Friday, July 16, 2010

Suraj and Anr. Versus State of U.P.

Indian Penal Code, 1860 — Sections 302/149, 147 and 148 — conviction and sentence under — all the accused persons including the appellants assaulted deceased with farsa, lathi etc. resulting to his death — P.W.6/Doctor as also in the post-mortem report, stated that the deceased had sustained sixteen ante-mortem injuries of various kinds and descriptions and the cause of death is haemorrhage and shock as a result of the aforesaid anti-mortem injuries — held that merely the fact that PW.6 has been declared hostile, his entire evidence is not wiped out and for the purpose of nature of injuries and the cause of death, his evidence can be relied on — P.Ws-1, 2 and P.W.3/independent witness clearly stated that it was the appellants alongwith other accused persons who had assaulted the deceased with pharsa, lathi etc. — prosecution established and proved its case beyond all reasonable doubts — appeal dismissed.

Supreme Court of India

Criminal Appeal No. 1223 of 2004

Judge(s): G.S. Singhvi & C.K. Prasad,

Date of Judgment: 06 July, 2010

Suraj and Anr. Versus  State of U.P.


O R D E R


1. Appellants Suraj and Hari Singh alongwith Shyam, Gulab and Baladin were put on trial for offence under Sections 302/149, 147 and 148 of the Indian Penal Code. Baladin died during the pendency of the trial. All of them were convicted for offence under Section 302/149 of the Indian Penal Code and sentenced to undergo imprisonment for life by Judgment and Order dated 8th December, 1981 passed by the III Additional Sessions Judge, Hamirpur in Sessions Trial No. 201 of 1980. Shyam, Gulab and Appellant Suraj were also convicted under Section 148 of the Indian Penal Code and each of them sentenced to undergo two years rigorous imprisonment. Appellant Hari Singh was also found guilty under Section 147 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for one year. All the sentences were directed to run concurrently. All the convicted persons including the appellants herein preferred appeal before the Allahabad High Court which was registered as Criminal Appeal No. 3024 of 1981. Convicts Shyam and Gulab died during the pendency of appeal and their appeal had abated. However, appeal preferred by the appellants was dismissed by the Division Bench of the High Court by its Judgment and Order dated 12th May, 2004 passed in Criminal Appeal No. 3024 of 1981.

2. Aggrieved by the said, appellants have preferred this Appeal by Special leave to this Court.

3. According to the prosecution, on 29th March, 1980 at about 10 a.m., Smt. Sirawan (PW.1) along with her minor daughter, Dhanti (PW.3) and her husband Mansha (deceased) alongwith one Chitwa Chamar were going to harvest masur crop belonging to the deceased. When they were passing through a lane and came near Gurwahi Bakhari of Tulsi Dass, all the accused persons variously armed arrived there. Appellant Suraj was alleged to have been armed with farsa whereas Hari Singh was armed with lathi. Prosecution had further alleged that accused Baladin abused Mansha and exhorted to kill him. At this, all the accused persons including the appellants assaulted Mansha with farsa, lathi etc. On alarm being raised by Smt. Sirawan (PW.1), Dhanti (PW.3) and Chitwa Chamar, villagers including Swamidin (PW.2) collected at the spot and being challenged by them, the accused persons fled away from the place of occurrence. Smt. Sirawan (PW.1), Dhanti (PW.3) and Swamidin (PW.2) witnessed the accused persons including the appellant Suraj and Hari Singh assaulting Mansha with lathi and Farsa. According to the prosecution, while the informant, Smt. Sirawan (PW.1) was making arrangements of bullock cart for shifting her injured husband-Mansha, he died.

4. Appellants denied to have committed the offence. From the trend of the cross-examination, their defence is of false implication. In order to bring home the charge, the prosecution had examined altogether six witnesses out of whom Smt. Sirawan (PW.1), Swamidin (PW.2) and Dhanti (PW.3) claimed to be the eye-witnesses to the occurrence. Prosecution had also examined Dr. A.K. Srivastava (PW.6), the Medical Officer, who had conducted post mortem on the dead body of Mansha on 30th March, 1980 at 10.30 a.m.

5. Trial Court, relying on the evidence of the eye-witnesses and the doctor, held the appellants
guilty as above which has been affirmed in the appeal.

6. Mrs. Shally Bhasin Maheshwari, learned counsel appearing on behalf of the appellants raises a very short point. She submits that the doctor in his evidence has not stated about any injury sustained by the deceased nor whispered about the cause of death. She also points out that the post-mortem report has neither been brought on record nor proved or marked as an exhibit. It has also been pointed out that the doctor has not stated anything about the nature of injury i.e. grievous or simple, sustained by the deceased. Not only this, according to Mrs. Maheshwari, the doctor has been declared hostile by the prosecution itself and was cross-examined. She also emphasizes that even in the cross-examination, the prosecution has not elicited anything regarding the cause of death, nature of injury and post-mortem report has not been proved. Accordingly, she submits that appellants utmost can be convicted under Section 324 of the Indian Penal Code.

