TaxTMI 
TaxTMI 
2012 (5) TMI 870
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....risonment for life under Section 302 read with Section 34 Indian Penal Code and Section 120B Indian Penal Code. Each of the accused is sentenced to a fine of Rs. 1000/- under the said sections. In default of payment of fine, the defaulting accused shall suffer further rigorous imprisonment for six months. Jitender accused has been found guilty under Section 120B Indian Penal Code for conspiracy of murder with the other four-five persons and when we read the provisions of Section 120B and 109 Indian Penal Code, Jitender is also punishable for the offence of murder as the act of murder has been committed in consequence of the conspiracy. I, therefore, sentence Jitender accused to imprisonment for life under Section 120B Indian Penal Code. He is also sentenced to a fine of Rs. 1000/- under the said section. In default of payment of fine Jitender accused shall suffer further rigorous imprisonment for six months. As regards, the role of Surender @ Sunder son of Ratti Ram, the husband of Indra deceased, a copy of this judgment be sent to the Superintendent of Police, Hisar for taking appropriate action against him in view of the observations made by me in this judgment." 2. This jud....
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....for the children of his sister-in-law. Due to this, there was annoyance in the family and particularly, Indra and Surender had raised protest. Having come to know of this protest, Satish and Sunil son of Shamsher Singh resident of Jamni and Pawan son of Ratti Ram had threatened Indra that they would kill her. Satish and Sunil, along with Pawan, had also taken the cattle and other household articles from the house of Ratti Ram with his permission. Ratti Ram had even started living in the house of Sunil and Satish. After being pressurized by his family members, Ratti Ram, along with his son, had come back to his house in Narnaund but the cattle and other household articles that he had taken while going to the house of Sunil were not brought back by Ratti Ram to his own house. Indra had protested against Ratti Ram not bringing the cattle and household articles to their house. This further annoyed Sunil, Satish, etc. 6. On 9th February, 1999, Ishwar Singh, PW-11 had gone to the house of his sister Indra. Satish, Sunil and Pawan had also come to Narnaund and all of them stayed in the house of Ratti Ram on that day. At night, after taking meats, all these guests slept on the ground floo....
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....73 of the Code of Criminal Procedure, 1973 (Code of Criminal Procedure) charging all the five accused persons for the offences under Sections 302, 342, 506, 120B and 34 Indian Penal Code in the Court of the Magistrate who committed the case to the Court of Sessions. The prosecution examined as many as 13 witnesses in support of its case and also produced documentary evidence including the report from the Forensic Science Laboratory (FSL). After putting up the evidence against the accused, their statements were recorded under Section 313 Code of Criminal Procedure and then, as already noticed, they were convicted by the Trial Court and their conviction has been upheld by the High Court also. 9. In the backdrop of the above prosecution case and the fact that the Learned Counsel appearing for the Appellant in the respective appeals have addressed distinct arguments and referred to different evidence, we consider it appropriate to deal with both these appeals separately. Criminal Appeal No. 1763 of 2008 10. While raising a challenge to the judgment of the High Court as well as that of the Trial Court, it is, inter alia, contended on behalf of accused Jitender Kumar that: i) He has....
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....t has to examine these aspects with caution. Further, the Court is required to examine such challenges in light of the settled principles while keeping in mind as to whether the name of the accused was brought to light as an afterthought or on the very first possible opportunity. The Court shall also examine the role that has been attributed to an accused by the prosecution. The informant might not have named a particular accused in the FIR, but such name might have been revealed at the earliest opportunity by some other witnesses and if the role of such an accused is established, then the balance may not tilt in favour of the accused owing to such omission in the FIR. The Court has also to consider the fact that the main purpose of the FIR is to satisfy the police officer as to the commission of a cognizable offence for him to conduct further investigation in accordance with law. The primary object is to set the criminal law into motion and it may not be possible to give every minute detail with unmistakable precision in the FIR. The FIR itself is not the proof of a case, but is a piece of evidence which could be used for corroborating the case of the prosecution. The FIR need not....
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....t in the Chobara and had murdered his sister Indra. This reflects the truthfulness of PW-11. The occurrence of the events as per the case projected by the prosecution is that PW-11 had not met Jitender in the Chobara because Jitender had gone to the fields to bring PW-10 forcibly and under threat to his house and after getting the door opened by Indra and handing over the rope to the other accused, Jitender had taken PW-10 back to the fields. When PW-11 came to the Chobara and noticed the other accused persons killing Indra, Jitender had already left along with PW-10 and as such, there was no occasion for PW-11 to see Jitender at the place of occurrence in the Chobara. Therefore, he rightly did not name Jitender in the FIR as one of the persons present in the chobara who committed the murder of his sister. There was no occasion or reason for PW-10 to implicate Jitender falsesly as Jitender was also known and related to him. This accused was duly identified in the Court by this witnesses. PW-10 and PW-11 both cannot be stated to be planted witnesses. They are natural and reliable witnesses. of course, the learned Trial Court has expressed certain observations about the immature beha....
