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P.C filed by t he applicant.The applicant has been arrested in connection with Crime No.384/2020 registered at Police Station Bhikangaon, District Khargone for the offence punishable under Sections 306 and 498- A/34 of IPC.As per prosecution story on 24.06.2020 deceased Laxmi Bai had committed suicide by consuming some poisonous substance.On the basis of the information Merg No.53/2020 was registered at Police Station Bhikangaon.During investigation statement of relatives were recorded and it was revealed that deceased was married to co-accused Praveen four years ago and out of the wedlock, two children were born.It is alleged that the applicant was having an affair with co-accused Praveen and they used to harass the deceased due to which she committed suicide.In such circumstances, prayer is made to enlarge the applicant on bail.Per contra, learned Panel Lawyer opposes the bail application and prays for its rejection.Case diary perused.

['Section 107 in The Indian Penal Code']

Allowed md.CRM No. 5914 of 2018 In Re:- An application for anticipatory bail under section 438 of the Code of Criminal Procedure filed on 8.8.2018 in connection with Tehatta Police Station Case No.246/2018 dated 11.07.2018 under Sections 448/195A/34 of the Indian Penal Code.And In Re:-Nur Islam Sk.and others ... Petitioners Mr. Amanul Islam, Advocate .. for the petitioners Ms. Sukanya Bhattacharya, Advocate Ms. Sujata Das, Advocate ..for the State The petitioners seek anticipatory bail in connection with Tehatta Police Station Case No.246/2018 dated 11.07.2018 under Sections 448/195A/34 of the Indian Penal Code.The petitioners say that upon the petitioners obtaining bail in connection with another complaint, a false allegation has been levelled that the petitioners attempted to intimidate some witnesses of the victims.The petitioners say that only vague allegations have been made without any particulars.The petition for anticipatory bail is allowed subject to the conditions as indicated above.A certified copy of this order be immediately made available to the petitioners subject to compliance with all requisite formalities.(Moushumi Bhattacharya, J.) (Sanjib Banerjee, J. ) 2

['Section 448 in The Indian Penal Code', 'Section 34 in The Indian Penal Code', 'Section 438 in The Indian Penal Code', 'Section 156 in The Indian Penal Code']

Shri Shishir Saxena, Advocate for the complainant.This Criminal appeal assails the judgment dated 03.05.2016 passed in S.T. No. 73/2010 passed by Additional Sessions Judge, Sironj, Distt.Vidisha whereby the appellants have been convicted u/S.307/34 of IPC and sentenced to suffer 7 years R.I. with a fine of Rs. 5,000/- and convicted u/S 323/34 of IPC and sentenced to suffer 1 year R.I. with fine of Rs. 1,000/- with default stipulation.I.A. No. 4187/16, an application for suspension of sentence filed on behalf of both the appellant is taken up and considered.It is seen from the record that the appellant no.1 Randheer Singh appears to be the main accused who had given pharsa blow on the head of the injured Samandar Singh.By stroke of luck, the injured took evasive action which led to the said blow causing injury on the shoulder instead of head.Fracture was discovered on the shoulder as per the MLC report and therefore the blow was strong enough to break the bone.Thus, appellant no.1 Randheer Singh is not entitled to suspension of sentence.So far as appellant no.2 Ramnath is concerned, it is found by the trial Court that he has given pharsa blow which has led to injury in the hand of injured Yashwant.No grievous injury was found and the appellant no.2 has been implicated with the aid of Section 34 of IPC.Appellant no. 2 has suffered 2 months of imprisonment including the pre conviction period.A.466/2016 has been deposited, on the appellant no.2 furnishing bail bond of Rs. 1,00,000/- (RUPEES ONE LAC ONLY) with two solvent sureties of Rs. 50,000/- to the satisfaction of trial Court Sironj , for his appearance before concerned Court first on 27th of August, 2016 and all other subsequent dates as may be fixed by the concerned trial Court in this regard.In case, the appellant is found absent on any date fixed by the concerned trial Court then the said Court shall be free to issue and execute warrant of arrest for securing his presence without first referring the matter to this Court, provided the Registry of this Court is kept informed.So far as I.A. No. 5162/16, an application for compromise is concerned,it is seen from the record that the entire assault executed by both the appellants was unprovoked.An altercation took place initially between the rival parties , but could not flared up at that point of time and both the parties went home.Later, in the evening, appellants came armed with deadly weapons and assaulted the injured.The offence of attempt to murder where deadly weapons were used in unprovoked manner renders the offence to be an offence against the society and not against an individual and therefore no case for compromise is made out.Accordingly, I.A. No. 5162/16 and I.A. No. 5163/16 stands rejected.

['Section 34 in The Indian Penal Code']

Shri Amit Pandey, Government Advocate for respondent no.5-State.Heard on admission.This appeal has been preferred under Section 372 of the Code of Criminal Procedure (hereinafter referred to as "the Code") being aggrieved with the judgment dated 10/5/11 passed by III Additional Sessions Judge, Bhopal in Sessions Trial No.296/10, whereby respondent nos. 1 and 2 have been acquitted of the offences punishable under Sections 419, 420 and 467 of the Indian Penal Code ("IPC" for short), and respondent nos. 3 and 4 have been acquitted of the offence under Section 420 of the IPC.Prosecution case, in brief, is that on 17/3/09, respondent no.1 Dhanveer Singh, dishonestly induced complainant Deewan Singh Rajput to deliver his Indo Farm Tractor on rental of Rs.12000/- per month to respondent no.2 Israel personating him to be Mohan and respondent no.2 Israel, obtained the said Tractor and they handed over the same to respondent nos.3 and 4 viz. Mausam and Aslam, who in turn sold it to one Haji Ayub.Having regard to the arguments advanced by the parties, we have gone through the impugned judgment and evidence on record.The Tractor in dispute bearing Registration No. MP-04- LA-9663, Engine No.241064C and Chasis No. E-M-S-35001094EP, was in the ownership of complainant Diwan Singh.Diwan Singh had deposed that the Tractor was given on rent to one Mohan before his wife, who knew him, but his wife has not been examined to corroborate the allegation of impersonation.Signatures of respondent no.2 as Mohan Singh on rent note (Ex.P/5, were not proved by the prosecution.Registration number of Tractor, Engine and Chasis Numbers, as mentioned in the rent note /agreement, were altogether different from those of tractor in dispute.Vishal Singh (PW3) deposed in his evidence that the factum of impersonation had come into the knowledge of complainant within a month from the date of incident, but even then First Information Report, was not lodged and the same was lodged after 7 to 8 months without any explanation for delay.It was also admitted by the complainant that he was not able to regularly pay the installments of loan given by the Bank for purchasing the said Tractor and was under an impression that the same was seized by the Bank and had also contacted the Bank for verifying the same.On the aforesaid premises, the trial Court discarded the case of the prosecution.The appeal, being devoid of merit and substance, stands dismissed.

['Section 420 in The Indian Penal Code', 'Section 467 in The Indian Penal Code', 'Section 419 in The Indian Penal Code']

CRM 5066 of 2017 Court No.8 Item No. 144 (ALLOWED) In Re:- An application for bail under section 439 of the Code of Criminal Procedure filed on 30.05.2017 in connection with New snandy & akdas Barrackpore P.S. Case No. 40 of 2017 dated 05.03.2017 (Sessions Special POCSO Act Case No. 58 of 2017) for committing offence punishable under Sections 354B/376/511 of the Indian Penal Code and Sections 8/12 of POCSO Act.Item No. 144And In the matter of : Surojit Mahanta @ Buro & Ors.......Petitioners Mr. Debasis Kar, Advocate ....For the Petitioner Mrs. Manasi Ray, Advocate .......For the State The petitioners are seeking bail in connection with a case relating to offences punishable under Sections 354B/376/511 of the Indian Penal Code and Sections 8/12 of POCSO Act.Learned Counsel for the State produced the case diary and opposed the prayer for bail.Joy Majumdar, be released on bail upon furnishing a bond of Rs.10,000/- (Rupees Ten thousand only) each, with two sureties of like amount each, one of whom must be local, to the satisfaction of the learned Special Court under POCSO Act, Barrackpore, North 24-Parganas, subject to condition that the said petitioners shall appear before the trial court on every day of hearing and in the event they fail to appear before the trial court as aforesaid, the trial court shall be at liberty to cancel 2 their order of bail automatically without reference to this court and they shall not intimidate witnesses and/or tamper with evidence in any manner whatsoever.The application for bail, thus, stands allowed.(Shivakant Prasad, J) (Joymalya Bagchi, J)

['Section 511 in The Indian Penal Code', 'Section 376 in The Indian Penal Code']

Heard on this first application filed by the applicant under Section 439 of Code of Criminal Procedure for grant of bail.The applicant is in jail since 08/11/2019 in connection with Crime No.798/2019, registered at Police Station-Chola Mandir, District- Bhopal for the offence under Sections 342, 376(2)(n), 376(2)(1) and 506 of the Indian Penal Code.363, 366, 376(2)(n) of IPC The case of the prosecution, in short, is that prosecutrix studied in Class X. On 21.10.2019 at about 2:00 p.m. when she was alone in her house, the applicant came there and caught hold of her hand and took her at his house and committed rape upon her.On 07.11.2019 the prosecutrix narrated the whole story to her mother.The prosecutrix is a mentally retarded and she is suffering from 90% disability.Learned senior counsel for the applicant submits that the applicant has been falsely implicated in the case.The applicant and and his family members lived adjacent to the house of the prosecutrix and they had inimical relations and quarrels on various occasions therefore the family of the prosecutrix had enmity against the applicant and his family.Therefore, parents of the prosecutrix lodged a false report and on that basis the applicant has been implicated in the case.Learned senior counsel also pointed out so many discrepancies in the investigation.Therefore, it has been prayed to enlarge the applicant on bail.2 MCRC-53219-2019 On the other hand, learned Panel Lawyer for the respondent/State has opposed the bail application and submits that as per the document available on record the prosecutrix is suffering from 90% severe profound mental retardation and there are strong evidence available against the applicant which leads to dismissal of the application.Having heard learned counsel for the parties.On perusal of the the statements of the prosecutrix recorded under Sections 161 and 164 of Cr.P.C. in which she categorically stated about the act of the applicant and that the prosecutrix is suffering from 90% disability, this Court does not find it to enlarge the applicant on bail.Consequently, this first application for bail under Section 439 of the Code of Criminal Procedure filed on behalf of applicant BHAGWAT S INGH RAGHUVANS HI, is dismissed.(VISHNU PRATAP SINGH CHAUHAN) JUDGE b Digitally signed by BIJU Date: 2020.06.17 16:46:46 +05'30'

['Section 376(2) in The Indian Penal Code', 'Section 506 in The Indian Penal Code', 'Section 342 in The Indian Penal Code']

This revision is directed against the judgment and order dated 6.12.2019 passed by Special Judge, POCSO Act, Allahabad dismissing Criminal Appeal No.93 of 2019 (Ramesh Pal vs State of UP) filed under Section 101 of the Juvenile Justice (Care and Protection of Children) Act, 2015 (for short ''the Act') and affirming the order 16.7.2019 passed by Juvenile Justice Board, Prayagraj refusing the bail plea to the revisionist in Case No.42 of 2019 arising out of Case Crime No.0825 of 2018 under Section 363, 366, 376 IPC, Section 3 /4 POCSO Act and Section 3(2)(v) SC/ST Act, Police station Jhunsi District Prayagraj.Heard Sri Kunjesh Kumar Dubey, learned counsel for the revisionist as well as learned A.G.A. for the State and perused the record.The prosecution case, as per the version of the FIR, is that on 10.11.2018 when the daughter of the informant namely Km.Arti aged about 14 years went to the shop, she was enticed away by the revisionist.It is submitted by the learned counsel for the revisionist that the revisionist has been falsely implicated in the present case.It is further submitted that in the statement under Section 161 Cr.P.C. the victim has clearly stated that the revisionist established relations with her with her consent and she was in love with the revisionist and wanted to marry with him.However, subsequently under the influence of her parents she has changed her version in her statement recorded under Section 164 CrPC making allegation of rape against the revisionist.From the perusal of the statement of the victim under Section 161 CrPC it appears that the victim is a consenting party.As per medical report, age of the victim has been ascertained between 16 to 18 years and and she has refused to get herself medically examined.Learned counsel for the revisionist further submits that the revisionist is juvenile and there is no apprehension of reasoned ground for believing that the release of the revisionist is likely to bring him in association with any known criminals or expose him to mental, physical or psychological danger or his release would defeat the ends of justice.He further submits that except this the revisionist has no previous criminal history.The father of the revisionist is giving his undertaking that after release of the revisionist on bail, he will keep him under his custody and look after him properly.Further, the revisionist undertakes that he will not tamper the evidence and he will always cooperate the trial proceedings.There was no report regarding any previous antecedents of family or background of the revisionist.There is no chance of revisionist's re-indulgence to bring him into association with known criminals.Learned counsel for the revisionist further submits that it is not in dispute that the revisionist is a juvenile as he already been declared juvenile by Juvenile Justice Board, Prayagraj.The revisionist was a juvenile aged 14 years, 2 months and 18 days on the date of occurrence.He was, thus, clearly below 15 years of age.Learned counsel for the revisionist further submits that thereafter the revisionist applied for bail before the Juvenile Justice Board, Prayagraj upon which a report from the District Probation Officer was called for.Hence the present criminal revision has been filed before this Hon'ble Court mainly on the following amongst other grounds:(i) That the bail application of the revisionist was rejected by the court below in a very cursory and arbitrary manner.(iv) That the impugned judgment and orders passed by the learned courts below are apparently illegal, contrary to law and based on erroneous assumption of facts and law.(v) That there was absolutely no material on record to hold that the release of the Juvenile would likely to bring him into association with any known criminal or expose him to moral, physical or psychological danger or his release would defeat the ends of justice, yet the courts below have illegally, arbitrary and on surmises refused the bail of juvenile.(vi) That the courts have erred in law in not considering the true import of Section 12 of the Act, 2015 and thus, the impugned orders passed by the courts below suffer from manifest error of law apparent on the face of record.(vii) That the courts below have acted quite illegally and with material irregularity in not properly considering the case of juvenile in proper and correct perspective which makes the impugned orders passed by the courts below non est and bad in law.(viii) That bare perusal of the impugned orders demonstrate that the same have been passed on flimsy grounds which have occasioned gross miscarriage of justice.Several other submissions in order to demonstrate the falsity of the allegations made against the revisionist have also been placed forth before the Court.In the circumstances, we direct that the bail be granted to the appellant on conditions as may be imposed by the District and Sessions Judge, Faridabad."The appellants have been convicted under Section 302/149, Indian Penal Code by the learned Sessions Judge and have been sentenced to imprisonment for life.Against the said conviction and sentence their appeal to the High Court is pending.Before the High Court application for suspension of sentence and bail was filed but the High Court rejected that prayer indicating therein that the applicants can renew their prayer for bail after one year.After the expiry of one year the second application was filed but the same has been rejected by the impugned order.There is no possibility of early hearing of the appeal in the High Court.In the aforesaid circumstances the applicants be released on bail to the satisfaction of the learned Chief Judicial Magistrate, Sehore.The appeal is disposed of accordingly.", this Court is of the view that the present criminal revision may be allowed and the revisionist may be released on bail.In the result, this revision succeeds and is allowed.The impugned judgment and order dated 6.12.2019 passed by Special Judge, POCSO Act, Allahabad in Criminal Appeal No.93 of 2019 (Ramesh Pal vs State of UP) and the order 16.7.2019 passed by Juvenile Justice Board, Prayagraj refusing the bail plea to the revisionist in Case No.42 of 2019 arising out of Case Crime No.0825 of 2018 under Section 363, 366, 376 IPC, Section 3 /4 POCSO Act and Section 3(2)(v) SC/ST Act, Police station Jhunsi District Prayagraj, are hereby set aside and reversed.The bail application of the revisionist stands allowed.Let the revisionist, Ramesh Pal through his natural guardian Ramraj Pal be released on bail in Case Crime No.0825 of 2018 under Section 363, 366, 376 IPC, Section 3 /4 POCSO Act and Section 3(2)(v) SC/ST Act, Police station Jhunsi District Prayagraj upon his natural guardian furnishing a personal bond with two solvent sureties of his relatives each in the like amount to the satisfaction of the Juvenile Justice Board, Prayagraj subject to the following conditions:(i) That the natural guardian of the revisionist will furnish an undertaking that upon release on bail the juvenile will not be permitted to come into contact or association with any known criminal or allowed to be exposed to any moral, physical or psychological danger and further that the natural guardian will ensure that the juvenile will not repeat the offence.(ii) The revisionist and his natural guardian will report to the District Probation Officer on the first Wednesday of every calendar month commencing with the first Wednesday of December 2020 and if during any calendar month the first Wednesday falls on a holiday, then on the next following working day.

['Section 363 in The Indian Penal Code', 'Section 376 in The Indian Penal Code', 'Section 366 in The Indian Penal Code']

The petitioner is figuring as the 9th accused in PRC No.23 of 2011 onthe file of the learned Judicial Magistrate No.II, Nagercoil.The second respondent herein Mrs.Latha who is the sister in lawof the deceased Peruvilai Mohan is the defacto complainant.The firstrespondent took up investigation and filed final report against as many as 10accused.The petitioner herein is figuring as the 9th accused.As per thefinal report, the petitioner has been charged with the offences underSections 109 and 302, 120 B r/w 34 of IPC.As many as 28 List Witnesses are there.Their statements recorded under Sections 161 of Cr.PC have also beenenclosed in the typed set of papers.The final report was taken on file bythe learned Judicial Magistrate No.II, Nagercoil and the case is stillpending at the stage of committal proceedings.It is stated that the 10thaccused is still absconding and that therefore the committal proceedingscould not be completed.Contending that there is no legally admissibleevidence against him, the 9th accused has filed this Criminal OriginalPetition to quash the impugned proceedings insofar as he is concerned.2.Heard the learned counsel for the petitioner and the learnedGovernment Advocate (Crl.Side) for the prosecution.3.The learned counsel for the petitioner submitted that excepting theconfession of the co-accused namely A1 to A3, there is absolutely no othermaterial available against him.This Court posed a direct question to thelearned Government Advocate (Crl.Side) to confirm the veracity of thesubmission made by the petitioner's counsel.In response thereto, theprosecution has filed a written submission.The written submission sets outthe antecedent facts that led to the registration of Crime No.21 of 2010 onthe file of the Vadaseri Police Station.4.It is stated that there was a dispute between the deceased PeruvilaiMohan and the 10th accused with regard to taking action for collecting feesfor car parking at Kanyakumari.Since the 10th accused apprehended that thedeceased was planning to murder him, to preempt him, the 10th accused took the lead and murdered him.It is further stated that the petitioner hereinand the 10th accused are friends and that it was the petitioner whocontacted the first accused and arranged a meeting and also provided all thefacilities for committing the murder.5.The learned Government Advocate (Crl.Side) for the prosecution placedreliance on the statement made by the defacto complainant which has been enclosed at Page No.8 of the typed set of the papers.Accordingly, theimpugned prosecution in in PRC No.23 of 2011 on the file of the learnedJudicial Magistrate No.II, Nagercoil is quashed insofar as the petitioner isconcerned.It is further directed that the police shall secure theabsconding accused soon so that the committal proceedings get concluded early.The Superintendent of Police, Kanyakumari District shall monitor thisaspect.10.This Criminal Original Petition is allowed as indicated above.Consequently, connected miscellaneous petitions are closed.1.The Inspector of Police, Vadaseri Police Station, Kanyakumari District.2.The Superintendent of Police, Kanyakumari District.3.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.

['Section 307 in The Indian Penal Code', 'Section 324 in The Indian Penal Code', 'Section 109 in The Indian Penal Code', 'Section 341 in The Indian Penal Code']

The case of the prosecution briefly runs as under:P.Ws.1 and 3 are spouses.P.Ws.2 and 4 are their sons.They are residing in Karunguzhi in Cuddalore district.On 25.3.2006, P.Ws.1 and 3 have left Puducherry.There was house-breaking.25 sovereigns of gold jewels and cash Rs.1,25,000/- were missing from the bureau.Inspite of search, they cannot be found.On 29.3.2007, at Vadalur Police station, P.W.1 gave Ex.P1 complaint to P.W.10 S.I. of Police.He registered this case (Ex.P10 F.I.R.).P.W.11 Inspector took up his investigation.He visited the scene house.Prepared Ex.P2 Observation Mahazar in the presence of P.W.6 and another person.Drew Ex.P11 Rough sketch.At a place, near Vadalur, P.W.1 seized gold chain from A-1 based on his confessional statement Ex.It was witnessed to by P.W.7 and one Rajendran.A-1 and A-2 in C.C.No.85 of 2006 on the file of the learned Judicial Magistrate No.III, Cudddalore are the revision petitioners.They were tried for the offences under Sections 457 and 380 I.P.C. before the said Court.To substantiate the charges, prosecution examined P.Ws.1 to 11, marked Ex.Relying on the said evidence, the trial Court convicted and sentenced them as under:(i) 457 I.P.C One year R.I. and fine Rs.1000/- each(ii) 380 I.P.C.One year R.I.and fine Rs.1000/- eachBoth sentences were directed to run concurrently.P.W.11 also recorded Ex.P7 confessional statement from A-2 in the presence of P.Ws.8 and 9 and recovered gold jewel under Mahazar in the presence of said witnesses.A-1 and A-2 were produced before the Court.Case properties were also produced before the Court.The trial Court solely relying on Sec.27 Evidence Act recoveries, convicted and sentenced them.Aggrieved, A-1 and A-2 preferred an appeal in C.A.No.73 of 2008 before the learned Additional Sessions Judge (Fast Track Court No.2), Cuddalore.8 The learned Appellate Judge confirmed their conviction and sentence and dismissed the appeal.In the circumstances, they have directed this revision.The learned counsel for the revision petitioners contended that the available evidence as against A-1 and A-2 is Section 27 Evidence Act recovery.It is a make-believe affair.No prudent man will believe this artificial recovery.There is inconsistencies in the evidence of the prosecution witnesses.Further, the evidence of recovery witnesses would show that they have not actually seen the recoveries.Based on such evidence, a conviction cannot be sustained.In this connection, the learned counsel for the revision petitioners cited Vijayakumar @ Kutty Vs.State through Inspector of Police, Kovilpatti East Police Station, Thoothukudi Dist.(2012(1) MWN (Cr.) 463 (DB) and Chinna Pillai & another Vs.State through the Inspector of Police, Krishnagiri (MANU/TN/1068/2012).On the other hand, the learned Govt. Advocate (Crl.side) submitted that in this case the recovery evidence is clinching.The case properties were recovered based on the confessional statement of the accused.Recovery witnesses P.Ws.7 and 9 have clearly stated about recording of the confession and recovery of the gold items.This evidence is sufficient to convict the accused.In the circumstances, the trial Court as well as the Appellate Court have rightly convicted and punished them.I have anxiously considered the rival submissions, perused the impugned judgments, entire materials on record and also the decisions cited at the bar.Now, the question is whether the finding of guilty recorded by both the Courts below suffers from legality and propriety.This case is solely based on Sec.27 Evidence Act recovery.The recoveries were stated to have been effected by P.W.11 Investigation officer.M.Os.1 and 2 gold chain belong to P.W.1/defacto complainant who identified them as of his own.The question arose whether both Courts were right in recording finding of guilty solely based on the evidence of P.Ws.7, 9 and 11 and Ex.With respect to recovery from A-1, P.W.7 has been examined.The recoveries stated to have taken place nearly 6 months after the occurrence.In his chief examination, P.W.7 stated that at about 9.30 a.m., near tea stall, in Vadalur, A-1 was having 5-1/2 sovereigns of gold chain M.O.2 in his hand and some policemen were around him.A-1 is stated to be a robberer.Whether he would carry the stolen item/s openly is a million dollar question.No prudent man will believe this.Further, in his cross examination, P.W.7 stated that the police had obtained his signatures in some papers.It indicatesthat P.W.7 has not witnessed the recovery.The same is to be viewed along with the subsequent recovery stated to have been effected based on the confessional statement of A-1 from one Nataraj's land in Karunguzhi.With respect to the recovery from A-2, P.W.9 has been examined.P.W.9 says that at about 9.45 a.m. when he came out of Anandha Bhavan hotel in Vadalur, A-2 was having 2 sovereigns of gold chain in his hand and policemen were also there.He too did not directly witnessed the actual recovery of jewel.The other witness P.W.8 turned hostile.Further, P.W.9 flately stated that he did not know anything about the jewel.This evidence has also been recorded by the trial Court.From Exhibit P-4 confessional statement of the accused, the learned Principal Sessions Judge,Tuticorin, recorded that It means, if he is taken, from the concealed place, he will produce the bill-hook, which was used to kill Madasamy.Evidence recorded by the learned Principal Sessions Judge from the recovery witness P.W.10 Velusamy, V.A.O is also on similar line.The Trial Court had admitted in evidence the culpatory part of the confessional statement of the accused also.It is the duty of the Court to dissect the evidence regarding the confession and to; divide the sentence into its component parts and only admit that part, which led to the discovery of the particularfact, viz., the hidden property.''In this case, both the trial Court as well as the Appellate Court have failed to note this important aspect of law and they have not appreciated the said evidence in proper perspective.In the circumstances, the finding of guilty recorded by both the Courts based on such evidence suffers from legality and propriety.In the circumstances, ordered as under:(1) This Criminal revision is allowed.(2) The conviction recorded and sentence awarded by the trial Court as well as the Appellate Court are set aside.(3) The revision petitioners/A-1 and A-2 are acquitted under Section 457 and 380 I.P.C.(4) The fine amount paid shall be refunded to them.10.11.2016Index : Yes Internet : Yes vaanTo1 The Principal Sessions Judge, Cuddalore2 The Additional Sessions Judge (Fast Tract Court No.II), Cuddalore3 The Judicial Magistrate No.III, Cuddalore4 The Public Prosecutor, High Court, Madras5 The Superintendent, Central Prison, Cuddalore6 The Inspector of Police, Vadalur Police station.DR.P.DEVADASS, J., vaan Crl.R.C.No.16 of 201110.11.2016http://www.judis.nic.in

['Section 457 in The Indian Penal Code', 'Section 380 in The Indian Penal Code']

None for the parties.(Judgment) (Delivered on 22nd of July , 2014) This Appeal under Section 378 of Cr.P.C. has been filed by the complainant against the judgment of acquittal dated 30.1.1997 passed by learned Additional Chief Judicial Magistrate, Sausar, Chhindwara in Criminal Case No.265/1993 acquitting the respondents hereinafter reffered as 'accused' from the charges punishable under Section 494/109 of IPC.2. To appreciate the say of the appellant, I would like to say that basic case that was placed before the trial Court in nutshell is that marriage of complainant Indirabai was performed with accused Prabhakar as per Hindu rites and rituals 20 years ago.However, as no issue was born, the behavior of the accused and his family was changed and they tortured the 2 Cr.A.No.238 of 1998 complainant and pressurized her to give her consent for second marriage.After threatening to set on fire, under due pressure, they got signature of the complainant and her brother on stamp.The complainant filed a complaint alleging that she was a legally wedded wife of accused Prabhakar and as he performed second marriage and other family members parents of accused, another accused Nos. 3 & 4 Lalano Bai and Hareramjee, both died during pendency of this appeal, gave him assistant, they were liable for the offence punishable under Section 494 read with Section 109 of IPC.2 Cr.A.No.238 of 1998Learned trial Court framed charge punishable under Section 494/109 the Indian Penal Code against the accused who abjured their guilt; therefore, they were put to trial.The prosecution has examined Indira Bai (PW/1), Maroti (PW/2), Ramji (PW/3) and exhibited one document to prove his case.During the statement under Section 313 of the Cr.P.C. the accused denied all the evidence put up against them and pleaded their innocence.Defence examined Ramesh (DW/1) and Raghunath (DW/2).Learned trial judge after appreciating the evidence on record, recorded impugned judgment of acquittal, hence, this appeal by the complainant Indira Bai.As per appeal memo, it is submitted that the impugned judgment passed by the learned trial court is illegal, contrary and is erroneous both of facts and in law.It is further mentioned that the learned trial court erred in not appreciating the oral as well as documentary evidence available on record 3 Cr.A.No.238 of 1998 which clearly corroborated the prosecution story, hence, judgment of acquittal passed by the trial Court be set aside and the accused may be convicted.3 Cr.A.No.238 of 1998

['Section 494 in The Indian Penal Code', 'Section 109 in The Indian Penal Code']

P.C filed by the applicant.The applicant has been arrested in connection with Crime No. 342/2019 registered at Police Station- Vijay Nagar, Indore District - Indore for the offence punishable under Sections 420, 467, 46834 of IPC.In such circumstances, prayer is made to enlarge the applicant on bail.Per contra, learned GA opposes the bail application and submits that no case is made out for grant of bail to the applicant.Case diary perused.Taking into consideration all the facts and circumstances of the case, without commenting on the merits of the case, the application is allowed.It is directed that the applicant shall be released on bail on his/her furnishing personal bond in the sum of Rs. 50,000/- ( Rs. Fifty Thousand only) with one surety in the like amount to the satisfaction of the Trial Court for his/her appearance before the trial Court on the dates given by the concerned Court and also comply with the conditions enumerated under Section 437(3) of Cr.P.C.CC as per rules.(Ms. Vandana Kasrekar) Judge Digitally signed by AMOL N MAHANAG Date: 2020.01.30 16:51:48 +05'30'

['Section 467 in The Indian Penal Code', 'Section 420 in The Indian Penal Code']

Heard on admission.The applicant has challenged the order dated 1.7.2011 passed by 1st Additional Sessions Judge, Sagar in S.T. No.375/11 by which the charges for the offences punishable under Sections 450, 376(1) and 506-II of IPC were framed.No charges of such offences could be framed against the applicant.Learned Panel Lawyer for the State opposes the application.It is possible that due to some relation of the prosecutrix with some other person, child could born but the allegations of rape etc were made by the prosecutrix against the applicant and at present, the testimony of the prosecutrix cannot be examined, therefore, order passed by the trial Court seems to be legal.For framing of charges, it would be clear that if the evidence is considered as it is, then conviction must be directed for some offences and if it is so then the charges for such offences shall be framed.Consequently, the revision filed by the applicant is hereby dismissed at motion stage.(N.K. GUPTA) JUDGE pnkj

['Section 450 in The Indian Penal Code', 'Section 376 in The Indian Penal Code']

By a common order, M.Cr.C. Nos. 24122/2017 and 27827/2017 sh moved by applicants Smt. Satya Devi and Smt. Rajkumari Kewat for e anticipatory bail and M.Cr.C. No. 21164/2017 moved by principal ad accused Pushpraj Patel for grant of regular bail have been disposed of.Pr The applications under Section 438 of the Code of Criminal Procedure, 1973 have been filed for grant of anticipatory bail to a hy applicants Satya Devi @ Gudiya Patel, Smt. Rajkumari Kewat and Bhairo Prasad Patel herein who are apprehending their arrests in ad connection with Crime No. 294/2017 for the offences punishable M under sections 363, 366, 376, 34 of I.P.C. and Section 3/4 of Protection of Children from Sexual Offences Act, 2012 registered at of Police Station-Gadh, District-Rewa and the application under Section rt 439 of the Code of Criminal Procedure has been filed for grant of ou regular bail on behalf of applicant Pushpraj Patel.The allegation against applicant Pushpraj Patel is that he has C abducted and raped the minor daughter of the complainant.h Learned counsel for the State has submitted that age of the ig prosecutrix is about 15 years and 8 months.On 7/09/2017, the mother of the prosecutrix registers an F.I.R. under Sections 363 and 366 of I.P.C. stating that she suspects that her daughter has been kidnapped by applicant Pushpraj Patel.The prosecutrix was recovered on 10/09/2017 and on 11/09/2017, her 161 statement has been recorded.She says that applicants Satya Devi, Rajkumari Kewat and Bhairo Prasad had assisted the main accused Pushpraj Patel in the case.How they have assisted the main accused is not spelt out correctly and the allegation to that effect is omnibus.The M.L.C. is inconclusive and the F.S.L. report shows that there were no human sperm in the vaginal slide taken from the prosecutrix and her clothes.sh The charge-sheet has been filed.e Under the circumstances, the application M.Cr.C. No. ad 21164/2017 filed on behalf of applicant Pushpraj Patel is allowed Pr and he shall be enlarged on bail on his furnishing a personal bond in the sum of Rs. 50,000/- (Rupees fifty thousand only) with one a solvent surety in the like amount to the satisfaction of the trial Court hy and M.Cr.The applicants shall C join investigation as and when called upon to do so by the police.h C.C. as per rules.ig H (ATUL SREEDHARAN) JUDGE vy Digitally signed by VAIBHAV YEOLEKAR VAIBHAV DN: c=IN, o=HIGH COURT OF MADHYA PRADESH JABALPUR, postalCode=482001, st=Madhya Pradesh, 2.5.4.20=5d417c5e2cdb0fdfcea7271b91298 YEOLEKAR 9fffd7a8d3dbf63db4ebdc42355e64abf7c, 2.5.4.45=0321007752E925403D6A9CA64C0 AF28688DDCEFD19008152D550BB9E37BE4 DAFFE2DB9, cn=VAIBHAV YEOLEKAR Date: 2018.01.17 17:23:20 +05'30'

['Section 366 in The Indian Penal Code', 'Section 363 in The Indian Penal Code', 'Section 376 in The Indian Penal Code', 'Section 34 in The Indian Penal Code']

This is first bail application filed by the applicants/accused under Section 438 of Cr.P.C for grant of anticipatory bail, who are apprehending their arrest in connection with Crime No. 329/2020 registered at Police Station Simariya, District Panna for the offence punishable under Sections, 354, 354 (D), 323, 294, 506 read with 34 of IPC and Section 7/8 of the POCSO Act.Prosecution case is that the applicant's son made sexual assault on the prosecutrix and thereafter, applicants made quarrel with the parents of the prosecurtix and abused them and beaten and threatened to kill them.If the prosecution story considered as it, against them, hardly an offence under Section 323, 294, 506 read with Section 34 of IPC would be made out which are bailable offence.In the circumstance, there are entitled to get benefit of anticipatory bail.Learned P.L., opposed the application and prayed for its rejection.If they failed to do so, the effect of this order shall be vacated automatically.The applicant/accused are directed to join the investigation immediately and fully co-operate with the investigation.They shall further abide by the other conditions enumerated in sub-section (2) of Section 438 of Cr.P.C.Certified copy as per rules.(J.P.GUPTA) JUDGE VKV/-Digitally signed by VINAY KUMAR VERMA Date: 2020.08.28 03:45:16 -07'00'

['Section 34 in The Indian Penal Code']