7. Mr. Pramod Swarup, learned Senior Counsel appears on behalf of the State.

8. The aforesaid submission advanced by Mrs. Maheshwari is on the basis of the materials in the
paper book and at the first blush, we were impressed by her submission. But the entire premise on which she based her submission looked unusual to us and accordingly we examined the original record. We find that Dr. A.K. Srivastava (PW. 6) had stated all the injuries sustained by the deceased. In his evidence as also in the post-mortem report, he has stated that the deceased had sustained sixteen ante-mortem injuries of various kinds and descriptions i.e. contusion, abrasion, laceration, incised & punctured wounds. Injury nos. 7,8,10 and 11 have been found to be punctured wounds. Cause of death, according to the evidence of this witness as also post-mortem report is haemorrhage and shock as a result of the aforesaid anti-mortem injuries. He had also proved the post-mortem report and from the record, it is evident that the same has been marked as Exhibit 12.

9. From what we have stated above, it is evident that Mrs. Maheshwari's submission is un-founded on facts. True it is that PW.6 Dr. A.K. Srivastava has been declared hostile but that itself shall not wipe out his entire evidence. In his evidence he has given the details of the injuries sustained by the deceased and the cause of death. Merely an erroneous opinion in regard to the punctured wounds led the prosecution to declare him hostile but this will not dilute his other evidence if otherwise worthy of reliance. Merely the fact that PW.6 Dr. A.K. Srivastava has been declared hostile, his entire evidence is not wiped out and for the purpose of nature of injuries and the cause of death, his evidence can be relied on.

10. Counsel for the appellants, then points that injury nos. 7,8,10 and 11, according to the doctor himself are punctured wounds and the weapon alleged to have been used by the accused persons cannot cause punctured wounds. According to her, eye-witnesses' account has not been corroborated by the medical evidence and hence on this ground alone, the case of the prosecution deserves to be rejected.

11. We do not find any substance in the submission of Mrs. Maheshwari. The doctor who had conducted the post-mortem examination has been declared hostile when he opined that injury nos. 7,8,10 & 11 as punctured wounds. He had admitted that before giving the opinion, he had not measured dimensions i.e. thickness or depth of the injuries. In view of the aforesaid, this opinion of the doctor, which has no foundation deserves to be ignored and has rightly been ignored by the trial Court and the appellate Court.

12. Smt. Sirawan (PW.1) who happens to be the wife of the deceased Mansha, Swamidin (PW.2), an independent witness and Dhanti (PW.3) daughter of the deceased have clearly stated that it was the appellants alongwith other accused persons who had assaulted the deceased with pharsa, lathi etc. The doctor has found contusion and incised wounds on the person of the deceased. Eye-witnesses' account are consistent and there is no material contradiction in their evidence to discredit their truthfulness. In our opinion, the prosecution has been able to prove its case beyond all reasonable doubts.

13. We do not find any merit in the appeal and it is dismissed accordingly.

State of West Bengal & Ors. Vs.S.K. Nurul Amin

Motor Vehicle Act, 1988 — Section 72(1) — interpretation of — curtailment of routes — the respondent made two applications to the State Transport Authority for grant of permanent stage carriage permit — the Authority offered permits for the routes by curtailing/excluding the last portion of the two applied routes from Barasat to Kolkata (26 kms.) — being aggrieved, the respondent filed writ petitions — the learned Single Judge directed the Authority to consider the applications of the respondent afresh. The Division Bench also held that when permits were sought for the routes - Dhulian Bazar to Kolkata and Raghunathganj to Kolkata, the Authority could not have offered permits by curtailing the routes, thereby changing one of the termini from Kolkata to Barasat, thus, held that the orders of the Authority violated Section 72(1) of the Act — appeal — whether the Authority had the power to grant stage carriage permits with modification by curtailing a part of the routes applied — Yes — whether the Authority was justified in curtailing the route and granting the permits only up to Barasat thereby deleting the last leg of the route from Barasat to Kolkata — Yes — the resolutions of the Authority gave the reason that the curtailment was necessitated due to the need to restrict entry of new passenger transport vehicles into Kolkata on account of heavy traffic congestion and increasing vehicular pollution — held that so long as the reason for the modification is not found to be arbitrary or unreasonable, the question of interfering with the order of the Authority does not arise — orders of the High Court set aside and of the Authority restored — appeals allowed.
Supreme Court of India

CIVIL APPEAL NOS. 1961 of 2006 With  Civil Appeal No. 1962 of 2006

Judge(s): R.V. Raveendran & P. Sathasivam

Date of Judgment: 05 July, 2010

State of West Bengal & Ors. Vs.S.K. Nurul Amin

O R D E R
1. These two appeals arising from order dated 27.4.2001 in MAT No.1100 of 2001 and order dated 2.4.2001 in MAT No.586 of 2001 passed by the Calcutta High Court, raise a common question relating to interpretation of sub-section (1) of section 72 of Motor Vehicles Act, 1988 ('Act' for short).

2. The respondent made two applications to the State Transport Authority, West Bengal ('Authority' for short) for grant of permanent stage carriage permit, the first on 7.11.1997 for a permit for the route Dhulian Bazar to Kolkata (via Raghunathganj and Barasat), and the second on 30.11.1998 for a permit for the route Raghunathganj to Kolkata (via Barasat). As the said applications were not disposed of, the respondent approached the High Court by filing separate writ petitions and the said petitions were disposed of with a direction to the Authority to consider and dispose of the pending applications of the respondent. Thereafter, the Authority, by communications dated 18.12.2000 and 3.11.2000, offered permits for the routes Dhulian Bazar to Barasat and Raghunathganj to Barasat respectively, by curtailing/excluding the last portion of the two applied routes from Barasat to Kolkata (26 kms.).

