture, since the Court below would have had to act in accordance with Section 210 of the CrPC, for the reason that once being aware that already there is a police enquiry, the Court has to ask for a report with regard to the same. Moreover, present Court finds that even in the case in Maharashtra, from perusal of chargesheet of the case, it is clear that the same has been submitted under Sections 302, 307, 498A and 201 of the IPC and, thus, the allegation under Sections 498(A) and 304(B) of the IPC in the compliant are more than adequately covered in the cognizance taken against the Petitioner in the State of Maharashtra.

The term "enquiry" would include a police enquiry/investigation. Thus, the reference to the "proceedings were first commenced" cannot be restricted only with regard to the actual taking of cognizance. The mere fact of taking of cognizance in no way can be said to be the "commencement of the proceeding", as any criminal proceeding is deemed to have commenced the moment information is given to the local police with regard to commission of a cognizable offence, which leads to lodging of the F.I.R., followed by enquiry/investigation by the police.

Thus, the Court finds that, Section 186(b) of the CrPC is of no help to the opposite party No. 2, also for the reason that, it is applicable only if there is "doubt". When, as per Section 177 of the CrPC, there is no doubt with regard to local jurisdiction of the Court where the enquiry or trial is to be held, which in the present case is Maharashtra, the Court in the State of Bihar would not have jurisdiction. The entire criminal proceeding arising out of Complaint Case including the order, by which cognizance has been taken, as far as it relates to the Petitioner, stands quashed. Application allowed.

Tags : Cognizance Proceedings Quashing of

Share :

Top

Supreme Court

Mehboob-Ur-Rehman (Dead) through L.Rs. Vs. Ahsanul Ghani

MANU/SC/0218/2019

15.02.2019

Contract

Court could hear appeal on any other substantial question of law not formulated by it, but only after recording reasons that, case involves such a question

The Appellant had filed the suit for specific performance of Agreement to Sell that was decreed by the Court of Additional Civil Judge, by the judgment and decree. However, the decree so passed by the trial Court was reversed by the Additional District Judge, in its judgment on the ground that, the Plaintiff had failed to aver and prove his continuous readiness and willingness to perform his part of the contract. The High Court in its impugned judgment while dismissing the second appeal filed by the Plaintiff-Appellant, affirmed the decree passed by the First Appellate Court. Aggrieved, the Plaintiff-Appellant has preferred present appeal.

The averment and proof on readiness and willingness to perform his part of the contract has been the threshold requirement for a Plaintiff who seeks the relief of specific performance. The principle that the requirement of such averment had not been a matter of form, applied equally to the proposition for amendment at the late stage whereby, the Plaintiff only attempted to somehow improve upon the form of the plaint and insert only the phraseology of his readiness and willingness. In the present case, the Plaintiff-Appellant had failed to aver and prove his readiness and willingness to perform his part of the contract. The Trial Court made a rather assumptive observation that, he had proved such readiness and willingness. Thereafter, the Plaintiff sought leave to amend the plaint only when the ground to that effect was taken in the first appeal by the Defendant. The late attempt to improve upon the pleadings of the plaint at the appellate stage was only an exercise in futility in the present case.

As per Section 100 of Code of Civil Procedure, 1908 (CPC), the appeal would lie to the High Court from the decree passed in appeal by any Court subordinate only if the High Court is satisfied that the case involves a substantial question of law; such question is required to be stated in the Memorandum of Appeal; the High Court is required to formulate the question on being satisfied that the same is involved in the case; the appeal is to be heard on the question so formulated; and at the time of hearing, the Respondent could urge that the case does not involve such a question. The proviso to Sub-section (5) of Section 100 of CPC makes it clear that, the Court could hear the appeal on any other substantial question of law not formulated by it, but only after recording the reasons that the case involves such a question.

The proviso to Sub-section (5) of Section 100 of CPC is not intended to annul the other requirements of Section 100 and it cannot be laid down as a matter of Rule that irrespective of the question/s formulated, hearing of the second appeal is open for any other substantial question of law, even if not formulated earlier. The said proviso, by its very nature, could come into operation only in exceptional cases and for strong and convincing reasons, to be specifically recorded by the High Court. There being no such strong and convincing reason in the present case to formulate and hear the second appeal on any other question of law, the High Court cannot be faulted in rejecting the contentions urged on behalf of the Plaintiff-Appellant. The relief of specific performance of agreement in question has rightly been declined by the First Appellate Court and the High Court. The appeal stands dismissed.

Tags : Specific performance Agreement Entitlement

Share :

Top

Supreme Court

Gwalior Distilleries Pvt. Ltd. Vs. The State of Madhya Pradesh and Ors.

MANU/SC/0214/2019

15.02.2019

Commercial

Allotment of an area was not a pre-requisite for grant of CS-1 licence

The Appellant is a manufacturer of spirits and holds a licence in the form of D-1 granted in the year 2017. A tender notice was issued for supply of country spirit in sealed bottles, in the State of Madhya Pradesh for the year 2018-2019. The condition imposed for participating in the tender was that the tenderer must have a licence for manufacturing, bottling and wholesale supply of country spirit in the State of Madhya Pradesh, issued in the form of CS-1 licence.

Clause 2(i) of the tender notice dated 3rd February, 2018 was challenged by the Appellant on the ground that, the stipulation pertaining to possession of CS-1 licence was contrary to Rule 3 of the Madhya Pradesh Country Spirit Rules, 1995, since such licence could not be granted unless the distiller has participated in the tender process. According to Rule 3, a successful tenderer is granted an area for supply of country spirit which would enable him to claim a CS-1 licence and CS-1-1B licence. The Appellant submitted an application for grant of CS-1 licence on 9th April, 2018. By an order, the application filed by the Appellant for grant of CS-1 licence was rejected. Aggrieved by the said rejection, the Appellant filed a Writ Petition which was dismissed by the High Court. Hence, present appeal.