As per prosecution story, M.P. State Electronics Development Corporation Ltd. (hereinafter referred to as "MPSEDC") is a body working under State of M.P. Department of Science and Technology.In the year 2012 Government of Madhya Pradesh appointed MPSEDC, as the Nodal Agency for MP e-procurement portal.MPSEDC selected M/s Tata Consultancy Services with Antares Systems Ltd. as the new Implementation Agency for end-to-end e-Procurement solutions.The New Service Providers undertook the Customization, Integration, Implementation and Maintenance of Single, Unitary, Web Based e- Procurement Software (Portal) with the specified modules which also include E-Tendering.Applicant Manohar M.N. was the Vice President of Antares Systems Ltd. and was the project in-charge on behalf of the company.Co-accused Nandkishor Brahme THE HIGH COURT OF MADHYA PRADESH M.Cr.C. No.35958/2019 (Manohar M.N. Vs.State of M.P through EOW.) 2 was posted as OSD in MPSEDC from the year 2012 and was assigned the duty as Nodal Officer of E-Tendering Project.In E- Tendering Project, MPSEDC made a platform available to various Government Departments for floating tenders.In the tendering processes the concerned Department which issued the tender uploaded its tender on the portal, on which last date of filing tender and the time of its opening was mentioned.While issuing the tender, the concerned officer also attached the public key of his digital signature.The tenderer after registering himself on MP e- Procurement portal filled the tender and after filing the tender, submitted the tender on the portal after it was encrypted by the public key of the officer concerned attached with the tender.After submission of the tender, no departmental officer, e-tendering company or other person could open the tender before its opening time.On 11th April, 2018 at the time of opening of three tenders Nos. 91, 93 & 94 floated by the Madhya Pradesh Jal Nigam Maryadit (here in after referred as "MPJNM") the computer displayed a message that "the contents of the document had been modified".On that service provider company Antares Systems Ltd. was directed to submit the report after inquiry.In the first report given by the team of Antares Systems Ltd after examining the system they mentioned that there was no irregularity and only attributed the message to technical defect.However, they also stated that further technical analysis was going on.Thereafter, on 05/05/2019 Antares Systems Ltd. again gave the Root Cause Analysis Report (R.C.A.) mentioning therein that the tenders had been tampered with.On that the then Managing Director of MPSIDC informed MPJNM for canceling these bids and also directed Antares Systems Ltd. to enquire all the tenders, which were floated by the various Government department between 01/01/2018 to 30/04/2018 on E-Portal.On that the team of employees of Antares Systems Ltd.THE HIGH COURT OF MADHYA PRADESH M.Cr.C. No.35958/2019 (Manohar M.N. Vs.State of M.P through EOW.) 3 again enquired the matter and gave the report to the effect that during the check period six other tenders i.e. tender of MP Road Development Corporation No.786, Public Works Department Tender Nos. 49813, 49982 & 49985 and tender of Water Resources Department Nos. 10030 & 10044 were also manipulated similarly.During the performance test, OSMO was provided with user IDs and Bidder IDs by the Antares Ltd. In the month of June, 2016 OSMO stated that it was not able to conduct a performance test of the whole system and thus could not complete the process of testing.It is further stated that the manipulation was done by one of the user ID and bid IDs.For manipulating the tenders of MPJNM, a demo file was created on MP e-procurement portal.That file was created using ID PT 4, which was given to OSMO IT Solutions at the time of performance testing and they also used digital signature certificate (DSC) of Keshav Rao Uikey.The SIM of this mobile number was registered in the name of co-accused Varun Chaturvedi and was being used by co-accused Vinay Choudhary.State of M.P through EOW.) 5 using bidder ID number 15597 and vendor ID number QK 829 846 pasted the said bids in demo file.Thus, they were able to see the figures/bids submitted by all the bidders in encrypted form.Applicant Manohar M.N. was the Vice President of Antraes Systems Ltd and was the project in-charge of e- Procurement Softwar (Portal) on behalf of the company.Heard with the aid of case diary.The first bail application of the applicant has been dismissed on merits vide order dated 25.06.2019 passed in M.Cr.Thereupon, on the direction of Chief Secretary of M.P. Government a preliminary enquiry was conducted by the Economic Offence Wing.In the preliminary enquiry it was found that after changing the bid price of tender Nos. 91, 93 & 94 of MPJNM amounting to Rs.1,769 crore the M/s GVPR Engineers Limited Hyderabad for tender No.91, M/s the Hume Pipe Company Limited Mumbai for tender No. 93 and M/s JMC Projects India Limited Mumbai for tender No. 94 were made lowest bidder (L1), likewise by tampering the two tenders of the Public Works Department Tenders Nos.49985 & 49982 amounting to Rs.13.46 crores, M/s Ramkumar Narwani Bhopal, were made lowest bidder, in the Tender no. 4981319 amounting to 15 crores, Sorathiya Velji Ratna and Company Vadodara were made lowest bidder.After tampering the tender of Madhya Pradesh Road Development Corporation amounting to Rs.7.86 crores M/s Madhav Infra projects Vadodara, Water Resources Department tender Nos.10030 & 10044 total amounting to Rs.1135 Crore, M/s Max Mantena Micro JV Hyderabad and Sorathiya Velji Ratna Baroda were made a lowest bidder (L-1), due to which companies earned illegal profits.On the basis of that preliminary evidences and findings of a probe report of the Computer Emergency Response Team, New Delhi, Crime No.12/2019 was registered at Economic Offences Wing, Bhopal (M.P.) for the offence punishable under Sections 120- B, 420, 468, 471 of the IPC, Section 66 of the Information Technology Act, 2000 and Section 7 read with Section 13(2) of the Prevention of Corruption Act against applicant and other co-accused persons.THE HIGH COURT OF MADHYA PRADESH M.Cr.C. No.35958/2019 (Manohar M.N. Vs.Thereafter, hackers entered into the database through the staging server, where original tenders were stored and this process was done through virtual private network (VPN), the access of which was only with co-accused Nandkishore Bramhe.After reaching the database server hackers accessed the file where the original tenders were saved.They copied the details of all the bidders, who submitted the bids, which were encrypted.After copying the bids they again came back to the demo tender file created by them earlier and by THE HIGH COURT OF MADHYA PRADESH M.Cr.C. No.35958/2019 (Manohar M.N. Vs.After seeing the amount filed by each bidder another demo file was created in the second demo file, the encrypted bids as visible in the first demo file were pasted in the second demo file.Again by using the bidder ID No.15597 having vendor ID number QK29846 they manipulated the bids and made the person they wanted to benefit as the lowest bidder (L-1).After making the change in the second demo file and placing a wrong bidder L-1 hackers copied the encrypted/manipulated bid value and again by using the staging server reached the database server through a VPN, access of which was given to co-accused Nandkishore Bramhe, opened the original tender file and pasted the said encrypted manipulated bid value next to the name of the bidder they wanted to benefit and thus manipulated the bids.Learned counsel of the applicant submitted that the applicant is nowhere involved in that scam.He is the Assistant vice President of the ASL Company.ASL is a company specializing in software management particularly pertaining to the public e-procurement, since the year 1997 and ever since has been working to the satisfaction of the Government Agencies throughout the Country.ASL has continuously been providing the software e-procurement services to the State of Punjab, Goa and certain other States.C. No.35958/2019 (Manohar M.N. Vs.State of M.P through EOW.) 6 and looking to the reputation of the companies and other relevant factors.TCS along with ASL were successful bidders and accordingly a Tri- Party agreement was executed between MPSEDC, ASL and TCS.It is further submitted that they had a pre-defined duty in their respective expertise in managing the aforesaid e- procurement portal.Accordingly, the security of the portal entirely rested with MPSEDC.In this regard applicant is also filed the copy of said Tri-Party agreement.The bids were altered at the user ID level, which had nothing to do with the operations of the software functions, which was being performed by ASL.The applicant has falsely been implicated in the crime.On the other hand, learned counsel for the respondent/EOW opposed the prayer and submitted that the whole responsibility of security of e-procurement portal was with the applicant Manohar M.N. since he was the head of Antares in respect of e-procurement portal at Bhopal.In the latter produced by Suresh Kumar CEO of Antares this fact is mentioned.Applicant Manohar M.N. was hand and gloves with all the co-accused persons and just to benefit them came with the first report dated 17/04/2018 that there was no tempering in the bids.Even prior to that Antares also sent an Email THE HIGH COURT OF MADHYA PRADESH M.Cr.C. No.35958/2019 (Manohar M.N. Vs.State of M.P through EOW.) 7 on 11/04/2018 mentioning that no irregularity was found.Later, when the said tempering came to the knowledge of higher officials second finding report was given accepting that the tempering had happened in the whole tendering process, which shows that he was also involved in the conspiracy.No manipulation could have taken place without the knowledge of applicant Manohar M.N. The demo files which were used in the manipulation in the bids were created and made available to OSMO by the applicant Manohar M.N. and by using the bidder ID, bids were changed and manipulated.On the request of co-accused Nandkishore Brahme VPN Access was given to him, which was also used by the Antares from his Bangalore office for maintenance of the eprocurement portal.That VPN was used in the tender manipulation.By assessing the database through the staging server, data had been read from genuine tenders and copied to blank tenders name Demo.The said faulty process was created by applicant Manohar M.N. so that the other co-accused persons could access the main database seamlessly and manipulation could be done.Although earlier bail application of the applicant was rejected on merit by this Court vide order dated 25.06.2019 passed in M.Cr.It is alleged that the demo files which were used in the manipulation in the bids were created and made available THE HIGH COURT OF MADHYA PRADESH M.Cr.C. No.35958/2019 (Manohar M.N. Vs.This order will remain operative subject to compliance of the following conditions by the applicant :-The applicant will comply with all the terms and conditions of the bond executed by him;The applicant will cooperate in the investigation/trial, as the case may be;The applicant will not indulge himself in extending inducement, threat or promise to any person acquainted with the fact of the case so as to dissuade him from disclosing such facts to the Court or to the Police Officer, as the case may be;The applicant shall not commit an offence similar to the offence of which he is accused;The applicant will not seek unnecessary adjournments during the trial; and THE HIGH COURT OF MADHYA PRADESH M.Cr.The applicant will not leave India without prior permission of the trial Court/Investigating Officer, as the case may be.C.C. on payment of usual charges.

['Section 471 in The Indian Penal Code', 'Section 420 in The Indian Penal Code', 'Section 468 in The Indian Penal Code', 'Section 467 in The Indian Penal Code', 'Section 120B in The Indian Penal Code']

JUDGMENT Vaidya, J.The State has filed the above appeals against the orders of acquittal passed by the Judicial Magistrate, First Class, Manmad, on October 28, 1967, in two criminal cases before him, both of which related to an incident which took place at about 7-30 p.m. on October 7, 1966, in Manmad.The first information in one case was given by one Zumbarlal Rajmal Chajed and the first information in the other case was given by one Parasmal Mesulal Jain relating to the said incident.As these two appeals relate to the same incident and involve a common question of law, they can be disposed of by a single judgment.Criminal Appeal No. 238 of 1968 arises out of Criminal case No. 778 of 1966 before the said Magistrate.A chargesheet was filed before him on October 15, 1966, against the seven respondents in that appeal, viz., (1) Bherulal Dagdulal Jain, (2) Kantilal Dagdulal Bardiya, (3) Madanlal Panalal Bardiya, (4) Dharmachand Dagduram Bardiya, (5) Parasmal Bherulal Bardiya, (6) Balu Kondaji Karde and (7) Shridhar Waman Paliwal.It was alleged in the said charge-sheet by the Police Sub-Inspector, Manmad city, that on October 7, 1966, at 7-30 p.m., the seven accused formed an unlawful assembly in an open street of Manmad city inasmuch as, as a result of a meeting of a bank, they entertained a common object of beating the complainant Zumbarlal Rajmal Chajed and witneses Amarchand Babulal Chajed, Manakchand Rajmal Chajed and Motilal Rajmal Chajed and in pursuance of that common object, they voluntarily caused injuries to them with blows and kicks and with wooden pieces and bamboo sticks and also abused them and threatened to kill them and thereby committed offences under Sections 147, 148, 323, 504 and 506 of the Indian Penal Code.Thereafter the case was adjourned from time to time for various reasons till March 17, 1967, when the parties filed an application exh.15 signed by the complainant Zumbarlal, the seven accused persons and the witnesses who were alleged to have been hurt in the course of riot.This application was objected to on behalf of the prosecution on the ground that by law, partial compounding was not allowed and if the parties wanted withdrawal, they should move the District Magistrate in respect of the offences mentioned in the charge-sheet.The Judicial Magistrate, however, passed the following order on that very day:It may be noted here that in the application exh.15 the complainant, the accused and the witnesses referred to above had mentioned that the compromise was arrived at as a result of the efforts of many gentlemen and leaders.It also stated that the signatories to exh.15 belonged to merchant class and respectable families and as a result of this compromise, the relations among them were as they were before the incident and had become very harmonious and peaceful.On April 14, 1967, the accused filed an application exh.17 for adjournment of the case stating that they had applied to the District Magistrate for withdrawing the case and that application was not decided.It is most regrettable that the District Magistrate does not appear to have passed any order with regard to the withdrawal inspite of the waiting by the parties and the Court for more than four months.On August 4, 1967, the Judicial Magistrate who had succeeded the previous Judicial Magistrate framed a charge against the seven accused under Section 148 of the Indian Penal Code, the material portion of which was as under:That you on or about the 7-10-60 at 7-30 P.M. at Manmad were members of an unlawful assembly and did in prosecution of common object of such assembly, viz., to cause hurt to Zumbarmal Chhajed, committed the offence of rioting and at that time were armed with deadly weapons and thereby committed an offence punishable under Section 148 of the Indian Penal Code....The accused pleaded not guilty to the said charge.After framing the charge, the case was adjourned from time to time till September 20, 1967, when prosecution witness No. 1 Zumbarlal, the complainant, was examined as a witness.He proved his first information before the police at exh.Immediately after his evidence was recorded, an application was filed by the pleader for the accused submitting as under:The police have chargesheeted the accused under sections 147, 323, 504, 506, 34, I.P.C. Except under Section 147, I.P.C., the offences under other sections are compoundable and are compounded.The complainant has averred that he has compounded the offence under Section 147, I.P.C. also.He does not intend to proceed with the trial.It is therefore requested that the accused may please be acquitted.This application was resisted on behalf of the prosecution on several grounds.The learned Magistrate, however, overruled the objections on behalf of the prosecution and following the decision of the Patna High Court in Ramphal v. State of Bihar (1964) 2 Cr. L. J. 111, came to the conclusion that since the main offences were compounded, there could not be a trial of the offence under Section 148, Indian Penal Code.He also relied on a judgment of the Assistant Judge of Nasik which was cited before him.He concluded that the offence under Section 148, Indian Penal Code must fail as the main offences have been compounded.He, therefore, acquitted accused Nos. 1 to 7 of the offence under Section 148 of the Indian Penal Code.In Criminal Appeal No. 240 of 1948 also the charge-sheet was filed on October 15, 1966, against the seven accused, viz., (1) Amarchand Babulal Chajed, (2) Babulal Rajmal Chajed, (3) Zumbarlal Rajmal Chajed, (4) Manakchand Rajmal Chajed, (5) Motilal Rajmal Chajed, (6) Bhaskar Shankar Nagare, (7) Sakharam Gopinath Barde.It may be noted that the accused Zumbarlal was the complainant in the other case.The accused Amarchand, Babulal Manakchand and Motilal were cited as witnesses in the other case.This case also took a parallel course to the other case and an application exh.15 was filed on March 17, 1967, i.e., on the same day on which exh.15 was filed in the other case and with the same contents signed by the complainant, the accused and the injured witnesses who were cited in the charge-sheet.The application was opposed on the same grounds on behalf of the prosecution and the learned Magistrate on the very day passed an order as follows:Thereafter an application was filed on September 20, 1967, which was similar to the application exh.27 in the other case.It is difficult to understand from the report as to how inspite of the composition of the offence under Section 447, there was a conviction under Sections 143 and 447 of the Indian Penal Code, which conviction was upheld by Wallace J. It may be that the circumstances in that case showed that the two offences were distinct.No point arose in that ease as to whether the alleged offence under Section 447 was distinct from the offence under Section 143, although Wallace J. has pointed out that on a construction of Section 143 itself an offence under Section 143 was distinct from the criminal offence which the persons agreed and intended to commit.This led to hot words.On the following day at about 8 or 8-30 a.m., Ramphal Gope and others, who were the accused ill that case, came to the house of Ramdeo and demanded the price at once.The accused assaulted Ramdeo.Some of them went to the police.The police filed two charge-sheets against the fourteen accused who are involved in the two cases.In the result, both the appeals are dismissed.

['Section 148 in The Indian Penal Code', 'Section 323 in The Indian Penal Code', 'Section 504 in The Indian Penal Code', 'Section 506 in The Indian Penal Code', 'Section 147 in The Indian Penal Code', 'Section 143 in The Indian Penal Code', 'Section 447 in The Indian Penal Code', 'Section 279 in The Indian Penal Code', 'Section 337 in The Indian Penal Code', 'Section 324 in The Indian Penal Code', 'Section 34 in The Indian Penal Code', 'Section 325 in The Indian Penal Code', 'Section 511 in The Indian Penal Code', 'Section 406 in The Indian Penal Code']

The prosecution case in short are as follows;"On February 15, 1985 at about 8.35 P.M. the complainant Marjina and her brother Hossain Sheikh returned house after their days work and Hossain started playing with his son on the courtyard.At that time, Sefali Sheikh, wife of Gofur Sheikh residing in the next house asked him to come to their house as Gofur was calling him.In response to that the brother of the complainant went there.Sometime thereafter around quarter to nine the complainant was attracted by an alarm raised from the house of Gofur "Chor Chor".When she rushed there and found his brother Hossain Sheikh inside the room of Gofur Sheikh and accused Gofur Sheikh, Sefali Sheikh, Ikramul Sheikh and Johur Sheikh were assaulting him.As soon as she arrived there the accused persons fled away and she found that blood is oozing out from the abdomen of Hossain Sheikh.Out of the four accused persons one of them has assaulted her brother on his abdomen with a knife.Thereafter, her brother was removed to Hospital where he succumbed to his injuries."Form No. J (1) IN THE HIGH COURT AT CALCUTTA Criminal Revisional Jurisdiction Appellate Side Present:The Hon'ble Justice Ashim Kumar Roy C.R.A. No. 467 of 1988 Gofur Sheikh & Ors.Versus The State & Anr.This appeal is directed against an order of conviction under Section 304 Part II, read with Section 34 of the Indian Penal Code and sentence of rigorous imprisonment for three years with fine and default clause.The appellant in the instant appeal along with another were placed on trial before the Learned Additional Sessions Judge, 2nd Court, Nadia, to answer a charges under Sections 302/34 of the Indian Penal Code.After trial while the Learned Sessions Judge acquitted the accused Sefali Sheikh @ Bibi, but convicted the present three appellants under Section 304 Part II read with Section 34 of the Indian Penal Code and sentenced each of them to suffer rigorous imprisonment for three years and to pay a fine of Rs. 2000/- and in default to suffer rigorous imprisonment for six months.Upon a FIR being lodged with the aforesaid allegations a First Information Report under Sections 302/34 of the Indian Penal Code was registered.After completion of investigation police also submitted charge-sheet for the self-same offence.Subsequently, the appellant and another Sefali Sheikh were placed on trial before the Learned Sessions Judge, 2nd Court, Nadia to answer a charge under Sections 302/34 of the Indian Penal Code.In the trial while present three appellants were convicted under Section 304 Part II/ 34 of the Indian Penal Code, the other accused Sefali Sheikh was acquitted.During the trial prosecution in order to establish its case examined as many as 10 witnesses.Out of them P.W. 1, Marjina Bewa, the sister of the deceased, P.W. 2 Momena Bewa, wife of the deceased, P.W. 3 Selina Bibi, sister of the deceased and P.W. 5 Asrajan Bewa, mother of the deceased claimed to be the eye witnesses of the occurrence.While P.W. 4 Kurban Sheikh is a post occurrence witness.P.W. 6 Dr. Bimalendu Tarafdar is the doctor to whom injured Hossain Sheikh, was brought at Santipur General Hospital.P.W. 8 Dr. Swarup Kundu is the Autopsy Surgeon.P.W. 9 is a Judicial Magistrate.P.W. 7 is a police constable and P.W. 10 is the Investigating Officer of the case.In addition to that prosecution has relied on a retracted confessional statement of accused Gofur Sheikh (Exhibit - 4).Heard Mr. Abhijit Basu, the learned advocate appearing on behalf of the appellants as well as Mr. Swapan Kumar Mallick, the learned advocate appearing on behalf of the State.Perused the evidence on record as well as other materials viz. the confessional statement of the accused, First Information Report etc.According to the P.W. 1, the defacto-complainant of the case after arriving at the house of the accused Gofur along with Momena Bewa wife of Hossain and her mother Asrajan, she found that accused Johur was assaulting Hossain with fist and blows, when the accused Sefali, Gofur, Ikramul were present there.She also noticed that blood was oozing out from his abdomen.Thereafter, Hossain was taken to their house and he stated to them that Ikramul hit on his belly by a Kirich.Her allegations that she went to the house of Gofur with Selina, wife of the Hossain Momena and her mother and found accused Johur was assaulting Hossain by fist and blows and Hossain told her that accused Ikramul assaulted him on his abdomen with one Kirich was contradicted during her cross- examination with reference to her allegations made by her in the First Information Report.It appears in the FIR no such allegation was made.According to the P.W. 2 Momena Bewa, the wife of the deceased Hossain when she arrived at the place of occurrence with others she found her husband Hossain Sheikh was standing pressing his abdomen and Ikramul was cleaning a bloodstained knife.In her cross-examination she was contradicted with her allegations that she found Ikramul cleaning a bloodstained knife.It appears from the examination of the Investigating Officer of the case that no such statement was made by her to the police during investigation.The witness has not stated anything about the presence of any of the appellants at the spot except Ikramul.P.W. 3 Selina Bibi stated that as she along with other witnesses reached Gofur's house noticed that Johur was assaulting Hossain with fist and blows catching his collar.She also noticed one injury in the abdomen of Hossain and Hossain told him that wife of Gofur caused such injury.Her allegation that Gofur was assaulting Hossain by fist and blows by catching his collar stand contradicted with reference to her statement before the police.According to the Investigating Officer of the case no such statement was made to him.This witness had not stated about the presence of any other appellants except Johur.P.W. 5 Asrajan Bewa stated in her evidence that having reached the house of Gofur she found that Johur was assaulting Hossain by catching his collar.At the time she noticed that Hossain received a bleeding injury on his abdomen and told her that wife of the Gofur caused such injury.This witness admitted that she was never examined by the police and she not stated anything to the police about the incident as was stated in her chief.This witness also mentioned anything about the presence of Ikramul at the spot.All the witnesses however stated that Hossain went to the house of Gofur on being called by his wife Sefali Sheikh Having carefully perusing the evidence on record I find that the wife of the deceased P.W. 2 Momena Bewa has not made any claim that her husband disclosed who caused the injury.While according to P.W. 1 Marjina Bewa, the deceased Hossain told her that he was assaulted by Ikramul but P.W. 3 Selina Bibi and P.W. 5 Asrajan Bewa both stated that Hossain told them that the injury was caused by Sefali Sheikh, the wife of the Gofur Sheikh.However, Sefali Sheikh has been acquitted in the trial.Since the alleged dying declaration of Hossain Sheikh made to the witnesses as regards to his assailants is contradictory and none of the said witnesses during investigation made disclosure to the police about such dying declaration I am not inclined to act thereupon.It is also to be noted although according to the prosecution case the P.W. 2 Momena Bewa, the wife of the deceased Hossain rushed to the spot together with other witnesses viz. P.W. 1, P.W. 3 and P.W. 5 but she was silent about any disclosure by Hossain.It is well settled a confession without corroboration can very well be acted upon to record conviction but as a rule of prudence court must seek other circumstances to corroborate a confession particularly when the same is retracted although each and every circumstances mentioned in the confessional statement is not required to be corroborated separately and independently but the broad fact of the confession must be corroborated.In the instant case, this court already declined to rely on the evidence of the alleged eye witnesses to the occurrence as their statement stands contradicted on very vital and material points.Moreover, the story spelt out by the appellant Gofur Sheikh in his retracted confession has not been corroborated by any evidence.The appellant Gofur in his confession allegedly claimed to be responsible for causing injuries but claimed that he has not caused such injury with the intention to kill the deceased but he did so when he found that deceased was attempting to rape his wife and being apprehended by him was trying to flee away.None of the witnesses implicated accused Gofur for causing injury on the deceased Hossain.For the reasons stated above, I am of the opinion that prosecution has not been able to prove its case and thus the impugned order of conviction cannot be sustained.In the result appeal succeeds and stands allowed.

['Section 34 in The Indian Penal Code', 'Section 302 in The Indian Penal Code']

The prosecution case in short was that on or about 8.4.1977 the appellant along with the other accused persons kidnapped a minor girl Parvinnessa from the lawful guardianship of her father Abdul Rahaman-P.W. 1 from his residence at Calcutta.The prosecution examined 8 witnesses of whom P.Ws. 1 and 4 are the father and brother respectively of Parvinnessa.P.Ws. 2 and 3 are the doctor and the radiologist who examined the girl.P.Ws 5 and 6 are the witnesses who were present at the time of the recovery of the girl from the house of the appellant.P.Ws 7 and 8 are police personnel.P.W 7 is the officer who recovered the girl from the house of the appellant, while P.W 8 is the Investigating Officer of this case.The defence is one of total denial.No witnesses were examined by the defence.The fact the girl was a minor at the time when she was recovered has not been disputed in this case.The learned advocate for the state has not been able to point out any evidence or any material in this case relating to the taking or the enticing of the minor in question by the appellant save and except that she was in fact found in the house of the appellant and recovered thereafter.P.W. 1 the father of the girl has stated that she has since been married and has gone on tour with her husband and it is not known when she will return.He has deposed that he does not know her present whereabouts.He has stated that his daughter used to visit her relatives without his permission and that his daughter did not leave with his permission nor did anyway take his permission so far as the present incident is concerned.He has stated that he was not examined by the Investigating Officer.P.W. 4 -the brother of the girl has deposed that on 8.4.1977 on finding his sister missing from home he lodged the missing report on 9.4.1977 at the Narkeldanga Police Station.Thereafter on 10.4.1977 he lodged the F.I.R. in the present case.Later he was present at the time of the recovery by the police of his sister from the house of the appellant.JUDGMENT Jitendra Nath Chaudhuri, J.This appeal arises out of the Sections Trial Case No. XIX of January 1978 held by the learned Sessions Judge, Midnapore.In the said Trial the present appellant Sk.Yusuf was charged alone under Section 368 I.P.C. as well as under Section 366/34 I.P.C. along with four other accused.All the other accused persons were acquitted at the trial and the present appellant was also acquitted of the charge under Section 368 I.P.C. but was convicted alone of the lesser offence under Section 363 I.P.C. on the charge under Section 366/34 I.P.C. and was sentenced to 3 years rigorous imprisonment.He has identified the appellant in court.The evidence of P.Ws 2 and 3 is to the effect that on 11-4-1974 Parvinnessa was under the age of 18 years.In fact P.W. 2 has stated that her age on 11-4-1977 was 15 years and 5 months while P.W. 3 has stated that on 11-4-1977 when he radiologically examined Parvinnessa she was about 16 years of age.P.W.s 2 and 3 were not cross-examined by the defence.P.W.s 5 and 6 have deposed that they were present at the time when Parvinnessa was recovered by the police from the house of the appellant.No cross-examination was directed to these witnesses relating to this factum of recovery.P.W. 7 - the Assistant Sub- Inspector of Police recovered the gril from the house of the appellant.He has deposed that besides the appellant he also arrested three other accused persons in that house at that time (one accused subsequently surrendeded in court).P.W. 7 handed over the victim girl along with the arrested persons to the Officer-in-Charge in the police station.In cross-examination he deposed that there were other occupants in the house of the appellant at the time of recovery.The learned Trial Judge has convicted the accused- appellant under Section 363 I.P.C. having found that the girl in question was minor at the time of the incident (that is to say under 18 years of age) and that she was found in the house of the appellant.From the solitary circumstance that the girl was recovered from the appellant's house he has inferred that the appellant himself has enticed or taken the girl away from the lawful guardianship.In discussing the evidence of P.W. 4 that the girl of her own accord went to the appellant's house, he has held that this witness is not reliable.361 I.P.C. have to be satisfied.Moreover in this case the girl herself has not been called to depose and the learned advocate for the appellant has submitted that if called she would not have supported the prosecution case.P.W. 1 has given the explanation as to why he has not to come to depose but the same does not appear to be convincing.

['Section 363 in The Indian Penal Code', 'Section 366 in The Indian Penal Code', 'Section 34 in The Indian Penal Code']

1 12-14 skp lowed) C.R.M. No. 11659 of 2014 In the matter of an application for anticipatory bail under Section 438 of the Code of Criminal Procedure filed on 1st September, 2014 in connection with Asansol(W) P.S. Case No. 168/2013 dated 08.10.2013 under Sections 325/354A/120B/397/376/211/34 of the Indian Penal Code.And In re : Laltu Dawn & Ors. ... Petitioners.Mr. Himangshu De, Mr. Arup Krishna Das ... for the petitioners.Mr. Subrata Roy ... for the State.Accordingly, we direct that in the event of arrest the petitioners, namely, (1) Laltu Dawn, (2) Mintu Dawn and (3) Raju Dawn, shall be released on bail upon furnishing a bond of Rs. 5,000/- each, with one surety of like amount each, to the satisfaction of the learned Additional Chief Judicial Magistrate, Asansol, subject to the conditions as laid down under Section 438(2) of the Code of Criminal Procedure.The application for anticipatory bail is thus disposed of.( Tapan Kumar Dutt, J. ) ( R. K. Bag, J.)

['Section 325 in The Indian Penal Code', 'Section 120B in The Indian Penal Code', 'Section 376 in The Indian Penal Code', 'Section 34 in The Indian Penal Code', 'Section 397 in The Indian Penal Code']

(ROHIT ARYA) JUDGE sh Digitally signed by SEHAR HASEEN Date: 18/07/2019 11:52:57Petitioner convicted u/S 302 r/W 34 of IPC and Section 307 of IPC has been sentenced for life imprisonment by judgment dated 31.03.2005 in S.T. No. 458/1998 by Sessions Judge, Indore.vthou dkjkokl ls naMkfn"V ,asls cafn;ksa dks] tks vthou dkjkokl dh ltk ds vfrfjDr 05 o"kZ rd dh ltk ls nafMr gksa rFkk ftUgksus fopkjk/khu dkykof/k dks lfEefyr djrs gq, 15 o"kZ dk naMkns'k Hkwxr fy;k gks rFkk ifjgkj dks lfEefyr djrs gw, naMkns'k ds 21 o"kZ iw.kZ dj ysus ij eqDr fd;k tk,xkAs Digitally signed by SEHAR HASEEN Date: 18/07/2019 11:52:57 2 WP-4968-2019 Learned State counsel prays for a day's time to seek instructions.Let a copy of this order be provided to Shri Vijaywarigya for official use and onwards transmission.

['Section 307 in The Indian Penal Code']

J. C. Dalal, E. E. Jhirad and O. P. Rana, for theappellant.S. C. Patwardhan B. Dutta, J. B. Dadachanjl, O. C. Mathurand Ravinder Narain, for respondent No. 1.The Judgment of the Court was delivered byShah, J. The appellant, Mrs. Menezes, is the owner of a123124house in Bombay, and the wife of the first respondent YusufKhan is a tenant of a part of the first floor in that house.On January 17, 1963 one Robert-a servant of the appellant,called the wife of the first respondent a thief and'Halkat'.On the next day the first respondent slapped theface of Robert.This was followed by a heated exchange ofabusive words between the first respondent and theappellant's husband.The first respondent was annoyed andthrew at the appellant's husband a "file" of papers.Thefile did not hit the appellant's husband, but it hit theelbow of the appellant causing a "scratch".The appellantlodged information at the Bandra police station complainingthat the first respondent had committed house trespass inorder to the committing of an offence punishable withimprisonment, had thrown a shoe at her, had slapped the faceof her servant Robert, and had also caused her a "bleedingincised wound on the forearm".The version of the appellantwas a gross exaggeration of the incident.The Officer incharge of the police station was persuaded to enter upon aninvestigation on this information, which by charging therespondent with the offence of trespass was made to appearas if a cognizable offence was committed.The Sub-Inspectorfound that the appellant had suffered a mere scratch on herelbow.The appellant and Robert declined to go to a publichospital for examination or treatment, and were, it isclaimed, examined by a private medical practitioner, whocertified that the appellant bad suffered a "bleedingincised wound, skin deep, size 1" in length on the rightforearm", and that Robert had "a swelling about 1 1/2 " indiameter, roundish, soft and tender", but no bruises.The offence was petty, but was given undue importance.Thecase was transferred from the Court of the PresidencyMagistrate, Bandra, to the Court of the PresidencyMagistrate VI Court, Mazagaon, Bombay, and was entrusted toa special prosecutor on behalf of the State.The TrialMagistrate held that the story that the first respondent hadtrespassed into the house of the appellant was false and thecharge of trespass was made only with a view to persuade thepolice officer to investigate it as a cognizable offence.The story of the appellant that the first respondent hadhurled a shoe at her was also disbelieved.The TrialMagistrate held that simple injuries were caused to Robertand to the appellant and for causing those injuries heconvicted the first respondent of the offence under S. 323I.P. Code and sentenced him to pay a fine of Rs. 10 on eachof the two counts.Against the order of conviction, arevisional application was preferred to the High Court ofJudicature at Bombay.The appellant was no longer concernedwith the proceedings in the High Court, but since there weresome negotiations for compounding the offence, the appellantwas impleaded as a party to the proceeding before the HighCourt.The High Court was of the view that the appellanthad grossly exaggerated her story, that the evidence of themedical practitioner who claimed to have examined theappellant and Robert and to have 125certified the injuries" did "not inspire confidence", thatthe husband of the appellant had addressed provocative andinsulting abuses, and that in a state of excitement therespondent hurled a "file of papers" at the appellant'shusband which missed him and caused a "scratch" on theappellant's forearm.At the time of the incident inquestion, the appellant's husband and the first respondentexchanged vulgar abuses.Apparently the respondent wasannoyed and threw a "file" of papers which caused a merescratch to the appellant.This court had at the time when special leavewas granted directed that Rs. 1,500 be deposited by theappellant by way of costs of the respondents.Inthe circumstances, we direct that Rs. 750 be paid to thefirst respondent and the balance be returned to theappellant.Appeal dismissed.