3. Feeling aggrieved, the respondent filed two writ petitions which were disposed of by a learned Single Judge by orders dated 5.3.2001 and 13.2.2001 respectively. The orders directed the Authority to consider the applications of the respondent afresh as the communications of the Authority did not give reasons as to why the permits were not granted up to Kolkata. The Authority was also directed to pass reasoned orders after giving an opportunity of hearing to the respondent.

4. The orders of the learned Single Judge were challenged by the respondent by filing intra-court appeals before a Division Bench. The Division Bench allowed the appeals by the impugned orders dated 27.4.2001 and 2.4.2001. The Division Bench noted that the routes, for which the permits were sought, were not notified ones. The Division Bench held that when permits were sought for the routes - Dhulian Bazar to Kolkata and Raghunathganj to Kolkata, the Authority could not have offered permits by curtailing the routes, thereby changing one of the termini from Kolkata to Barasat. The division bench held that the orders of the Authority violated Section 72(1) of the Act. The said orders are challenged in these appeals by special leave.
5. Section 72 of the Act deals with grant of stage carriage permits. Sub-section (1) thereof which is relevant, is extracted below:

'72. Grant of stage carriage permit.--(1) Subject to the provisions of section 72, a Regional Transport Authority may, on an application made to it under section 70, grant a stage carriage permit in accordance with the application or with such modifications as it deems fit or refuse to grant such a permit;

Provided that no such permit shall be granted in respect of any route or area not specified in the application.'

6. A careful reading of sub-section (1) of section 72 makes it clear that the Authority is not bound to grant a stage carriage permit as sought. The Authority could either grant the stage carriage permit in accordance with the application or refuse to grant such stage carriage permit or grant the stage carriage permit with such modifications as it deemed fit. The only restriction on the power of the Authority is that it could not grant a permit for a route not specified in the application.

7. In this case, what the Authority has done is to grant the permanent stage carriage permits in regard to the routes for which the applications were made, but with a modification, by curtailing the routes for which the permits were applied, only up to Barasat. The Authority in effect therefore refused to grant the permit for the last leg (Barasat to Kolkata) of the two routes applied. Though the communications from the Authority to the respondent did not contain the reason for curtailing the routes, it is stated that the resolutions of Authority (which led to the issue of the impugned communications) assigned the reason for curtailment. The reason was that in view of the heavy traffic congestion and vehicular pollution in Kolkata, there was restriction of entry of new passenger vehicles into Kolkata and, therefore, the permits were granted only up to Barasat.

8. The Division Bench proceeded on the basis that when one of the termini is altered by the Authority, then the permit is not granted in respect of the route applied, and it would amount to granting a permit in respect of a route not specified in the application. On a careful consideration, we are of the view that the interpretation by the High Court is without basis. What is prohibited by the proviso to sub-section (1) of section 72 is granting of a permit in respect of any route or area not specified in the application. The said proviso does not prohibit curtailment in regard to portion of the route applied for, for any valid reason. In fact sub-section (1) specifically authorizes the Authority to grant the stage carriage permit with such modifications as it deems fit. Curtailment of a route would be a modification as contemplated under sub-section (1). We may clarify this by an illustration where the application is made for grant of a permit in regard to a route A to D through points B and C. If the grant is made for the route A to C through B, excluding the last portion C to D, it will be a modification which is contemplated and provided for under sub-section (1) of Section 72 of the Act. On the other hand, if the grant is made in regard to route E to F or in regard to route A to E, the grant will be in regard to a route not specified in the application and consequently the permit will be violative of the proviso to sub-section (1) of Section 72 of the Act.

9. In this case, the route applied for was Dhulian Bazar to Kolkata, via Raghunathganj and Barasat in one case and Raghunathganj to Kolkata via Barasat in the other case. Permits were granted from Dhulian Bazar to Barasat and Raghunathganj to Barasat, excluding the portion from Barasat to Kolkata. Such curtailment was a modification which was permitted and authorized by section 72(1) of the Act. The Division Bench of the High Court was not therefore justified in holding that the grant of a permit for a route with any curtailment would be a violation of Section 72(1) of the Act.

10. The next question is whether the Authority was justified in curtailing the route and granting the permits only up to Barasat thereby deleting the last leg of the route from Barasat to Kolkata. Though no reason was given in the communications of the Authority about the grant of permits, the resolutions of the Authority gave the reason that the curtailment was necessitated due to the need to restrict entry of new passenger transport vehicles into Kolkata on account of heavy traffic congestion and increasing vehicular pollution.

11. The respondent contended that the said reason was not a valid reason, as during the pendency of these matters, long after the curtailment of routes in his case, several permanent stage carriage permits were granted on various inter-regional routes, all up to Kolkata, without any curtailment.