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....ts of this Court. What has been recorded in Ext.P43 cannot be taken to be confession of the accused in relation to commission of the crime, but the other part by which the motor cycle was recovered, would be the portion admissible in evidence. The admissible part can very safely be segregated from the inadmissible part in this statement. 19. It may be noted that in the very judgment of Aloke Nath Dutta (supra) relied upon by the counsel for the Appellant, this Court has clearly stated as follows: ... We intend to point out that only that part of confession is admissible, which would be leading to the recovery of the dead body and/or recovery of the articles of Biswanath; the purported confession proceeded to state even the mode and manner in which Biswanath was allegedly killed. It should not have been done. It may influence the mind of the court. 20. In the case of Anter Singh v. State of Rajasthan (2004) 10 SCC 657], this Court clearly stated the principle, "it is fallacious to treat the "fact discovered' within the section as equivalent to the object produced; the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to ....
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....itender. However, he was charged with an offence punishable under Section 323 read with Section 34 Indian Penal Code for which he was acquitted. It is also correct that the learned trial Court has specifically noticed in its judgment that accused Jitender Kumar had not been charged separately for an offence under Section 302 read with Section 34 Indian Penal Code and if he was also present, then the provisions of Section 149 Indian Penal Code would be applicable and in the event, the charge ought to be framed under that provision. We are unable to find any error in this approach of the trial Court. But, equally true is that the trial Court, for valid reasoning and upon proper appreciation of evidence, convicted this accused for an offence under Section 120B of the Indian Penal Code and, thus, for an offence under Section 302 Indian Penal Code as well. 24. A bare reading of Section 120B provides that whoever is a party to a criminal conspiracy to commit an offence punishable with death, imprisonment for life or rigorous imprisonment for a term of two years or upwards, shall, where no express provision is made in the Indian Penal Code for the punishment of such a conspiracy, be puni....
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....w that Indra had been strangulated and murdered by the accused. It was thereafter that Ishwar Singh, PW11) went to the Police Station to report the incident and met ASI Hans Raj near Aasan Chowk, Narnaund who recorded his statement and after making endorsement, sent it to the Police Station for registration of the case. 28. Undoubtedly, it has come in the statement of PW-1 that the house depicted in Ext. P-1 i.e. the place of occurrence, was situated in the township of Narnaund and was at a distance of 150 metres, from the police station. This piece of evidence does not advance the case of the accused favourably. According to the prosecution, Indra was killed by the family of her in-laws. Most unfortunately, her husband, PW10, partly because of fear and partly out of greed for property, became a mere spectator to the crime. PW11, lodged the FIR and PW10 corroborated the version given in the FIR about the murder of his wife. He claimed that he was illegally confined by the accused Jitender and Sunil and therefore, after the murder, he was unable to approach the police station. In these circumstances, of course, the conduct of PW-10 and PW-11 is somewhat strange, but their statement....
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....mach of the deceased. 32. The body of the deceased was subjected to post mortem conducted by Dr. L.L. Bundela, PW-3, who, after describing the seven injuries on the body of the deceased, had stated, "the stomach contained semi-digested food small intestines contained chyme and the large intestines contained faecal matter. The uterous was non-gravid." 33. In his further examination-in-chief, PW-3 had clearly stated, "it is possible that the death of Smt. Indra might have been caused at 1.30 a.m. on 10.2.99". In cross-examination, he stated, "It takes 2 to 3 hours for the digested or undigested food to leave the stomach". 34. According to the accused, this causes a serious doubt in the very basis of the prosecution story. This argument appears to be of some significance at the first brush, but when examined in depth in light of the entire evidence, it clearly lacks merit. 35. Neither PW-10 nor PW-11 has stated as to the exact time at which Indra had her dinner. It is a matter of common knowledge that in the villages, ladies normally provide food to the guests and the other members of the family first and are last to have the food themselves. None of the witnesses have given the t....
