TaxTMI 
TaxTMI 
2023 (3) TMI 1436
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....ian Penal Code, 1860 (for short, 'the IPC') and sentencing them to suffer life imprisonment and a fine of Rs. 1000/- each with the stipulation that in default of payment of the fine they would undergo rigorous imprisonment for further six months. 2. It may not be out of place to state at this stage that in all four persons were put to trial including the two Appellants herein in the Court of the Additional Sessions Judge, Pune for the offence punishable Under Sections 302 and 323 read with Section 34 of the Indian Penal Code. The Appellants herein are original Accused Nos. 1 and 3. The original Accused No. 2 and 4 were acquitted by the Trial Court. CASE OF THE PROSECUTION 3. The case of the prosecution as unfolded in the evidence of the prosecution witnesses and also detailed in the first information report is that on the fateful day of the incident i.e., on 01.04.2001 at about 11.15 p.m., the first informant PW 1, namely, Asgar Shaikh (Ex. 7) was chit chatting with his friend Abbas Baig (deceased). At that time, while the Appellant No. 2 herein accompanied by few other individuals was passing by the side, he was accosted by the deceased Abbas. There was some verba....
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.... no plan and was proceeding to answer nature's call. At around 11.45 PM, four persons, namely, Balu Khalde, Ramesh Mohite, Raju Mohite and Santosh Khalde assembled and started talking with us. At that time, Balu khale told him "Bajula Haat". Abbas Baig told Balu Khalde that "Usse kya baat kar raha hai?" talk to me. At that time, I told them "Kaiko Lafda Kar Rahe Ho?" Balu Khalde took out a weapon like Koita which he had hidden in his waist and hit me on my head. Ramesh Mohite caught hold of Abbas Baig and Balu Khalde stabbed him with a small bladed sword. We started shouting. One Firoz Babumian Shaikh residing in the neighbourhood came out of his house and told Raju Mohite "What are you fighting about?" Santosh Khalde abused Firoz Babumian. When people started assembling at the place of the occurrence, all the four assailants ran away. Abbas Baig was seriously injured and he fell down. He had suffered injuries on his left paw, wrist, right hand and right shoulder. He was bleeding profusely. I picked up Abbas in an injured condition and took him nearby chokadi. At that point of time, one Nasir a rickshaw driver known to us also living in the same slum came over there. I requeste....
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....r common intention, voluntarily caused hurt to complainant Ajgar Ibrahim Shaikh, and thereby committed an offence punishable Under Section 323 of the Indian Penal Code simplicitor or Section 323 read with Section 34 of the Indian Penal Code, and within my cognizance. AND 3) That you Accused Nos. 1 to 4, on the aforesaid day, date, time and place and during the course of the same transaction, either individually or in furtherance of your common intention, voluntarily caused hurt to complainant Ajgar Ibrahim Shaikh, by means of sickle and sword, which if used as a weapon of offence, would likely to cause death of said complainant, and thereby committed an offence punishable Under Section 324 of the Indian Penal Code simplicitor or Section 324 read with Section 34 of the Indian Penal Code, and within my cognizance. AND 4) That you Accused Nos. 1 to 4, on the aforesaid day, date, time and place and during the course of the same transaction, either individually or in furtherance of your common intention, intentionally insulted and thereby gave protection to the complainant Ajgar Ibrahim Shaikh, intending or knowing it to be likely that such provocatio....
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....l appearing for the Appellants vehemently submitted that the High Court committed a serious error in dismissing the appeal filed by the two Appellants herein against the judgment and order of conviction passed by the Trial Court. According to the learned Counsel, the High Court failed to appreciate that no reliance could have been placed on the evidence of the so called eyewitnesses. According to the learned Counsel, the ocular version on record does not inspire any confidence and deserves to be discarded. 15. The learned Counsel further submitted that the very presence of the first informant PW 1 Asgar Shaikh is doubtful because although he claims to have suffered an injury on his head during the assault yet no medical treatment was taken by him and there is no medical certificate on record that he had suffered any injury on his head. In such circumstances, according to the learned Counsel, the entire first information report, at the instance of the PW 1 is unreliable. 16. The learned Counsel further submitted that the discovery of the weapons Under Section 27 of the Indian Evidence Act, 1872 (for short, 'the Act 1872') could also not have been relied upon as the pan....
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.... appeal, the same may be dismissed. ANALYSIS 24. Having heard the learned Counsel appearing for the parties and having gone through the materials on record, the only question that falls for our consideration is whether the High Court committed any error in passing the impugned judgment and order. APPRECIATION OF ORAL EVIDENCE 25. The appreciation of ocular evidence is a hard task. There is no fixed or straight-jacket formula for appreciation of the ocular evidence. The judicially evolved principles for appreciation of ocular evidence in a criminal case can be enumerated as under: I. While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the Court to scrutinize the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief. II. If....