12. The appellant-State responded by contending that in view of the traffic congestion and automobile pollution in Kolkata reaching alarming proportions, entry of vehicles in Kolkata was being restricted in a phased manner as a matter of policy; that the State Government constituted a technical committee on 2.1.2004 as per directions of the Division Bench of the High Court dated 21.11.2003 in M/s. Sankar Automobiles v. State of West Bengal [CA No. 568/2002/APOT No. 83 of 2002] to examine inter alia the road space, availability of halting space, terminus and related matters; that in accordance with the recommendation of a Technical Committee, the State Government issued a notification dated 2.8.2004 (gazetted on 6.8.2004) directing the Authority and all Regional Transport Authorities in the State as follows:

1) No new bus route be formulated and permits be issued which may pass through the Central Business District viz. Esplanade and Band Stand in Kolkata and Howrah station and approach areas of Howrah Bridge till further orders;

2) No new permit for Stage Carriage shall be issued which may originate/terminate in Esplanade and
Band Stand in Kolkata and Howrah Station;

3) No new bus route shall also be created/formulated in Kolkata and Howrah without creating appropriate parking place having requisite amenities for both the passengers as well as the transport workers. The appellants submitted that the validity of the said notification was upheld by the Division Bench of the High Court by order dated 27.9.2005 in FMA No.604 of 2004 (Sujata Ganguly v. State of West Bengal). The State Government admitted that it had granted some permits up to Kolkata during the pendency of these matters, but that was in pursuance of specific directions of the High Court in some writ petitions and before issue of the notification dated 2.8.2004. The appellants have furnished the particulars of the orders of the High Court which directed grant of permit up to Kolkata. It was submitted that as the issue of notification (which was ultimately issued on 2.8.2004) was under process, and as these matters were still pending, the appellants complied with the orders of the High Court in those cases.

13. The respondent replied by contending that the prohibition under a notification dated 2.8.2004 would not apply to him as his applications were of the years 1997 and 1998 and the grant of permit for curtailed routes were by orders passed in 2000 long prior to the said notification and therefore, the said notification was not relevant.

14. The notification dated 2.8.2004 was pressed into service by the State Government only to counter the argument that some permits for routes up to Kolkata were granted during the pendency of these matters. The question for decision in these appeals is whether the Authority had the power to grant stage carriage permits with modification by curtailing a part of the routes applied. We have already held that the Authority has the power to grant a stage carriage permit in accordance with the application or with such modifications as it deems fit. So long as the reason for the modification is not found to be arbitrary or unreasonable, the question of interfering with the order of the Authority does not arise. The grant of some permits to others for routes touching Kolkata during the pendency of these matters, would not affect the validity of the orders of the Authority, nor be a ground for interfering with the orders of the Authority, as appellants have explained the reason why in some cases, during the pendency of the matter it had to issue permits.

15. In view of the subsequent events, the question of directing the Authority to consider the applications of respondent afresh does not arise. These appeals are allowed, the orders of the High Court are set aside, the orders of the Authority are restored and the curtailment of routes is upheld.

Chunni Lal Vs. State of U.P.

Indian Penal Code, 1860 — Section 302 — punishment of murder — conviction and sentence under — PWs 1 & 2 were born out of the relationship between the deceased and their mother who earlier was kept as a mistress by the deceased for about 25-26 years. By the time the incident had taken place, the deceased had legalized his relationship and married the lady thereby giving legal status to PWs 1 & 2 as his sons — after the death of the deceased the family of the accused including the accused himself took several steps to get the land of the deceased transferred and mutated in their names instead of PWs 1 & 2 and their brothers — ocular evidence fully corroborates the medical evidence — both PWs 1 and 2 gave a vivid account of the incident and the manner in which the incident had occurred, therefore, their evidences proved that they were present at the place of occurrence in a usual and natural manner and had actually seen the occurrence — the delay in the lodging of the FIR as also in starting of the investigation by the Investigating Officer properly explained — held that the fact that the accused surrendered in the Court of Chief Judicial Magistrate clearly indicate that the appellant was guilty of the offence alleged against him — appeal dismissed.

Supreme Court of India 

Criminal Appeal No. 669 of 2006


Judge(s): Dr. Mukundakam Sharma & H.L. Dattu, JJ.

Date of Judgment: 05 July, 2010

Chunni Lal  Vs. State of U.P.

O R D E R

Dr. Mukundakam Sharma, J.

1. The present appellant has preferred this appeal being aggrieved by the judgment and order dated 10.02.2006 passed by the Allahabad High Court upholding the order of conviction and sentence passed by the Second Additional Sessions Judge, Banda against the appellant under Section 302 of the Indian Penal Code [for short 'IPC'] and sentencing him to life imprisonment.

2. The aforesaid Sessions Trial case was registered for an offence punishable under Section 302 IPC for allegedly committing murder by the present appellant Chunni Lal of his uncle Heera Lal at about 8.00 p.m. on 07.05.1978 in village Baramati, Police Station Pahari, District Banda.

3. The First Information Report [for short 'FIR'] was lodged by Juggi Lal [PW-1] who is allegedly an eyewitness to the occurrence and the same was lodged at 08.05.1978 at 6.30 a.m. The deceased Heera Lal was the uncle of the accused Chunni Lal inasmuch as both Ramdeo and Heera Lal were sons of Ram Ratan. Heera Lal was unmarried but was keeping one Kainya alias Chandrakaliya as his mistress or concubine for the last about 25-26 years preceding the incident. She was earlier married to one Jagannath Kalar but sometime prior to the incident Heera Lal performed marriage with her and a document in that regard was executed on 15.02.1978 before the Marriage Officer. In view of the aforesaid position the appellant Chunni Lal who was hoping to succeed to the estate of the deceased Heera Lal thought that his hopes of succeeding to this estate would be lost and, therefore, it is alleged that the accused had committed the aforesaid offence by going to the agricultural field of deceased Heera Lal when deceased was processing the harvest of mustard crop in his field. It is alleged that after going there the accused fired two rounds of bullets from the DBBL gun of the deceased in the presence of Juggi Lal [PW-1] and Ram Sakh [PW-2]. The incident happened at 8.00 p.m. on 07.05.1978 and the FIR was lodged on 08.05.1978 at 6.30 a.m. The investigating officer who is the Sub-Inspector of the Police Station went to the village at 7.15 p.m. for investigation. During the course of investigation he took a DBBL gun and other material exhibits into his custody and recorded the statements of the witnesses and thereafter submitted a chargesheet against the appellant herein.