['Section 323 in The Indian Penal Code']

WP.odt 10 of public order in the above localities and adjoining areas.Learned APP invites our attention to the para 5 of the affidavit-in- reply and submits that, there are as many as four offences are registered against the petitioner in Jawaharnagar Police Station, Kranti Chowk Police Station, Satara Police Station and MIDC Waluj Police Station, respectively.He further submits that, the chapter case was also registered against the petitioner in Satara Police Station and preventive action was taken against him.He submits that, in spite of registration of the aforesaid offences, the petitioner has not controlled his alleged activities; on the contrary his illegal and dangerous activities are showing ascending trend.Reserved on : 23.03.2017 Pronounced on : 03.04.2017 ::: Uploaded on - 04/04/2017 ::: Downloaded on - 06/04/2017 01:01:59 ::: 1698.2016 Cri.WP.odt 2 JUDGMENT: (Per S.S.Shinde, J.):::: Uploaded on - 04/04/2017 ::: Downloaded on - 06/04/2017 01:01:59 :::This Writ Petition is filed with following prayer:Therefore, on this ground alone, the impugned order is required to be quashed and set aside.::: Uploaded on - 04/04/2017 ::: Downloaded on - 06/04/2017 01:01:59 :::District Magistrate & Ors.2, it is necessary that there should be verification made of the in-camera statements and the copies of the verification needs to be furnished to the petitioner detenu.::: Uploaded on - 04/04/2017 ::: Downloaded on - 06/04/2017 01:01:59 :::2 2013 All.M.R. [Cri.] 16::: Uploaded on - 04/04/2017 ::: Downloaded on - 06/04/2017 01:01:59 ::: 1698.2016 Cri.WP.odt 5 It is further submitted that, the dangerous person is defined as per Section 2 (b-1) of the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug-Offenders, Dangerous Persons and Video Pirates Act, 1981 [for short 'MPDA Act'].However, in the present case, the Detaining Authority has failed to prove that the petitioner is dangerous person within the meaning of Section 2 [b-1] of the MPDA Act. He further submits that the petitioner belongs to 'Rajput Community', and he understands Hindi language but the copy of the order along with the proposal which was supplied to the petitioner is in English and Marathi, and therefore, the petitioner could not submit his representation properly as he does not understand either Marathi or English.It is submitted that, there was no any verification of the in-camera statements recorded by the authority, and therefore, on ::: Uploaded on - 04/04/2017 ::: Downloaded on - 06/04/2017 01:01:59 ::: 1698.2016 Cri.WP.odt 6 that ground also, the impugned order deserves to be quashed and set aside.The Commissioner of Police Pune and Ors.5, and also the judgment of the Bombay High Court, Bench at Aurangabad in the case of Deepak Vs.The Commissioner of Police, Pune City and ors.::: Uploaded on - 04/04/2017 ::: Downloaded on - 06/04/2017 01:01:59 :::::: Uploaded on - 04/04/2017 ::: Downloaded on - 06/04/2017 01:01:59 :::It is submitted that, there is no 3 2016 All M.R. [Cri.] 930 4 2000 [2] Mh.L.J. 400 5 2015 All M.R. [Cri.] 4437::: Uploaded on - 04/04/2017 ::: Downloaded on - 06/04/2017 01:01:59 ::: 1698.2016 Cri.WP.odt 7 live link or nexus between the crimes registered against the petitioner and definition of the dangerous person as referred in Section 2 [b-1] of the MPDA Act. It is submitted that, it is only the person, who commits offences habitually, can be called as 'dangerous person'.However, in the present case, the authority has relied upon the alleged solitary incident of registration of Crime No.189/2016 for the offence punishable under Sections 376, 354 (A) (D), 323, 504, 506, 34 of the IPC r/w.Section 67 of the Information Technology Act, 2000, dated 21st April, 2016, against the petitioner, and wrongly treated the petitioner as habitual offender.Therefore, the learned counsel appearing for the petitioner submits that, the petition deserves to be allowed.::: Uploaded on - 04/04/2017 ::: Downloaded on - 06/04/2017 01:01:59 :::On the other hand, the learned APP appearing for respondent - State relying upon ::: Uploaded on - 04/04/2017 ::: Downloaded on - 06/04/2017 01:01:59 ::: 1698.2016 Cri.WP.odt 8 the affidavit-in-reply of respondent no.3 made following submissions:::: Uploaded on - 04/04/2017 ::: Downloaded on - 06/04/2017 01:01:59 :::That the petitioner is not entitled to challenge the order of detention on the basis of grounds on which the detention has been effected, in view of Section 5-A of the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug- offenders, Dangerous Persons, Video Pirates, Sand Smugglers and Persons engaged in Black- marketing of Essential Commodities Act, 1981, and therefore, the petition deserves to be dismissed at the admission stage itself, and accordingly, it may kindly be dismissed.That sufficiency or insufficiency of the grounds of detention cannot be a subject matter on the basis of which the petition could be entertained under Article 226 and 227 of the Constitution of India.It is subjective satisfaction of the detaining ::: Uploaded on - 04/04/2017 ::: Downloaded on - 06/04/2017 01:01:59 ::: 1698.2016 Cri.WP.odt 9 authority that the acts of the detenu are prejudicial to the maintenance of public order and with a view to prevent him from committing such acts, detention is necessary, are the relevant considerations.That the petitioner is a 'Dangerous Person' as defined in the said Act and he has committed serious offences i.e. assault, outraging the modesty of woman, rape, dacoity, criminal intimidation, act of threatening common people, prostitution, etc. He has created reign of terror in the locality of MIDC Waluj and adjoining areas and disturbed the peace over there.Due to his criminal and dangerous activities, the persons residing in the jurisdiction of Police Station MIDC Waluj and adjoining areas remained under constant fear and terror.Therefore, the detaining authority arrived at subjective satisfaction that the petitioner's criminal and dangerous activities are prejudicial to the maintenance ::: Uploaded on - 04/04/2017 ::: Downloaded on - 06/04/2017 01:01:59 ::: 1698.2016 Cri.Even preventive action taken under the Code of Criminal Procedure failed to curb his prejudicial activities.::: Uploaded on - 04/04/2017 ::: Downloaded on - 06/04/2017 01:01:59 :::::: Uploaded on - 04/04/2017 ::: Downloaded on - 06/04/2017 01:01:59 :::That, after considering the ::: Uploaded on - 04/04/2017 ::: Downloaded on - 06/04/2017 01:01:59 ::: 1698.2016 Cri.WP.odt 11 seriousness of the above said crimes, the Police Inspector, MIDC Waluj Police Station, Aurangabad, conducted confidential enquiry.In an enquiry, it is revealed that due to petitioner's fear, nobody is willing to give statement openly against him.On an assurance to the witnesses that, their names and identity, and other particulars would be kept secretly, and they will not be called upon to give evidence against the petitioner in any court or any other forum, witnesses agreed to give their statements.The Police Inspector, MIDC Waluj Police Station accordingly recorded the statements of the witnesses 'A', 'B', 'C' and 'D', in-camera.After completion of confidential inquiry, the Police Inspector of Police Station MIDC Waluj submitted proposal to the Detaining Authority i.e. respondent no.3, for taking action under Section 3 [1] of the MPDA Act, 1981, through concerned ACP Cantonment Division and DCP ::: Uploaded on - 04/04/2017 ::: Downloaded on - 06/04/2017 01:01:59 ::: 1698.2016 Cri.WP.odt 12 [Zone-1] at Aurangabad.In the said report, the Deputy Commissioner of Police [Zone01], Aurangabad has mentioned that the facts given in the statements and apprehension expressed by the witnesses 'A', 'B', 'C' and 'D', is true and reasonable.After perusing the said report, respondent no.3 was satisfied that, the facts given in the statements and apprehension entertained by the witnesses 'A', 'B', 'C' and 'D', is true and reasonable.::: Uploaded on - 04/04/2017 ::: Downloaded on - 06/04/2017 01:01:59 :::::: Uploaded on - 04/04/2017 ::: Downloaded on - 06/04/2017 01:01:59 :::In view of the offences registered against the petitioner and the statements of witnesses the detaining authority is convinced that the petitioner is a 'dangerous person', and the people residing within the jurisdiction of Police Station, referred herein above in para 7, and the residents ::: Uploaded on - 04/04/2017 ::: Downloaded on - 06/04/2017 01:01:59 ::: 1698.2016 Cri.Therefore, after arriving at subjective satisfaction, respondent no.3 passed the detention order on 4th June, 2016, and as the petitioner was in judicial custody in Police Station MIDC Waluj, Aurangabad in Crime No.189/2016, for the offence punishable under Sections 376, 354 [A], 354 [D], 323, 504, 506, 34 of the IPC and 67 of the Information and Technology Act, 2000, after obtaining prior permission of the concerned Court, the detention order ::: Uploaded on - 04/04/2017 ::: Downloaded on - 06/04/2017 01:02:00 ::: 1698.2016 Cri.WP.odt 14 was served on the petitioner on the same day.After receipt of the opinion from the Advisory Board, the detention order has been confirmed by the State Government, vide its order No.All the mandatory provisions have been completed in time as stipulated in the said Act.::: Uploaded on - 04/04/2017 ::: Downloaded on - 06/04/2017 01:01:59 :::::: Uploaded on - 04/04/2017 ::: Downloaded on - 06/04/2017 01:02:00 :::::: Uploaded on - 04/04/2017 ::: Downloaded on - 06/04/2017 01:02:00 :::::: Uploaded on - 04/04/2017 ::: Downloaded on - 06/04/2017 01:02:00 :::1698.2016 Cri.It is further submitted that, the petitioner is a 'dangerous person' as defined in Section 2 [b-1] of the MPDA Act, 1981, as he has committed serious offences i.e. assault, outraging the modesty of woman, rape, dacoity, criminal intimidation, act of threatening common people, and indulging into encouraging prostitution.As a matter of fact, at the time of passing the detention order, the petitioner was in judicial custody in Police Station MIDC Waluj, Aurangabad, in Crime No. 189/2016 under Sections 376, 354 [A], 354 [D], 323, 504, 506, 34 of the IPC and Section 67 of the Information and Technology Act, 2000, and after obtaining prior permission of ::: Uploaded on - 04/04/2017 ::: Downloaded on - 06/04/2017 01:02:00 ::: 1698.2016 Cri.WP.odt 16 the concerned Court, the detention order was served on the petitioner on the same day.Thereafter, he has been detained in Central Prison, Aurangabad.It is not correct to say that the order passed under the MPDA Act is unjust, arbitrary and illegal and violate the fundamental rights guaranteed to the petitioner under Articles 19 and 21 of the Constitution of India.As a matter of fact, the petitioner committed offences under Chapter XVI and XVII of the IPC, and said acts have become a serious threat and source of danger to the lives of law abiding and peace loving citizens and disturbed the public order in the jurisdiction of Police Station MIDC Waluj and adjoining areas.There is strict adherence to relevant legal provisions before passing the order of detention.::: Uploaded on - 04/04/2017 ::: Downloaded on - 06/04/2017 01:02:00 :::The learned APP appearing for respondent - State also invites our attention ::: Uploaded on - 04/04/2017 ::: Downloaded on - 06/04/2017 01:02:00 ::: 1698.2016 Cri.He also invites our attention to the further affidavit-in-reply filed on behalf of respondent no.3 and submits that on 4th June, 2016, the detention order has been served on the petitioner in Central Prison, Aurangabad, and at that time the statement of the petitioner was recorded before the Police Inspector of Police Station MIDC Waluj, Aurangabad, and Jailor of the Central Prison, Aurangabad.The petitioner stated in his statement that, he has studied upto 10th Standard in Marathi medium at Milind School, Aurangabad, and thereafter, he studied up to 12th Standard in Arts Faculty in Deogiri College at Aurangabad.He also stated that he learnt Marathi, English and Hindi languages during his studies.Therefore, he requested that the grounds of detention and other ::: Uploaded on - 04/04/2017 ::: Downloaded on - 06/04/2017 01:02:00 ::: 1698.2016 Cri.WP.odt 18 relevant documents should be supplied in Marathi language.Therefore, the grounds of detention and other relevant documents were served on the petitioner along with its Marathi translation on 7th June, 2016 in time.It is further submitted that, the Deputy Commissioner of Police, Zone-I, Aurangabad, has verified the truthfulness of in-camera statements of witnesses 'A', 'B', 'C' and 'D'.The mandate of verification is duly complied in the present case and the same is reflected at the bottom of statements of these witnesses.::: Uploaded on - 04/04/2017 ::: Downloaded on - 06/04/2017 01:02:00 :::::: Uploaded on - 04/04/2017 ::: Downloaded on - 06/04/2017 01:02:00 :::Therefore, the learned APP appearing for the respondent - State submits that the petition may be dismissed.::: Uploaded on - 04/04/2017 ::: Downloaded on - 06/04/2017 01:02:00 :::Heard the learned counsel appearing for the parties at length.With their able 6 1990 [2] SCC 456::: Uploaded on - 04/04/2017 ::: Downloaded on - 06/04/2017 01:02:00 ::: 1698.2016 Cri.WP.odt 20 assistance, we have perused the grounds taken in the Petition, annexures thereto, grounds of detention, the impugned order, affidavit- in-reply of respondent no.1, affidavit-in- reply filed by respondent no.3, further affidavit-in-reply of respondent no.3, and the original record made available for perusal by respondents.So far as first ground raised by the petitioner that the period of detention is not mentioned in the order dated 4th June, 2016 passed by the Detaining Authority, and further no reasons assigned by the State Government to make order operative for one year, and therefore, the order of detention deserves to be quashed is concerned, the Hon'ble Supreme Court in the case of T. Devaki [cited supra], after placing reliance upon the earlier judgments of the Supreme Court wherein same issue was involved, has taken a view that, an order of detention is not rendered illegal merely ::: Uploaded on - 04/04/2017 ::: Downloaded on - 06/04/2017 01:02:00 ::: 1698.2016 Cri.WP.odt 21 because it does not specify the period of detention.Para 13 of the said Judgment reads thus:::: Uploaded on - 04/04/2017 ::: Downloaded on - 06/04/2017 01:02:00 :::::: Uploaded on - 04/04/2017 ::: Downloaded on - 06/04/2017 01:02:00 :::WP.odt 23 detention.When, no period is mentioned in an order, the implication is that the detention is for the maximum period prescribed under the Act.::: Uploaded on - 04/04/2017 ::: Downloaded on - 06/04/2017 01:02:00 :::::: Uploaded on - 04/04/2017 ::: Downloaded on - 06/04/2017 01:02:00 :::We have carefully perused grounds of the detention.In para 3, there is reference to the Crime No.115/2013 registered with Jawaharnagar Police Station for the offence punishable under Section 395 of the IPC.There is also reference to Crime No.117/2015, registered with Kranti Chowk Police Station, for the offence punishable under Sections ::: Uploaded on - 04/04/2017 ::: Downloaded on - 06/04/2017 01:02:00 ::: 1698.2016 Cri.In all these three cases, the trial is pending.There is another Crime No.189/2016 registered with MIDC Waluj Police Station, for the offence punishable under Sections 376, 354 [A], 354 [D], 323, 504, 506, 34 of the IPC r/w.Section 67 of the I.T. Act, 2000, which is pending for investigation.In the ground of detention, each of the afore-mentioned crimes have been mentioned.The details in respect of the allegations in the said FIR, and the subsequent orders passed by the Court of Judicial Magistrate, Aurangabad, has also been mentioned.Likewise in respect of other ::: Uploaded on - 04/04/2017 ::: Downloaded on - 06/04/2017 01:02:00 ::: 1698.2016 Cri.WP.odt 25 crimes also, separate grounds are mentioned, with details about the said crime numbers and subsequent developments happened after registration of that crime.On careful perusal of the allegations in the FIR being Crime No.117/2015 registered with Kranti Chowk Police Station, Crime No.3019/2015 registered with Satara Police Station and Crime No.189/2016 registered with MIDC Waluj Police Station and also chapter case of which proceedings are subsequently dropped, does have nexus with passing of order of detention by the Detaining Authority.Apart from the afore-mentioned three crimes and chapter case, in-camera statements of the witnesses 'A', 'B', 'C' and 'D' are also recorded.On careful perusal of the original record, we find that, those statements are verified by the Deputy Commissioner of Police, Zone-I, Aurangabad City and it is mentioned in side margin of every in-camera statements that, ::: Uploaded on - 04/04/2017 ::: Downloaded on - 06/04/2017 01:02:00 ::: 1698.2016 Cri.Upon perusal of the affidavit-in-reply filed by respondent no.1, ::: Uploaded on - 04/04/2017 ::: Downloaded on - 06/04/2017 01:02:00 ::: 1698.2016 Cri.WP.odt 27 it is clearly mentioned that the State through Department of Home has confirmed the order of detention.::: Uploaded on - 04/04/2017 ::: Downloaded on - 06/04/2017 01:02:00 :::::: Uploaded on - 04/04/2017 ::: Downloaded on - 06/04/2017 01:02:00 :::::: Uploaded on - 04/04/2017 ::: Downloaded on - 06/04/2017 01:02:00 :::::: Uploaded on - 04/04/2017 ::: Downloaded on - 06/04/2017 01:02:00 :::So far as third ground agitated by the learned counsel appearing for the petitioner that the Detaining Authority has failed to prove that, the petitioner is dangerous person within the meaning of Section 2 [b-1] of the MPDA Act is concerned; the petitioner is involved in as many as four offences; which are registered by way of separate crime numbers, and also in-camera statements of four witnesses have been recorded, and on the basis of said cogent and sufficient material, the Commissioner of Police arrived at subjective satisfaction that the petitioner is dangerous person and he is acting in a manner prejudicial to the maintenance of the public order.Therefore, the petitioner's assertion that, he cannot be termed as 'dangerous person', deserves no ::: Uploaded on - 04/04/2017 ::: Downloaded on - 06/04/2017 01:02:00 ::: 1698.2016 Cri.WP.odt 28 consideration.The material brought on record by the respondents unequivocally indicated about the involvement of the petitioner in habitually committing offences punishable under Chapter XVI and XVII of the Indian Penal Code.::: Uploaded on - 04/04/2017 ::: Downloaded on - 06/04/2017 01:02:00 :::WP.odt 29 that, he studied up to 10th Standard in Marathi medium at Milind School, Aurangabad, and thereafter, he has passed out 12th Standard from Arts Faculty, and he studied in Marathi, English and Hindi languages and he is conversant with all three languages.In that view of the matter, there is no substance in the aforesaid fourth ground agitated by the learned counsel appearing for the petitioner.::: Uploaded on - 04/04/2017 ::: Downloaded on - 06/04/2017 01:02:00 :::As already observed, the Deputy Commissioner of Police, Mr. Vasant Pardeshi, has verified the said statements and the Commissioner of Police has also gone through the said statement and subjectively satisfied that the facts given in the statement of the witnesses ::: Uploaded on - 04/04/2017 ::: Downloaded on - 06/04/2017 01:02:00 ::: 1698.2016 Cri.WP.odt 30 and apprehension expressed is true and reasonable.::: Uploaded on - 04/04/2017 ::: Downloaded on - 06/04/2017 01:02:00 :::In the light of the discussion in the foregoing paragraphs, we are of the considered view that, the order impugned in this Petition needs no interference, hence, the Petition is devoid of any merits, and the same stands rejected.::: Uploaded on - 04/04/2017 ::: Downloaded on - 06/04/2017 01:02:00 :::

['Section 395 in The Indian Penal Code']

IN THE HIGH COURT AT CALCUTTA CRIMINAL APPELLATE JURISDICTION Present : The Hon'ble Justice Indrajit Chatterjee CRR 2148 of 2014 With CRAN 2861 of 2015 Dr. Amitabha Mukherjee Vs.Indrajit Chatterjee, J:- The report as placed by Mr. Basu, learned counsel representing the State is taken on record.From the said report, it appears that the defacto complainant Tamali Mukherjee could not be traced out at Flat No.Let the report be taken on record.On behalf of the State, Mr. Basu is present.There is no need to keep the matter pending only for appearance of the opposite party No.2 who in spite of best effort of this court could not be traced out.The report of S.I Pradip kumar Sinha of Baguihati P.S dated 27.11.2016 as forwarded by the officer-in-charge of the said police station be taken on record.On behalf of the petitioner, Mr. Mukherjee is present.This is an application under Section 482 of the Code of Criminal Procedure, 1973 wherein the petitioner has prayed for quashing of the proceeding of G.R. Case No.2736 of 2012 arising out of Beleghata Police Station Case No.272 dated 28th August, 2012 under Section 498A of the Indian Penal Code and Sections 3 and 4 of the Dowry Prohibition Act, now pending before the court of learned Judicial Magistrate, 5th Court, Sealdah, 24 Parganas.Leave is granted to the learned counsel for the petitioner to amend the cause title of the petition.The case so far relevant for the purpose of assessing this revisional application can be stated in brief, thus: that one FIR was lodged by the opposite party no.2 wherein she candidly claims that there was no marriage between the petitioner and the opposite party.From 2002, they started residing as husband and wife in a rented house.There are other allegations against the husband.She further stated in the complaint that she and her husband shifted from Baguiati to Beleghata and thereafter she came to know that one Mamata Bhatt who is now merely a chamber attendant of the present petitioner doctor living as husband and wife.

['Section 498A in The Indian Penal Code']

This petition has been filed to quash the proceedings in crime No.304 of 2015 on the file of the 1 st respondent as against the petitioner.Without any base, the first respondent police registered a case in Crime No.304 of 2015 for the offences under Sections 120(B), 147, 149, 420, 468, 447 and 471 of I.P.C. as against the petitioner an others.Hence he prayed to quash the same.3.The learned Government Advocate (criminal side) would submit that the investigation is still pending and this petition is in premature stage and hence, he prayed for dismissal of this petition.4.Heard both sides and perused the materials available on record.A.No.255 of 2019 dated 12.02.2019 - Sau.Accordingly, this criminal original petition is dismissed.No costs.Consequently, connected miscellaneous petition is also dismissed.However, the petitioner is permitted to submit all the documents executed by her after the registration of the FIR before the 1st respondent and on the receipt of the same, the first respondent is directed to consider the same complete the investigation and file a 5/7http://www.judis.nic.in Crl.O.P.(MD) No.1867 of 20109 final report within a period of eight weeks from the date of receipt of copy of this order.16.09.2019 Internet:Yes Index:Yes/no Arul To1.The Inspector of Police, Siruganoor Police Station, Trichy2.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.http://www.judis.nic.in Crl.O.P.(MD) No.1867 of 20109 G.K.ILANTHIRAIYAN, J.

['Section 149 in The Indian Penal Code', 'Section 120 in The Indian Penal Code', 'Section 420 in The Indian Penal Code', 'Section 447 in The Indian Penal Code', 'Section 471 in The Indian Penal Code', 'Section 468 in The Indian Penal Code', 'Section 147 in The Indian Penal Code']

For the Appellant : Shri Neeraj Ashar, Advocate.For the Respondent/State : Shri Amit Pandey, Panel Lawyer.Date of hearing : 28/02/2012 Date of judgment: 28/02/2012 (J U D G M E N T ) Appellant has filed this appeal against the judgment dated 6th January, 1999, passed by First Additional Special Judge, Rewa in Special Case No. 11/1995, convicting the appellant under Sections 323 and 342 of the Indian Penal Code and sentencing him to rigorous imprisonment for one year with fine of Rs. 500/-, on each count respectively.In short, the prosecution case is that on 18.6.1995 at about 5 O' clock in the morning, appellant went at the house of Dhanai Basore and forcibly carried him to his shop.He confined him there and assaulted saying that his pigs entered his house.Hearing his hue and cry, his son (2) Cr.Police and other persons rescued Dhanai and sent him to Primary Health Centre, Teonthar.Since Dhanai belonged to Scheduled Caste, a case under Section 3(i)(x) of the SC/ST (Prevention of Atrocities) Act (for brevity `the Act') and Sections 323, 506-B and 342 of the Indian Penal Code was registered.After investigation, charge sheet was filed against the appellant and the case was committed for trial.After appreciating the evidence of complainant, other eye witnesses and the medical evidence of Dr. Ramesh Kumar Mishra (PW13), learned Special Judge found that the charge under Section 3(1)(x) of the Act was not made out, but it stood proved that appellant confined and assaulted Dhanai.Accordingly, appellant was convicted under Sections 342 and 323 of the Indian Penal Code.Aggrieved by his conviction and sentence, appellant has filed this appeal.Learned counsel for the appellant has not assailed the finding of conviction of appellant.He, however submitted that in view of the fact that the incident occurred in the year 1995 and about 17 years had elapsed, the sentence of imprisonment of appellant be reduced to the period already undergone by him.He submitted that appellant remained in jail for four days.On the other hand, learned counsel for the State (3) Cr.233/1999 contended that the sentence imposed by the Court below was appropriate and adequate in the facts and circumstances of the case.I have heard the learned counsel for the parties and perused the impugned judgment and the evidence on record.On perusal of record, I find that Dhanai (PW1) categorically stated that appellant assaulted him with fists and kicks and forcibly carried him to his shop and confined him.Hearing his shouts, his wife, son and daughter- in-law came there and rescued him.As a result of assault, he suffered injuries on his head and chest.He stated that appellant had constructed a house in his courtyard, therefore, he created dispute.Appellant wished that he should leave the place vacant for him.He stated that except assaulting and confining him, appellant did not say anything else to him.The evidence of Dhanai (PW1) finds support from the evidence of his wife Gendaua (PW2), Indrakali (PW3), Brijbhan (PW4), Anarkali (PW5), Chhabilal (PW6) and Ramchandra Paul (PW9).Independent witness Radhika Prasad Tiwari (PW12) also stated that Dhanai was rescued from the house of appellant infront of him.Dr. Ramesh Kumar Mishra (PW13) examined the injuries of Dhanai and found following injuries on his body:(i) Lacerated wound 1cm x 1/2 cm x 1/2cm in frontal region of skull on eye brow,(ii) contusion with swelling on the left side of his face & (4) Cr.(iii) contusion with swelling on the left thigh.In the opinion of doctor, these injuries were caused by hard and blunt object.They were simple in nature.Injury report Ex. P/7 was written and singed by him.From the above evidence, it is amply established that Dhanai (PW1) was assaulted by appellant.From the evidence of complainant and other witnesses, it is also established that appellant confined Dhanai in his shop.After perusal of the above evidence, I am satisfied that learned Special Judge committed no error in holding the appellant guilty of the charges under Sections 342 and 323 of the Indian Penal Code.About 17 years have elapsed since then.Appellant is now an elderly person of about 56 years of age.There is nothing on record to indicate that he is a person of bad antecedents or is a previous convict.I find substance in the submission of learned counsel for the appellant that no useful purpose would be served if appellant is sent back to jail for serving out further jail sentence.In this view of the matter, I deem it proper to reduce the jail sentence of appellant to the period of custody already suffered by him which comes to about four days, however, with enhancement of fine.Accordingly, the jail sentence of appellant on both counts is reduced to the period of sentence already undergone by him.The amount of fine (5) Cr.233/1999 imposed upon the appellant under Section 323 of the Indian Penal Code is enhanced to Rs. 1000/- and the fine imposed upon him under Section 342 of the Indian Penal Code is also enhanced to Rs. 1000/-.The fine amount already deposited by the appellant shall be adjusted in calculating the total amount of fines.In case of failure of the appellant to deposit the fine amount, he shall undergo simple imprisonment for a period of two months.The amount of fine shall be deposited in the trial Court within a period of two months.Appeal partly allowed.(RAKESH SAKSENA) JUDGE AD/

['Section 342 in The Indian Penal Code', 'Section 323 in The Indian Penal Code']

This order shall decide W.A. No.875 of 2011, W.A. 903 of 2011, W.A. No. 915 of 2011 and R.P. No. 427 of 2011 in which a common question of law is involved for the consideration of this Court.For the convenience facts are taken from W.A.No. 875 of 2011 (Prakash Singh Thakur vs. State of M.P. and others).All the appellants/petitioners are suffering sentence for life under Section 302 IPC alongwith some more provisions under the IPC.It is also not in dispute that these persons have not completed actual sentence of 14 years and before completion of the aforesaid period, they have applied for their premature release under the provisions of M.P. Prisoners Release on Probation Act, 1954 (hereinafter referred to as "Act").The sole contention of the petitioner before this Court is that the Rule 4 of M.P. Prisoners Release on Probation Rules, 1964 (hereinafter referred to as "the Rules") have been amended vide notification dated 24.3.2008 while the applicants were convicted prior to it, so the earlier rule as was in statute book prior to 24.3.2008 shall be applicable in the matter of all the appellants and they are entitled to release on probation even without completion of actual sentence of 14 years.W.A.No. 875 of 2011 Prakash Singh Thakur State of M.P. & others.In the cases at hand, the conditions have beenAs petitioner has remained in jail for more than 13 years, Board is directed to reconsider the case of the petitioner within a period of two months from today."The Division Bench had also observed that where prayer for bail has been rejected, the convicts have been released on licence.To appreciate the said submission, we have carefully perusaed both the decisions.

['Section 302 in The Indian Penal Code']