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....r the time duration of an occurrence, usually, people make their estimates by guess work on the spur of the moment at the time of interrogation. And one cannot expect people to make very precise or reliable estimates in such matters. Again, it depends on the time-sense of individuals which varies from person to person. XI. Ordinarily a witness cannot be expected to recall accurately the sequence of events which take place in rapid succession or in a short time span. A witness is liable to get confused, or mixed up when interrogated later on. XII. A witness, though wholly truthful, is liable to be overawed by the court atmosphere and the piercing cross examination by counsel and out of nervousness mix up facts, get confused regarding sequence of events, or fill up details from imagination on the spur of the moment. The sub-conscious mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved though the witness is giving a truthful and honest account of the occurrence witnessed by him. XIII. A former statement though seemingly inconsistent with the evidence need not necessarily be sufficient to amount to contradi....
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....in cases where the plea of the Accused is a mere denial, the evidence of the prosecution witnesses has to be examined on its own merits, where the Accused raise a definite plea or put forward a positive case which is inconsistent with that of the prosecution, the nature of such plea or case and the probabilities in respect of it will also have to be taken into account while assessing the value of the prosecution evidence. 28. Keeping the aforesaid principles of law in mind, we looked into the oral evidence of all the three important witnesses i.e., PW 1 Asgar Shaikh (Exh. 7), PW 2 Firoz Babumiyan Shaikh (Exh. 9) and PW 3 Nasir Khan (Exh. 10). The oral evidence of all the three eyewitnesses is consistent and there is no good reason for us to disbelieve the ocular version as narrated by the three eyewitnesses. The Trial Court as well as the High Court looked into the oral evidence of all the three eyewitnesses referred to above closely and have recorded a concurrent finding that they are reliable witnesses. 29. The High Court in its impugned judgment observed in paras 9 and 10 as under: 9. First, it is argued on behalf of the Appellants the learned Counsel that the sub....
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....h of Abbas was due to multiple injuries though as opined by the Medical Officer, P.W. No. 7, the main injury which could have in the normal course caused death of Abbas, is injury No. 9 mentioned in the Post Mortem report. In other words, it must be said that all the injuries sustained by Abbas were the cause of his resultant death and that a role was attributed to the Accused Appellants using the respective weapons i.e. Article No. 16 sickle and Article No. 17 a sword. 30. In the exercise of the power Under Article 136 of the Constitution of India, this Court, normally would not interfere with the concurrent findings of fact, except in very special circumstances or in the case of a gross error committed by the courts below. Only where the High Court ignores or overlooks "crying circumstances" and "proven facts" or "violates and misapplies well established principles of criminal jurisprudence" or refuses to give benefit of doubt to the Accused persons, etc., would this Court step in to correct the legally erroneous decisions. We are also not to interfere only for the reason that we may arrive at a different conclusion, unless, of course, there are compelling circumstances to tin....
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....Cri. LJ 4076, a three Judge Bench of this Court was dealing with an appeal against the order passed by the Designated Court, Guwahati, in TADA Sessions case wherein the Appellant was convicted Under Section 365 of the Indian Penal Code read with Section 3(1) and 3(5) of the Terrorists and Disruptive Activities (Prevention) Act, 1987. 36. In the aforesaid case, this Court, while considering the evidence on record took note of a suggestion which was put to one of the witnesses and considering the reply given by the witness to the suggestion put by the Accused, arrived at the conclusion that the presence of the Accused was admitted. We quote with profit the following observations made by this Court in paragraphs 15, 16 and 17 as under: 15. The witness further stated that during the assault, the assailant Accused him of giving information to the army about the United Liberation Front of Assam (ULFA). He further stated that on the third night he was carried away blind-folded on a bicycle to a different place and when his eyes were unfolded, he could see his younger brother-Kumud Kakati (P.W.-2) and his wife Smt. Prema Kakati (P.W.-3). The place was Duliapather, which is abou....
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....he above suggestion at least proves the presence of Accused Dharam Vir, on the spot at the time of occurrence. 38. Thus, from the above it is evident that the suggestion made by the defence counsel to a witness in the cross-examination if found to be incriminating in nature in any manner would definitely bind the Accused and the Accused cannot get away on the plea that his counsel had no implied authority to make suggestions in the nature of admissions against his client. 39. Any concession or admission of a fact by a defence counsel would definitely be binding on his client, except the concession on the point of law. As a legal proposition we cannot agree with the submission canvassed on behalf of the Appellants that an answer by a witness to a suggestion made by the defence counsel in the cross-examination does not deserve any value or utility if it incriminates the Accused in any manner. 40. It is a cardinal principle of criminal jurisprudence that the initial burden to establish the case against the Accused beyond reasonable doubt rests on the prosecution. It is also an elementary principle of law that the prosecution has to prove its case on its own legs and cannot de....