4. During the trial seven witnesses were examined on behalf of the prosecution whereas none was examined on behalf of the defence. The appellant was also examined under Section 313 of the Code of Criminal Procedure and thereafter the Second Additional Sessions Judge, Banda, who was the trial Judge, passed a judgment and order of conviction against the appellant finding him guilty of committing an offence under Section 302 IPC. By a separate order dated 21.12.1981 the learned trial Court sentenced the appellant to life imprisonment.

5. Being aggrieved by the said judgment and order the appellant filed an appeal before the Allahabad High Court which was heard by a Division Bench of the High Court. The Division Bench of the High Court by its judgment and order dated 10.02.2006 upheld the order of conviction and sentence and dismissed the appeal filed by the appellant. Appellant therefore filed the present appeal on which we have heard the learned counsel appearing for the parties.

6. The learned counsel appearing for the appellant took up several pleas during the course of his arguments in support of his stand that the appellant is innocent. We propose to deal with each of the submissions made by the counsel appearing for the appellant.

7. The first submission which was made by the counsel appearing for the appellant was with regard to the motive for the crime alleged against the appellant. The appellant contended through his counsel that there was absolutely no motive for the appellant to commit the crime as he was a natural heir being the nephew of the deceased as both PWs 1 & 2 are illegitimate sons of the deceased and therefore there was a motive for the PWs 1 & 2 to implicate the accused in the offence.

8. In the instant case it is established from the records that PWs 1 & 2 were born out of the relationship between the deceased and their mother Chandrakaliya who earlier was kept as a mistress or concubine by the deceased Heera Lal for about 25-26 years. PW-1 at the time of deposition was 20 years of age whereas PW-2 was aged about 25 years. It is established from the aforesaid fact that both of them were born out of the relationship between the deceased Heera Lal and Chandrakaliya as their relationship started about 25-26 years preceding the incident. It is also established from the evidence adduced that about three months prior to the incident Heera Lal performed marriage with the said lady and a document was executed in that regard on 15.02.1978 before the Marriage Officer. It is to be noted that incident took place occurred only a few months thereafter that is on 07.05.1978. On having found that his chance of inheriting the estate of the deceased was practically lost due to the aforesaid marriage, the accused might have thought of taking revenge on his uncle for depriving him of his right to inherit his estate and therefore immediately went to the place of occurrence on the night of 07.05.1978 picked up the DBBL gun, loaded the same and fired upon the deceased twice.

9. This, in our estimation is the reason and motive for the crime and not the one which was advanced by the counsel appearing for the appellant, for by the time the incident had taken place, the deceased had legalized his relationship and married said Chandrakaliya thereby giving legal status to PWs 1 & 2 as his sons. In that situation there was no possibility at all of the appellant inheriting the property of his uncle and therefore the plea taken by the appellant regarding motive appears to be without any merit. Rather on the other hand, we find a clear motive on the part of the appellant- accused for committing the murder of his uncle.

10. In this regard we wish to refer to the decision of this Court in the case of Raghubir Singh & Others v. State of Punjab reported in [JT 1996 (4) SC 1 : 1996 (9) SCC 233] which is as follows:

'7. ....................... The motives may be minor but nonetheless they did provide an occasion for attack on the deceased by the appellants. That apart, even in the absence of motive, the guilt of the culprits can be established in a given case if the other evidence on the record is trustworthy and the absence of proof of motive has never been considered as fatal to the prosecution case where the ocular evidence is found reliable..................... '

11. The same is also corroborated by the fact that after the death of the deceased the family of the accused including the accused himself took several steps to get the land of the deceased transferred and mutated in their names instead of PWs 1 & 2 and their brothers. Even in the cross-examination of the prosecution witnesses examined in the present criminal case of murder, an effort was being made to dislodge the claim of PWs 1 & 2 to inherit the property of the deceased. Both PWs 1 & 2 have been extensively cross-examined in that regard but their evidence in support of their claim of inheritance could not be shaken. The submission of the appellant therefore that there was no motive to kill his uncle cannot be accepted in view of the aforesaid extensively discussed clear facts and circumstance of the case.

12. The second submission which was advanced by the counsel appearing for the appellant was that the prosecution had examined only the interested witnesses who were closely related to the deceased. It was contended by the appellant that the only independent witness who was examined was PW 5, and PW5 having turned hostile, the conviction and sentence passed against the appellant is required to be set aside and quashed. It is no doubt true that PWs 1 & 2 are the sons of the deceased and they are brothers. They have been examined in the trial as the eye-witnesses to the occurrence. The evidence adduced by PWs 1 & 2 also indicate that besides them there was another witness namely Jagdeo Pradhan who was also present at the place of occurrence when the incident had occurred. It has also come in evidence that said Jagdeo Pradhan who otherwise would have been an independent witness died during the trial and before his evidence could be recorded. Both PWs 1 & 2 were cross-examined at length by the defence but not even a single question was put in such cross-examination that said PWs 1 & 2 were not present at the place of occurrence. They are natural witnesses as their presence at the place of occurrence at the relevant time was usual and expected.