However, the prosecution and the defence versions about the incident are divergent.It is also not disputed that in spite of both these versions, the genesis is the same, namely on 14-3-1984 there was some wrangling between P. W. 3 Achchelal and Lalta son of appellant Motilai.P.W. 4 Bhajna, aged about 12 years, is son of P.W. 3 Achchelal and he is a grazier-boy.Bhajna had refused to graze the cattle of Lalta and had even complained to his father that the appellant Motilal's son Lalta insists upon grazing their cattle arid Bhajna was even beaten when he refused to graze their cattle.In that context, P.W. 3 Achchelal had rebuked Lalta, s/o appellant Motilai.In the above background, the case for the prosecution is that on Bhajna's refusal to graze cattle, Lalta had beaten Bhajna.On 14-3-1984 at or about 8 p.m., P.W. 3 Achchelal inquired from Lalta as to why he forces Bhajna to graze his cattle and why he beats him when he refuses.That Lalta should desist from forcing Bhajna to take cattle and should also desist from beating him.At that, it is said, Lalta repeatedly said that he would beat Bhajna if he refused to graze cattle.Raghuvar (deceased) also came at the place of incident and tried to pacify Lalta but Lalta was-persistent and gave the same reply.At that Raghuvar said that if he beats Bhajna, he too would be beaten.Lalta got angry, and went away.Soon thereafter all the five appellants arrived.Ram Kinker was armed with a Farsa and other with sticks.Ram Kinker is said to have assaulted Raghuvar with Farsa and the latter fell down.Jageshwar (P.W. 7), Ramjas (P.W. 9), Ishwardin.(P.W. 12) and Kailash (P.W. 13) who were present in the vicinity, intervened and in turn they too were assaulted, by the appellants causing them injuries.Raghuvar died on the spot.The deceased was taken to the police station, Nagod in a DOLI where F.I.R. (Ex.P-8) was lodged by P.W. 7 Jageshwar.The F.LR.JUDGMENT Y.B. Suryavanshi, J.The five appellants, namely, Motilai, Shankar s/o Motilai, Shiv.The convictions and sentences are as follows:It is not in dispute that on 14-3-1984 at village Gunhar, P. S; Nagod, there was some incident with Raghuvar (deceased) and the two appellant Motilai and Ram Kinker, who are respectively father and son.was recorded by P.W. 14 Mishra, S.I. and inquest memo was prepared and the injured were sent for medical examination and the body of Raghuvar was sent for post mortem.During investigation, P.W. 14 Mishra, I.O., is said to have seized weapons from the appellant, but that aspect is not material in this appeal.Ultimately, the five appellants were charge sheeted under various sections, i.e. 147, 148, 302/149, 323 and 325/149, Indian Penal Code.The appellants abjured their guilt.The defence plea of appellants Shankar and Shiv Kumar is that they had gone to a different village to bring their sisters and were not present on the day of the alleged incident at the alleged time (alibi).The defence version .about the incident is that the appellant Motilal along with his son Rani Kinker had gone to the house of P.W. 3 Achchelal just for ULHANA, i.e. scolding, since Achchelal had rebuked Lalta.Prosecution witnesses Ramjas, Harishankar, Jageshwaf, Kailash, Ishwardin and Raghuvar were also sitting there, Raghuvar (deceased) abused Ram Kinker, while the latter was returning to his house and also dealt a blow on the head of Ram Kinker.On hearing the alarm raised by Ram Kinker, Motilal went there, but he too was assaulted by the deceased and the above said witnesses.To save themselves, both the appellants Motilal and Ram Kinker went inside the house of Ramkhilavan Brahmin, who lives near the place of incident.Thus, Motilal and Ram Kinker allegedly acted in self-defence.Furthermore, both of them were assaulted and sustained injuries.They also went to the police station and were sent for medical examination.While denying the prosecution version, stated above, the defence has projected the above version and totally denied the prosecution case about forming any unlawful assembly with common object as alleged by the prosecution.Alternatively, it was also submitted that it is a case of free fight and the appellants Shanker, Shiv Kumar and Lalman have been falsely implicated.Both counsel heard.Record perused.Since injuries sustained by both sides figured at length during arguments, it will be convenient at this stage to consider the extent and nature of injuries sustained on both sides.P.W. 8 Dr. Sharma performed the post mortem examination on the body of Raghuvar and had deposed as follows:(A) Raghuvar External Injury:One incised wound on the posterior aspect of right arm with defused spelling just above the elbow joint, present on the posterior aspect of right arm with clear cut everted margins spertdle in shape oblique in direction, size 2 cm.x 11/2 cm.x 1 cm.There was no evidence of fracture of bone............Two lacerated wounds:- One was placed on left parietal bone region obliquely placed above and downwards direction, size, 2 x 1 cms.There was fracture of left parietal bone fludy blood was coming out from fractured area.Second was a lacerated wound present on left parietal bone region which was 4 x 3 x 1 1/2 cm.Internal examination:On opening the first wound of the skull I found fracture of left parietal bone in the same area and blood was present below, the wound.........The cause of death was due to fracture of parietal bone and injuries to the vital organ, that is brain leading to shock and death.......... The injuries were ante mortem.Injury No. 1, that is on arm was caused by sharp edged weapon and injuries of skull were caused by hard and blunt object.Injuries of skull were grievous and was sufficient to cause death in the ordinary course of nature (Post mortem Report Ex.P-9).(B) Jageshwar (1) Lacerated wound on the left parietal bone region just near, the mid line with defused swelling and fresh bleeding from the wound.The size 1 x 1/2 x 1 1/2 cm.It was caused by hard and blunt object.Lacerated wound on the right arm just above the elbow joint with defused swelling in 4 x 3 cm.area, size of lacerated wound was 1/2 x 1/2 x 1/3 cm.fresh bleeding from the wound was found and dried clotted blood was present on the wound as well as on the front arm produced by hard and blunt object.(3) Defused swelling bluish in colour in size 3 x 2 cm.marked tenderness on the area situated on the middle 1/3 of the right forearm posterior aspect.It was caused by blunt and hard object.(4) Abrasion on the left knee joint 1/4 x 1/2 cm.in size caused by blunt and hard object, simple in nature.(Injury Report Ex.P-10) (C) Kailash Prasad Defused swelling on the left hand outer aspect in lateral half part, size 4 1/2 x 3 cm.marked tenderness was present and in the centre of the swelling there was dried clotted blood with small lacerated wound of 1/2 x 1/3 x 1/4 cm.According to Dr. M. P. Singh (P.W. 10) there was fracture of second matacarpal bone of left hand.(Injury Report Ex.P-11).(D) Ishwardin (1) Obliquely placed bruise on the left scapular region reddish-bluish in colour and 6 X 1 1/2 cm.in size caused by hard and blunt object, simple in nature, within 1 to 3 hours' duration.Defused swelling on the anterior aspect of left arm redish bluish in colour and 3 x 3 cm.in size, caused by hard and blunt object, simple in nature.(Injury Report Ex.P-12) (E) Girdhari, s/o Sukhdep and Kachi and Parvati, w/o Vishwanath were also examined.They complained of pain but no external injury was found on them.(Injury Reports Exs.P-13 and P-14),Injuries on appellants: P.W 8 Dr. Sharma on the same day examined appellant Ram Kinker and appellant Motilal and found the following injuries:(A) Ram Kinker (1) Lacerated wound on the frontal region on the left side of the head 21/2 x 1/2 x 1/3 cm.(2) Reddish-bluish colour skin on the left scapular region on upper part with defused swelling, size 5 x 1 1/2 cm.in above and downward direction with two parallel lines caused by blunt and hard object, simple in nature and 6 to 8 hours duration.(3) Reddish-bluish skin with swelling on the right shoulder outer aspect, the size 3 x 1 1/2 cm.obliquely above and downward direction, caused by hard and blunt object, simple in nature and within 6 to 8 housr duration.(Injury Report Ex.D-1).(B) Motilal (1) Lacerated wound on the parietal bone region right side 5 cm.above the right ear, obliquely placed size 3 x 1/2 x 1/2 cm.Dried clotted blood in and around the wound.X-ray of skull with suspicion of fracture of right and was caused by blunt and hard object.(2) Lacerated wound on the left parietal region 3 cm.away from the mid line 2 1/2 x 1/4 x 1/4 cm.Dried clotted blood around the wound was present.It was simple in nature caused within 6 to 8 hours duration, caused by hard and blunt object.(3) Defused swelling on the right hand on dorsal aspect and wrist joint right side.Marked tenderness present with bluish colour of skin, advised X-ray of hand wrist with a suspicion of fracture of metacarpal bone.It was caused by hard and blunt object.Caused 6 to 8 hours of duration.(4) Defused swelling on the left hand on the medical aspect 3 1/2 x 3 cm.in size bluish colour of the skin in the centre of swelling within 6 to 8 hours of duration and caused by hard and blunt object.(5) Abrasion on the posterior aspect of forearm right side in the middle part 1 x 1/2 cm.in size, simple in nature within 0 to 8 hours duration caused by hard and blunt object.(6) Abrasion on the right scapular region obliquely placed 4 x 1/2 cm.in size, simple in nature within 6 to 8 hours of duration and caused by hard and blunt object.(7) Reddish-bluish coloured skin on the left shoulder posterior aspect with defused swelling 3 x 2 cm.in size caused by hard and blunt object within 6 to 8 hours duration and simple in nature........ Injury No. 1 of Motilal was not dangerous to life, because it did not cause any injury to the brain.(Injury Report Ex.D-2).For the reason that both sides have sustained injuries, the learned trial Court first posed the question as to which side was the aggressor? The further findings and conclusions are: that the prosecution has proved the genesis of the incident; that for reasons stated in the judgment, the appellants were held aggressors as they had gone to the place of the incident to teach Raghuvar a lesson; that what he has uttered to Lalta, namely, that if you beat Bhajna, you too would meet the same fate; that the presence of eye-witnesses in this case, namely, P.W. 7 Jageshwar, P.W. 9 Ramjas, P.W. 12 Ishwardin and P.W. 13 Kailash could not be disputed because even in the defence version their presence in admitted and, moreover, they are the injured persons whose presence is guaranteed at the time of the incident; that the oral evidence about the assault by the appellants is well-established; that the oral evidence is further corroborated by the F.I.R., which was lodged promptly and there was no time for deliberations and concoction; that there is no inconsistency between the oral and medical evidence; that the defence, for which D.W. 2 Betalal has been examined is false; that the injuries on the two accused are not grievous and merely for the absence of any explanation about these injuries, the prosecution evidence could not be discarded; that the appellants had constituted unlawful assembly and were armed with weapons alleged and in furtherance of the common object the incident occurred.Thus, the prosecution version was relied and the defence version was disbelieved.Accordingly the appellants have been convicted as stated earlier.Genesis of the incident: This furnishes a satisfactory clue to the incident.On a perusal of the statements of P.W. 3 Achchelal and P.W. 4 Bhajna, we find that the appellant Motilal's son Lalta wanted Bhajna to graze his cattle.On his refusal, Lalta had dealt fist blows.Naturally the grazier-boy complained to his father P.W. 3 Achchelal.There is a water-tap at some short distance from the house of Achchelal and when at about 8 p.m. Lalta had gone there for a wash, Achchelal on that occasion inquired as to why-lie had beaten his son (Bhajna).Lalta said that he would be beaten like that and the cattle will be grazed by him.Raghuvar (deceased) was meanwhile returning from the field and was going towards his house.It has come in evidence that the deceased was not related to P.W. 3 Achchelal or P.W. 4 Bhajna, but he intervened saying that Lalta should not beat Bhajna.Lalta obstinately and adamantly retorted saying that he will beat him like that and get their cattle grazed by him.However, Raghuvar is alleged to have told him that if he beats Bhajna he would be paid in the same coin.Lalta angrily left the place.Thus, the directly affected parties were P.W. 3 Achchelal and P.W. 4 Bhajna on the one hand and Lalta on the other and Raghuvar was merely a mediator.Raghuvar's utterances seemed to have pinched Lalta because close on the heels of that incident, the appellants shortly appeared at the scene of occurrence.We find no reason to disbelieve the evidence of P.W. 3 Achchelal and P.W. 4 Bhajna, who are not at all related to the deceased.In fact, after the alleged talks, P.W. 3 Achchelal and P.W. 4 Bhajna had gone away and had not seen the subsequent incident of assault.The only suggestion in para 3 of the cross-examination of Achchelal is that it is Achchelal and Raghuvar who.had gone to the house of Lalta and hurled abuses.Even P.W. 7 Jageshwar, P.W. 9 Ramjas and P.W. 12 Ishwardin have deposed what P.W. 3 Achchelal and P.W. 4 Bhajna have stated about the conversations between Lalta and Bhajna's father and also between Raghuvar and Lalta.They are not chance witnesses.P.W. 7 Jageshwar, as stated by him, and also others, had his SAAR, i.e. cattle-shed near the place of incident.Me says that the above wrangling took place- near the house of P.W. 3 Achchelal.The other witnesss, i.e., P.W. 9 Ramjas and P.W. 12 Ishwardin had their houses at short distance, but at the relevant time both of them along with Harishankar were sitting on the chabutra of one Dadol and were busy making bidis.Their presence is not disputed even otherwise.Therefore, we are of the view that the findings of the trial Court that the genesis has been established by the prosecution is well merited.Incidentally, as the trial Court had also observed that the crux of the defence version is (so far as Motilal and Ram Kinker are concerned) that they had gone to the house of Achhelal only for U'LHANA, which means to scold him for rebuking Lalta.But there are no such suggestions in the cross-examination of P. W. 3 Achhelal and P. W. 4 Bhajna who were the concerned witnesses.On the other hand, the only solitary question put to P. W. 4 Bhajna is that it is Raghuvar and Achhelal who had gone to Lalta's house.in Velu Pillai Padakalingarn v. Paramandam, AIR 1954 SC 152, it was observed: every cross-examiner should and can if he is careful indicate in cross-exaniination, whichever part of the evidence given in examination-in-chief is challenged and an omission to do so would lead to the inference that the evidence is accepted subject of course to its being assailed as inherently improbable.Again in Sayed Aleem v. State of Karnataka, AIR 1980 SC 1708, it was observed that non-cross examination of prosecution witnesses of certain facts leads to admission of that fact that circumstances could be taken for consideration.Thus, non-cross examination, particularly P. W. 3 Achhelal and P. W. 4 Bhajna, on what is being projected in the defence, has been rightly held by the trial Court as sheer afterthought.It stands to reason that so far as Lalta is concerned, he was rebuked by father of Bhajna, i.e. Achhelal, and nothing more was necessary.It is the utterences of Raghuvar which raised the ire of the other side, since he must have gone and complained what Raghuvar had uttered.Then turning to the evidence of eye-witnesses, we find that according to P.W. 7 Jageshwar, all the five appellants were seen assaulting Raghuvar.He specifically asserts that the appellant Ram Kinker dealt blows with the Farsa on the head of Raghuvar and others assaulted with sticks.Raghuvar had fallen down.Ishwardin, Kailash and Ramjas intervened in the assault and they too sustained injuries which have already been described.The statements of Ramjas, Kailash and Ishwardin are to the same effect.The learned counsel Shri Datt strenously urged that all the four witnesses have spoken about two Farsa blows attributed to the appellant Ram Kinker, but the medical evidence shows that the deceased had only one incised wound which was on the right arm and the two lacerated wounds on the skull were obviously by hard and blunt object.The inconsistencies between the medical and ocular evidence related to the opinion of the doctor that the person who caused injuries to deceased was at a higher level than the deceased and.in view of other circumstances, the eye-witnesses were held not reliable, i.e., they had not seen the incident.The inconsistency in the case before us does not belie the eye-witnesses because the incident occurred during the night, though there is evidence that as electric bulb was on near the house of Achchelal.In the assault in which five appellants participated and many others intervened, there was bound to be some confusion about the movement and though the witnesses have spoken about assault i.e. two blows by Farsa they seem to have mistaken to notice whether the assault was by the sharp side or the blunt side of the Farsa.There was exchange of abuses between the two groups.The altercation soon developed into an usual fight.Both the parties were armed to protect themselves.P.W. 7 Jageshwar had four injuries, Kailash had one fracture of second metacarpel, and Ishwardin had had two simple injuries, as referred in para 6 supra.All injuries on the other side were caused in self-defence.It was also urged that injury No. 1 on appellant Ram Kinker and injuries 1 and 2 on appellant Motilal were intended on vital parts.But then, all these injuries were simple.Thus, the finding that the appellants were the aggressors, who went togethe and mounted a joint attack on Raghuvar and also attacked those who came to intervene, and then went away together after the assault, leads to the inevitable conclusion that they had constituted an unlawful assembly whose common object was to assault Raghuvar.Witnesses do not say that they have caused injuries on the appellants nor do they say that these were in self-defence, and yet, in the totality of circumstances this seems to be a reasonable inference.The prosecution has been fair enough and not one-sided because the injured appellants, when they went to the police station, were sent for medical examination, and were examined by Dr. Sharma.Therefore, on the ground of non-explanation of the injuries, we are not inclined to reject the prosecution case as its substratum has been proved otherwise satisfactorily.For the aforesaid reasons, this appeal is partly allowed.Adverting to the convictions and sentences already referred in para 1 of this judgment, the appellants are convicted and sentenced as under:(a) The conviction of appellant Ram Kinker under sections 148 and 325, Indian Penal Code (for causing hurt to Kailash) and the sentences awarded, namely, two years' R.I. and one year's R.I. respectively, are maintained.Instead, they are convicted under section 326 read with section 149, Indian Penal Code.Motilal was released on bail on ground of old age and he was in detention approximately for about a year or so.The ends of justice would meet by awarding R.I. for five years for an offence under section 326/149, Indian Penal Code.But the appellants Shiv Kumar, Lalman and Shankar for convictions under section 326/149, Indian Penal Code are sentenced to R.I. for seven years each;(c) The conviction of all of five appellants under section 323/149, Indian Penal Code for causing hurt to Jageshwar and six months' R.I. each are also maintained.The substantive sentences awarded to the appellants shall be concurrent.In view of section 428, Criminal Procedure Code the period of detention of the appellants in custody shall be set off against the sentences awarded.The bail bonds of appellant Motilal are cancelled.

['Section 149 in The Indian Penal Code', 'Section 323 in The Indian Penal Code', 'Section 326 in The Indian Penal Code', 'Section 302 in The Indian Penal Code', 'Section 325 in The Indian Penal Code', 'Section 147 in The Indian Penal Code', 'Section 2 in The Indian Penal Code', 'Section 107 in The Indian Penal Code', 'Section 148 in The Indian Penal Code']

(a) First Informant Ashish Chitnis (PW1) was working as a Supervisor as well as a driver of the jeep of Purushartha Petrol pump owned by one Anusuya Padir.PW2 Pravin Darwada was working as an Accountant at the said Petrol pump.PW3 Balkrishna Padir is son of Anusuya Padir, who happens to be owner of the said Petrol pump.They all used to reside at Neral whereas the Petrol pump was situated at Kalamboli.These witnesses used to come to the Petrol pump at Kalamboli by a jeep bearing registration no.MH-46- P-4446 of Mahendra make owned by PW3 Balkrishna Padir.(b) As usual on 26th June 2013 PW1 Ashish Chitnis, PW2 Pravin Darwada and PW3 Balkrishna Padir came to the Petrol pump at Kalamboli in the morning hours.After completing the day's work, they left the Petrol pump in the evening hours for going back to Neral.On the way, then went to avk 3::: Uploaded on - 07/01/2019 ::: Downloaded on - 11/01/2019 05:10:51 ::: 1-APPEAL-348-2017-J.doc pick up Anusuya Padir, who, at the relevant time, was at the house of her daughter situated at Sector No.4, Nildhara Society, New Panvel.On reaching Nildhara society of New Panvel, the jeep was parked in front of the gate of the society and PW3 Balkrishna Padir went to the house of his sister for taking his mother Anusuya Padir.PW1 Ashish Chitnis and PW2 Pravin Darwada were sitting in the jeep with closed window glasses by putting on the Air conditioner.MH-46-P-4446, there was robbery of valuables including bags.On this aspect, evidence of PW1 Ashish Chitnis, PW2 Pravin Darwada and PW3 Balkrishna Padir, so also that of PW5 Vinaykumar Bhola Singh - panch witness, is material.Congruous and consistent evidence of PW1 Ashish Chitnis, PW2 Pravin Darwada and PW3 Balkrishna Padir shows that on the day of the incident i.e. on 26 th June 2013, they reached to their workplace i.e. Purushartha Petrol pump, Kalamboli, in the morning at about 9 - 9.30 a.m. It is further seen from their evidence that they left the petrol pump at about 4.45 p.m. by jeep bearing registration no.MH-46-P-4446 of Mahendra make for going back to Neral.On the way, they went to Nildhara Society in Sector 4 of New Panvel for picking up Anusuya Padir from the house of her daughter.6 What happened thereafter is disclosed by PW1 Ashish Chitnis and PW2 Pravin Darwada.As per their version, at about 5.30 p.m. of 26th June 2013, when they both were sitting in the vehicle by putting on the Air Conditioner, all of a sudden four persons came and encircled the jeep.These four persons then started breaking the windshield of the vehicle by iron pipes and sickles.They were threatening the inmates of the jeep by uttering that if they attempted to alight, they would be killed.PW1 Ashish Chitnis and PW2 Pravin Darwada further deposed that, then those four persons had broken the windshield of the jeep and took three bags viz., a leather bag, a green coloured bag and a sack which were kept in the jeep.As per version of PW2 Pravin Darwada, out of the articles taken from the jeep, his sack was also looted by the robbers.PW1 Ashish Chitnis and PW2 Pravin Darwada further deposed that when the robbers were taking out the bags from the avk 11::: Uploaded on - 07/01/2019 ::: Downloaded on - 11/01/2019 05:10:51 ::: 1-APPEAL-348-2017-J.doc jeep, they started shouting.PW3 Balkrishna Padir corroborated their version by stating that on hearing shouts, he rushed to the gate of the society and saw PW1 Ashish Chitnis and PW2 Pravin Darwada alighting from the jeep and shouting "thief thief".All these three witnesses deposed that four robbers ran along with the bag and boarded the Maruti Esteem car bearing registration no.10 The Mahendra Jeep bearing registration no.The appellant/accused has communicated to this court that he has completed sentence of more than 6 years of rigorous imprisonment out of total sentence of 7 years imposed on him, avk 1::: Uploaded on - 07/01/2019 ::: Downloaded on - 11/01/2019 05:10:51 ::: 1-APPEAL-348-2017-J.doc and therefore, his appeal be heard finally.By this appeal, the appellant/accused no.2 is challenging the judgment and order dated 31st March 2017 passed by the learned Special Judge under Maharashtra Control of Organized Crimes Act, 1999 (hereinafter referred to as MCOC Act for the sake of brevity) and Additional Sessions Judge, Raigad at Alibaug in Special MCOC Case No.1 of 2014 thereby convicting appellant/accused no.2 of offences punishable under Sections 392 and 427 read with 34 of the Indian Penal Code.For the offence punishable under Section 392 read with 34 of the Indian Penal Code, the appellant/accused no.2 is sentenced to suffer rigorous imprisonment for 7 years apart from direction to pay fine of Rs.500/- and, in default, to undergo further rigorous imprisonment for 1 year.For the offence punishable under Section 427 read with 34 of the Indian Penal Code, he is sentenced to suffer simple imprisonment for 1 month apart from payment of fine of Rs.500/- and in default, simple imprisonment for 1 week.Substantive sentences are directed to run concurrently by the learned trial court.avk 2::: Uploaded on - 07/01/2019 ::: Downloaded on - 11/01/2019 05:10:51 :::::: Uploaded on - 07/01/2019 ::: Downloaded on - 11/01/2019 05:10:51 :::::: Uploaded on - 07/01/2019 ::: Downloaded on - 11/01/2019 05:10:51 :::1-APPEAL-348-2017-J.doc 2 Facts in brief, leading to the prosecution of the appellant/accused no.2 along with co-accused, can be summarized thus :::: Uploaded on - 07/01/2019 ::: Downloaded on - 11/01/2019 05:10:51 :::(c) At about 5.30 p.m., when PW1 Ashish Chitnis and PW2 Pravin Darwada were waiting for PW3 Balkrishna Padir and his mother by sitting in the jeep, all of a sudden four robbers came there.Those robbers were having weapons like sickles and iron pipes.They started breaking the glasses of the jeep and threatening the inmates of the jeep.By breaking the back windshield of the jeep, the robbers took away three bags from the jeep.First Informant PW1 Ashish Chitnis and PW2 Pravin Darwada started shouting and PW3 Balkrishna avk 4::: Uploaded on - 07/01/2019 ::: Downloaded on - 11/01/2019 05:10:51 ::: 1-APPEAL-348-2017-J.doc Padir also came out of the house of his sister.They witnessed the robbers running away from the spot by a car of Maruti Esteem model bearing registration no.In this way, according to the prosecution case, the appellant/accused no.2 along with his three associates had committed robbery of three bags containing an amount of Rs.13,000/-, cell phone, ATM cards and other sundry items.::: Uploaded on - 07/01/2019 ::: Downloaded on - 11/01/2019 05:10:51 :::(d) Immediately after the incident of robbery, PW1 Ashish Chitnis accompanied by PW2 Pravin Darwada and PW3 Balkrishna Padir started proceeding towards the police station for reporting the matter.On the way to the police station near Khanda Colony, they all witnessed that the Maruti Esteem car in which the robbers fled from the spot, met with an accident and lying at the flyover.They came to know that one of the robbers was caught by police, as the car met with the accident, and he was taken to the MGM Hospital for medical treatment.PW1 Ashish Chitnis then lodged the First Information Report (FIR) Exhibit 27A which avk 5::: Uploaded on - 07/01/2019 ::: Downloaded on - 11/01/2019 05:10:51 ::: 1-APPEAL-348-2017-J.doc has resulted in registration of Crime No.52 of 2013 for the offence punishable under Section 392 read with 34 of the Indian Penal Code with Police Station Khandeshwar.::: Uploaded on - 07/01/2019 ::: Downloaded on - 11/01/2019 05:10:51 :::(e) PW13 Pratap Bhosale, Assistant Police Inspector, conducted investigation.Accused no.1 Anandraj Harijan, who was injured in the accident of the Maruti Esteem car, came to be arrested.His voluntary disclosure statement Exhibit 58 came to be recorded on 27th July 2013 in presence of PW8 Sambhaji Jadhav - panch witness.Arrested accused were put up for identification parade and according to the prosecution case, the appellant/accused no.2 came to be identified by PW2 Pravin Darwada.avk 6::: Uploaded on - 07/01/2019 ::: Downloaded on - 11/01/2019 05:10:51 :::::: Uploaded on - 07/01/2019 ::: Downloaded on - 11/01/2019 05:10:51 :::1-APPEAL-348-2017-J.docPW15 Sheshrao Suryawanshi, Additional Commissioner of Police, then took up further investigation of the crime in question.After seeking sanction of PW16 Ashok Kumar Sharma, Commissioner of Police, the appellant/accused no.2 as well as the co-accused came to be charge-sheeted.(g) The learned trial court framed Charge for offences punishable under Sections 3(1)(2), 3(2) and 3(4) of the MCOC Act as well as under Sections 395 and 427 of the Indian Penal Code and under Section 37(1) read with 135 of the Maharashtra Police Act against the appellant/accused no.2 and the co-accused.They pleaded not guilty and claimed trial.avk 7::: Uploaded on - 07/01/2019 ::: Downloaded on - 11/01/2019 05:10:51 :::::: Uploaded on - 07/01/2019 ::: Downloaded on - 11/01/2019 05:10:51 :::1-APPEAL-348-2017-J.doc(h) In order to bring home the guilt to the appellant/accused no.2 and the co-accused, the prosecution has examined in all seventeen witnesses.Reliance is also placed on the documentary evidence.The defence of the appellant/ accused no.2 was that of total denial.(i) After hearing the parties, by the impugned judgment and order, the learned trial court was pleased to convict the appellant/accused no.2 as well as the co-accused Anandraj Harijan for offences punishable under Sections 392 and 427 of the Indian Penal Code.They were acquitted of other offences alleged against them.Co-accused Kannan Tewar came to be acquitted of all offences.Accordingly, the appellant/accused no.2 came to be sentenced, as indicated in the opening paragraph of this judgment.3 I have heard Mr.Nitin Sejpal, the learned counsel appearing for the appellant/accused no.2, at sufficient length of time.He had not given specific description of the robbers while recording his statement.As such, belated identification of the appellant/accused no.2, in the identification parade held after few months, is of no consequence.He further argued that recovery of a bag cannot constitute legally admissible evidence against the appellant/accused no.2, as such type of bags are easily available in the market.::: Uploaded on - 07/01/2019 ::: Downloaded on - 11/01/2019 05:10:51 :::4 The learned APP supported the impugned judgment and order of conviction and resultant sentence.1 1994 SCC (Criminal) 292 avk 9::: Uploaded on - 07/01/2019 ::: Downloaded on - 11/01/2019 05:10:51 ::: 1-APPEAL-348-2017-J.doc 5 I have carefully considered the rival submissions and also perused the record and proceedings including the oral as well as documentary evidence.At the outset, let us examine whether the prosecution has established the fact that by smashing the windshield of the jeep bearing registration no.These three witnesses have cogently stated that the jeep was parked in a narrow lane in front avk 10::: Uploaded on - 07/01/2019 ::: Downloaded on - 11/01/2019 05:10:51 ::: 1-APPEAL-348-2017-J.doc of the gate of Nildhara society and then PW3 Balkrishna Padir went to fetch his mother Anusuya Padir from the house of his sister.::: Uploaded on - 07/01/2019 ::: Downloaded on - 11/01/2019 05:10:51 :::::: Uploaded on - 07/01/2019 ::: Downloaded on - 11/01/2019 05:10:51 :::MH-04-AX-1755 and fled from the spot.::: Uploaded on - 07/01/2019 ::: Downloaded on - 11/01/2019 05:10:51 :::7 As per congruous version of PW1 Ashish Chitnis, PW2 Pravin Darwada and PW3 Balkrishna Padir, then they proceeded to lodge report of the incident to the police station and on the way they had seen that the Maruti Esteem car, in which the robbers fled from the spot, met with an accident near Khanda Colony.The trio then proceeded further and PW1 Ashish Chitnis lodged report Exhibit 27A of the incident to Police Station Khandeshwar.8 At this juncture, it is apposite to refer to evidence of PW6 Gaurav Kumbhkarna, Police Constable attached to Khandeshwar Police Station.On the way, they noticed Maruti Esteem car bearing registration no.MH-04-AX-1755 being driven in rash and negligent manner.In the words of PW6 Gaurav Kumbhkarna, that car had given a cut to the passers-by, and therefore, they chased the said car.During the course of that chase, the car gave dash to the divider of the road and had turned turtle.Four persons alighted from that vehicle.PW6 Gaurav Kumbhkarna deposed that he and his colleague constable caught accused no.1 Anandraj Harijan, who was injured in that accident and had taken him to the MGM Hospital, Kamothe, for medical treatment.::: Uploaded on - 07/01/2019 ::: Downloaded on - 11/01/2019 05:10:51 :::9 Evidence of PW5 Vinaykumar Bhola Singh - panch witness shows that on the day of the incident i.e. on 26 th June 2013 itself, he along with the co-panch had visited the spot of the incident where the Maruti Esteem car bearing registration no.MH- 04-AX-1755 met with an accident.As per version of this witness, he along with PW13 Pratap Bhosale, Assistant Police Inspector, avk 13::: Uploaded on - 07/01/2019 ::: Downloaded on - 11/01/2019 05:10:51 ::: 1-APPEAL-348-2017-J.doc inspected that Maruti Esteem car and accordingly, Panchnama Exhibit 48 came to be prepared.Version of PW5 Vinaykumar Bhola Singh and that of PW13 Pratap Bhosale, Assistant Police Inspector, shows that the Maruti Esteem car was damaged and articles such as green coloured bag, one iron pipe and one sickle were found in that car.Accordingly, Panchnama Exhibit 48 was prepared.There is nothing in cross-examination of both these witnesses to disbelieve their version about witnessing the damaged Maruti Esteem car and seizure of green coloured hand- bag, iron pipe and a sickle from it.Panchnama Exhibit 48 corroborates the version of both these witnesses.This evidence coupled with the fact that accused no.1 Anandraj Harijan was apprehended from the spot of the incident by PW6 Police Constable Gaurav Kumbhkarna corroborates the version of PW1 Ashish Chitnis, PW2 Pravin Darwada and PW3 Balkrishna Padir in respect of the incident of robbery.::: Uploaded on - 07/01/2019 ::: Downloaded on - 11/01/2019 05:10:51 :::MH-46-P- 4446 was also inspected by police in presence of panch witnesses.avk 14::: Uploaded on - 07/01/2019 ::: Downloaded on - 11/01/2019 05:10:51 :::::: Uploaded on - 07/01/2019 ::: Downloaded on - 11/01/2019 05:10:51 :::Perusal of this panchnama shows that all windshields of the Mahendra Jeep bearing registration no.MH-46-P-4446 were found broken.In this regard, material elicited from cross-examination of PW1 Ashish Chitnis is relevant.Cross-examination of this witness reveals that the incident took avk 15::: Uploaded on - 07/01/2019 ::: Downloaded on - 11/01/2019 05:10:51 ::: 1-APPEAL-348-2017-J.doc place in the crystal clear light of the day.Glasses / windshield of the Mahendra Jeep were transparent and inmates of that jeep namely PW1 Ashish Chitnis and PW2 Pravin Darwada were in a position to see even the robbers running away after the incident.It is also elicited from the cross-examination of PW1 Ashish Chitnis that he had an opportunity to see which of the robbers was driving the Maruti Esteem car while fleeing away from the spot of the incident.His cross-examination further reveals that the actual incident of breaking open the windshields of the Mahendra Jeep and taking away the bags from that vehicle took place in about five minutes and except from the front side, the Mahendra Jeep was attacked from the remaining three sides.The Maruti Esteem car by which the robbers came and subsequently fled from the spot was kept at a distance of about 15 feet from the Mahendra Jeep.This material elicited from the cross-examination of PW1 Ashish Chitnis, as such, shows that he as well as co-passenger PW2 Pravin Darwada had seen the robbers alighting from the Maruti Esteem car, breaking open the windshields of the Mahendra Jeep, taking away the bags and running away from the avk 16::: Uploaded on - 07/01/2019 ::: Downloaded on - 11/01/2019 05:10:51 ::: 1-APPEAL-348-2017-J.doc spot of the incident by boarding the Maruti Esteem Car in broad daylight.::: Uploaded on - 07/01/2019 ::: Downloaded on - 11/01/2019 05:10:51 :::::: Uploaded on - 07/01/2019 ::: Downloaded on - 11/01/2019 05:10:51 :::12 Evidence of PW2 Pravin Darwada is categorically clear on the aspect that in all four robbers came around the Mahendra Jeep and had broken the glasses of the vehicle with the help of sickle and iron pipe by giving threats.He has specifically deposed that after breaking open the backside windshield of the Mahendra Jeep, they had taken away the bags.He stated that after alighting from the Mahendra Jeep, they saw robbers sitting in the Maruti Esteem Car bearing registration no.MH-04-AX-1755 and they fled from the spot.His chief-examination reveals that his sack containing ATM card, Election card, Driving license and cash amounting to Rs.1,000/- came to be looted along with other articles from the Mahendra Jeep.On the way to the police station, he saw the very same Maruti Esteem Car lying on the road after having met with an accident.This witness identified the appellant/accused no.2 as the robber who had broken the glasses of Mahendra Jeep by means of a sickle.He identified his sack avk 17::: Uploaded on - 07/01/2019 ::: Downloaded on - 11/01/2019 05:10:51 ::: 1-APPEAL-348-2017-J.doc which was looted in the incident of robbery.As per his version, the robbers were of light complexion and one of them was having beard.Evidence of this witness regarding identification of the appellant/accused no.2 is sought to be assailed on the ground that he had not given specific description of the assailant who was driving the car and who had given blows of sickle on the windshields of the Mahendra Jeep.In paragraph 5 of his cross- examination PW2 Pravin Darwada has admitted the fact that he had not given specific description of the robbers and has further stated that the incident of robbing had taken place on the backside of seat of the Mahendra Jeep.He admitted that till completion of the entire incident of the robbery, he had not seen backside of the vehicle.This admission is sought to be construed as demonstrating the fact that PW2 Pravin Darwada had not turned his neck to the backside of the car during happening of the robbery.What was put to him is he had not seen backside of the Mahendra Jeep till completion of the entire incident.This witness has given answer in affirmative to this question because as avk 18::: Uploaded on - 07/01/2019 ::: Downloaded on - 11/01/2019 05:10:51 ::: 1-APPEAL-348-2017-J.doc per his version, he was sitting inside the Mahendra Jeep till the entire episode of robbing was over.There was no question of his getting outside the Mahendra Jeep during happening of the incident of robbery.Therefore, this admission is of no assistance to infer that PW2 Pravin Darwada had not seen the robbers who were smashing the windshields of the Mahendra Jeep during the time span of about five minutes in the crystal clear day light.On the contrary, considering the fact that the entire incident of robbing continued for a fairly long period of five minutes, it needs to be held that this witness had an opportunity to see the robbers, and therefore, identification of the appellant/accused no.2 as one of the robbers deposed to by PW2 Pravin Darwada cannot be doubted.::: Uploaded on - 07/01/2019 ::: Downloaded on - 11/01/2019 05:10:51 :::::: Uploaded on - 07/01/2019 ::: Downloaded on - 11/01/2019 05:10:51 :::13 Evidence of PW2 Pravin Darwada shows that he had given description of the robbers to police though he admitted that the description was not very specific.There is no material on record to infer that this version of PW2 Pravin Darwada has surfaced by way of omission.::: Uploaded on - 07/01/2019 ::: Downloaded on - 11/01/2019 05:10:51 :::His evidence shows that immediately after his arrest, the appellant/accused no.2 had given a confessional statement to the effect that he would show the bag.Evidence of PW8 Sambhaji Jadhav shows that the appellant/accused no.2 had led the panch witness and police party to Village Tembhude and from the bamboo shrubs near the compound of Reliance Company, he took out a black coloured sack which was seized by police.True it is that the recovery was from the open place, but evidence of this panch witness coupled with Memorandum statement of the appellant/accused no.2 goes to show that the appellant/accused no.2 was exactly knowing the place where the bag was kept concealed.At his instance, the same was recovered.avk 20::: Uploaded on - 07/01/2019 ::: Downloaded on - 11/01/2019 05:10:51 :::::: Uploaded on - 07/01/2019 ::: Downloaded on - 11/01/2019 05:10:51 :::1-APPEAL-348-2017-J.doc 15 PW2 Pravin Darwada has identified the bag/sack recovered at the instance of the appellant/accused no.2, as belonging to him which was looted in the robbery.Thus, by this evidence, the prosecution has established the fact that the appellant/accused no.2 was knowing the place where the looted sack was kept concealed.However, evidence of PW2 Pravin Darwada shows that he was using the sack regularly and as such, he was in a position to identify the same.16 With this evidence adduced by the prosecution, it is established that the appellant/accused no.2 was one of the members of the gang which robbed the valuable articles from the Mahendra Jeep at the time of the incident.No infirmity can be found as such with the impugned judgment and order of conviction and the resultant sentence.Therefore, the order : avk 21::: Uploaded on - 07/01/2019 ::: Downloaded on - 11/01/2019 05:10:51 :::::: Uploaded on - 07/01/2019 ::: Downloaded on - 11/01/2019 05:10:51 :::1-APPEAL-348-2017-J.doc ORDERi) The appeal is dismissed.ii) In view of disposal of the appeal, Criminal Application No.2049 of 2018 also stands disposed off.(A. M. BADAR, J.) avk 22::: Uploaded on - 07/01/2019 ::: Downloaded on - 11/01/2019 05:10:51 :::::: Uploaded on - 07/01/2019 ::: Downloaded on - 11/01/2019 05:10:51 :::

['Section 427 in The Indian Penal Code', 'Section 392 in The Indian Penal Code', 'Section 395 in The Indian Penal Code']

1 27.7.2018 39 Allowed md.CRM No. 5226 of 2018 In Re:- An application for anticipatory bail under section 438 of the Code of Criminal Procedure filed on 19.07.2018 in connection with Lalgola Police Station Case No. 143 of 2018 dated 12.03.2018 under Sections 341/323/307/313/34 of the Indian Penal Code, 1860 (Corresponding to G.R. case no.779 of 2018).And In Re:-Saheb Sk.The petition for anticipatory bail is allowed subject to the conditions as indicated above.A certified copy of this order be immediately made available to the petitioner subject to compliance with all requisite formalities.(Abhijit Gangopadhyay, J.) (Sanjib Banerjee, J. ) 2

['Section 313 in The Indian Penal Code', 'Section 34 in The Indian Penal Code', 'Section 307 in The Indian Penal Code', 'Section 323 in The Indian Penal Code', 'Section 341 in The Indian Penal Code', 'Section 438 in The Indian Penal Code']