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....ould crumble. It may be noticed that in that case, it had been established by definite and cogent evidence that the deceased had taken the meals before 8.00 a.m. and the death had occurred at 3.00 p.m. and the undigested food particles were found in the stomach of the deceased. This observation of the Court cannot be treated as a statement of law but is a finding recorded with reference to the facts of that case. 38. The entire basis for this submission is the statement of PW3, Dr. L.L. Bundela, who stated that the stomach of the deceased contained some semi-digested food. It is worthwhile to note that the statement of this very witness that the death of Indra could have taken place between 1.00 to 1.30 a.m. remained unchallenged. Furthermore, it cannot be stated as a rule of universal application that after a lapse of two to three hours stomach of every individual, without exception, would become empty. It would depend upon a number of other factors like the caloric content and character of the solid food. Further, addition of fats, triglycerides and carbohydrates such as glucose, fructose and xylose to a solid meal can delay its emptying from the stomach, presumably because of t....
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.... the fasting period under normal conditions. Other physical factors play a role in determining the gastric emptying of indigestible solid material... 39. Besides the above, with regard to the external Regulation of gastric emptying, it has been stated that in addition to being controlled by various characteristics of the ingested bolus within the stomach, there is extensive modulation of gastric emptying by external influences. Gastric motility and emptying is also subject to extensive modulation by the central nervous system. The nutritional properties of an ingested liquid modify the speed at which it exits the stomach. Because of this, carbohydrate, protein or fat containing liquids can be digested and absorbed completely prior to reaching the distal small intestine. Certain physical characteristics of the ingested meal may alter the function of the stomach to selectively retain or expel the large particles. If the viscosity of the meal is increased sufficiently, the ability of the stomach to discriminate between large and small particles is abolished and much larger particles may be delivered into the duodenum. 40. The above findings are based on medical studies and are wel....
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....may not be sufficient to establish as to what the last meal was and what article of food, if any, was taken by the deceased. So also, the 'sluggish chronometric sense of the countryside community of India is notorious' and even urban folk make mistakes about time, when there is no particular reason to observe and remember a minor event like taking of a morning meal. In such circumstances where semi-digested food was found in the stomach, the contention, that it must be inferred from it that the occurrence must have taken place after the deceased had taken his evening meal may not be accepted. 45. This Court in the case of Shivappa v. State of Karnataka [(1995) 2 SCC 76] stated the dictum that medical opinion is admissible in evidence like all other types of evidence and there is no hard-and-fast rule with regard to appreciation of medical evidence. It is not to be treated as sacrosanct in its absolute terms. Agreeing with the view expressed in Modi's book on Medical Jurisprudence and Toxicology, this Court recorded that so far as the food contents are concerned, they remain for long hours in the stomach and the duration thereof depends upon various other factors. Indis....
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....t at the place of occurrence. Furthermore, they also questioned the very presence of the eyewitness, PW11, on the fateful day at the scene of occurrence. The statement of the sole witness is not trustworthy, particularly when the said witness himself has not partially been believed by the trial Court. The mere fact that the accused were residents of a village at some distance would be inconsequential. As per the statement of the witnesses, both these accused were seen by them in the house of Ratti Ram where the deceased was murdered. We are also unable to accept the contention that presence of PW10 and PW11 at the place of occurrence was doubtful and the statements of these witnesses are not trustworthy. Reliance on behalf of the accused has been placed on the judgment of this Court in the case of Rupchand Chindu Kathewar v. State of Maharashtra [(2009) 17 SCC 37]. In that case the Court, as a matter of fact, found that the statement of PW2 was not qualitatively unimpeachable. Having disbelieved the sole witness, the Court had given benefit of doubt to the accused. However, the Court had found that the prosecution case was not even supported by medical evidence and the conduct of t....
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....ted by medical evidence and is also partially supported by the statement of PW10, the husband of the deceased. Thus, in our considered view, the statements of PW10 and PW11 cannot be said to be doubtful or which cannot be believed by the Court. Their presence at the place of occurrence was natural and what they have stated is not only plausible but completes the chain of events in the case of the prosecution. 51. The accused in the present appeal had also taken the plea of alibi in addition to the defence that they were living in a village far away from the place of occurrence. This plea of alibi was found to be without any substance by the Trial Court and was further concurrently found to be without any merit by the High Court also. In order to establish the plea of alibi these accused had examined various witnesses. Some documents had also been adduced to show that the accused Pawan Kumar and Sunil Kumar had gone to New Subzi Mandi near the booth of DW-1 and they had taken mushroom for sale and had paid the charges to the market committee, etc. Referring to all these documents, the trial court held that none of these documents reflected the presence of either of these accused at....