13. Both PWs 1 & 2 have given a vivid account of the incident and the manner in which the incident had occurred. It is proved from the records that when there father was doing the cleaning work of the mustard at about 8.00 p.m. on the fateful day, accused Chunni Lal came there and immediately picked up the DBBL gun belonging to the deceased, loaded both the barrels with cartridge and fired twice at Heera Lal, as a consequence of which, Heera Lal died. PW-2 has also given a vivid description of the incident including the fact that when he chased Chunni Lal and caught his leg after 6-7 feet he even managed to snatch the gun from the hand of the accused. It is also disclosed from evidence recorded that despite falling down the accused stood up immediately and ran away with the belt of cartridges towards the South. There was another independent witness Sri Keshan [PW-5] who was present at the time of the occurrence. He, however, turned hostile in the trial during his examination-in-chief.

14. Having considered the evidence of PWs 1 & 2 who were the eye-witnesses to the occurrence we are satisfied that they were present at the place of occurrence in a usual and natural manner when the incident had taken place and they had actually seen the occurrence. The incident had happened at 8.00 p.m. in the night in the field of the deceased which was not only an agricultural field but also a dacoit infested area and therefore it is reasonable to assume that even the deceased kept a gun with him with a belt of bullets in open for security reasons. The accused knew that a gun is always kept in the field and at the place of work, for he used to visit them at the field occasionally and even at night. That was also the reason why he did not carry any weapon with him, so as to avoid a suspicion in the mind of the deceased.

15. The accused used the weapon of the deceased himself for firing upon him. Two bullets were fired which resulted in two injuries which are established from the medical evidence available on record. The ocular evidence, therefore, fully corroborates the medical evidence. In that view of the matter it cannot be said that the evidence of PWs 1 & 2 should be discarded as they are interested witnesses particularly when their evidence adduced could not be shaken by the defence in the cross-examination.

16. In Jayabalan v. U.T. of Pondicherry reported in [JT 2009 (14) SC 401 : 2010 (1) SCC 199], this Court while dealing with the evidence of the interested witnesses held as under:

'.................We are of the considered view that in cases where the Court is called upon to deal with the evidence of the interested witnesses, the approach of the Court, while appreciating the evidence of such witnesses must not be pedantic. The Court must be cautious in appreciating and accepting the evidence given by the interested witnesses but the Court must not be suspicious of such evidence. The primary endeavour of the Court must be to look for consistency. The evidence of a witness cannot be ignored or thrown out solely because it comes from the mouth of a person who is closely related to the victim.'

17. Another submission which was made by the counsel appearing for the appellant was that there was a delay in both lodging the FIR as also in initiating the investigation by the police. It was submitted that although the incident had taken place on 07.05.1978 at about 8.00 p.m., the FIR was lodged on 08.05.1978 at 6.30 a.m. only whereas the investigation was started by the police only in the evening.

18. On proper appreciation of the evidence we find that although the incident had happened at 8.00 p.m. on 07.05.1978 PWs 1 & 2 have clearly stated that they did not dare to go out of the place of occurrence due to fear. It has also come in evidence that the entire area was dacoit infested area and police station was also about eight kilometers away from the place of occurrence and therefore it was quite possible that PWs 1 & 2 who were the eye-witnesses and the sons of the deceased thought it fit to travel out of the place of occurrence at about 4.00 a.m. in the morning to lodge the FIR which was accordingly lodged at the police station at 6.30 a.m. Although it was stated in the evidence that the investigating officer namely the Sub-Inspector was present at the police station in the morning hours when the informant reached the police station but it has also come in evidence that he was required to go to the Court which was functioning from 6 a.m. in the morning. Therefore the constable took the statement of the informant and carried the records to the Court to apprise about the case to the Sub-Inspector, the Investigating Officer. The Investigating Officer had clearly stated in his deposition that he came back from the Court at about 1'o clock. The Court was located at quite a distance from the police station and after going back to the police station and after doing the needful he went to the village in the evening for carrying out his investigation. It is, therefore, established that there is well reasoned and proper explanation for the delay both in the lodging of the FIR as also in starting of the investigation by the Investigating Officer. In this regard we would like to refer to a decision of this Court in the case of Silak Ram & Another v. State of Karnataka reported in [JT 2007 (9) SC 641 : 2007 (10) SCC 464] relevant portion of which is as follows:

'12. .................Delay in lodging FIR by itself would not be sufficient to discard the prosecution version unless it is unexplained and such delay coupled with the likelihood of concoction of evidence. There is no hard-and-fast rule that delay in filing FIR in each and every case is fatal and on account of such delay the prosecution version should be discarded. The factum of delay requires the court to scrutinise the evidence adduced with greater degree of care and caution. In this case the eyewitnesses have given a vivid description of the events. The evidence of PW 11 as noted above, is cogent and consistent and the version given by this witness fits with medical evidence. ................'