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....f the Accused. 43. The main object of cross-examination is to find out the truth on record and to help the Court in knowing the truth of the case. It is a matter of common experience that many a times the defence lawyers themselves get the discrepancies clarified arising during the cross-examination in one paragraph and getting themselves contradicted in the other paragraph. The line of cross-examination is always on the basis of the defence which the counsel would keep in mind to defend the Accused. At this stage, we may quote with profit the observations made by a Division Bench of the Madhya Pradesh High Court in the case of Govind S/o Soneram v. State of M.P. reported in 2005 Cri.LJ 1244. The Bench observed in paragraph 27 as under: 27. The main object of cross-examination is to find out the truth and detection of falsehood in human testimony. It is designed either to destroy or weaken the force of evidence a witness has already given in person or elicit something in favour of the party which he has not stated or to discredit him by showing from his past history and present demeanour that he is unworthy of credit. It should be remembered that cross-examination is a ....
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....d to take more than one defence. In such type of cases a suggestion thrown by the defence counsel to a prosecution witness would not amount to an admission on the part of the Accused. At the same time, if the defence in the cross examination of the prosecutrix, with a view to support their alternative case of consent procure answers to the questions in the form of suggestions implicating the Accused for the offence of rape then such suggestions would definitely lend assurance to the prosecution case and the Court would be well justified in considering the same. We may give one more example of a case where the Accused would plead right of a private defence. Such a defence is always available to the Accused but although if such a defence is not taken specifically during the course of trial yet if the evidence on record suggests that the Accused had inflicted injuries on the deceased in exercise of his right of private defence then the Court can definitely take into consideration such defence in determining the guilt of the Accused. However, if a specific question is put to a witness by way of a suggestion indicative of exercise of right of private defence then the Court would well be....
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....ght to be admitted, therefore, as forming part of res gestae, must have been made contemporaneously with the acts or immediately thereafter. The aforesaid Rule as it is stated in Wigmore's Evidence Act reads thus: Under the present exception [to hearsay] an utterance is by hypothesis, offered as an assertion to evidence the fact asserted (for example that a car-brake was set or not set), and the only condition is that it shall have been made spontaneously, i.e. as the natural effusion of a state of excitement. Now this state of excitement may well continue to exist after the exciting fact has ended. The declaration, therefore, may be admissible even though subsequent to the occurrence, provided, it is near enough in time to allow the assumption that the exciting influence continued. 7. Sarkar on Evidence (Fifteenth Edition) summaries the law relating to applicability of Section 6 of the Act 1872 thus: 1. The declarations (oral or written) must relate to the act which is in issue or relevant thereto; they are not admissible merely because they accompany an act. Moreover the declarations must relate to and explain the fact they accompany, and not indepe....
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....: 1) Incised injury-left hand 3 c.m. distal to wrist transverse oblique and out into total thickness, metacarpus shows clean cut fractures; 2) Incised injury-left wrist medically transverse oblique 4x1 c.m. underlying ulna shows clean cut fracture involving its total thickness; 3) Linear abrasion-left wrist dorsum 2 c.m. transverse; 4) Incised jury over fight forearm flex or aspect middle third transvers; 3.5 c.m. gaping-tailing medically skin deep; 5) Incised injury over right hand dorsum-transverse oblique mid proximal region, 2.5 c.m. gaping skin deep; 6) Linear abrasion right and infraclavicular region 4 c.m. oblique. 7) Linear Abrasion-left mid scapular region vertical oblique-5c.m. 8) Abrasion right shoulder back, 0.5 x 4 c.m. oblique. 9) Stab injury, vertical situated adjacent and below right mid clavicle, measuring 7.5 c.m. x 0.8 to 2.5 c.m. Lower and of injury with curved margin, upper and angle clean cut, margins clean cut. Injury opening in right thoracic cavity. Corresponding internal injuries:- Chest muscles and pleura shows corresponding injuries. Right 2nd rib partially cut clea....
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....urse of nature to cause death,-- Fourthly.--If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid. Illustrations (a) A shoots Z with the intention of killing him. Z dies in consequence. A commits murder. (b) A, knowing that Z is labouring under such a disease that a blow is likely to cause his death, strikes him with the intention of causing bodily injury. Z dies in consequence of the blow. A is guilty of murder, although the blow might not have been sufficient in the ordinary course of nature to cause the death of a person in a sound state of health. But if A, not knowing that Z is labouring under any disease, gives him such a blow as would not in the ordinary course of nature kill a person in a sound state of health, here A, although he may intend to cause bodily injury, is not guilty of murder, if he did not intend to cause death, or such bodily injury as in the ordinary course of nature would cause death. (c) A i....