The order by which the request for issuance of CS-1 licence was rejected by the Respondent No. 2 was challenged by the Appellant as being in violation of Articles 14 and 19(1) (g) of the Constitution of India. The Appellant alleged discrimination since eight other distillers in the State of Madhya Pradesh who were similarly situated to the Appellant, not possessing CS-1 and CS-1-1B licence were allowed to participate in the tender process. The Appellant relied upon the observations of the High Court in its judgment in Writ Petition No. 6525 of 2018 filed by the Appellant, that neither the Act nor the Rules made thereunder required allotment of an area for grant of CS-1 licence.

There is no condition either in Section 18 or Rule 3 that, CS-1 licence will be granted only to a person who participated in the tender process. The order passed by the Respondent No. 2 is arbitrary and contrary to Section 18 of the Act and Rule 3 of the Rules. By the impugned judgment the High Court held that, allotment of an area is a pre-condition for issuance of the CS-1 licence without examining the judgment in Writ Petition No. 6525 of 2018.

Rule 3(1) provides for allotment of an area to a person who is given a CS-1 licence. Participation in the process of tender as a condition for applying for a CS-1 licence is not found in the Rules. The High Court dismissed the Writ Petition by holding that there is no fundamental right to trade of liquor. However, the other contention raised by the Appellant that there is hostile discrimination against the Appellant as other similarly situated distillers were permitted to participate in the tender, has not been dealt with by the High Court.

Present Court in State of M.P. and Ors. v. Nandlal Jaiswal and Ors. has held that no one can claim as against the State the right to carry on trade or business in liquor and the State cannot be compelled to part with its exclusive right or privilege of manufacturing and selling liquor. But when the State decides to grant such right or privilege to others, the State cannot escape the rigour of Article 14. It cannot act arbitrarily or at its sweet will. It must comply with the equality Clause while granting the exclusive right or privilege of manufacturing or selling liquor. The Appellant's request for grant of a CS-1 license requires to be considered strictly in accordance with law.

The Respondents are directed to consider the application of the Appellant for issuance of CS-1 licence in accordance with the Act and the Rules made thereunder. The Respondents should not insist on the condition that the Appellant should have participated in a tender and should have been allotted an area of operation. The judgment of the High Court is set aside. Appeal is allowed.

Relevant

M.P. and Ors. v. Nandlal Jaiswal and Ors. MANU/SC/0034/1986

Tags : Tender process licence Grant

Share :

Top

High Court of Gauhati

Diganta Gogoi and Ors. Vs. The State of Assam and Ors.

MANU/GH/0085/2019

14.02.2019

Criminal

Statement to police is not a substantive piece of evidence; same cannot form the basis of conviction

In facts of present case, on the basis of the FIR registered, police investigated the case. The necessary witnesses were examined by police under Section 161 of Code of Criminal Procedure, 1973 (CrPC). At the conclusion of the investigation, police submitted charge sheet against the two accused persons Appellants under Section 302/34 of IPC. The accused persons faced the trial and denied the charge that was framed u/s. 302/201/34 of IPC. Statement of accused person was recorded under Section 313 CrPC wherein they have denied all allegations.

At the conclusion of the trial, the learned trial Court found and held the accused persons guilty and convicted them as aforesaid. Being aggrieved with such conviction and sentence, the present two appeals have been preferred by them.

The evidence of I/O regarding recovery of weapon of offence, as held by accused is not supported by any of the witness. From the impugned judgment, it reveals that the learned trial Court has relied upon the statement of PW-1, PW-3 and PW-5 (who were declared hostile) given before police under Section 161 of CrPC to be reliable, trustworthy and rational as well as relied upon the content of FIR Ext-1. It is apparent that, the approach of the learned trial Court while appreciating the evidence is not appropriate and has no legal sanctity.

The law provides that, the prosecution cannot cross-examine its own witnesses except with the leave of the Court. Further, if such a witness admits such a statement which the prosecution claims to have been made by witness during the investigation or if an investigating officer proves such statement which the prosecution claims to have been made by the witness during investigation, such a statement cannot be treated as substantive evidence nor it can be the basis of conviction of an accused unless the witness on oath admits in the course of trial that, the statement, he has given is true. A hostile witness can neither be treated as wholly reliable or wholly unreliable and placing reliance upon such evidence of hostile witness as a sole basis of conviction would be wholly illegal and against the provision of law and inconsistent with the judicial pronouncement.

In view of the law laid down that, the statement to police under Section 161 of CrPC is not a substantive piece of evidence; same cannot form the basis of conviction. In the instant case, there is neither any direct or circumstantial evidence to link the accused/appellant with alleged offence. As has been held in Madhusudan Singh, FIR by itself is not a substantive piece of evidence. It can be used either to contradict or corroborate the maker thereof in the manner provided under the evidence act. In the present case, nothing has been brought on record from which it can be held that allegation in the FIR has been substantiated by cogent evidence. The allegation contained in the FIR not proved, at the trial and FIR itself was filed only on the basis of suspicion and there is no evidence to prove the charge against the accused persons. The conviction rendered is unsustainable and liable to be interfered into. Appeal is accordingly allowed and the accused/Appellants are acquitted from the charge under Section 304(II)/201/34 of IPC.

Relevant

Madhusudan Singh and another vs. State of Bihar MANU/SC/0273/1995

Tags : Conviction Legality Evidence Credibility

Share :