The case of the prosecution, in a nutshell, is as follows:The deceased in this case, namely, Manickam Chettiar was residing with his wife Sigappi Aachi (P.W.5) as a tenant in the ground floor of the building belongs to one Ashok (P.W.1).Manickam Chettiar was running a Pawn-Broker Shop under the name and style of of “O.V.M. Sigappi Aachi Pawn- Broker”.Manickam Chettiar's elder son Narayanan is residing in New Zealand and the younger son Perianan is residing in Coimbatore.Manickam Chettiar and his wife Sigappi Aachi (P.W.5) were having a maidservant Lalitha, who was staying along with them.On 19.08.2010, Sigappi Aachi (P.W.5), along with maidservant Lalitha, went to Thiruapthi for Darshan.On 21.08.2010, at about 11.00 a.m., when the landlord Ashok (P.W.1) noticed that the front doors of the ground floor, where thehttp://www.judis.nic.in 3 deceased Manickam Chettiar was residing, was open and the inner doors were closed unusually, he called Manikam Chettiar twice, but there was no response and therefore, he proceeded with his work.When he returned after half an hour, even during that time also, the doors were in the same position and therefore, Ashok (P.W.1) went and knocked the door.The doors opened and he saw Manickam Chettiar lying in the floor and a mat (M.O.1) was placed on his face with a grindstone (M.O.2).On suspecting something would have happened, he called the neighbours and along with one Kannan (P.W.2), a neighbour, he entered into the house and found Manickam Chettiar died.They also noticed that the bureaus were open.Therefore, suspecting that somebody would have murdered Manickam Chettiar with an intention to steal the goods, he lodged a complaint (Ex.P1) before B5 South Gate Police Station, on 21.08.2010 at 12.00 noon.On intimation, Nidhikumar (P.W.26) Investigating Officer, went to the place of occurrence at 12.45 p.m., and prepared Observation Mahazar (Ex.P2) and Rough Sketch (Ex.P37) in the presence of Suresh (P.W.3) and Swaminathan (not examined).He also conducted inquest from 03.00 p.m., to 05.00 p.m., and prepared Inquest Report (Ex.P38).After completing the inquest, he sent the dead body for postmortem, through Samson Gunaraj (P.W.17), Head Constable, to the Government Rajaji Hospital, where, Dr.Vanitha (P.W.23), on 21.08.2010 at about 06.50 p.m., confirmed the death of Manickam Chettiar and sent the body to mortuary.The Accident Register issued by Dr.On 21.08.2010, at 05.00 p.m., in the presence of Suresh (P.W.3) and Swaminathan (not examined), Nidhikumar (P.W.26), Investigating Officer, recovered a bloodstained tile piece (M.O.5), a tile piece without bloodstain (M.O.6), bloodstained dhoti (M.O.3), bloodstained towel (M.O.4), bloodstained sofa-mat (M.O.1) and bloodstained grindstone (M.O.2) under a cover of mahazar (Ex.P3).On 23.08.2010, at about 09.00 p.m., in the presence of Janardhanan (P.W.6), V.A.O., and his assistants, Raju and Samayan (not examined), the Investigating Officer arrested Raji (A1), in front of Aalavai Lodge, situated at Melaperumal Meisthiri Street, Madurai Town.On his (A1's) confession statement, the Investigating Officer recovered a blue color travel bag (M.O.7), 8996.80 gram gold jewels (M.O.8), 1279.600 gram silver articles (M.O.9), cash of Rs.7,000/- (M.O.10), folding paper 20 in number (M.O.15), under the cover of mahazar (Ex.P6).Thereafter, on 24.08.2010, at 06.00 a.m., Raji (A1) was taken to his house situated at Alagappa Nagar, Madurai, where, in the presence of Janardhanan (P.W.6), V.A.O., and his assistants, Raju and Samayan (not examined), a bloodstained lungi (M.O.12) and a bloodstained fanta colour shirt (M.O.11) were recovered under the cover of mahazar (Ex.P7).At 07.00 a.m. Raji (A1) identified his wife Karthika @ Jayaparvathi (A2) and on his identification, the Investigating Officer arrested Karthika (A2) and in the presence of the same witnesses, he recovered gold jewels weighing about 142.700 gram and cash of Rs.5,000/- (M.O.13 series) under the cover of mahazar (Ex.Raji (A1), in his confession statement, stated that after the occurrence, he stayed in Sivabakya Lodge at Arapalayam, thereafter, shifted to one Vaithiyalinga Lodge at Madurai Town and then, to Aalavai Lodge at Madurai Town.The Investigating Officer (P.W.26) verified the registers of Sivabakya Lodge on 25.08.2010 at 10.00 a.m., in the presence of one Raja, Manager of Sivabakya Lodge (P.W.9) and recovered the registers upto 23.08.2010 (Exs.P14 and P15) under the the cover of mahazar (Ex.P16).He also inspected Vaithiyalinga Lodge on 29.08.2010 at 12.00 noon, and recovered the register for the period from 07.08.2010 till 29.08.2010 (Ex.P10) and the register for the period upto 29.08.2010 (Ex.P11) in the presence of one Mayan (P.W.8), Manager of the Vaithiyalinga Lodge, under the cover of mahazar (Ex.P13).The Investigating Officer (P.W.26) also inspected Alavai Lodge on 30.08.2010 at 10.00 a.m., and recovered the registers (Ex.P17 and P19), in the presence of one Srinivasan (P.W.10) under the cover of mahazar (Ex.P18).Right temporals muscle is bruised.Diffused subdural hamorrhage and subarachnoid haemorrhage noted on both the cerebral hemispheres.Contusion 16 cms x 11 cms noted on the whole of left cheek, extending upto upper part of left side of neck.Left upper two incisor teeth are found missing and their alveolar sockets found contused and contains blood clots.After receiving the Biological Report (Ex.P28), Dr.Natarajan (P.W.21) gave final opinion (Ex.P27) on 08.10.2010 that the deceased appeared to have died of asphyxia due to smothering associated with head injury 30-36 hours prior to postmortem.Natarajan (P.W.21), in his evidence, has stated that the injury No.1 is likely to occur when somebody oppresses his face and the injury Nos.2 to 4 are likely to occur when somebodyhttp://www.judis.nic.in 9 scuffles with the deceased and the injury No.5 is likely to occur, when somebody prevents the breath by oppressing the face and he has also stated that injuries found from cheek to neck is likely to occur by attacking grindstone (M.O.2).According to him, the incise wound found in the left upper jaw of the deceased is likely to occur during death.➢ Mayan (P.W.8) is the Manager of Vaithyalinga Lodge.In his presence the registers Ex.P10 and P11 have been recovered.➢ Raja (P.W.9) is the Manager of Sivabakya Lodge, wherein Raji (A1) has stayed for sometime and in his presence, the registers Exs.http://www.judis.nic.in 20 ➢ Parvathavarthini @ Uma (P.W.12) is the owner of the house situated at R.M.S. Colony and according to her, on 21.08.2010, Raji (A1) approached her through Alagarsamy (P.W.11), paid an advance of Rs.15,000/- and obtained the key of the rented portion.On the next day, by making a statement that he lost the key, has taken another key also from her.➢ Sethuraman Chettiar (P.W.13) is the owner of a Jewellary Shop, wherein, Raji (A1) attempted to sell the stolen articles.http://www.judis.nic.in 21 ➢ Arichandran (P.W.18) is the Head Constable, who stated about the seizure of material objects in the occurrence place.➢ Pandi (P.W.19) is Ambulance Driver.➢ Murugaiyan (P.W.20) is the photographer.➢ Natarajan (P.W.21) is the Doctor, who conducted autopsy.➢ Rajesh (P.W.22) is the Scientist from the Regional Forensic Science Laboratory, Madurai, who examined the material objects sent to him for analysis.➢ Vanitha (P.W.23) is the Doctor, who received the dead body on 21.08.2010 and issued Accident Register (Ex.P30).➢ Bose (P.W.24) is Sub Inspector of Police, who registered the First Information Report (Ex.P31).➢ Asha Kousalya Santhini (P.W.25) is the Judicial Magistrate No.T, Madurai, who conducted Test Identification Parade.➢ Nidhikumar (P.W.26) is the Investigation Officer, who conducted investigation and filed final report.http://www.judis.nic.in 22Taking note of the guidelines with regard to the circumstantial evidence issued by the Honourable Supreme Court, we have carefully analysed the circumstantial evidence available in this case.On 21.08.2010, Manickam Chettiar was found dead in his house in a suspicious manner.The deceased was a pawnbroker and he was residing in the house of Ashok (P.W.1) in the ground floor.His wife Sigappi Achi (P.W.5), along with her maidservant Lalitha, went to Thirupathi for Darshan and the deceased was alone in the house.Ashok (P.W.1), while moving out of his house, found the inner doors of the ground floor portion locked unusually and the front door was open and proceeded with his work.When he returned back, he noticed the doors in the same position.Therefore, he went and pushed the doors.He found Manickam Chettiar lying in the floor and a mat (M.O.1) with grindstone (M.O.2) was kept on his face.He immediately, informed the police about 12.00 noon.Natarajan (P.W.21), who conducted autopsy, has noted down five injuries in the Post-mortem Certificate (Ex.P26) and has given final opinion that the deceased died due to asphyxia due to smothering associated with head injury.According to him, the injury No.1 is likely to occur when somebody oppresses his face and the injury Nos.2 to 4 are likely to occurhttp://www.judis.nic.in 23 when somebody scuffles with the deceased and the injury No.5 is likely to occur, when somebody prevents the breath by oppressing the face and he has also stated that injuries found from cheek to neck is likely to occur by attacking grindstone (M.O.2).From the evidence of Ashok (P.W.1) and Kannan (P.W.2), it is evident that this is the case of homicide.While entering into the house of Manickam Chettiar (deceased), they found the almirahs were open.After returning from Thirupathi, Sigappi Achi (P.W.5) has noted down and taken stock of the jewels and has stated that around 9 kilograms of gold ornaments and 1.25 kilograms of silver articles along with cash of Rs.16,000/- are found missing.Pappiah (P.W.4), relative of maidservant Lalitha, has found the accused in the deceased's house prior to the occurrence.A receipt (Ex.P4) for pledging the jewels, was also recovered from the house of Raji (A1).On perusal of Ex.P4, it is seen that on 04.02.2010, Raji (A1) has pledged certain jewels with Manickam Chettiar and received a sum of Rs.16,000/-, of which, Raji (A1) has paid a sum of Rs.5,650/- and his signature is also available in Ex.Raji (A1) was arrested in front of Aalavai Lodge on 23.08.2010 in the presence of Janardhanan (P.W.6) and M.Os.7, 8, 9 and 10 have been recovered from him and in the presence of the same witnesses, on 24.08.2010, Karthika (A2) was arrested and M.O.13 series have been recovered from her.B.PUGALENDHI, J., Challenging the conviction and sentence for the offences under Section 302 and 449 I.P.C., imposed by the learned VI Additional District Sessions Judge, Madurai, vide Judgment dated 24.04.2017, in S.C.No.176 of 2011, the first accused has filed this Criminal Appeal.The Investigating Officer (P.W.26) sent the bloodstained articles for chemical analysis on 31.08.2010 with a requisition (Ex.P39) to the Judicial Magistrate and took policehttp://www.judis.nic.in 7 custody of Raji (A1) and Karthika (A2) and also made a requisition (Ex.P40) for conducting test identification parade.Thereafter, the Investigating Officer (P.W.26) took police custody of Raji (A1) on 06.09.2010 and on 07.09.2010, Raji (A1) gave a confession statement and based on his confession statement, a motorcycle (M.O.14) and piece of papers (M.O.15) used by the deceased to fold the jewels, were recovered under the covers of mahazar (Ex.P21 and P22 respectively) in the presence of one Ramanathan (P.W.15) and another.Karthika (A2) was also taken on police custody and from 11.30 a.m., to 5.30 p.m., a confession statement was recorded from her in the presence of the same witnesses and recovered a receipt bearing No.5780 (Ex.P4) for pledging the jewels.On 22.08.2010, at about 11.00 a.m., Dr.Natarajan (P.W.21) conducted autopsy on the dead body and issued the postmortem certificate (Ex.P26), wherein, he has noted the following injuries:-Cresentric nail 2 cms in length noted on the right side of cheek, convexity facing upwards.http://www.judis.nic.in 82. Abrasions each measuring 3c ms x 2 cms noted on the front of both knees.Abrasion 4 cms x 3 cms noted on the outer aspect of upper 3rd of left thigh.Abrasion 1 cm x 0.5 cm noted on the back of right ring finger.Contusion noted on the inner aspect of both the entire upper and lower lips.On dissection of scalp, skull & Dura:Contusion scalp 4 cms x 3 cms noted on right temporal region.A Test Identification Parade was conducted, on 04.09.2010, at the Central Prison, Madurai, by Asha Kousalya Shanthini (P.W.25), Judicial Magistrate No.V, Madurai.Raji (A1) was identified by Pappaiah (P.W.4) and Raja (P.W.9), Manager of Sivabakya Lodge.The Report of the Test Identification Parade, in respect of Raji (A1) is marked as Ex.Raji (A1) made an objection for the identification parade that the witnesses Pappaiah (P.W.4) and Raja (P.W.9), Manager of Sivabakya Lodge, saw him in the police station on the previous Tuesday.Pappaiah (P.W.4) identified Karthika (A2)http://www.judis.nic.in 10 during the Test Identification Parade.The Report for the Test Identification Parade, in respect of Karthika (A2) is marked as Ex.The Investigating Officer collected Biological Report (Ex.P28), wherein, it is stated that the blood deducted in M.Os.1, 3, 4, 5, 11 and 12 is that of human “A”.Rajesh (P.W.22), Scientist from the Regional Forensic Science Laboratory, Madurai, also gave a Report (Ex.P29) stating that the blood deducted in M.Os.1, 3 , 4, 5, 11 and 12 is that of “Human A”.After examining witnesses and collecting various reports, the Investigating Officer (P.W.26) filed final report, as against Raji (A1) and Karthika (A2) before the learned Judicial Magistrate No.IV, Madurai, in P.R.C.No.72 of 2010, for the offences punishable under Sections 120-B, 149, 380 & 302 r/w 34 I.P.C.On the appearance of the accused, the provisions of Section 207 Cr.P.C. were complied with and the case was committed to the Court of Session in S.C.No.176 of 2011 and made over to the learned VI Additional District and Sessions Judge, Madurai, for trial.http://www.judis.nic.in 11The Trial Court framed four charges, as detailed below:When questioned, the accused pleaded "not guilty".To prove the case, the prosecution examined 26 witnesses and marked 45 exhibits as well as 17 material objects.No witness was examined nor any document marked on the side of the accused.That apart, 09 documents were marked as court documents.When the accused were questioned under Section 313 Cr.P.C., on the incriminating circumstances against them, they denied the same.By Judgment dated 24.04.2017, the Trial Court acquitted Karthika (A2) of the charge under Sections 120-B, 449 r/w 34 & 302 r/w 34 I.P.C. and acquitted Raji (A1) of the charge under Sections 120-B I.P.C.; however, convicted and sentenced Raji (A1) as detailed below:The sentences have been ordered to run concurrently.Assailing the judgment of conviction and sentence, dated 24.04.2017, Raji (A1) is before this Court.Heard Mr.The learned counsel for the accused further stated that the pledge receipt (Ex.P4) does not have the signature of the deceased and no date has been mentioned in the receipt.This has also been admitted by Sigappi Achi (P.W.5) in her evidence.Further, recovery of M.O.15 is highly artificial and unbelievable, because, after the identification parade on 04.09.2010, the Investigating Officer, who took the police custody of Raji (A1) on 06.09.2010, recorded the second confession statement from A1 and made recovery of M.O.The second confession statement from the accused is unknown to law and the recovery was made after the identification parade.In order to suit their case against the accused, the prosecution made the false recovery, because, Raji (A1) was originally arrested on 23.08.2010 and on his confession M.Os.8http://www.judis.nic.in 14 to 10 were recovered.He, in his evidence, has stated about the lodging of complaint (Ex.P1).➢ One Kannan (P.W.2) is the neighbour of Manickam Chettiar (deceased).Ashok (P.W.1) along with Kannan (P.W.2) firstly noticed the death of Manickam Chettiar and he accompanied with Ashok (P.W.1) for lodging the complaint (Ex.P1).She went to Thirupathi, along with the maidservant Lalitha, for Darshan.P14 and 15 have been recovered.He has also identified Raji (A1) during the test identification parade.➢ Srinivasan (P.W.10) is the Manager of Aalavai Lodge and through him Exs.P.17 and P19 have been marked.➢ Alagarsamy (P.W.11) is a House-Broker, who arranged a house for the accused at R.M.S.Colony for the monthly rent of Rs.2,600/-.But, he turned hostile.➢ Sasikumar (P.W.14), who on the directions of the police, weighed the jewels recovered from Raji (A1).➢ Ramanathan (P.W.15) is the attestor for the recovery of M.O.14, which was recovered during the police custody from Raji (A1).➢ Mohan (P.W.16) is the Head Constable, who handed over the First Information Report (Ex.P31) to the Judicial Magistrate, on 21.08.2010 at 06.00 p.m. ➢ Samsun Gunaraj (P.W.17) is the Head Constable, who took the dead body to the hospital.The Trial Court, by order dated 23.10.2013 in Cr.M.P.No.324 of 2013, appointed an Advocate Commissioner, for the disbursal of the pledged jewels to the respective parties.Accordingly, the Advocate Commissioner issued a public notice on 06.11.2013 in Dhinamalar Tamil Newspaper to the general public regarding disbursal of pledged jewels to the pledgers on 25.11.2013 and 26.11.2013 in the District Legal Service Authority, Madurai.In response to the said publication, the general public, who have pledged their jewels in the deceased's pawnbroker shop, have appeared before the District Legal Services Authority, Madurai, on 25.11.2013, 26.11.2013, 16.12.2013, 17.12.2013 and 18.12.2013, contained in 783 receipts have been returned to the respective parties, after receiving principal and interest amount.The receipts of the general public, who have redeemed their pledged jewels from the Advocate Commissioner appointed by the Trial Court, have been marked as Court Document Nos.1 to 6 and the Reports of the Advocate Commissioner have been marked as Court Document Nos.7 and 8.http://www.judis.nic.in 25After the commission of offence, the accused though having a house at Alagappa Nagar in Madurai, has stayed in Sivabakya Lodge, Vaithyalinga Lodge and Aalavai Lodge.The registers recovered from Vaithyalinga Lodge have been marked as Exs.The registers recovered from Sivabakya Lodge have been marked as Exs.The registers recovered from Aalavai Lodge have been marked as Exs.The subsequent conduct of Raji (A1) in shifting his house is also elicited through the evidence of Alagarsamy (P.W.11) and Parvadhavardhini (P.W.12).After the occurrence, Raji (A1) in order to shift his house has approached Alagarsamy (P.W.11), housebroker, who arranged a house of Parvadhavardhini (P.W.12) for Raji (A1).By paying a sum of Rs.15,000/- as advance, on 21.08.2010, Raji (A1) obtained key from Parvadhavardhini (P.W.12) and on the next day, by saying that the key, which was already given to him, found missing, he had collected second key also.The evidence of Alagarsamy (P.W.11) and Parvadhavardhini (P.W.12) clearly elicit Raji's (A1's) conduct, which is also one of the circumstances and which draws inference against the accused.The Raji (A1) and Karthika (A2) were lastly seen in the house of Manickam Chettiar (deceased) by Pappaiah (P.W.4), who has also identified the accused during the test identification parade.Raja (P.W.9), Manager of Sivabakya Lodge has also identified Raji (A1) during the test identification parade.Furthermore, since the jewels were recovered from the accused, as per Section 114 of the Evidence Act, presumption shall fall upon the accused that they must be either the persons, who stolen the jewels or receivers of the stolen jewels.We are of the view that the prosecution has proved its case beyond all reasonable doubts and therefore, we are not inclined to interfere with the impugned judgment of the Trial Court.In the result, the Criminal Appeal fails and it is dismissed.Consequently, connected miscellaneous petition is closed.1.The VI Additional District Sessions Judge, Madurai.2.The Inspector of Police, South Gate Police Station, Madurai City.3.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.4.The Record Keeper, Vernacular Records Section, Madurai Bench of Madras High Court, Madurai.http://www.judis.nic.in 28 R.SUBBIAH, J.and B.PUGALENDHI, J.krk / myr JUDGMENT IN Crl.A.(MD) No.344 of 2017 and Crl.M.P.(MD) No.8811 of 2017 22.04.2019http://www.judis.nic.in

['Section 120B in The Indian Penal Code', 'Section 302 in The Indian Penal Code', 'Section 380 in The Indian Penal Code']

The State is the appellant, whereas the accused 1 to 4 are therespondents.The Inspector of Police attached to Papanasam Police Station(Thanjavaur District) had laid a final report on 31.12.2007 on the file ofthe District Munsif-cum-Judicial Magistrate Court, Papanasam, as against therespondents 1 to 4 herein alleging that they had committed the offencespunishable under Section 302 and 302 r/w 34 of I.P.C.After the completion of preliminary enquiry, the case wascommitted to the Court of Sessions by the learned District Munsif-cum-Judicial Magistrate, Papanasam and after the appearance of therespondents/accused, the learned I Additional Sessions Judge (PCR), ThanjavurSessions Division had framed the following two charges.a. As against the first respondent/A1 under Section 302 of I.P.C.b. As against the respondents/accused 2 to 4 under Section 302r/w 34 of I.P.C.When the ingredients of the charges were explained andquestioned all the four respondents/accused had pleaded innocence and wantedto face the trial and therefore, they were put on trial.In order to substantiate their case, the prosecution hastotally examined 21 witnesses and during the course of their examination,Exs.P.1 to P.16 and the material objects ranging from M.Os.1 to 13 weremarked.The Gravamen of the Prosecution Case:-That on 3.10.2007 at about 11.45 hours when the deceasedMurthy @ Venkatachalam was conversing with his brother Senthil (P.W.1) inthe railway station road at Papanasam, in front of Muniyandi Vilas Hotel, allthe accused came there and due to previous enmity because of taking part inthe Papanasam New Bus Stand cycle stand auction had picked up quarrel withthe deceased and on account of the common object of committing the murderof the deceased, the first respondent/A1 had fisted on his left cheek, whilethe third respondent/A3 had kicked him.When the deceased had fallen onthe road, the fourth respondent had mounted on his chest and fisted on hisleft cheek.When the deceased Murthy @ Venkatachalam was trying to getup after pushing away the fourth respondent, the first respondent/A1 hadcaught hold him and both the first respondent/A1 and the deceased hadrolled over and thereafter, the deceased had managed to get up and proceededtowards South.While so, the second respondent/A2 had pushed him down onthe ground making the deceased to fall on the road in front of Nice Tailorshop.When he had fallen down, the third and fourthrespondents/accused 3 and 4 had caught hold his right and left handsrespectively.The second respondent/A2 had also caught hold of his bothlegs so as to facilitate the first respondent/A1 to kill him with a cementconcrete stone.The first respondent/A1 had lifted the cement concretestone and dropped on the head of the deceased repeatedly, which resulted inhis instantaneous death.When P.W.1 being the brother of the decased and P.Ws.2 and 3being the friends of P.W.1 were tried to rescue the deceased, they werethreatened with dire consequences by the respondents/accused persons andafter the completion of the occurrence, the accused persons had gone away.Then P.W.8 came there and on the narration of P.W.1, P.W.8Kaliamurthy reduced the same into writing and both of them had presentedthat complaint (Ex.He immediately after the receipt of that complaint hadregistered a case in Papanasam Police Station Cr.The State is the appellant, whereas the accused 1 to 4 are therespondents.In order to substantiate their case, the prosecution hastotally examined 21 witnesses and during the course of their examination,Exs.P.1 to P.16 and the material objects ranging from M.Os.1 to 13 weremarked.The Gravamen of the Prosecution Case:-That on 3.10.2007 at about 11.45 hours when the deceasedMurthy @ Venkatachalam was conversing with his brother Senthil (P.W.1) inthe railway station road at Papanasam, in front of Muniyandi Vilas Hotel, allthe accused came there and due to previous enmity because of taking part inthe Papanasam New Bus Stand cycle stand auction had picked up quarrel withthe deceased and on account of the common object of committing the murderof the deceased, the first respondent/A1 had fisted on his left cheek, whilethe third respondent/A3 had kicked him.When the deceased had fallen onthe road, the fourth respondent had mounted on his chest and fisted on hisleft cheek.When the deceased Murthy @ Venkatachalam was trying to getup after pushing away the fourth respondent, the first respondent/A1 hadcaught hold him and both the first respondent/A1 and the deceased hadrolled over and thereafter, the deceased had managed to get up and proceededtowards South.While so, the second respondent/A2 had pushed him down onthe ground making the deceased to fall on the road in front of Nice Tailorshop.When he had fallen down, the third and fourthrespondents/accused 3 and 4 had caught hold his right and left handsrespectively.The second respondent/A2 had also caught hold of his bothlegs so as to facilitate the first respondent/A1 to kill him with a cementconcrete stone.The first respondent/A1 had lifted the cement concretestone and dropped on the head of the deceased repeatedly, which resulted inhis instantaneous death.When P.W.1 being the brother of the decased and P.Ws.2 and 3being the friends of P.W.1 were tried to rescue the deceased, they werethreatened with dire consequences by the respondents/accused persons andafter the completion of the occurrence, the accused persons had gone away.Then P.W.8 came there and on the narration of P.W.1, P.W.8Kaliamurthy reduced the same into writing and both of them had presentedthat complaint (Ex.Further, P.W.1 is none other than the younger brother ofthe deceased, whereas P.Ws.2 and 3 are his friends.According to the caseof prosecution that at about 11.45 p.m. on 3.10.2007 while P.Ws.1 to 3were returning to their home after purchasing the diesel, in front of theMuniyandi Vilas Hotel, P.W.1's brother Murthy @ Venkatachalam, who is thedeceased herein, was standing there and on seeing him, P.W.1 had toldP.Ws.2 and 3 that he wanted to go to see his brother.While so, A1 to A4 came there.The first respondent/A1had asked him ?eP vd;dlh bghpa Msh? while saying so, he had fisted overhis face.While the third respondent had kicked him and on receiving thatblow, the deceased had fallen down.When he was trying to get up the fourthrespondent/A4 sat on the chest of the deceased and slapped on his cheek.The deceased pushed him off away and got up and subsequently, he wastrying to proceed further, but the fourth respondent/A4 had not allowed himto go away.While so, the first respondent/A1 Senthil had caught holdhim and rolled along with the deceased on the ground.Thereafter, thedeceased got up and proceeded towards South.While so, the secondrespondent/A2 had pushed the deceased down in front of the Nice Tailoringshop and on account of this reason, the deceased had fallen on his back,while the other accused persons, viz., A2 to A4 had caught hold of his legsand hands, the first respondent/A1 had lifted M.O.1 Cement Concrete Stone ,which was found lying there and dropped it over his head and on receivingthe head injury, the deceased had died on the spot instantaneously.When the occurrence was taken place all the three witnesseswere simply watching the incident.Neither P.W.1 nor P.W.2 or P.W.3 weretrying to rescue the deceased.The conduct of P.Ws.1 to 3 seems to beunusual and therefore, their presence in the place of occurrence is doubtedand further on a combined reading of the evidences of P.Ws.1 to 3 along withthe evidence of P.W.8, who is the scribe the complaint, we find a lot ofinfirmities and contradictions between their evidences.As afore stated, including P.W.1 there were three witnesses.In spite of this, P.Ws.1 to 3 havenot properly explained as to why they were not making any attempt to savethe deceased.With regard to the lodging of the complaint, P.W.1 saysthat the police people after lodging of the complaint came to the place ofoccurrence on the next day.No.201 of 2007 underSections 342 and 302 r/w 34 of I.P.C. The printed first information reportwas marked as Ex.Thereafter, the complaint Ex.P.1 and the first informationreport Ex.Subsequently, P.W.21 had been to the place ofoccurrence, inspected the same and prepared an observation mahazar Ex.Then, he had also seized the cement concrete stone M.O.1,which was said to have been used by the first accused to kill the deceasedand other material objects viz., blood stained earth and some unbloodstained earth etc. ranging from M.O.8 to M.O.13 under a seizure mahazarEx.P.W.14 Dr. Rajmohan attached to Papanasam Govt. Hospitalhad conducted post mortem examination on the dead body of the deceased.While so, he had found the following external as well as internal injurieson the dead body as under:-1. 5 x 1 x 4 cm laceration just below left eye.2. 8 x 2 x 1 cm lacerated wound in the left forehead.3. 7 x 2 x 1 cm laceration near the 2nd injury.4. 11 x 3 x 2 cm lacerated wound in the right parietal region.Head deformed, crepitation felt over the cranium.Thoax : no rib fracture, heart ? 300 gms.Chambers emply.Bothlungs normal.Hyoid bone intact.Abdomen ? uniform, level of diaphragmnormal.Stomach distended with semi digested food.Liver ? 1600 gms, firmDATED :31.10.2014CORAMTHE HONOURABLE MR.JUSTICE S.RAJESWARANANDTHE HONOURABLE MR.JUSTICE T.MATHIVANANCriminal Appeal (MD) No.216 OF 2010State represented byThe Inspector of PolicePapanasam Police StationThanjavur District ... Appellant Vs.3.Prabhu @ Prabhu Gopinath ... RespondentsPrayer : Appeal is filed under Section 378 of the Code of Criminal Procedure,against the Judgment dated 18.1.2010 and made in S.C.No.73 of 2009 on thefile of the learned I Additional Sessions Judge (Protection of Civil Rights),Thanjavur.The Inspector of Police attached to Papanasam Police Station(Thanjavaur District) had laid a final report on 31.12.2007 on the file ofthe District Munsif-cum-Judicial Magistrate Court, Papanasam, as against therespondents 1 to 4 herein alleging that they had committed the offencespunishable under Section 302 and 302 r/w 34 of I.P.C.After the completion of preliminary enquiry, the case wascommitted to the Court of Sessions by the learned District Munsif-cum-Judicial Magistrate, Papanasam and after the appearance of therespondents/accused, the learned I Additional Sessions Judge (PCR), ThanjavurSessions Division had framed the following two charges.a. As against the first respondent/A1 under Section 302 of I.P.C.b. As against the respondents/accused 2 to 4 under Section 302r/w 34 of I.P.C.When the ingredients of the charges were explained andquestioned all the four respondents/accused had pleaded innocence and wantedto face the trial and therefore, they were put on trial.He immediately after the receipt of that complaint hadregistered a case in Papanasam Police Station Cr.No.201 of 2007 underSections 342 and 302 r/w 34 of I.P.C. The printed first information reportwas marked as Ex.Thereafter, the complaint Ex.P.1 and the first informationreport Ex.Subsequently, P.W.21 had been to the place ofoccurrence, inspected the same and prepared an observation mahazar Ex.Then, he had also seized the cement concrete stone M.O.1,which was said to have been used by the first accused to kill the deceasedand other material objects viz., blood stained earth and some unbloodstained earth etc. ranging from M.O.8 to M.O.13 under a seizure mahazarEx.P.W.14 Dr. Rajmohan attached to Papanasam Govt. Hospitalhad conducted post mortem examination on the dead body of the deceased.While so, he had found the following external as well as internal injurieson the dead body as under:-1. 5 x 1 x 4 cm laceration just below left eye.2. 8 x 2 x 1 cm lacerated wound in the left forehead.3. 7 x 2 x 1 cm laceration near the 2nd injury.4. 11 x 3 x 2 cm lacerated wound in the right parietal region.Head deformed, crepitation felt over the cranium.Thoax : no rib fracture, heart ? 300 gms.Chambers emply.Bothlungs normal.Hyoid bone intact.Abdomen ? uniform, level of diaphragmnormal.Stomach distended with semi digested food.Liver ? 1600 gms, firmspleen 100 gms, firm, kidney ? normal, small intestine normal.Largeintestine distended with gas, bladder empty.Opening of Head:11 x 3 x 2 cm lacerated wound in the right parietal region with(nc) hematoma extending from right frontal to right temporo occipitalregion.Ring fracture of skull extending from frontal temporal andoccipital region.Clotted blood in the dura matter of right parietal region.Laceration 4 x 5 x 2 cm in the right fronto parietal lobe with 5 ml ofclotted blood.15 ml of clotted blood present in the base of skull.Laceration 4 x 2 x 1 cm left temporal lobe.Spinal column intact.After the completion of his examination, he had issued apost mortem certificate Ex.P.13, wherein he has opined that the deceasedwould appear to have died of injury to vital organ such as brain and due tohaemorrhagic shock 11 to 12 hours prior to autopsy.Thereafter, P.W.21 had examined witnesses and recordedtheir statements and after the completion of the investigation he had laid afinal report against the respondents/accused before the District Munsif-cum-Judicial Magistrate Court, Papanasam, as afore stated.When the incriminating circumstances arising out of thetestimonies of the prosecution witnesses were put to the respondents/accusedduring the course of the proceedings under Section 313(1)(b) Cr.P.C., theyreplied that they had nothing to do with the allegations levelled againstthem and that this case was foisted against them.Though they had stated that they were going to examine thewitnesses on their part, nobody was examined and no documentary evidencewas also adduced.With the evidence of P.W.21, the prosecution has closedits side.On evaluating the evidences both oral and documentary, thelearned Additional Sessions Judge (PCR) had found the respondents/accused 1to 4 not guilty and therefore, they were acquitted of the charges underSection 302 and 302 r/w34 of I.P.C.Challenging the order of the acquittal, the Staterepresented by the Inspector of Police, Papanasam Police Station haspreferred this present appeal.Heard Mr.C. Mayil Vahana Rajendran, learned Additional PublicProsecutor appearing for the appellant and Mr.M.Karunanithi, learned counselappearing for the respondents/accused.Before we go into the merits of the case , we would like tohighlight that the prosecution witnesses 4 to 7, 9 to 11, 13 and 15 have notsupported the case of the prosecution as they have turned hostile.Barring their evidences, the remaining witnesses P.Ws.1 to3, who claim to be the eye witnesses and P.W.8, who is the scribe of thecomplaint Ex.P.1 and the testimonies of P.W.12 are available.Apart from this, the testimonies of official witnesses,i.e., P.W.14 Post Mortem Dr. Rajmohan and other official witnesses P.W.16and P.W.21 are also available.However, the learned Additional Public Prosecutor hasadverted to that the learned trial Judge had failed to weigh theirtestimonies with proper care and caution.He has also submitted that the learned trial Judge has notassigned any reason for disbelieving the first information Ex.P.1 which waslodged before P.W.21 by P.W.1 accompanied by P.W.8 immediately after theoccurrence.He has also submitted that the testimonies of P.Ws.1 to 3are cogent, convincing and corroborate with each other.However, theirtestimonies were discarded by the learned trial Judge for the reasons bestknown to him.He has maintained that the learned trial Judge has notproperly explained as to how the medical evidence adduced by P.W.14 andthe post mortem report under Ex.On the other hand, the learned counsel appearing for therespondents/accused has submitted that the learned trial Judge has properlyappreciated and weighed the testimonies of prosecution witnesses and hascome to the correct conclusion that the prosecution has miserably failedto bring home the guilt of the respondents/accused 1 to 4 and therefore, thejudgment of the trial court need not be disturbed as the interference ofthis Court does not require.On perusal of Ex.P.1 complaint, it appears thatit was received by P.W.21 Inspector of Police at 00.15 a.m on 4.10.2007and soon after the receipt of the complaint he had also registered the casein Cr.No.201 of 2007 under Section 302 of I.P.C.The first information report Ex.P.11 also reveals the samefact.However, it appears that these two documents, viz., Ex.P.1 andEx.P.11 were reached the learned Judicial Magistrate, Papanasam, at 4.40a.m.on 4.10.2007 as it is seen from the evidence of P.W.19, who had takenEx.P.1 and Ex.The occurrenceplace is situated just one kilometre away from the police station.He has also stated that at 4.00 a.m. he had been to thehouse of the learned Judicial Magistrate and handed over the Ex.P.1 andEx.43. P.W.8 says that he came to the place of occurrence along withothers and he was asked to write a complaint and therefore, he had writtenthe complaint.He would further state that at about 12.00 midnight he cameto the place of occurrence and thereafter, all the villagers went to thepolice station and they were also enquired by the police people.According to him, when he along with other villagers cameto the place of occurrence, already the police people were present there andthe witnesses P.Ws.1 to 3 were also present.But he is not able to say asto how the police people came to the place of occurrence before lodging thecomplaint and as to who had lodged the complaint prior to his lodging ofcomplaint.He would further state that after half-an-hour he went tothe police station along with others.In his cross examination, P.W.21 Inspector of Police hasstated that neither in the complaint Ex.P.1, dated 4.10.2007 nor in theirrespective statements, which were recorded by him under Section 161(3)Cr.P.C., P.Ws.1 to 3 have not told that for what purpose they went toPapanasam.Further, he has also stated that they never had statedthat they were threatened by the respondents.During the course of his investigation, he came to know thatthe deceased had been selling liquor near Papanasam railway gate and onthis score, there was previous enmity with other liquor sellers.In his cross examination, he has also stated that noreference was available in his diary to substantiate the fact that P.W.1came to the police station along with other persons.Apart from this, thearrest of the respondents/A1 to A4 was not satisfactorily proved.Besides this he has also admitted in his cross examinationthat when he had examined P.W.14 Dr. Rajmohan, who had conducted the postmortem examination M.O.1 Cement Concrete Stone was not shown to him.But hehas also not obtained any explanation from P.Ws.1 to 3 during the courseof his investigation as to why they had gone to Papanasam at 12.00midnight.It is significant to note here that P.W.21 being theInspector of Police had received the complaint under Ex.P.1 and alsoregistered the case.Since he being the officer, who had registered thecase, he should not have taken up the investigation.Even if he happens totake up the investigation, with the permission of his higher authorities,investigation should have been handed over to some other competent policeofficer.Hence, the investigation taken up by P.W.21 appears to have beentainted with embellishment.As we have discussed in the opening paragraphs, the presenceof P.Ws.1 to 3 at the time of occurrence has been shrouded with moonshine andsince their presence is doubted, it is incumbent on the part of theprosecution to dispel the doubt.However, the prosecution has notsatisfactorily proved the presence of P.Ws.1 to 3 at the place and at thetime of occurrence.Apart from this, as afore stated, the conduct of P.Ws.1 to3 seems to be unusual.We are in agreement with the conclusion of the trialCourt to the effect that P.Ws.1 to 3 would not have present in the place ofoccurrence and witnessed the occurrence.Further, since the other independent witnesses, viz., P.Ws.4to 7 and seizure mahazar witness P.W.9 and observation mahazar witness P.W.11have turned hostile, the testimonies of P.Ws.1 to 3 are left uncorroboratedand unsupported.The evidence of P.W.12, who has spoken about the previousenmity between the deceased and the respondents has also not been supportedby any other witnesses.Apart from this, since P.W.21 being the Inspectorof Police, attached to Papanasam Police Station, happened to register thecase, he is not supposed to take up the investigation.Keeping in view of all the infirmities and conflictions aswell as the contradictions between the testimonies of prosecution witnesses,we are of the considered view that the learned trial Judge has come to thecorrect conclusion, which resulted in the acquittal of the respondents 1 to4 in respect of the charges under Sections 302 and 302 r/w 34 of I.P.C.Therefore, the judgment of acquittal recorded by the learned trial Judgedoes not require interference of this Court.Further, wedo not find any reasons to interfere with the judgment of acquittal recordedby the learned trial Judge.In the result, the criminal appeal is dismissed confirmingthe judgment of acquittal recorded by the learned trial Judge.(S.R.,J) (T.M.,J).31.10.2014rnbIndex :Yes/NoInternet:Yes/NoToThe I Additional Sessions Judge, (PCR), Thanjavur.2.The Additional Public Prosecutor,Madurai Bench of Madras High Court,Madurai.S.RAJESWARAN,J.ANDT.MATHIVANAN,J.rnbPre-delivery JudgmentCriminal Appeal (MD) No.216 of 2010Delivered on31.10.2014