18.1. The aforesaid delay which was caused due to reasonable factual situation cannot destroy the prosecution case nor creates any suspicion with regard to the prosecution case. It also cannot be said under any circumstance and particularly because of the aforesaid explanation available on
record that the FIR is ante-timed as submitted by the counsel appearing for the appellant.

19. There is another very vital and important factor in this case, which is the fact of the accused absconding immediately after the occurrence. PWs 1 & 2 stated that immediately after the accused opened fire on the deceased through the gun and after PW-2 was able to snatch away the rifle from the accused the accused got up and ran away from the place of occurrence and thereafter he was not available either at the place of occurrence or in the village. It is established from the evidence of the Investigating Officer that on 20.05.1978 he received an information that the accused surrendered in the Court of Chief Judicial Magistrate. The said information received by him was noted in the case diary. The fact that the accused ran away from the place of occurrence and was not traceable thereafter in the village and the fact that he surrendered only on 20.05.1978 although the incident had occurred on 07.05.1978 clearly indicate that the appellant was guilty of the offence alleged against him.

20. All the aforesaid discussions and facts, therefore, lead to one and the only conclusion that the appellant is guilty of the offence alleged against him.

21. In our considered opinion, the accused has been rightly convicted of the offence under Section 302 IPC. This appeal, therefore, has no merit and is dismissed accordingly.

Saturday, July 10, 2010

NEELAM KUMAR VERSUS DAYARANI

Hindu Marriage Act, 1956 — Section 13(1)(ia) — petition for dissolution of marriage — by the appellant/husband — on the grounds of cruelty — no child from the wedlock — on the basis of the ex parte evidence adduced by the appellant/husband, the trial court allowed the appellant's application and granted him the decree of divorce under section 13(1)(ia) of the Act. However, the High Court set aside the order of the trial Court and viewed that even though the respondent did not produce any evidence, no decree of divorce could be granted unless the appellant was able to prove on the basis of the pleadings and the evidences produced by him that his case was covered by section 13(1)(ia) of the Hindu Marriage Act — appeal — the appellant did not examine any doctor or produce the medical records in connection with his treatment nor was any documentary evidence produced showing the mother's surgery — nothing produced on record to indicate that the respondent has contributed in anyway to the alleged breakdown of the marriage — held no interference with the findings of the High Court — appeal dismissed — no costs.


Supreme Court

(B. SUDERSHAN REDDY ; AFTAB ALAM, JJ.)


NEELAM KUMAR   VERSUS  DAYARANI


Civil Appeal No.1957 of 2006-Decided on 06-07-2010.


Divorce - Irretrievable Breakdown


JUDGMENT


Aftab Alam, J.-This appeal, by the husband, is filed against the judgment and order dated September 14, 2005 passed by the Madhya Pradesh High Court (at Jabalpur) in F.A.O. 462 of 2003. By the judgment coming under appeal, the High Court set aside the judgment dated August 23,  2003  passed  by  the  1st  Additional  District  Judge,  Balaghat  in  HMA  Case  No.26A/02, allowing the appellant's petition and granting him the decree of divorce under section 13(1)(ia) of the Hindu Marriage Act, 1956.


2. The marriage between the parties took place on December 7, 1986 and they lived together first at Ankleshwar and later at Vadodara. There is no child from the wedlock.


. According to the appellant, barely after 8 or 9 months of the marriage, the wife (respondent in this  appeal)  became  quite  aggressive  and  insulting,  and  started  treating  him  and  his  family members in a cruel manner. He tried to make adjustments in the hope that she would correct herself but finally, when it became impossible to carry along with her, he filed the petition for dissolution  of  marriage  under  section 13(1) (ia)  of  the  Act,  on  grounds  of  cruelty.  In  the application filed by the appellant, it was stated that his wife objected to his giving any financial assistance to his family and especially for the marriage of his sister and she always quarreled with him over the matter. It was alleged that at the time of his sister's marriage she raised an alarm that her ornaments were missing and cast suspicion on the groom's mother. Later on, the alarm turned out to be false, causing huge embarrassment to him and his family. Such incidents and the respondent's behaviour and conduct towards the appellant made him the laughing stock in the town. He changed residence, but that too did not help to salvage his position. The respondent used to leave for office early and returned very late. When the appellant remonstrated over her timings she became very angry and even threatened to implicate him in a dowry case. In those circumstances, the appellant had even contemplated committing suicide but was held back by friends and relatives. The appellant also gave certain instances as evidence of her cruelty to him. In 1989, despite his advice to her not to go for attending his brother's marriage since she was pregnant, she undertook the travel and participated in the marriage. As a result, she suffered a miscarriage there and, ironically, held the appellant and his family responsible for it. In 1994, the appellant sustained some injuries in an accident and had to undergo medical treatment. At that time she was living in a different town where she was posted in connection with her service.

Despite intimation given to her she did not come to look after him and to give him moral support because she did not want to take leave from the work. Again she did not come to serve his mother and to support her when she was admitted to a hospital for her eye surgery.


4. The respondent denied all the allegations made against her by the appellant. She stated that she did not act cruelly or even disrespectfully towards the appellant or her family members. Her case was that she was in service from before her marriage and her marriage with the appellant was on the clear understanding that she would not be forced to leave the service. But a short while after their marriage, the appellant changed his mind and demanded that she should give up working. She was not agreeable to this and this seemed to hurt his pride. Further, their marriage failed to produce any child. This became another source for his estrangement from her and he eventually filed the divorce petition wanting to get rid of her.