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....s perjured himself. A is moved to sudden passion by these words, and kills Z. This is murder. (e) A attempts to pull Z's nose. Z, in the exercise of the right of private defence, lays hold of A to prevent him from doing so. A is moved to sudden and violent passion in consequence, and kills Z. This is murder, in as much as the provocation was giving by a thing done in the exercise of the right of private defence. (f) Z strikes B. B is by this provocation excited to violent rage. A, a bystander, intending to take advantage of B's rage, and to cause him to kill Z, puts a knife into B's hand for that purpose. B kills Z with the knife. Here B may have committed only culpable homicide, but A is guilty of murder. Exception 2.--Culpable homicide is not murder if the offender, in the exercise in good faith of the right of private defence of person or property, exceeds the power given to him by law and causes the death of the person against whom he is exercising such right of defence without premeditation, and without any intention of doing more harm than is necessary for the purpose of such defence. Illustration Z attempts to horsewhi....
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....ble homicide, which is defined in Section 300 as "murder". The second may be termed as "culpable homicide of the second degree". This is punishable under the first part of Section 304. Then, there is "culpable homicide of the third degree". This is the lowest type of culpable homicide and the punishment provided for it is, also, the lowest among the punishments provided for the three grades. Culpable homicide of this degree is punishable under the second part of Section 304. 13. The academic distinction between "murder" and "culpable homicide not amounting to murder" has vexed the courts for more than a century. The confusion is caused, if courts losing sight of the true scope and meaning of the terms used by the legislature in these sections, allow themselves to be drawn into minutiae abstractions. The safest way of approach to the interpretation and application of these provisions seems to be to keep in focus the keywords used in the various clauses of Sections 299 and 300. The following comparative table will be helpful in appreciating the points of distinction between the two offences. Section 299 Section 300 A person commits culpable homicide if the act by wh....
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....re of the liver, or spleen or the failure of the heart, as the case may be. If the assailant had no such knowledge about the disease or special frailty of the victim, nor an intention to cause death or bodily injury sufficient in the ordinary course of nature to cause death, the offence will not be murder, even if the injury which caused the death, was intentionally given. 16. In Clause (3) of Section 300, instead of the words "likely to cause death" occurring in the corresponding Clause (b) of Section 299, the words "sufficient in the ordinary course of nature" have been used. Obviously, the distinction lies between a bodily injury likely to cause death and a bodily injury sufficient in the ordinary course of nature to cause death. The distinction is fine but real, and, if overlooked, may result in miscarriage of justice. The difference between Clause (b) of Section 299 and Clause (3) of Section 300 is one of the degree of probability of death resulting from the intended bodily injury. To put it more broadly, it is the degree of probability of death which determines whether a culpable homicide is of the gravest, medium or the lowest degree. The word "likely" in Clause (b)....
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....use (4) of Section 300 would be applicable where the knowledge of the offender as to the probability of death of a person or persons in general -- as distinguished from a particular person or persons -- being caused from his imminently dangerous act, approximates to a practical certainty. Such knowledge on the part of the offender must be of the highest degree of probability, the act having been committed by the offender without any excuse for incurring the risk of causing death or such injury as aforesaid. 21. From the above conspectus, it emerges that whenever a court is confronted with the question whether the offence is "murder" or "culpable homicide not amounting to murder", on the facts of a case, it will be convenient for it to approach the problem in three stages. The question to be considered at the first stage would be, whether the Accused has done an act by doing which he has caused the death of another. Proof of such causal connection between the act of the Accused and the death, leads to the second stage for considering whether that act of the Accused amounts to "culpable homicide" as defined in Section 299. If the answer to this question is prima facie found ....
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....ight" implies mutual provocation and blows on each side. The homicide committed is then clearly not traceable to unilateral provocation, nor in such cases could the whole blame be placed on one side. For if it were so, the exception more appropriately applicable would be Exception 1. There is no previous deliberation or determination to fight. A fight suddenly takes place, for which both parties are more or less to be blamed. It may be that one of them starts it, but if the other had not aggravated it by his own conduct it would not have taken the serious turn it did. There is then mutual provocation and aggravation, and it is difficult to apportion the share of blame which attaches to each fighter. The help of Exception 4 can be invoked if death is caused: (a) without premeditation; (b) in a sudden fight; (c) without the offender having taken undue advantage or acted in a cruel or unusual manner; and (d) the fight must have been with the person killed. To bring a case within Exception 4, all the ingredients mentioned in it must be found. It is to be noted that the "fight" occurring in Exception 4 to Section 300 Indian Penal Code is not defined in Indian Penal Code. It takes two to....