['Section 302 in The Indian Penal Code', 'Section 342 in The Indian Penal Code']

The deceased in this case was one Mrs.Ezhilmathi.She was married to one Mr.Ranganathan, who is the son of the accused herein, eight years before the occurrence.At the time of marriage, gold jewels and other household articles were presented by the parents of the deceased.It is alleged that these two accused who are the father-in-law and mother-in-law respectively of the deceased demanded more dowry from the deceased and harassed her.It is further alleged that on 23.07.2012, at 8.00 am, at the house of the deceased, both the accused abused the deceased in filthy language and then A.1 poured kerosene and A.2 through a lighted match stick on her.The deceased sustained serious burn injuries on her body.The house of the parents of the deceased is situated just 30 houses away from the house of the deceased.On hearing about the occurrence, P.W.1 - the father, P.W.2 - the mother and P.Ws.3 & 4  the neighbours had rushed to the house of the deceased.They found the deceased with burn injuries.When they enquired the deceased, as to how she sustained burn injuries, she told them that A.1 poured kerosene and A.2 set fire on her.P.W.5 is yet another neighbour who has also stated the same.Thereafter, one Mr.Ilayaraja, the brother of the deceased took the deceased in an Ambulance to the Government Hospital, Virudhachalam.Then she was conscious.She told the Doctor that at 11.45 pm, on 23.07.2012, at her house, her father-in-law poured kerosene and set fire.P.W.9 found 90% burnt injuries on her body.P.W.9 made entry of the said statement, in the accident register and then, gave intimation to the learned Judicial Magistrate, Virudhachalam.P.W.9 certified that the deceased was conscious.P.W.8 was satisfied that the deceased was in a fit state of mind to make a dying declaration.(Judgment of the Court was delivered by S.Nagamuthu.J) The appellants are the accused 1 and 2 in S.C.No.301 of 2012 on the file of the learned Sessions Judge, Mahila Court, Cuddalore.They stood charged for offences under Sections 498A, 294(b) & 302 r/w 34 I.P.C. By judgment dated 04.09.2013, the trial Court convicted them for offence under Section 302 r/w 34 I.P.C., alone and sentenced them to undergo imprisonment for life and to pay a fine of Rs.5,000/- each in default to undergo rigorous imprisonment for six months.Challenging the said conviction and sentence, the accused 1 and 2/appellants are before this Court with this Criminal Appeal.Thereafter, he recorded the dying declaration of the deceased, vide Ex.In the said judicial dying declaration, the deceased told that A.1 poured kerosene and A.2 set fire on her.4.P.W.10, the then Special Sub Inspector of Police, on receipt of the intimation from the hospital, went to the hospital on 24.07.2012 and recorded the statement of the deceased, in the presence of the Doctor under Ex.On returning to the Police Station, at 6.00 am, on 24.07.2012, he registered a case in Crime No.194/2012 for offences under Sections 294(b), 498A & 307 I.P.C. Ex.5.The case was taken up for investigation by P.W.11, the then Inspector of Police.He went to the place of occurrence at 7.00 am, on 24.07.2012 and prepared an observation mahazar and a rough sketch in the presence of P.W.6 and another witness.Then, he recovered a plastic can; a match box and a half burnt polyster saree (M.Os.1 to 3), under a mahazar, in the presence of same witnesses.Then, he examined P.Ws.1 to 5 and recorded their statements.On the same day at 11.00 am, he arrested both the accused, in the presence of P.W.6 and another witness.On such arrest, A.1 gave a voluntary confession.But no discovery of any fact was made out of the same.On returning to the Police Station, he forwarded both the accused to Court, for judicial remand.6.On 29.07.2012, at 9.55 pm, the deceased succumbed to the injuries in the hospital.On receipt of the death intimation, P.W.11 altered the case into one under Sections 294(b), 498A & 302 I.P.C. Ex.P.13 is the alteration report.On the same day, between 1.00 pm and 3.00 pm, he conducted inquest on the body of the deceased, in the hospital and forwarded the body for post mortem.Manojkumar Mohandi, conducted autopsy on the body of the deceased on 30.07.2012, at 3.05 pm.He found 90% of burnt injuries, on the body of the deceased.He opined that the death was due to septicemia following burns.P.4 is the post mortem certificate and Ex.P.6 is the final opinion of P.W.7 regarding the cause of death.On completing investigation, P.W.11 laid charge sheet against both the accused.7.Based on the above materials, the trial Court framed charges as detailed in the first paragraph of this judgment against these accused.Both the accused denied the same.In order to prove the case of the prosecution, on the side of the prosecution, as many as 11 witnesses were examined and 14 documents were exhibited, besides 3 material objects.8.Out of the prosecution witnesses, P.Ws.1 to 5 have stated that the deceased told them that A.1 poured kerosene and A.2 set fire to her.P.W.9  Dr.Saminathan, has stated that the deceased told him that her father-in-law poured kerosene and set fire.In the judicial dying declaration, recorded by the learned Judicial Magistrate, the deceased told that A.1 poured kerosene and A.2 set fire on her.In the complaint made to P.W.10 also, the deceased told that A.1 poured kerosene and A.2 set fire on her.9.When the above incriminating materials were put to the accused under Section 313 Cr.P.C., they denied the same as false.On their side, no witness was examined and no document was marked.Their defence was a total denial.10.Having considered all the above, the trial Court found the accused guilty for offence under Section 302 r/w 34 I.P.C., and accordingly, sentenced them to undergo imprisonment for life.Aggrieved over the same, the accused/appellants are before this Court with this Criminal Appeal.11.We have heard the learned counsel for the appellants and the learned Additional Public Prosecutor and also perused the records carefully.12.In this case, the prosecution relies on the multiple dying declarations made by the deceased.P.Ws.1 to 5 have stated that when they went to the house of the deceased, they found the deceased with burn injuries and she told them that her father-in-law poured kerosene and mother-in-law set fire on her.P.Ws.1 to 5 told the said fact for the first time after the registration of the case.The deceased was brought to the hospital by her brother, by name, Mr.For the reasons best known to them, the prosecution has not examined the brother of the deceased viz., Mr.Ilayaraja.At the earliest point of time, when the deceased was admitted in the hospital, she told the Doctor that her father-in-law poured kerosene and set fire on her.Subsequently, in the judicial dying declaration, the deceased had told that A.1 poured kerosene and A.2 set fire on her.Thus, there is material contradiction between these two dying declarations.13.Above all, from the time of occurrence, the deceased was accompanied and surrounded by her family members.Admittedly, there was some misunderstanding between the accused and the family members of the deceased.The deceased was taken to the hospital by her brother, by name, Mr.In the first statement made by the deceased to the Doctor, the deceased told that her father-in-law alone poured kerosene and set fire on her.But, in the second statement made to the learned Judicial Magistrate concerned, the deceased had told that A.1 poured kerosene and A.2 set fire on her.This material improvement made by the deceased implicating A.2 in the subsequent dying declaration would only go to probablize that she had been tutored by Mr.Ilayaraja, or by the other relatives.Assuming that the said statement made to the Doctor, being the earliest statement, requires weightage, since, it is completely contradicted by the subsequent dying declaration recorded by the learned Judicial Magistrate, in which, the deceased told that A.1 poured kerosene and A.2 set fire on her.In our considered view, it is not safe to act on the earliest statement made to the Doctor since that statement itself might have been due to tutoring.If the second dying declaration that fire was set only by A.2 is believed then, the first dying declaration made to the Doctor that it was A.1 who poured kerosene and set fire on her becomes false.Thus, these two dying declarations are completely contradicting each other and they make each one as unbelievable.14.It is needless to point out that the trial Court itself has disbelieved the evidences of P.Ws.1 to 3, that these accused demanded dowry and harassed the deceased.Similarly, the trial Court has disbelieved the evidence of these witnesses, in respect of the charge under Section 294(b) I.P.C. Thus, the trial Court itself has partly believed the prosecution case.Further, the State has not made any appeal against the acquittal of the appellants for offence under Sections 498A & 294(b)15.In view of all these anamolies and doubts, we find it difficult to sustain the conviction and sentence imposed on the appellants.(M.J.J) & (S.N.J) 21.04.2016jbmIndex:Yes To1.The Sessions Judge, Mahila Court, Cuddalore.A.No.679 of 201321.04.2016

['Section 294(b) in The Indian Penal Code', 'Section 498A in The Indian Penal Code', 'Section 302 in The Indian Penal Code', 'Section 307 in The Indian Penal Code']

It appears to be clear that the accused Paromita Chakraborty lodged a case against the present defacto complainant about 7 months prior to lodging of this case against Paromita Chakraborty and others.It further appears to me that the aforesaid case lodged by Paromita Chakraborty is still pending and the defacto complainant is facing the trial.

['Section 341 in The Indian Penal Code', 'Section 504 in The Indian Penal Code', 'Section 506 in The Indian Penal Code', 'Section 323 in The Indian Penal Code', 'Section 34 in The Indian Penal Code']

Heard on the question of admission.This Criminal Revision under Section 397/401 of Cr.P.C. has been filed against the order dated 19-11-2016 passed by 2nd A.S.J., Jaura, Distt.Morena in S.T. No. 299/2016, by which the charge under Sections 147, 148, 294, 307 of I.P.C. has been framed against applicant no.2 Sunil whereas charge under Sections 147, 148, 294, 307/34 of I.P.C. has been framed against the remaining applicants.The prosecution story in short is that a F.I.R. was lodged by the complainant to the effect that at about 7:30 in the morning, he was going to his fields.When he reached in front of the house of Ramprakash,, then the applicants came there and were armed with Lathi, Farsa etc. The applicant Sunil was having a country-made pistol with him.vs. State of MP reported in ILR (2012) MP 1055 and Anil alias Moni Panda and Anr.Per contra, it is submitted by the counsel for the State that it is well settled principle of law that in order to prima facie make out an offence under Section 307 of IPC, the nature of injuries is immaterial.It is submitted that the manner in which the incident is alleged to have taken place and the gunshot injury caused to the complainant clearly show that the applicants had an intention and knowledge to cause death of the complainant and there was an overt act on their part and thus, prima facie offence under Section 307 of IPC is made out.

['Section 307 in The Indian Penal Code', 'Section 148 in The Indian Penal Code', 'Section 294 in The Indian Penal Code', 'Section 147 in The Indian Penal Code', 'Section 34 in The Indian Penal Code']

By this application applicant/accused who hasbeen convicted for the offence punishable under Section376 (2)(l) of the Indian Penal Code and sentenced tosuffer rigorous imprisonment for the period of 10 yearsand to pay a fine of Rs.60,000/-, in default of payment, ::: Uploaded on - 03/05/2019 ::: Downloaded on - 04/05/2019 07:19:55 ::: (2) criapln3725.18to suffer simple imprisonment for year as per thejudgment and order dated 14.06.2018 in Special CaseNo.137/2017 passed by the Additional Sessions Judge,Ahmednagar has prayed to suspend the aforesaidsubstantive sentences pending hearing and final decisionof his appeal bearing Criminal Appeal No.560/2018challenging the conviction recorded against him and torelease him on bail and it appears that the appellant hasdeposited fine amount on the same day.::: Uploaded on - 03/05/2019 ::: Downloaded on - 04/05/2019 07:19:55 :::Case of the prosecution is that the victim girlaged about 23 years is mentally retarded deaf and dumblady.She was residing with her parents.Her parents arelabours and they used to be out from the house in the daytime for labour work.The victim girl used to be alone atthe house.Her grand-mother used to be residing in theadjoining house which is her parental aunt.The applicantwho is resident of the same village is an agriculturist.The house of the victim girl is on the way of theagricultural land of the applicant.It was alleged thatin July, 2016 parental aunt of the victim girl visitedthe house of the victim girl and noticed some change inthe appearance of the victim girl.She pointed out thesaid change in the appearance of the victim girl to theinformant mother of the victim girl.The MedicalOfficer after examining the victim girl opined that shewas pregnant.The informant suspected that somebodycommitted forcible intercourse with the victim girl.During the investigation the informant raisedsuspicion on the appellant/accused, on the father of thevictim girl and on the cousin brother of the victim girl.The victim girl delivered a female child.Blood samplesof the said child, all the suspects including theapplicant and the victim girl were taken and in the DNAtest it was revealed that the applicant is Biologicalfather of the child of the victim girl.::: Uploaded on - 03/05/2019 ::: Downloaded on - 04/05/2019 07:19:55 :::Mr.Ostwal, learned counsel for the applicantsubmitted that the applicant was arrested on 14.01.2017and he is in jail since the date of his arrest.Panchwitnesses have not supported the prosecution case.Nothing is recovered from the spot of incident.Thevictim girl is not completely mentally retarded as perthe Medical evidence on record and therefore the victimgirl was required to be examined by the prosecution.Consent of the applicant was not obtained while takingsample of blood.The prosecution has not examined theperson/expert who conducted DNA test and still DNA report ::: Uploaded on - 03/05/2019 ::: Downloaded on - 04/05/2019 07:19:55 ::: (4) criapln3725.18is considered by the trial Court.As such, no opportunityhas been given to the appellant to dispute the DNAreport.His bail application was rejected by thetrial Court and bail application filed in this Court waswithdrawn as the trial was expedited.It is submittedthat in the above circumstances the evidence of PWs-5,6,8,9 and DNA report (Exh.14) relied upon by the trialCourt is not sufficient to sustain the convictionrecorded against the applicant and therefore sentencerecorded against the applicant may be suspended and hemay be released on bail, as final hearing of the appealwould take time, by allowing application.::: Uploaded on - 03/05/2019 ::: Downloaded on - 04/05/2019 07:19:55 :::Mr.Ostwal, learned counsel for the applicant, tosupport his submissions that the sentence recordedagainst the applicant is of fixed term there are noexceptional circumstance to reject the request ofsuspension of sentence and to release the applicant onbail when it is not possible to take up the appeal of theapplicant for early hearing and that generally courtshould be liberal to suspend the sentence during pendency ::: Uploaded on - 03/05/2019 ::: Downloaded on - 04/05/2019 07:19:55 ::: (5) criapln3725.18of the appeal challenging the sentence has mainly reliedupon the following decisions :::: Uploaded on - 03/05/2019 ::: Downloaded on - 04/05/2019 07:19:55 :::The maximum sentence imposed on him was imprisonment for a period of 7 years on the second count.His application for suspension of sentence was rejected by the High Court.It was held that no exceptional reason had been shown in the impugned order for not suspending the sentence.The sentence recorded against the appellant was suspended during pendency of the appeal and he was directed to be released on bail.B] In the Case of Angana and Another Vs State of Rajasthan (2009) 3 Supreme Court Cases 767 the Hon'ble Apex Court considered the aspect of suspension of sentence pending appeal and release of appellant on bail and further held that when an appeal is preferred against the conviction in the High Court, the High Court has ample power and discretion to suspend the sentence, but that discretion has to be exercised judiciously depending on the facts and circumstances of each case.While considering the suspension of sentence, each case is to be considered on the basis of nature of the offence, manner in which occurrence had taken place, whether in any manner bail granted ::: Uploaded on - 03/05/2019 ::: Downloaded on - 04/05/2019 07:19:55 ::: (6) criapln3725.18 earlier had been misused.In fact, there is no straitjacket formula which can be applied in exercising the discretion.The facts and circumstances of each case will govern the exercise of judicial discretion.While considering the application filed by the convict under Section 389 Cr.P.C.::: Uploaded on - 03/05/2019 ::: Downloaded on - 04/05/2019 07:19:55 :::11 Supreme Court Cases 363 the appellant who was nearly 70 years old was convicted for the offence under Sections 342 and 302 of the Indian Penal Code.He was in jail for nearly one year and on bail during trial.He was directed to be released on bail on his furnishing the stipulated security and it was clarified that release of appellant No.1 was only directed on considering his age and not on consideration of merits of the case.In the said case the appellants were convicted for the offence under Section 392 read with Section 397 of the IPC and each of them was sentenced to rigorous imprisonment for 10 years.Sentence recorded against the appellants was suspended and they were directed to be released on bail with certain conditions.::: Uploaded on - 03/05/2019 ::: Downloaded on - 04/05/2019 07:19:55 :::5. Learned APP for the respondent/State on theother hand opposed to grand the application on thegrounds that mental condition of the victim girl isconsidered by the trial Court in paragraph No.29 of thejudgment and she was mentally retarded.The work ofsealing samples is the collective work of Doctor, Nurseand the staff and the said aspect has been considered bythe trial Court in paragraph Nos.35, 36 and 37 of thejudgment.PW-7 who carried samples to the analyzer forconducting DNA test has stated that the samples were insealed condition and therefore, it cannot be said thatthere was no proper sealing of the samples as submittedby the learned counsel for the applicant and even ifprocedural lapses are there it cannot be considered atthis stage when the applicant is Biological father of the ::: Uploaded on - 03/05/2019 ::: Downloaded on - 04/05/2019 07:19:55 ::: (9) criapln3725.18female child of the victim girl.As such according to thelearned APP as it is proved that the applicant hascommitted rape on mentally retarded victim girl the trialCourt has convicted and sentenced him for the offenceunder Section 376 (2)(l) of the IPC which offence isserious in nature.It is submitted that considering thecircumstance that applicant has committed rape onmentally retarded girl and the fact that the applicantwas not on bail during the trial his request to suspendthe sentence and to release him on bail cannot beconsidered.Thus, learned APP has prayed to reject theapplication.::: Uploaded on - 03/05/2019 ::: Downloaded on - 04/05/2019 07:19:55 :::I have carefully considered the submissions madeby the learned counsel for the applicant and learned APPand I have gone through the impugned judgment andevidence adduced by the prosecution.The evidence of Indubai Anna Bhingardive (PW-1)the informant/complainant who is mother of the victimgirl is that the victim girl is mentally retarded deafand dumb and that Tarabai (Parental aunt of victim girl) ::: Uploaded on - 03/05/2019 ::: Downloaded on - 04/05/2019 07:19:55 ::: ( 10 ) criapln3725.18told her to take the victim girl for medical examinationas the victim girl was complaining the stomach ache andthat when the victim girl was taken to Civil Hospital,Ahmednagar, Doctor told that the victim girl waspregnant.She has also stated that the applicant residesin their village.He used to take his cattle for grazingfrom their house.Their house is on the way of hisagricultural land.The applicant used to give signals tothe victim girl whenever he used to pass from their houseby raising and waiving hand.In her cross-examination sheadmitted that the victim girl used to talk with them bysigns.She denied that they have falsely implicated theapplicant.::: Uploaded on - 03/05/2019 ::: Downloaded on - 04/05/2019 07:19:55 :::The evidence of Dr.Sachin Solat (PW-2) showsthat on 13.08.2016 when he was Chief Medical Officer inCivil Hospital, Ahmednagar, the victim girl who was deafand dumb was examined by him and there was history ofsexual assault on her and he took sample of her blood,nails, pubic hair and vaginal swab and were forwarded tothe Chemical Analyzer.He stated that the victim girl wasreferred to the Gynecologist Dr. Mrs.Tupe and Dr. KaralePsychiatrist.He received reports from both of them andas per report of Gynecologist the patient was pregnant ofmore than 21 weeks and as per report of Psychiatrist the ::: Uploaded on - 03/05/2019 ::: Downloaded on - 04/05/2019 07:19:55 ::: ( 11 ) criapln3725.18patient was having clinically moderate mentalretardation.In the cross-examination he denied that thepatient was not mentally retarded, but of sound mind andshe was capable of knowing everything.::: Uploaded on - 03/05/2019 ::: Downloaded on - 04/05/2019 07:19:55 :::The evidence of Dr. Ashok Karale (PW-5) who isPsychiatrist who examined the victim girl shows that herself care activities were poor.She was not speaking.Shewas having difficulty in hearing.Her mile stones in lifewere delayed.That means she started walking very lateand as such mentally she was as good as a child when heexamined her.According to him he found that victim hasmoderate mental retardation.In the cross-examination headmitted that the patient was not completely mentallyretarded i.e. severe or profound mental retardation.Hedenied that the victim girl was not childish and wascapable of giving consent.Thus, from the evidence ofabove witnesses it appears that the victim girl wasmentally retarded.Therefore, prima facie there is nosubstance in the submissions of the learned counsel forthe applicant that she was not mentally retarded andtherefore, she was to be examined as witness by theprosecution.Therefore, there appears no question of herconsent to act alleged against the applicant.::: Uploaded on - 03/05/2019 ::: Downloaded on - 04/05/2019 07:19:55 :::( 12 )The evidence of API Mandale (PW-6) shows thatafter the victim girl delivered a child he went to Mumbaiand brought six kits for taking necessary samples.On17.10.2016 he called all the three suspects to the CivilHospital, Ahmednagar for sampling purpose and accordinglythe Medical Officer collected samples and those werehanded over to him.In his evidence DNA report (Exh.14)is exhibited.The evidence of PW-8 Dr.Sonawane shows thathe had taken blood samples of all three different personsin the sample kits, and in the cross-examination headmitted that after collecting blood samples work oflabelling and sealing was done by a Sister in hispresence and supervision.The evidence of API Mandale(PW-6) also shows that he collected blood and nailsamples of the victim girl.It has come in the evidenceof ASI Markad (PW-7)that on 01.11.2016 he gone to CivilHospital, Nashik to procure blood samples of the victimlady and her new born baby and he handed over two DNAsample kits to the Medical Officer.At that time, samplesof blood of the victim girl and new born baby were takenby the Medical Officer in his presence and were leabelledand sealed and handed over to him by the concernedDoctor.He carried those samples to Ahmednagar.He deniedthat the samples were not taken in his presence.Thus,from the above evidence samples of blood of all three ::: Uploaded on - 03/05/2019 ::: Downloaded on - 04/05/2019 07:19:55 ::: ( 13 ) criapln3725.18suspects including the applicant, the victim girl and herfemale child were taken and sealed.::: Uploaded on - 03/05/2019 ::: Downloaded on - 04/05/2019 07:19:55 :::::: Uploaded on - 03/05/2019 ::: Downloaded on - 04/05/2019 07:19:55 :::[S.M. GAVHANE, J.]VishalK/criapln3725.18 ::: Uploaded on - 03/05/2019 ::: Downloaded on - 04/05/2019 07:19:55 :::::: Uploaded on - 03/05/2019 ::: Downloaded on - 04/05/2019 07:19:55 :::

['Section 376 in The Indian Penal Code', 'Section 506 in The Indian Penal Code', 'Section 342 in The Indian Penal Code', 'Section 392 in The Indian Penal Code', 'Section 376(2) in The Indian Penal Code', 'Section 302 in The Indian Penal Code', 'Section 325 in The Indian Penal Code', 'Section 397 in The Indian Penal Code']

Satish Rathod, r/o.Andheri(East) Mumbai.2] It has been contended that the first informant Smt. Sushamaw/o.Satish Rathod approached to the Cantonment Police Station on9.10.2015 and ventilated the grievances that her marriage was solemnizedon 7/5/2015 with the applicant Satish Dharmu Rathod, at Kandhar.After themarriage, she joined the company of the husband for cohabitation atmatrimonial home located at Kandhar and thereafter at Mumbai.Thehusband Satish, his parents and brothers all were residing jointly at Mumbai.According to complainant Sushama, while cohabitation at matrimonial home,she was subjected to maltreatment and harassment by the applicant onaccount of demand of money as well as domestic cause.The husband Satishwas unemployed and has a habit of smoking as well as drinking liquor.Theinmates of the matrimonial home maltreated the complainant mentally and ::: Uploaded on - 21/02/2017 ::: Downloaded on - 22/02/2017 01:01:13 ::: {3} crapln 477.16.odtphysically.Eventually, she left the matrimonial home, came to Aurangabadand started residing with her parents.According to theapplicants, allegations made in the FIR are false, malafide and notappreciable at all.The contents of the FIR are all fabricated and after-thought.There was no ill-treatment or harassment to the complainantSushama at matrimonial home but the FIR came to be filed in order to causemental and physical harassment to the applicants.JUDGMENT : ( Per : K.K. Sonawane, J.)1] The applicant moved the present application, invoking the remedyunder Section 482 of Cr.P.C. to quash and set aside the FIR vide Crime No.338 of 2015, registered at Cantonment Police Station, Aurangabad underSection 498-A and 323, 504 and 506 r/w. 34 of IPC.The present complaint isfiled by the first informant Smt. Sushama w/o.Thereafter, she preferred thecomplaint to initiate the proceedings against the applicant for the offence ofcruelty and criminal intimidation etc. Pursuant to the FIR, the police ofCantonment Police Station registered the Crime No. 338 of 2015 and set thecriminal law in motion.The I.O. proceeded to record the statement ofwitnesses acquainted with the facts of the case.::: Uploaded on - 21/02/2017 ::: Downloaded on - 22/02/2017 01:01:13 :::3] Meanwhile, the applicants moved the present application underSection 482 of Cr.P.C. and prayed to quash and set aside the impugned FIR,filed by the complainant Smt. Sushama Satish Rathod.The complainant Sushmais not interested to cohabit with the husband Satish.Her character prior tothe marriage was also suspicious and the parents performed her marriageagainst her will.The complainant Sushma given threats of self-immolation tothe applicants.In view of the aggressive demeanour and conduct ofcomplainant Sushma, the applicants approached to the higher authoritiesand police personnel and lodged complaints against the complainant Sushmaand others.Therefore, the impugned complaint, registered against theapplicants is malafide and not sustainable in the eye of law.It has alsobeen alleged that the police of cantonment police station, Aurangabad have ::: Uploaded on - 21/02/2017 ::: Downloaded on - 22/02/2017 01:01:13 ::: {4} crapln 477.16.odtno territorial jurisdiction to investigate into the crime as no part of crime isshown committed within the territorial limits of Cantonment Police Station,Aurangabad.The alleged office of cruelty and criminal intimadation etc. areshown committed at Kandhar and Mumbai.Therefore, the FIR registered atCantonment Police Station, Aurangabad deserves to be quashed and set asidefor lack of jurisdiction to investigate into the crime.4] We have given anxious consideration to the argumentscanvassed on behalf of both sides.We have also delved into the documentsproduced on record.After appreciating the recitals of the FIR, we find thatthere are prima facie circumstances on record, depicting commission ofoffence of cruelty as envisaged under Section 498A of the IPC.There areallegations about the voluntary causing hurt and criminal intimidation ascontemplated under Section 323, 504 and 506 of IPC.The allegationsnurtured in the FIR made out prima facie offences as alleged against theapplicants.The recitals in the FIR, if considered at its face value andaccepted in its entirety, it reflects that the offences, as alleged against theapplicants are made out for investigation into the crime.There areallegations of mental and physical cruelty as well as unlawful demand ofmoney on the part of applicant/accused.The complainant Sushama wassubjected to ill-treatment to meet the unlawful demands.Therefore,considering the nature of allegations nurtured on behalf of complainant, weare not prepared to exercise inherent powers under Section 482 of Cr.P.C. infavour of the applicants to quash and set aside the alleged FIR.::: Uploaded on - 21/02/2017 ::: Downloaded on - 22/02/2017 01:01:13 :::::: Uploaded on - 21/02/2017 ::: Downloaded on - 22/02/2017 01:01:13 :::Hence, we proceed to reject theprayer of the applicant for quashing and setting aside the FIR.7] However, learned counsel for the applicants harped on thecircumstances that the police of cantonment police station have noterritorial jurisdiction to investigate into the crime, as no pat of the cause ofaction arose in Aurangabad.The learned counsel therefore submitted that the alleged FIR isrequired to be quashed and set aside or may be transferred to the concernedpolice station, at Kandhar or Mumbai.According to learned counsel forapplicants, the police of cantonment police station, ought to have registeredthe crime under "ZERO" number and same has to be transmitted to theconcerned police station at Mumbai or Kandhar, having territorial jurisdictionto deal with the matter.::: Uploaded on - 21/02/2017 ::: Downloaded on - 22/02/2017 01:01:13 :::8] We find no force in the arguments propounded on behalf of thelearned counsel for the applicants to quash the entire investigationconducted by the Cantonment Police Station on the ground of lack ofterritorial jurisdiction.The powers of investigation into cognizable offencesare contained in Chapter XII of the Cr.P.C. The Section 154 of the saidChapter deals with the information in cognizable offences, whereas, Section ::: Uploaded on - 21/02/2017 ::: Downloaded on - 22/02/2017 01:01:13 ::: {7} crapln 477.16.odt156, deals with investigation into cognizable offence.These provisions ofCr.::: Uploaded on - 21/02/2017 ::: Downloaded on - 22/02/2017 01:01:13 :::10] In view of the settled principles of law mentioned above, weare unable to persuade ourselves to appreciate contentions put forth onbehalf of the learned counsel for the applicants, to cause interference in theinvestigation of the crime by the cantonment police station.At this stage,when investigation is in progress, the impugned FIR cannot be quashed andset aside on the alleged ground that, as no part of offence is committedwithin the territorial jurisdiction of Aurangabad police Station, the I.O. hasno jurisdiction to investigate into it.The law does not permit to cause anyinterference in the investigation by exercising inherent powers under Section482 of Cr.P.C. Section 156(2) of Cr.P.C. contains an embargo that noproceeding of police officer shall be called in question on the ground that hehas no territorial jurisdiction.We reiterate that the material collected bythe I.O. cannot be judicially scrutinized for arriving at the conclusion thatthe police officers of particular police station, would not have territorialjurisdiction.11] In the above premises, we are of the considered opinion thatthe circumstances on record categorically demonstrate that the allegationsmade in the FIR, if taken into consideration at its face value, and acceptedin its entirety, prima facie constitute an offence of cruelty as envisaged ::: Uploaded on - 21/02/2017 ::: Downloaded on - 22/02/2017 01:01:13 ::: {10} crapln 477.16.odtunder Section 498A of I.P.C. against the applicants.The contentionspropounded on behalf of the applicants against first informant Sau.Sushamarequire judicial enquiry to examine the correctness and truthfulness ofaspersions casted on behalf of applicants.Hence, the Criminal Applicationstands dismissed.No orders as to costs.::: Uploaded on - 21/02/2017 ::: Downloaded on - 22/02/2017 01:01:13 :::At this stage, learned counsel for the applicant prays forcontinuation of interim relief which was in force till this date.Hence, the prayer stands rejected.