5.  Before  the  trial  court  the  appellant  examined  himself,  his  sister  Rashmi  and  two  of  his neighbours from Vadodara, as witnesses, in support of his case. The respondent did not get herself examined nor did she produce any witness. On the basis of the ex parte evidence adduced before it, the trial court allowed the appellant's application and granted him the decree of divorce under section 13(1)(ia) of the Act.


6. Against the judgment and decree passed by the trial court, the respondent filed an appeal in the High Court under section 28 of the Act.


7. Before the High Court, the appellant strongly defended the judgment of the trial court and pointed out that the respondent had not even led any evidence in support of her case. The High Court, however, took the view, and we think quite rightly, that even though the respondent did not produce any evidence, no decree of divorce could be granted unless the appellant was able to prove on the basis of the pleadings and the evidences produced by him that his case was covered by section 13(1)(ia) of the Hindu Marriage Act. On a consideration of the materials on record, the High Court found and held that no case of cruelty could be made out against the respondent and hence, the appellant was not entitled to the decree of dissolution of marriage on that ground.


8.  The  High  Court  found  that  the  judgment  of  the  trial  court  was  mainly  based  on  three allegations cited by the appellant as instances of the respondent's cruelty. First, she put the blame on the appellant and his family members for the miscarriage suffered by her when she went to attend the marriage of the appellant's brother, against his advice. The High Court pointed out that the miscarriage would have caused the greatest distress and pain to the respondent and instead of sympathizing with her, the appellant chose the incident to cite as an instance of her cruelty. This showed not the cruelty of the respondent but the complete insensitivity of the appellant himself. The High Court also observed that a marriage in the family is an occasion for rejoicing in India in which the all family members are supposed to participate. If the respondent had failed to go to attend the marriage of her husband's brother, then also she would have been liable to be blamed.


9. The High Court then took up the other allegation that the respondent did not come to attend and take care of the appellant when he was undergoing medical treatment in a hospital for the injuries caused in an accident. The High Court found that this allegation was not part of the appellant's pleadings and the matter was introduced in course of evidence. The court observed that not being stated in the pleadings, the allegation could not be taken into consideration. Even otherwise, apart from the oral statement made before the trial court, there was no material to support the allegation. The appellant did not examine any doctor or produce the medical records in connection with his treatment. In any event, one single instance, in isolation, was hardly sufficient for the dissolution of marriage on the ground that the respondent treated the appellant

with cruelty. The court also rejected the third allegation by the appellant that the respondent did not come to attend and serve his mother when she was admitted in a hospital for eye surgery. The Court did not believe the case as neither the mother nor the attending doctor was examined nor was any documentary evidence produced showing the mother's surgery.


10. Having thus dealt with all the allegations made by the appellant and having considered the materials on record in some detail, the High Court found that the appellant had not been able to bring his case under section 13(1)(ia) of the Hindu Marriage Act. It, accordingly, allowed the respondent's appeal and set aside the judgment and decree passed by the trial court.


11. On hearing counsel for the parties and on going through the judgments of the trial court and the High Court, we are in agreement with the view taken by the High Court and we are satisfied that its findings do not warrant an interference by this Court in appeal.


12. Counsel for the appellant then submitted that the appellant's marriage with the respondent had completely broken down with no hope of revival and compelling them to live together would be very hard and unjust. He made a plea for dissolution of marriage on the ground of its irretrievable

            breakdown. In support of the submission, learned counsel relied on the judgment of this Court in Satish Sitole Vs. Smt. Ganga, (2008) 7 SCC 734 wherein it was held in the last paragraph as follows:


"..... that since the marriage between the parties is dead for all practical purposes and there is no chance of it being retrieved, the continuance of such marriage would itself amount to cruelty, and, accordingly, in exercise of our powers under Article 142 of the Constitution we direct that the marriage of the appellant and the respondent shall stand dissolved..."


13.  We  are  not  impressed  by  this  submission  at  all.  There  is  nothing  to  indicate  that  the respondent has contributed in anyway to the alleged breakdown of the marriage. If a party to a marriage, by his own conduct brings the relationship to a point of irretrievable breakdown, he/she cannot be allowed to seek divorce on the ground of breakdown of the marriage. That would simply mean giving someone the benefits of his/her own misdeeds. Moreover, in a later decision of this Court in Vishnu Dutt Sharma Vs. Manju Sharma (2009) 6 SCC 379, it has been held that irretrievable breakdown of marriage is not a ground for divorce as it is not contemplated under section 13 and granting divorce on this ground alone would amount to adding a clause therein by a judicial verdict which would amount to legislation by Court. In the concluding paragraph of this judgment, the Court observed:


"If we grant divorce on the ground of irretrievable breakdown, then we shall by judicial verdict  be  adding  a  clause  to  Section  13  of  the  Act  to  the  effect  that  irretrievable breakdown of the marriage is also a ground for divorce. In our opinion, this can only be done by the legislature and not by the Court. It is for the Parliament to enact or amend the law and not for the Courts."


14. On a consideration of the submissions made on behalf of the parties and the materials on record, we find no merit in this appeal. It is, accordingly, dismissed but with no order as to costs.