['Section 498A in The Indian Penal Code', 'Section 506 in The Indian Penal Code', 'Section 323 in The Indian Penal Code', 'Section 504 in The Indian Penal Code']

Heard on point of admission.Appeal is admitted for final hearing.I.A. Nos.11429/2016 and 11431/2016 are dismissed as being rendered infructuous.This is first application under Section 389(1) Cr.P.C. for suspension of jail sentence and grant of bail filed on behalf of appellants Neeraj S/o Sohanlal Yadav and Rahul S/o Sohanlal @ Rameshchandra ji.The present appellants suffered conviction and sentence as under:-Learned counsel for the appellants submits that present appellants were on bail during trial and never misused the liberty granted to them.He further submits that in the medical report, doctor opined that injury would be dangerous to life if not treated properly.He further submits that in Cr.A. No.55/2017 accused-Annu @ Anup was granted bail.The present appellants were convicted with aid of Section 34 of IPC, while causing hurt to Vishal by Annu, who was granted bail.Learned counsel for the State opposes the application.After going through the record of the case and without commenting on the merits of the case, the application is allowed.It is directed that if the appellants furnish personal bond of Rs.50,000/- (Rupees Fifty Thousand Only) each and a solvent surety each of the like amount to the satisfaction of the trial Court, and on depositing the fine amount, the remaining portion of the jail sentence of the appellants shall be suspended and they be released on bail for their appearance before the Registry of this Court on 26.04.2017, and thereafter, on all subsequent dates as may be fixed by the Registry in this behalf.(ALOK VERMA)

['Section 34 in The Indian Penal Code']

In Mohalla Chah Sheri, Bijnor, there are two political groups, one group headed by Javed Aftab and the other headed by Abdul Malik Beg alias Hithaura Pahalwan.It is alleged that initially there was no difference between the two groups as all of them were working in the political and social fields of the city.The petitioner opposed the candidature of Javed Aftab and supported the rival candidate Chaudhary Nepal Singh Arya.Javed Aftab was successful in the election and after becoming the Chairman of Nagar Palika, Bijnor he started nursing ill will towards the petitioner.On 26-5-1989 one Margoob alias Kale, son of Mahfooz, was murdered within the local limits of Police Station Kotwali, Margoob was an appointee of Javed Aftab in the Nagar Palika.ORDER B.P. Singh, J.Sri Zulfiqar Beg has moved this petition Under Section 482, Cr.P.C. for quashing the order dated 16th January, 1991 passed by the C.J.M. and the order dated 23-1-1991 passed by the Sessions Judge, Bijnor in Criminal Revision -- Zulfiqar Beg v. State.The facts giving rise to this petition are as follows :Subsequently a dispute arose and the two groups became antagonistic to each other over some election.In October, 1988 elections for the post of Chairman, Municipal Board, Bijnor were held in which Javed Aftab was a candidate against others including one Chaudhary Nepal Singh Arya.Although Margoob was murdered by some unknown person, an FIR was lodged by his father, Mahfooz, and the petitioner was implicated as one of the accused.The petitioner belongs to Janta Dal while Javed Aftab is of the Congress-I party.having come to know about his involvement in the said FIR, the petitioner moved an application to the Chief Minister, Uttar Pradesh, Lucknow on 3-6-1989 requesting that the investigation of the case may be transferred to C.B.C.I.D. The petitioner's request was accepted and the investigation of case crime No. 327 of 1989 Under Section 302, I.P.C. P. S. Kotwali was ordered to be handed over to C.B.C.I.D. Thereafter Javed Aftab got an application moved in the name of Mahfooz that the case in question may be investigated by the local police and not by the C.B.C.I.D. On this application the State Government passed an order on 6-7-1989 directing that the case was to be investigated by the local police of Bijnor and not by C.B.C.I.D.Again the petitioner moved an application before the State Government praying that the investigation of the case in question may be handed over to C.B.C.I.D. On this application the Secretary of the Home Department of the Uttar Pradesh Government sought reports from the District Magistrate and S. P. Bijnor.The Home secretary of the Govt. on receipt of the report from the district authorities, directed the District Magistrate and the S. P. Bijnor vide order dated 26-8-1989 that the investigation of the case be handed over to C.B.C.I.D.In pursuance of the order dated 26-8-1989 one inspector of the C.B.C.I.D. i.e. Sri V. M. Sharma applied in the court of C.J.M. Bijnor for the papers of the case.It was also directed by the learned C.J.M. that Inspector V. M. Sharma shall complete investigation within two months and will submit his report.Inspector V. M. Sharma started investigation and recorded statements of the petitioner as well as a few other persons.It appears that having come to know that C.B.C.I.D. was investigating the case, Sri Javed Aftab again approached the State Government and got an order passed by the Joint Secretary, Ministry of Home, U.P. Lucknow, directing the Inspector General of Police that the investigation of case Crime No. 327 of 1989 may now be taken back from the C.B.C.I.D. and may be given to the Civil Police, Bijnor.This order passed by the Joint Secretary, Ministry of U.P. Lucknow, was communicated to the Inspector C.B.C.I.D. who, thereafter, submitted the papers and the orders of State Government without completing the investigation to the Chief Judicial Magistrate, Bijnor.At this stage the Chief Judicial Magistrate, Bijnor issued a non-bailable warrant against the petitioner and summoned the remaining two accused vide his order dated 28-10-1989, finally Sri Javed Aftab had succeeded in starting proceedings in the court of Chief Judicial Magistrate, Bijnor, on the basis of the charge-sheet which was submitted by the Inspector, Civil Police.It was highly irregular on the part of the Joint Secretary, Ministry of Home, U.P. Lucknow, to take back the investigation of the case from C.B.C.I.D.As no other alternative was available to the petitioner, he moved this Court through a petition Under Section 482, Cr.The operative portion of the order in Crl.Petition No. 9524 of 1989 runs as follows :However, since after a case is instituted before a competent court, it cannot be withdrawn under any circumstance, save on an application by the Public prosecutor when the court alone can permit withdrawal of the case, the procedure hereafter to be adopted in the case shall be decided by the C.J.M. Bijnor before whom the case is pending.Since the petition is finally disposed of, the interim order is automatically vacated."A certified copy of the above order was produced by the petitioner before C.J.M. Bijnor on 14-8-1990 and 14-11-1990 was fixed in the case.It was on 20-12-1990 that Inspector C.B.C.I.D. Sri V. M. Sharma again applied to the C.J.M. Bijnor for taking back the relevant papers and also prayed for staying further proceedings in the case.On the same day, learned C.J.M. directed that the case diary excluding the charge-sheet be handed over to the Inspector C.B.C.I.D. No Orders were passed by the C.J.M. on the request of Inspector C.B. C.I.D. regarding stay of further proceedings in the case.On 16-1-1991, the complainant moved an application before the C.J.M. Bijnor for issuing non-bailable warrant against Zulfaiqar Beg alias Baby and on the same day learned Magistrate passed the following order :Stay has been vacated.Issue non-bailable warrant against the accused fixing 24-1-1991 for appearance.The petitioner has thus come to this Court with the present petition with the prayer that the impugned order dated 16-1-1991 passed by the C.J.M. Bijnor and the order dated 23-1-1991 passed by the Sessions Judge, Bijnor may be quashed and further proceedings in Criminal Case No. 1717 of 1989 State v. Zulfiqar Beg alias Baby pending in the court of C.J.M. Bijnor may be stayed.I have heard the learned counsel for the parties at some length.

['Section 482 in The Indian Penal Code']

Petition filed under Article 226 of the Constitution of India for the issuance of Writ of Habeas Corpus calling for the records of the first respondent setting aside the order of detention passed on 2.11.06 in No60/BDFGISSV/2006 and produce the detenu by name Purushothaman before this Court and set the detenu at liberty, now detained in Central Prison, Chennai.For Petitioner : Mr. Arasuganesan For Respondents : Mr.M. Babu Muthu Meeran, Addl.Public ProsecutorP.K. MISRA, J The wife of the detenu has filed this Habeas Corpus Petition challenging the order of detention dated 2.11.2006 passed by the Commissioner of Police, Chennai City, under Section 3(1) read with 3(2) of the Tamil Nadu Prevention of Dangerous activities of Bootleggers, Drug Offenders, Forest Offenders, Goondas, Immoral Traffic Offenders, Sand Offenders, Slum Grabbers and Video Pirates Act,1982 (Tamil Nadu Act 14 of 1982), hereinafter referred to as the Act.The detenu came to the adverse notice of the police in four adverse cases.First adverse case relates to Chunambedu Police Station Cr.No.517/1995 for an offence under Section 324 IPC, which is pending trial, second adverse case is Chunambedu Police Station Cr.No.234/2001 for the offence registered under Sections 147, 148, 341, 302 IPC r/w.149 IPC., third adverse case is Chunambedu Police Station Cr.No.191/2003 for the offence registered under Sections 147, 148, 341, 427, 307 IPC r/w.3(1) TNPPD Act and the fourth adverse case is Chunambedu Police Station Cr.No.257/2003 for the offence registered under Sections 147, 148, 326, 307, 302 IPC.In the aforesaid background, the detaining authority came to the conclusion that detenu was a Goonda within the meaning of the Act and it was necessary to detain him to prevent him from acting in a manner prejudicial to the maintenance of public order.The detaining authority concluded:If he comes out on bail he will indulge in future activities which will be prejudicial to the maintenance of Public Order."Similarly in paragraph 5(ii) it was indicated:"5(ii) I am aware that Thiru Purushothaman was arrested on 20.10.2006 by the Inspector of Police, Chunambedu Police Station and he was produced before the Judicial Magistrate upto 04.11.2006 and lodged at Central Prison, Chennai as a remand prisoner.He has not moved any bail petition so far.The District Magistrate & District Collector Kancheepuram Kancheepuram District.The Public Prosecutor High Court Madras.

['Section 147 in The Indian Penal Code', 'Section 302 in The Indian Penal Code', 'Section 148 in The Indian Penal Code', 'Section 307 in The Indian Penal Code', 'Section 341 in The Indian Penal Code', 'Section 149 in The Indian Penal Code', 'Section 326 in The Indian Penal Code', 'Section 324 in The Indian Penal Code', 'Section 427 in The Indian Penal Code']

P.W.1, Nanda Dulal Halder, brother of the victim Dulal Halder deposed in his evidence that on 9th May, 1996 at about 5.30 p.m., 8 when he was inside his house, his elder brother Dulal Halder went to open their grocery shop situated adjoining to their house.Thereafter, he found some people abusing.He instructed his wife to see what was happening outside.He found from a distance that the accused Panchu Halder, Monoranjan Halder, Bikash Halder, Pankaj Halder and Tarun Bhowmick, whom he identified on dock, were assaulting his elder brother Dulal with lathi, iron rod, wooden bar and brick bats.He rushed to rescue of his elder brother when his wife intervened and she proceeded to rescue his elder brother, but the accused Panchu pushed her down.His neighbours Tapan Bhanja and Reba Bhanja came to rescue of his elder brother and tried to prevent the accused persons from assaulting him.He further stated that when his younger brother Sahadeb Halder was returning home, the accused Bikash Halder threw a brickbat, which hit on his head.He fell unconscious and Bikash then snatched the wooden bar from the accused Panchu and attempted to assault but Tapan Bhanja prevented him from assaulting.Dulal was found lying unconscious and Sahadeb was bleeding from his head.The incident took place in presence of Bimal Baidya, Bantul Kayal, Tapan Bhanja and others.They took Dulal and Sahadeb to Nimpith hospital and Mathurapur hospital respectively.At about 9/9.30 p.m. he visited Nimpith hospital when Dulal was declared dead.He then went to Joynagar Police Station and he was advised to inform the matter to Mandirbazar Police Station.He stayed at the house of his cousin brother at Joynagar for that night.During cross-examination P.W.1 stated that he found Bikash first hitting Dulal with wooden bar and he fell by the side of the wall of the house of Bhanjas.Then all the accused persons assaulted Dulal for about one minute.P.W. 5 deposed that all the accused persons being armed with lathi, khil, iron rod assaulted Dulal at random while accusing him as to why he had given evidence in favour of Prafulla Kansari.They also assaulted Sahadeb who tried to rescue Dulal.P.W.6, Balai Halder also corroborated the evidence of P.W.1, 3, 4 and 5 regarding date, place and time of occurrence.He stated that the accused persons assaulted Dulal with the help of iron rod, lathi, wooden bar, piece of brick for which he sustained bleeding injury and fell unconscious.Sahadeb was also injured and the villagers took 11 Dulal to Nimpith hospital and they took Sahadeb to Mathurapur hospital.P.W.7, Sahadeb Halder deposed in his evidence that on 9th May, 1996 at about 5.30 p.m. he was returning home with cycle van.He noticed some disturbance in front of his house and he rushed to the place of occurrence, where he found that the accused persons were assaulting his elder brother, Dulal with lathi, khil and iron rod.As he reached within 2&1/2 cubits from his elder brother, the accused Bikash Halder hurled one piece of brick which hit on his head.He fell unconscious and regained senses 8/10 days thereafter when he found himself lying in P.G. hospital.One abrasion 1"x1/2" over back of left forearm 2" below the left elbow joint.One bruise 6"x4" over left side of the back " left to midline and 1" below the inferior angle of left scapula.One bruise 5"x3" in muscle over left side of the front of chest 1" left to midline and 1&1/2" below the medial end of left clavicle.Cominuted fracture of second to 8th ribs on left side over mid clavicular line.One lacerated injury of spleen 2"x1/2" into spnenic tissue over lateral surface of spleen.Abdominal cavity contained 200 m.l. of clotted and liquid blood.According to him, the death of the victim was caused due to the effect of injuries as described above antemortem in nature.P.W.10, Assistant Sub-Inspector of Mandirbazar Police Station deposed that he drew up the F.I.R. on the basis of written complaint lodged by Nanda Dulal Halder.P.W.11 also deposed that on the relevant date and time the accused persons assaulted Dulal and his brother Sahadeb.He tried to rescue them but could not succeed.He took Sahadeb to Mathurapur hospital but for proper treatment Sahadeb was sent to Diamond Harbour hospital.Thereafter, from Diamond Harbour 13 hospital he took Sahadeb to Bhangore hospital.He identified all the accused persons on dock.P.W.12, Bikash Sardar, Sub-Inspector of Police stated in his evidence that on 10th May, 1996 he remained posted at Mandirbazar Police Station./304/506 of the Indian Penal Code against the accused persons and charges were framed against the accused persons under Sections 302/323/34 of the Indian Penal Code.The said charges were read over and explained to the accused persons and they pleaded not guilty and claimed to be tried.He further submitted that from the evidence of prosecution witnesses it appears that when the victim was taken to Nimpath Rural Hospital at Joynagar, where he was pronounced as brought dead, it is also evident that one private doctor prescribed one injection to the victim.Therefore, it can be presumed that the victim Dulal was alive at the time of incident.He also argued that the inquest report, which was necessary for unnatural death, was not brought on record, though the UD case was registered at Joynagar Police Station.The inquest report was part of the UD case, but it was not exhibited.He further submitted that the incident occurred on the public place in front of many people, but no independent witness was examined by the prosecution to prove the alleged incident.The learned Court below failed to consider in appreciating the prosecution evidence of P.W. 12, who stated that he did not seize any blood stained cloths and did not prepare any sketch map at the time of investigation.The learned Court below failed to consider that Sahadeb Halder, brother of the victim, who was also injured, was not examined by the Investigating Officer and the medical documents regarding his treatment were neither seized nor exhibited.Even the doctors, who examined the injured victim Sahadeb Halder, were not examined.Mr. Manjit Singh, learned advocate for the appellant no.1 support the submissions of Mr. Mukherjee and submits that if one sees the post mortem report, it can be seen that no specific name was stated in U.D. case, as the post mortem examination took place on 11th May, 1996 at about 2.30 p.m., i.e. after 45 hours of death and as the body had already started decomposing, the finding of external injury was medically not possible.Learned counsel for the appellants prayed that the appeal may be allowed by setting aside the impugned judgement and order of conviction and sentence passed by the learned Additional Sessions Judge, 6th Court, Alipore, South 24-Parganas.Learned advocate for the State submitted that from the evidence of witnesses it appears that a number of miscreants assaulted with lathi, iron rod, brickbat and blows fell at random on various parts of the deceased Dulal and injured Sahadeb.The post mortem report shows the injuries comprised of abrasions, bruises, fracture and one lacerated injury were almost all over the body of the deceased Dulal.Therefore, he prayed for dismissal of the appeal by upholding the sentence imposed upon the appellants.Learned advocate for the de facto complainant prayed to be heard.Such prayer was allowed.He further submitted that the inquest report was not a substantive piece of evidence and non-production of the same could not be treated as a fatal blow to the prosecution case.The appellants could not raise any question regarding genuineness of the post mortem report at the time of hearing of the appeal on the ground that at the time of trial, carbon copy of the post mortem report was exhibited, as no question was raised regarding genuineness by the defence in course of trial.It is evident that though P.W.11 wanted to show the police the blood stained apparels in their house, but the police did not want to see the same.From cross-examination of P.W.12 it appears that he did not ask for any blood stained apparels.It is settled principle of law that defective investigation cannot be a ground for washing away the unimpeachable version of the eyewitnesses and other corroborative evidence tendered by the prosecution in course of trial.Lastly, he has submitted that the appellants had a common intention to cause death of the victim by causing bodily injuries knowing that those injuries would cause death of Dulal Halder and therefore, the learned Judge has rightly convicted the appellants under Sections 304 Part II/34 of the Indian Penal Code.Heard learned advocates for the parties and perused the impugned judgement.The prosecution examined as many as 13 witnesses to prove its case.The accused Panchu had a wooden bar, the accused Tarun possessed iron rod, the accused Monoranjan had a bamboo stick in his hand and the accused Pankaj had a brickbat.P.W.1 stated that all the accused persons assaulted all over the body of Dulal, but he could not give the details of the exact positions on which Dulal was assaulted.P.W. 2 was declared as hostile by the prosecution.P.W.3, Batul Chandra Kayal deposed that on the relevant date when he was proceeding towards the shop of Dulal with a view to purchasing bidi, he found the accused persons whom he identified on dock, were assaulting Dulal Halder with iron rod, lathi, khil and brickbat.Dulal fell unconscious on the ground.The accused Pankaj threw a brickbat, which hit on his head and he suffered bleeding injury.P.W.4, Bharati Halder deposed that she heard from inside the house that the accused Pankaj Halder whom she identified on dock saying to his elder brother-in-law as to why he gave evidence in 10 favour of Prafulla Kansari.When she came out of the house, the accused Panchu Halder, Monoranjan Halder, Bikash Halder and Tarun Bhowmick dragged away her vasur, Dulal from their entrance gate.Her husband tried to rush to the place but she prevented him.She also deposed that the accused persons assaulted Dulal by lathi, wooden bar, iron rod and brickbat and Dulal fell unconscious.At that time, her brother-in-law Sahadeb Halder appeared and Panchu hit him with a piece of brick on his head for which he suffered bleeding injury.Thereafter, in presence of Bantul Kayal, Bimal Baidya, Tapan Bhanja, Reba Bhanja and Balai Halder, Dulal was removed to Nimpith hospital being accompanied by his wife, son, sister and other neighbours and her husband and other neighbours removed Sahadeb to Nimpith hospital and subsequently, she came to know that Dulal died.P.W.5 also corroborated the evidence of P.W. 1, 3 and 4 regarding assault on Dulal and Sahadeb.He heard that his elder brother Dulal had expired.P.W.8, Medical Officer of Nimpith hospital, who examined Dulal Halder and found several injuries, i.e. there was swelling and purring all over the left half of the chest particularly prominent on the lower part; there are multiple abrasions on the lower part of lateral chest wall; there was small abrasion over the right elbow joint.P.W.9, Medical Officer on Training Reserve attached to Forensic and State Medicine, Department Medical College, Calcutta stated that on 11th May, 1996 he held post mortem examination over the dead body of Dulal Chandra Halder and found the following injuries:One abrasion 1&1/2" x 1" over back of right elbow joint.One abrasion 2"x1" over postaro lateral aspect of left elbow joint.The then Officer-in-Charge of Mandirbazar Police Station endorsed him the case no. 27 dated 10th May, 1996 under section 147/148/149/326/304/506 of the Indian Penal Code for investigation.During investigation he visited the place of occurrence and he held raid in the houses of the accused persons.He examined the witnesses under section 161 of the Code of Criminal Procedure.P.W.13, Sub-Inspector of Police, at present posted at Behala Police Station stated that on 10th May, 1996 he remained in Mandirbazar Police Station as Officer-in-Charge and started investigation.During investigation he arrested the accused Monoranjan Halder and recorded the statement of Sahadeb Halder and collected the post mortem report of Dulal Chandra Halder.He submitted charge sheet against the accused persons.On scrutiny of the evidence on record I find that the accused/appellants assaulted with lathi, wooden bar, iron rod, brickbat and blows fell at random on various parts of the body of the deceased Dulal.The evidence discloses the injuries comprised of abrasions, bruises, fracture etc. The plea of defence was that the fatal blow was due to an accidental fall on the edge of brick built road or on the ground after stumbling against the root of a tree.Such serious injuries negate the plea of accidental fall.I find that the presence of all the appellants being armed with lathi and other weapons has been consistently deposed by the eye witnesses, as I find it difficult to ignore the presence of P.W.1, P.W.3 and P.W.4 at the place of occurrence.The evidence of the above witnesses remained unshaken in cross-examination and there is no conflict between ocular version and medical evidence, as aforesaid in the instant case.In view of the aforesaid facts, reference to Vigender -vs- State of Delhi (supra) and Mohinder Singh -vs- State (supra) is not apposite.It was held in the said judgements that under Section 64 of the Evidence Act document must be proved by primary evidence, that is to say, by producing the document itself except in the cases mentioned in Section 65 thereof.Since the post mortem report being a public document and the carbon copy of which is proved by P.W.9, the post mortem doctor, it falls within the purview of Section 65 of the Evidence Act and was admissible on this score alone.The attending facts and circumstances of this case including the injuries found by the doctor P.W.8 corroborate the manner and course which led to the death of the victim Dulal.In the case of Rebati Baidya (supra) acquittal was recorded for faulty investigation, but in this case there is no conflict between ocular version and medical evidence unlike the cited decision.Hence, the said authority is distinguishable on facts from the instant case.Accordingly, I uphold the conviction and sentence imposed on the appellants.The appeal is accordingly dismissed.Urgent Photostat certified copy of this order, if applied for, be supplied expeditiously after complying with all necessary legal formalities.(Rajarshi Bharadwaj, J.)

['Section 304 in The Indian Penal Code', 'Section 148 in The Indian Penal Code', 'Section 323 in The Indian Penal Code', 'Section 34 in The Indian Penal Code', 'Section 326 in The Indian Penal Code', 'Section 147 in The Indian Penal Code', 'Section 149 in The Indian Penal Code', 'Section 302 in The Indian Penal Code', 'Section 506 in The Indian Penal Code']

On 22.6.2002 at about 6:15 pm, owning to the said dispute, accused Rituraj Singh shot fire on the person of deceased Jagannath as a result of which he died.The first information report of the incident was lodged by Santosh (PW.1) vide Exhibit P/1 on 22.6.2002 at 6:30 pm specifying the name and act of accused Rituraj Singh but thereafter during the statement, it is said that accused Rituraj Singh was driving a motorcycle and Guddu alias Hira Singh was sitting as a pillion rider alongwith a Gun and at the time of incident, Rituraj Singh took the Gun from Guddu alias Hira Singh and shot fire over the person of deceased Jagannath.After lodging the first information report, the police investigation commenced.The autopsy was conducted by Dr.14.12.2017 This appeal under Section 374(2) of the Code of Criminal Procedure (hereinafter shall be referred to as ''Cr.P.C'') has been filed being aggrieved by the judgment of conviction and the sentence dated 14.11.2006 passed by the Special Judge-cum-Additional Sessions Judge, Damoh in Special Case No.98/2002 convicting appellant No.1 Rituraj Singh for the charge of Section 302 of the Indian Penal Code (hereinafter shall be referred to as ''I.P.C'') and convicting appellant 2 No.2 Guddu alias Hira Singh for the charge of Section 302/34 of the I.P.C and sentencing them to undergo rigorous imprisonment for life and to pay a fine of Rs.1000/- each for respective offences and in default to undergo imprisonment for one month each and also convicting the appellant No.1 Rituraj Singh for the charge of Section 27 of the Arms Act and sentencing him to undergo rigorous imprisonment for three years and to pay a fine of Rs.1000/- and in default to undergo imprisonment for one month and convicting appellant No.3 Ompal Singh for the charge of Section 30 of the Arms Act and sentencing him to pay a fine of Rs.2000/- and in default to undergo simple imprisonment for two months.As alleged, about eight days prior to the date of incident, heated exchange took place between accused Rituraj Singh and deceased Jagannath on account of sowing the water chestnut (Singadha) in the Government Tank known as Luharband.It is said that the field of accused Ompal Singh was adjacent to the said Tank and on account of sowing the water chestnut (Singadha), the dispute arose between accused Rituraj Singh and deceased Jagannath.R.K.Bhardwaj (PW.35) vide Exhibit P/32 and as per the opinion of the 3 doctor, the cause of death was due to hemorrhage as a result of receiving the gun shot injuries to deceased Jagannath.The license of 12 bore gun issued in the name of Ompal Singh has also been seized by the Police.After completion of the investigation, the Challan was filed in the Court of Judicial Magistrate First Class but as the case was triable by the Court of Sessions, therefore, it was committed to the Court of Sessions where the charges of Section 302 of the I.P.C, Sections 25/27 of the Arms Act and Section 3(2)(v) of the SC/ST Act were framed against appellant No.1 Rituraj Singh.The charges of Section 302/34 of the I.P.C and Section 3(2)(v) of the SC/ST Act were framed against appellant No.2 Guddu alias Hira Singh whereas charge of Section 30 of the Arms Act was framed against appellant No.3 Ompal Singh.The accused persons have abjured their guilt and taken a defence of false implication on account of the previous enmity.The Trial Court relying upon the testimony of the prosecution witnesses and corroborating the same with the medical evidence convicted appellant No.1 Rituraj singh for the charge of Section 302 of the I.P.C and Section 27 of the Arms Act and convicted the appellant No.2 Guddu alias Hira Singh for the charge of Section of 302/34 of the I.P.C and the appellant No.3 Ompal Singh for the charge of Section 30 of the Arms Act and directed them to undergo the sentence as hereinabove described.However, for the charges of Section 25 of the Arms Act and Section 3(2)(v) of the SC/ST Act, the accused persons were acquitted by the Trial Court.Learned counsel representing the appellants has strenuously urged that the conviction of appellant Nos.1 and 2, namely, Rituraj Singh and Guddu alias Hira Singh is solely based on the testimony of eye-witness Santosh (PW.1) although his testimony is of ocular nature, which cannot be relied upon to convict the appellants particularly when he is the brother of deceased Jagannath and is an interested witness.In addition to the aforesaid, it is also urged that if the contents of the first information report are compared with the other evidence then it is apparent that the prosecution has not proved its case beyond reasonable doubt to prove the charge of Section 302 of the I.P.C against the appellant No.1 Rituraj Singh.It is contended by learned counsel for the appellants that against appellant No.2 Guddu alias Hira Singh, it is said that his name has not been mentioned in the first information report and the story as narrated that he came alongwith accused Rituraj Singh on a motorcycle does not find support from the first information report as well as the other evidence, however, to prove the common intention of accused Guddu alias Hira Singh and to commit the murder of deceased Jagannath has also not been established by the prosecution beyond reasonable doubt, therefore, the conviction of appellant No.2 Guddu alias Hira Singh for the charge of Section 302/34 of the I.P.C is not based on due appreciation of evidence brought on record by the prosecution.Insofar as the conviction of appellant No.3 Ompal Singh for the charge of Section 30 of the Arms Act is concerned, it is contended by learned counsel for the appellants that looking to the seizure memo (Exhibit P/16) two guns were seized; one is double barrel muzzle loading riffle and another is 12 bore gun bearing No.180/80; and the license of 12 bore gun bearing No.180/80 in the name of Ompal Singh was seized but the prosecution has not brought any evidence that the 12 bore 5 licensed gun of Ompal Singh was used in commission of the offence.It is also contended that the prosecution has only sent the double barrel muzzle loading riffle for examination to the Ballistic Expert and that the 12 bore gun, which was found in use for commission of the offence, however, nothing is available on record that the 12 bore licensed gun, which was in the name of accused Ompal Singh has been used by appellant No.1 Rituraj Singh in commission of the offence, therefore, appellant No.3 Ompal Singh may not be held guilty for the charge of Section 30 of the Arms Act. In view of the said submission, it is urged that the conviction of appellant No.3 Ompal Singh for the charge of Section 30 of the Arms Act is unsustainable in law.On the other hand, learned Government Advocate representing the respondent/State has contended that looking to the prosecution narration from the stage of the first information report, the involvement of appellant No.1 Rituraj Singh in commission of murder of deceased Jagannath has been proved beyond reasonable doubt by the testimony of the eye-witness Santosh (PW.1) coupled with the testimony of Haricharan (PW.15), Harishankar (PW.18), Durga (PW.20) who have seen the accused prior to the incident.In addition to the aforesaid, the report of Ballistic Expert corroborates the use of double barrel muzzle loading riffle and the pallets were found in the person of deceased Jagannath as reveals from the testimony of Dr.R.K.Bhardwaj (PW.35).It is, therefore, contended that the conviction of appellant No.1 Rituraj Singh for the charge of Section 302 of I.P.C and Section 27 of the Arms Act is based on cogent evidence, however, the finding recorded by the Trial Court is just and proper.Insofar as the conviction of appellant No.2 Guddu alias Hira Singh for the charge of Section 302/34 of the I.P.C is concerned, it is contended by learned Government Advocate for the respondent/State that accused Rituraj Singh was driving the motorcycle while co-accused 6 Guddu alias Hira Singh was sitting as a pillion rider armed with gun, which has been used by accused Rituraj Singh in commission of murder of deceased Jagannath, therefore, the conviction of appellant No.2 Guddu alias Hira Singh for the charge of Section 302/34 of the I.P.C showing his common intention has rightly been directed by the Trial Court.It is further contended that the seizure of 12 bore gun bearing No.180/80 alongwith license of Ompal Singh has been made by the Police in the incident.Therefore, the conviction of appellant No.3 Ompal Singh for the charge of Section 30 of the Arms Act has rightly been directed by the Trial Court.It is, therefore, prayed that looking to the findings as recorded by the Trial Court, interference in this appeal is not warranted.After having heard learned counsel for the parties and taking into consideration the findings as recorded by the Trial Court, the conviction of appellant Nos.1 & 2, namely, Rituraj Singh & Guddu alias Hira Singh is based on the testimony of eye-witness Santosh (PW.1) corroborated by the testimony of Haricharan (PW.15), Harishankar (PW.18), Durga (PW.20) who have seen them prior to the incident on a motorcycle armed with gun.The Trial Court found correlation by their testimony because the double barrel muzzle loading riffle seized by Police, however, used as per the Ballistic Expert Report (Exhibit P/39) proved by the testimony of Sudhir Agrawal (PW.38).In the said report, it is said that prior to eight days of the incident, heated exchange took place between accused Rituraj Singh and deceased Jagannath on account of irrigating the field of accused Ompal Singh (father of accused Rituraj Singh) from Luharband wherein water chestnut (Singadha) of the deceased was sown.Thereafter, on 22.6.2002, accused Rituraj Singh for the said reason shot gun fire on deceased Jagannath as a result of which he died on spot.In the first 7 information report, it is said that one another person was present at the scene of occurrence but the story that accused Rituraj Singh came alongwith accused Guddu alias Hira Singh on a motorcycle has been developed subsequently after the first information report.The said fact find support from the merg intimation report (Exhibit P/2) because the edition with respect to the said allegation is in the original first information report and the merg intimation is visible by naked eyes.In the context of the aforesaid fact, the testimony of eye- witness Santosh (PW.1) as well as the other corroborative evidence considered by the Trial Court is required to be seen.In the testimony of eye-witness Santosh (PW.1), it is said that accused Rituraj Singh driving the motorcycle came alongwith accused Guddu alias Hira Singh, who was armed with a Gun on his shoulder and after going ahead to the deceased Jagannath, accused Rituraj Singh took the said gun from Guddu alias Hira Singh and shot fire on the deceased as a result of which he died.The story that Rituraj singh and Guddu alias Hira Singh came on a motorcycle is edited in the first information report as clearly visible in the original record by the naked eyes.The said story has been developed from the testimony of Haricharan (PW.15), Harishankar (PW.18), Durga (PW.20) though since inception the said story was not in the first information report (Exhibit P/1) or in the merg intimation report (Exhibit P/2) if editing in those documents is accepted.In addition to the aforesaid, if the motive of the accused is seen then it would reveal that about eight days prior to the date of incident, heated exchange and altercation took place between accused Rituraj Singh and deceased Jagannath, therefore, appellant No.2 Guddu alias Hira Singh might not have any motive to participate in commission of the offence.If the testimony of eye-witness Santosh (PW.1) is taken into consideration then it is apparent that except the presence of Guddu alias Hira Singh, no direct act has been shown in his testimony.In 8 our considered opinion, if Guddu alias Hira Singh was going on the motorcycle due to which his presence alone is not enough to gather his intention in commission of the offence.If the testimony of Haricharan (PW.15), Harishankar (PW.18), Durga (PW.20) is taken into consideration wherein against appellant No.2 Guddu alias Hira Singh it is said, when accused Rituraj Singh was driving the motorcycle, he was sitting as a pillion rider armed with the gun.It has come in the testimony of eye- witness Santosh (PW.1) that accused Rituraj Singh took the gun from accused Guddu alias Hira Singh and shot fire on the person of deceased Jagannath, therefore, looking to the said prosecution narration of eye- witness Santosh (PW.1), it is apparent that mere presence of accused Guddu alias Hira Singh itself is not sufficient to convict him for the charge of Section 302/34 of the I.P.C.Under such circumstances, the conviction of appellant No.2 Guddu alias Hira Singh for the charge of Section 302/34 of the I.P.C as directed by the Trial Court merely relying upon the testimony of eye- witness Santosh (PW.1) and also the corroborative testimony of Haricharan (PW.15), Harishankar (PW.18), Durga (PW.20) cannot be upheld and is liable to be set aside.Insofar as the involvement of appellant No.1 Rituraj Singh in commission of the murder of deceased Jagannath is concerned, eye-witness Santosh (PW.1) has specifically said that accused Rituraj Singh took the gun and shot fire on the person of deceased Jagannath.The said allegation of shot fire finds support from the medical evidence and the report of the Ballistic Expert, therefore, the conviction of appellant No.1 Rituraj Singh for the charge of Section 302 of the I.P.C does not warrant any interference in this appeal, therefore, the conviction of appellant No.1 Rituraj Singh as directed by the Trial Court is hereby maintained.Now reverting to the charge of Section 30 of the Arms Act against appellant No.3 Ompal Singh is concerned, it is seen that he has 9 been convicted because his 12 bore licensed gun has been used in commission of the offence.The prosecution has seized two guns vide Exhibit P/16; one is double barrel muzzle loading riffle and another is 12 bore gun bearing No.180/80 alongwith licence.No evidence has been brought on record that the 12 bore gun bearing No.180/80 of which the licence was in the name of Ompal Singh has been used in commission of murder of deceased Jagannath.The prosecution has also sent the double barrel muzzle loading riffle for Ballistic Examination and correlation of the said ballistic report of the use of the said gun has been proved while 12 bore gun was not sent for examination by the ballistic report.Therefore, it is clear that 12 bore gun bearing No.180/80 of which the licence was in the name of Ompal Singh has not been used in commission of the offence.In addition to the aforesaid, if the testimony of eye-witness Santosh (PW.1) and the corroborative piece of evidence of the testimony of Haricharan (PW.15), Harishankar (PW.18), Durga (PW.20) is seen then it is apparent that accused Guddu alias Hira Singh was armed with double barrel riffle which has been used as per the Ballistic Report and it is not 12 bore gun bearing No.180/80 or having two guns, therefore, the conviction of appellant No.3 Ompal Singh for the charge of Section 30 of the Arms Act as directed by the Trial Court with an allegation that his licencee gun has been used by appellant No.1 Rituraj Singh cannot be sustained in law.Hence, the conviction of appellant No.3 Ompal Singh for the charge of Section of Section 30 of the Arms Act deserves to be set aside.But similarly insofar as the charge of Section 27 of the Arms Act is concerned, it is fully proved against appellant No.1 Rituraj Singh because the double barrel muzzle loading riffle has been used in the commission of the offence, therefore, such finding against appellant No.1 Rituraj Singh is in accordance to law.In view of the foregoing discussion, the conviction of appellant No.2 Guddu alias Hira Singh for the charge of Section 302/34 of the I.P.C and the conviction of appellant No.3 Ompal Singh for the charge of Section 30 of the Arms Act stands set aside while the conviction of appellant No.1 Rituraj Singh for the charge of Section 302 of the I.P.C and Section 27 of the Arms Act is hereby maintained upholding the judgment of the Trial Court to such extent.Consequent to setting aside the conviction against appellant No.3 Ompal Singh, the confiscation of 12 bore gun bearing No.180/80 and its licence stands set aside.Accordingly, this appeal is hereby allowed insofar as it relates to appellant No.2 Guddu alias Hira Singh and appellant No.3 Ompal Singh and it is hereby dismissed insofar as it relates to appellant No.1 Rituraj Singh.He be set at liberty forthwith if not required in any other case.At the end, it is our duty to record the words of appreciation in favour of the amicus curiae, who assisted the Court in the disposal of this appeal, which is pending since 2006 and in which appellant No.1 Rituraj Raj and appellant No.2 Guddu alias Hira Singh were in jail for last more than ten years.

['Section 302 in The Indian Penal Code', 'Section 34 in The Indian Penal Code']

Considering the fact that the respondent no. 7 is no longer in this world, the allegations levelled against her by the petitioner are unfortunate.I am also satisfied that the complaint lodged by the petitioner did not disclose any ingredient of robbery and, therefore, the Officer-in-Charge, Beleghata Police Station rightly did not insert Section 392, Indian Penal Code while registering the FIR on the basis of the petitioner's complaint.Having regard to the report that has been filed, I am of the view that there is no need to keep the writ petition pending.-: 2 : -Commissioner of Police shall supervise the investigation that has been initiated in connection with Beleghata Police Station Case No. 190 dated 20th May, 2014 under Sections 448/427/379/114, Indian Penal Code and shall ensure that an appropriate police report under Section 173(2) of the Code of Criminal Procedure is filed before the Magistrate at an early date.The writ petition stands disposed of.There shall, however, be no order for costs.Urgent photostat certified copy of this order, if applied for, be given to the parties as expeditiously as possible.( Dipankar Datta, J. )

['Section 379 in The Indian Penal Code', 'Section 114 in The Indian Penal Code', 'Section 448 in The Indian Penal Code', 'Section 427 in The Indian Penal Code']

This is first bail application filed by the applicant under Section 439 of the Code of Criminal Procedure.The applicant is in custody since 27.7.2020, in connection with Crime No.208/2020, registered at Police Station Badi, District Raisen (M.P.) for the offence punishable under Sections 294, 323, 324, 325, 326, 506/34 of IPC.As per prosecution story, on 19.7.2020, complainant-Amar Singh S/o Bhurelal was sitting near shop of one Raju.Thereafter, accused/applicant along with other co-accused armed with Axe and stick reached there and assaulted injured-Amar Singh.Allegedly, accused/applicant was armed with Axe.Thereafter, case has been registered against the accused/applicant and other co-accused for the aforesaid offence.Learned counsel for the applicant submits that no case is made out under Section 326 or 307 of IPC.Actually, the brother of complainant-Amar Singh took the wife of co-accused Banti, due to this some dispute occurred.On these grounds, learned counsel for the applicant prays for grant of bail to the applicant.Per-contra, learned Panel Lawyer opposes the bail application.The Jail Authority shall ensure the medical examination of the applicant by the jail doctor before his release.The applicant shall not be released if he is suffering from 'Corona Virus disease'.For this purpose appropriate tests will be carried out.If it is found that the applicant is suffering from 'Corona Vi r u s disease', necessary steps will be taken by the concerned authority by placing him in appropriate quarantine facility.Certified copy as per rules.(RAJENDRA KUMAR SRIVASTAVA) JUDGE A.Praj.

['Section 326 in The Indian Penal Code', 'Section 325 in The Indian Penal Code', 'Section 506 in The Indian Penal Code', 'Section 294 in The Indian Penal Code', 'Section 324 in The Indian Penal Code', 'Section 323 in The Indian Penal Code', 'Section 34 in The Indian Penal Code']

Heard the learned counsel for the parties.The applicants have an apprehension of their arrest in connection with Crime No.308/14 registered at Police Station Dhanoura, District Seoni for the offences punishable under Sections 341, 294, 354-A, 354-B, 323, 506 of the IPC and Section 3(1)(xi) of SC/ST Act.Learned counsel for the applicants submits that the applicants are reputed citizens of the locality.They do not have any criminal past alleged against them.The applicant no.1 belongs to scheduled caste, whereas the applicant no.2 is a news correspondent.On 17.12.2014, the prosecutrix, her husband and her son have threatened the applicants in the Tahsil Court and also assaulted them.He has also filed a complaint to the Tahsildar Seoni on the very same day and therefore Tahsildar, Seoni directed for enquiry.FIR is lodged with the delay of at least ten hours and it is a typed written document, which appears to be prepared by some law knowing person.No explanation of delay in the FIR has been shown by the prosecutrix.According to the story of the prosecutrix, she was going on the motorcycle with her son and then, the applicants detained them and committed such offences.When there was an enmity between the applicants and the prosecutrix, no such offence could be done by the applicant especially, when son of the prosecutrix was present.It would be apparent that a false FIR was lodged against the applicants.No offence under Section 3(1)(xi) of the SC/ST (Prevention of Atrocities) Act is made out against the applicants and therefore, no prohibition of Section 18 of that Act would be applicable in the present case.There is no allegation against the applicants that they tried to disrobed the prosecutrix.No offence under Section 354-B of the IPC is made out against the applicants, whereas offence under Section 354-A of the IPC and other remaining offences are bailable.The police is unnecessarily harassing the applicants for bailable offences on a false FIR.Under these circumstances, the applicants pray for bail of anticipatory nature.Learned Panel Lawyer opposes the application.

['Section 323 in The Indian Penal Code', 'Section 294 in The Indian Penal Code', 'Section 341 in The Indian Penal Code', 'Section 506 in The Indian Penal Code']

24.09.13 Item No. 36 Court No.17 A.B.Item No. 36And In the matter of: Swapan Bose Petitioner- versus -The State of West Bengal Opposite Party Mr. Subhasish Pachhal Mr. Ramashis Mukherjee For the Petitioner Mr. Sandip Kundu For the Complainant Mrs. Zarin N. Khan For the State The Petitioner, apprehending arrest in connection with Uttarpara Police Station Case No. 351 of 2013 dated 01.08.2013 under Sections 447/461/379/506/34 of the Indian Penal Code and, has applied for anticipatory bail.We have heard the learned Advocates for the Petitioner and the learned Advocate for the State.We have seen the case diary and other relevant material on record.The application for anticipatory bail is, thus, disposed of.(Nishita Mhatre, J) (Kanchan Chakraborty, J)

['Section 379 in The Indian Penal Code', 'Section 447 in The Indian Penal Code', 'Section 438 in The Indian Penal Code', 'Section 506 in The Indian Penal Code', 'Section 34 in The Indian Penal Code']

It is contended by the learned counsel for non-applicants No.2 to 6 that subsequently non-applicants filed a revision petition against framing of charge and the Revisional Court vide order dated 28.9.2015 altered to Section 325 of IPC in place of 307 of IPC.

['Section 325 in The Indian Penal Code']

shell are as follows:HON'BLE MR.JUSTICE SUDERSHAN KUMAR MISRAWhether Reporters of local papers may be allowed to see the judgment?By that order the Ld.ASJ confirmed the order of the Metropolitan Magistrate, sentencing the petitioner to undergo rigorous imprisonment for two months under Section 279 IPC, with a fine of Rs.500/-; and rigorous imprisonment for one year with Crl.No.163/2008 Page 1 of 9 fine of Rs.2,000/- under Section 304-A IPC.The facts in a nut-No.163/2008 Page 1 of 9He injured both the persons riding the scooter, but the pillion rider succumbed to the injuries.PW-8, Bijender Kumar, son of the deceased, who was driving the scooter, was an eye witness to the accident.Considering the entire evidence produced by the prosecution the petitioner was convicted by the Metropolitan Magistrate.The appeal preferred by the petitioner was also dismissed by the Sessions Court, holding that there is no infirmity in the order passed by the Trial Court.The counsel for the petitioner contends that the petitioner has faced the rigors of trial for nearly twelve years and has already served nearly five months of his sentence.The petitioner was a driver of a commercial vehicle.He was required to be on the wheels almost whole of the day.No.163/2008 Page 8 of 9 court of Sessions has decided against the petitioner.The revision petition is accordingly dismissed.

['Section 304A in The Indian Penal Code', 'Section 420 in The Indian Penal Code', 'Section 279 in The Indian Penal Code']

They also caused disturbance to the normal traffic.Thirumurugan asked his party members to damage the police vehicle and buses and argued with the police personnels.Though some of them including Thirumurugan were secured and kept in a MTC bus bearing Registration No.TN 01 N 7515, they pushed the police personnel and rushed near the step of the bus and damaged glasses of the bus with stick and portraits.[Order of the Court was made by P.KALAIYARASAN, J.] This Habeas Corpus Petition has been filed seeking to quash the detention order passed by the first respondent dated 28.05.2017 in BCDFGISSSV No.309/2017 against the detenu Dyson, aged about 27 years, s/o.It is averred in the petition that Inspector of Police, Law and Order D5 Marina Police Station as sponsoring authority filed an affidavit before the Detaining Authority alleging that the detenu involved in the following adverse cases i.Coimbatore City R.S.Puram Police Station Crime No.337/2013 registered under Sections 143, 188, 342, 353 and 506 (ii) IPC r/w 34 IPC.E.2 Royapettah Police Station Crime No. 1095/2015 registered under Sections 188, 143 and 285 IPC iii.J.1 Saidapet Police Station Crime No.745/2016 registered under Sections 188 and 143 IPC.E.3 Teynampet Police Station Crime No.1125/2016 registered under Sections 506 (ii) IPC r/w Section 3 of TNPPDL Act.Further, it is averred that D5 Sub-Inspector of Police, Marina Police Station lodged a Special Report wherein it is alleged that marina beach zone area was already not permitted to conduct public meeting, demonstrations and other functions and in spite of elaborate bandhobust arrangement based on the security arrangement on 21.05.2017 at 6 p.m, the detenu and others under the leadership of Thirumurugan, Chief Co-ordinator, May-17 movement wrongfully assembled near Nethaji statue, marina beach and raised slogans in support of srilankan tamils and also banned LTTE movement violating the orders of the police.On the report given by the Sub-Inspector, a case was registered in D5 Marina Police Station in Cr.No.480 of 2017 under Sections 147, 148, 188, 341 and 506 (ii) IPC r/w 7 (1) (a) of CLA Act and Section 3 of TNPPDL Act.

['Section 188 in The Indian Penal Code', 'Section 143 in The Indian Penal Code', 'Section 107 in The Indian Penal Code']

P4 was sent to the Assistant Commissioner of Police.PW.14/Balasubramaniam, who had taken up the investigation, had immediately, on receipt of the F.I.R, visited the place of occurrence and prepared Rough Sketch, which was marked as Ex.Further, on the same day at 9.30 p.m., he had prepared an observation mahazar in the presence of witnesses Viz., Sekar and Siva and recovered a black colour shawl under a mahazar which was marked as Ex.(iii) PW.7 had stated that on 26.03.2007, while he was returning homehttp://www.judis.nic.in 10 after attending his work, he had heard that the deceased/Suriyakala had committed suicide and that the Police prepared an observation mahazar and that he had attested the same.No other materials were recovered from the place.The signature of PW.7 in the observation mahazar, was marked as Ex.Thereafter, PW.14 had examined PW.1/Mugunthan, PW.3/Gopinathan and other witnesses and PW.7/Sekar and recorded their statements.Thereafter, he had sent a requisition to the RDO to conduct an enquiry, since the death of the deceased was within seven years of marriage.(iv) PW.12/Sangeetha, is the RDO, she had based on the requisition and the F.I.R taken up the case for enquiry and conducted inquest and she had examined the witnesses Viz., Asaithambi and Kanniappan (relatives of the deceased) and recorded their statements separately.P.C to underhttp://www.judis.nic.in 11 Sections 304 (B) and 498A of IPC.The alteration report was marked as Ex.Thereafter, the shawl which was used for committing suicide was sent under Form 95 to the Judicial Magistrate's Court.Form 95 was marked as Ex.On 27.03.2007 at 4.00 p.m., PW.14 arrested the 1st respondent/accused and sent him to judicial remand.On 27.04.2007 PW.2 was enquired and recorded his statement.During the examination of PW.2, Exs.D1 to D6 were marked on his admission and during the examination of PW.14, Exs.D7 and D8 were marked.PW.14 had further stated that on 15.05.2007, he examined the witnesses Viz., Meenakshi, Rajalakshmi and further examined Palusami and recorded their statements.Thereafter, he had enquired the Medical Officer, who had conducted the Post mortem.PW.13/Dr.Kuppusamy is the professor of Law Medicine, he had stated that on 27.03.2007, while he was on duty, he had conducted Autopsy of the victim on the requisition of RDO, Ponneri.The requisition letter was marked as Ex.On the same day, he along with Doctor/Udhayasankar had conducted Autopsy and it was completed by at 1.00 p.m., The viscera was sent for analysis.The report of the viscera was marked as Ex.Since there was no evidence of poisoning, he given an opinion stating that the deceased would appear to have died of asphyxia due to hanging.The Post Mortem report was marked as Ex.Thereafter, PW.14, had on 02.05.2007, examined the witnesses Viz., Thuraipandiyan, Ramasami Muthuramalingan and recorded their statements and later on receipt of the report of RDO on 20.06.2007, the case was altered to under Sections 498A, and 304(B) of IPC.The further alteration report was marked as Ex.This Criminal Appeal has been filed by the appellant/complainant against the judgement dated 18.08.2009 in S.C.No.9 of 2009, passed by the learned Additional Sessions Judge (Fast Track Court No.2), Poonamallee, Chennai, acquitting the respondents/accused for the offences under Sections 498 (A), 306 & 304 (B) of IPC.Further the accused had demanded dowry in the form of jewels and cash along with car and further harassed the deceased and her father to get job for A-1 also in a big company and also pressured them to secure a college seat for A-6 in a college nearby Chennai and they have in numerous ways badly treated the deceased due to which the deceased/Suryakala committed suicide by hanging in the matrimonial house itself.The complaint was preferred before the respondent police who registered the case in T-1 Ambattur Police Station Crime No.211/2007 initially under Sec.174 Cr.P.C. During investigation since the witnesses,the relatives of the deceased had stated that there was demand of dowry in the form of cash and jewels and a car and further there was harassment and since the death had happened within seven years of marriage the case was altered and final report was filed for the offences under Sections 498(A), 306 & 304 (B) of IPC .The case was taken on file in S.C.No.9 of 2009, by the learned Additional Sessions Judge (Fast Track Court No.2), Poonamallee, Chennai.The respondents/accused had denied the charges and sought for trial.In order to bring home the charges against the respondents/accused, the prosecution examined PW.1 to PW.14, marked Exs.P1 to P.15, M.O.1and Exs.D1 to Ex.D8 were marked on the side of the respondents/accused.On completion of the evidence on the side of the prosecution, thehttp://www.judis.nic.in 3 respondents/accused were questioned under Section 313 of Cr.PC as to the incriminating circumstances found in the evidence of the prosecution witnesses and the respondents/accused have come with the version denying certain allegations and explaining certain circumstances leading to the deceased committing suicide and stated that they have been falsely implicated in this case.This appeal has been preferred against the order of acquittal.He would submit that PW.2 had spoken about the demand made at the time of the marriage and also the deceased having spoken to him about the demand of dowry made soon before her death.Further, PW.2, the father and PW.8, the mother have deposed that the victim had informed them that the father-in-law and mother-in-law have caused cruelty on her.He would further submit that earlier prior to the occurrence the victim had been sent back to her parental home on account of demand of dowry and on the date of occurrence the victim had spoken to PW.2 and PW.8 about the cruelty committed on her with regard to demand of dowry and when there is ample evidence to prove the offence under Section 304(B) IPC, the trial Court had onhttp://www.judis.nic.in 4 wrong appreciation of law and facts had acquitted the respondents/accused.He would further submit that the finding of the trial court is illegal and perverse.The learned counsel appearing for respondents/accused would submit that absolutely there is no evidence that the victim was subjected to cruelty or that there was demand of dowry soon before her death.He would also submit that it is the categoric evidence of PW.5 that the deceased used to come her house to make phone calls and that on the date of occurrence, she had come to the house of PW.5 and that she had stated that she was frightened and afraid and that she wanted to call her husband and that it is the evidence of PW.5 and PW.10 that she had spoken to her husband and other than the oral evidence of PW.2 and PW.8 no evidence has been let in by the prosecution that the victim spoke to them prior to her death regarding demand of dowry.Further PW.2 and PW.8 have not stated that prior to the date of occurrence, the victim had spoken to them and no scientific evidence had been let in by the prosecution to prove that the deceased spoke to PW.2 and PW.8 on the date of occurrence and thereby, the evidence of PW.2 and PW.8 that the deceased spoken to them on the particular day, cannot be believed.He would further submit that it is the admitted case that the other respondents were not residing along with the 1st respondent/accused and the deceased and that they were initially not added as accused during investigation and that only at the time of filing final report they were arrayed as accused.The learned counsel for the respondents/accused would submit that the learned Trial Judge after analyzing the evidence rendered a finding the death of the victim was not due to any harassment due to demand of dowry soon before her death and that the victim had committed suicide due to depression and fear had acquitted the respondents/accused giving benefit of doubt.The learned counsel for the respondents/accused would further submit that in order to bring home the guilt of the respondents/accused for the offence under Section 304 (B) of IPC, the ingredients that have to be proved by the prosecution are that (i) the death of the woman concerned is by any burns or bodily injury or by any cause other than in normal circumstances, (ii) it is within seven years of her marriage and (iii) that soon before her death, she was subjected to cruelty or harassment by her husband or any relative of the husband for, or in connection with, any demand of dowry.He would further submit that the presumption as to dowry death can be activated only upon proof of the fact that the deceased lady had been subjected to cruelty or harassment or in connection with any demand of dowry by the accused and that too in the reasonable contiguity of death and that such a proof is thus the Legislatively mandated pre-requisite to invoke the otherwise statutorily ordained presumption of commission of the offence.He would further submit that there should be a live link between the cruelty emanating from a dowry demand and the death of a young married woman should first raise a presumption against the woman.However, before raising the presumption against the accused, the prosecution should prove the foundational facts.However, in this case, the prosecution has not let in evidence to show that there was demand of dowry soon before her death or that the deceased was subjected to cruelty on demand of dowry to soon before her death.Admittedly, the deceased and the respondents/accused are close relatives and that the marriage had happened 2-1/2 years prior to the occurrence and all the averments in the evidence of the father, mother, brother and sister-in-law of the deceased are in respect of things which had happened at the time of marriage and absolutely, no evidence is let in by the prosecution that soon before her death, there was demand of dowry, whereas, it is the categoric evidence of PW.3 and PW.5 who are neighbors and P.W.10 who is colleague of A-1/Udhayashankar, who have specifically spoken having knownhttp://www.judis.nic.in 7 about the depression suffered by the deceased due to fear and it is the specific evidence of PW.5 that soon before the alleged occurrence, the deceased had come to her house and informed her that she was afraid and that it had been informed to the 1st respondent/accused through his colleague PW.10 and their evidence is clear that the reason for the death of the deceased is not due to demand of any dowry or cruelty committed on her.Admittedly, the respondents 2, 3 and 4 were living at Thiruppuvanam, Sivagangai and that there is no allegation against them that they have demanded any dowry or any amount in the recent past and thereby, the learned Trial Judge has rightly acquitted the respondents/accused.In this case while looking into the evidence, the prosecution witnesses can be classified as follows:-, Asaithambi, Thandiayappan, Kaleeshwaran, Kasthuri, Pappathi and Shobana and altered the case from under Section 174 (3) Cr.Thehttp://www.judis.nic.in 12 Report of RDO was marked as Ex.P15 (Ex.P15 had been marked as under protest).Thereafter, the 4th respondent/Jawagar was arrested and let out on bail and respondents 2, 3 and 5 were granted anticipatory bail and after obtaining opinion from the Assistant Public Prosecutor, the final report had been filed.Respondents 2, 3, 4 and 5 have stated that they were residing at Sivagangh District and that they do not know what transpired at Chennai.Further, they had given a written explanation wherein, the 1 st respondent had stated that the deceased was his first cousin being the daughter of his own aunt, who is the elder sister of their father and that there was no demand of dowry and that since they were all relatives, the marriage expenses were shared between them Further, due to close relationship no dowry was taken and further that the deceased while studying school and college she was in the hostel along with co-students and that since she was alone in the house athttp://www.judis.nic.in 13 Chennai and that since they did not have any issues after marriage she was in depression and thereafter, she had studied Library Science from her father's house and thereafter, she had come back to Chennai and that their respective names were deleted from their family card and transferred to Chennai and that since she was alone at Chennai, she was under the state of depression and fear and that on 26.03.2004, she had gone to the house of the neighbour PW.5/Shobana and informed her and that she was afraid and PW.5/Shobana had called the management staff of PW.10 and that later he consoled the victim to be at home stating that he would come back soon and that when he had come back home, he had seen that the door of the house was locked from inside and that the victim had committed suicide and he had stated that the victim had committed suicide due to depression and since they did not have a child.Whereas, the parents of the victim unable to accept that their daughter had committed suicide due to depression for not having a child had given a false complaint as if there was demand of dowry.The learned Trial Judge, after analyzing the entire evidence and materials on record, has found that there was no demand of dowry soon before the death.The learned Trial Judge, finding that the essential requirements of the charges against the respondents/accused having not been proved had acquitted the respondents/accused.I have carefully analyzed the evidence and materials on record andhttp://www.judis.nic.in 14 the judgment of the Trial Court.As stated above PW.1, PW.3 PW.5 and PW.10 are independent witnesses.It is the admitted evidence of PW.14 that the 1st respondent/accused was working in Chennai and the 5th respondent/accused was studying at Chennai and that respondents 2, 3 and 4 were residing at their native place at Thirupuvanam.Likewise, the parents of the deceased and the relatives of the deceased are also residing at Sivagangah District.Excepting an omnibus allegation made against the respondents in general with regard to demand of dowry, no specific evidence had been let in with regard to the demand of dowry.The independent witnesses who are the neighbours of the deceased and the 1st respondent/accused have categorically deposed that there was no problem between them in the matrimonial home.The Investigating Officer/PW.14 has also confirmed the same.PW.1 in his examination in chief had stated that there was no matrimonial issues or problems between the deceased and the 1st respondent/accused.PW.3 is the neighbour, who has also deposed that when he was examined by the Police, he had stated that there was no matrimonial disputes or issues between the 1 st respondent/accused and the deceased.PW.14 is the Investigation Officer has also corroborated that when hehttp://www.judis.nic.in 15 had examined the witnesses in the neighborhood, they have also stated that there was no dispute between the deceased and the 1st respondent/accused.There is evidence in the case that prior to the occurrence, the deceased was in disturbed state of mind as she was in the grip of fear.The evidence of PW.5 and PW.10 had been corroborated by thehttp://www.judis.nic.in 16 evidence of PW.3, husband of PW.5, who had stated that he was informed by his wife that on the date of occurrence, the victim had come to his house and informed about her fear and that his wife had told him that she had contacted the 1st respondent/accused.Further while analysing the evidence of the relatives of the deceased, the crux of the allegations against the respondents/accused are that the respondents/accused demanded dowry to secure a job for the deceased and that the 1st respondent/accused had an illegal affair with a lady namely Sudha and the respondents demanded to secure admission for the 5 th respondent in an Engineering College.Further, the allegations of the witnesses regarding demand of dowry are vague and bald without even referring to the particular date, period or occasion and the versions of the witnesses which had been stated before the Trial Court seem to be exaggerated versions.Further, the parents of the deceased had stated that they have spoken to their daughter, the deceased on the day of occurrence.It is neither been supported by the evidence of PW.5, the neighbour nor by any scientific evidence.No investigation has been done by the respondent police with regard to such telephonic conversation stated to have been made between the deceased and her parents on the date of occurrence.In the result, the Criminal Appeal stands dismissed.The Assistant Commissioner of Police, Ambattur Range, Chennai (T-1 Ambattur Police Station.3.The Public Prosecutor, High Court, Madras.

['Section 304B in The Indian Penal Code', 'Section 304 in The Indian Penal Code', 'Section 498A in The Indian Penal Code', 'Section 306 in The Indian Penal Code', 'Section 498 in The Indian Penal Code']

For the sake of clarity and convenience, the facts from LPA No.886/2010, which arises from the order passed in WP(C) No.2205/2010, shall be exposited for the purpose of adjudication.The appellant, a chartered accountant and a member of the Institute of Chartered Accountants of India (ICAI), was a partner of M/s Price LPA 885-886/2010 Page 2 of 59 Waterhouse (M/s PW), a firm of Chartered Accountants registered with ICAI.In the year 2000, the firm was appointed as the statutory auditors of M/s Satyam Computer Services Ltd. (SCSL).The statutory audits of SCSL for the years 2001 to March, 2007 were conducted and the reports were signed by Mr. Subramani Gopalkrishnan, the appellant in LPA No.885/2010 [the petitioner in WP(C) No.5352/2010].As the factual matrix would further unfurl, on 7th January, 2009, Mr. B. Ramalinga Raju, the then Chairman of SCSL, in a communication send to the Board of Directors, disclosed that the balance sheet of SCSL as on 30th September, 2008 carried inflated (non-existent) cash and bank balances of Rs.5,040 Crores (as against Rs.5361 Crores reflected in the books) and accrued non-existent interest of Rs.376 Crores.LPA 885-886/2010 Page 2 of 59The liability was understated to the extent of of Rs.1230 Crores on account of funds arranged by him and the accounts overstated the debtors position by Rs.490 Crores (as against Rs.2651 crores reflected in the books).Quite LPA 885-886/2010 Page 3 of 59 apart from the above, there were many other disclosures which eventually led to his arrest and a criminal trial which we shall refer to at a later stage.LPA 885-886/2010 Page 3 of 59On 10th January, 2009, the ICAI corresponded with M/s PW, Bangalore, referring to the letters of Mr. Raju, the Chairman of SCSL, that the said firm had failed to carry out necessary checks which were required while undertaking the audit of the financial statements and certifying the quarterly results of the company.The ICAI alleged that the firm had violated the accounting principles while auditing and certifying the accounts/quarterly results of SCSL for the aforementioned years and quarters and did not give a true and fair view of the accounts and further did not exercise due diligence and were negligent in their professional duties as statutory auditors.The ICAI treated the newspaper report as information within the meaning of Section 21(2) of the Chartered Accountants Act, 1949 [as amended by the Chartered Accountants (Amendment) Act, 2006 which came into effect from 17th November, 2006] (for brevity the CA Act).M/s PW was called upon to disclose the name or names of the member or members who was/were answerable to the allegation/s and send a copy of the aforesaid information letter along with LPA 885-886/2010 Page 4 of 59 its enclosures to the said member/members and he/they be requested to send his/their written statement, if any, in triplicate within 21 days from the receipt of the letter.It was also stipulated in the said letter that the member or members who are answerable should also send a declaration duly signed in the enclosed format and in the event the name(s) of the member(s) answerable was not disclosed, all the members who were partners or employees of the firm on the date of occurrence of the alleged misconduct shall be responsible for answering the allegation or allegations contained in the information.After certain correspondences, on 30th January 2009, M/s PW replied to the ICAI stating, inter alia, that the key members were Mr. S. Gopalakrishnana, Mr. S. Talluri, Mr. P. Shiva Prasad and Mr. C.H. Ravindranath.M/s PW informed that Mr. S.LPA 885-886/2010 Page 5 of 59"19.1 The statutory auditors have failed to exercise reasonable care and compliance with various auditing and assurance standards issued by the Institute of Chartered Accountants of India as a generally accepted auditing practice while reporting on the financial statements and the materiality of the misstatements are so huge that it has rendered the financial statements for all these years as untrue and unfair.However, the executive, management and staff have drawn substantial amounts as remunerations, commission, incentives, bonuses, ESOPs.However, all these overstatements and misstatements have reported the EPS at a higher level in the financial reporting annually as well as quarterly which has directly impacted the movement of the share prices in the stock exchanges market in India and abroad."The allegations are regarding alleged fudging of LPA 885-886/2010 Page 19 of 59 accounts over seven years.The appellant is required to understand the records for which he would be required to consult the papers alongwith the persons who had conducted the audit.their reliance.The turnover of M/s SCSLvii) You did not exercise due in 2006-2007 was Rs.6228 Crores, in LPA 885-886/2010 Page 28 of 59 diligence and were grossly negligent 2007-2008 was Rs.8137 Crores and in the conduct of your professional the respective Audit Fees paid duties as the statutory auditors of were Rs.3.67 Crores and Rs.3.73 the company for all these years.The turnover of M/s Wipro in the year 2006-07 andxi) On account of the knit criminal conspiracy between manipulations/ falsification of the the management of M/s. SCSL i.e. accounts by the Company for all B. Ramalinga Raju, A-1, B. these years, it is apparent that the Ramaraju (A-2) and Shri V. same was not possible without your Srinivas (A-3) and the statutory knowing about the same as the auditors S. Gopalakrishnan (A-4) Statutory auditor of the company.and Srinivas Talluri (A-5).In addition to the above audit fee, the auditors received an amount of Rs.1.24 crores and Rs.1.27 crores for the said years towards rendering other services.These amounts were separately in the accounts though mandated as per the reporting norms.LPA 885-886/2010 Page 29 of 59v) Specific role of the two petitioners has been again narrated as follows:As per the records maintained by The Institute of Chartered Accountants of India, Sri S. Gopalakrishnan (A-4), was a partner in the firm M/s Price Water House, Bangalore and not in M/s Price Waterhouse.By affixing his signature on the Audit Reports for and on behalf of Price Waterhouse he deliberately with the knowledge of its implications and consequences violated the requirements of the Auditing & Assurance Standards.In the Agreement entered between M/s SCSL and M/s Price Waterhouse, instead of affixing his signature, he has signed as Price Waterhouse contrary to the established procedure and practice whereby it is incumbent on an individual partner of the firm to affix his signature as a representative of the Auditor firm authenticating the contents of the report.Ramalinga Raju, A-1 and Sri B.Ramaraju (A-2).By virtue of his status as a Statutory Auditor it is incumbent on his part to verify the bank balances and FDRs claimed to be held by M/s SCSL besides other investments, liabilities and sales of the Company before certifying the Statutory Audit Report which forms the basis of Annual Financial Statement of the company.He has knowingly certifies the inflated/forged balance sheets prepared basing on the forged FDRs and other data with regard to the banks and also the status of the sales without making any mandatory independent verifications.The auditors are required to write directly to the banks and obtain confirmation of balances.After obtaining the confirmations they must compare these figures with the figures as appearing in the books of accounts LPA 885-886/2010 Page 31 of 59 of the company.LPA 885-886/2010 Page 31 of 59Gopalakrishnan received the confirmations from the banks which are in great variance with the figures provided by the management and appearing in the books of accounts.He has consciously overlooked the accounting irregularities committed by M/s SCSL for the past 7 years showing his complicity in the commission of the above said offences and he is liable as a co-conspirator.Letters generated on the letter pads of M/s Price Waterhouse were recovered from the computer systems of M/s SCSL.These letters were supposed to be written by the auditors addressed to the banks seeking confirmations about the balances.Sri S. Gopalakrishnan as part of the conspiracy got these letters generated in the computer systems of M/s SCSL for the purpose of creation of the records which depicts his privy and involvement in the conspiracy.He also made M/s SCSL to generate certain letters addressed to the banks directing the banks to directly inform the auditors.In the agreement entered into between M/s. SSCL and M/s. Price Waterhouse contrary to the established procedure and practice whereby it is incumbent on the individual partner of the firm to affix his signature as a representative of the Auditor firm authenticating the contents of the report.Sri Talluri Srinivas (A-5) having been aware of the fact that he never represents M/s. Price Waterhouse designated Statutory Auditors for M/s. SCSL has signed as "Price Water House" and thereby cheated the investors in furtherance of the conspiracy with Sri V. Srinivas (A-3), Sri B.Ramalinga Raju (A-1) and Sri B.The auditors are required to write directly to the banks and obtain confirmation of balances.After obtaining the confirmations should compare these figures with the figures as appearing in the books of accounts of the company.There is a discrepancy with regard to the existence of the Price Waterhouse, Hyderabad as Auditors in the registration with the ICAI, a statutory body.The ICAI has confirmed that Sri Talluri Srinivas is a member Price Waterhouse, Bangalore and not Price Waterhouse.As such the certification of Statutory Audit Reports by such non-member LPA 885-886/2010 Page 40 of 59 Audit Firms consequently invalidates the Annual Financial Statement of the Company which is a statutory requirement under law to invite investments from the prospective investors.LPA 885-886/2010 Page 40 of 59Letters generated on the letter pads of M/s Price Waterhouse were recovered from the computer systems of M/s SCSL.These letters were supposed to be written by the auditors addressed to the banks seeking confirmations of balances.Sri Talluri Srinivas as part of the conspiracy, got these letters generated in the computer systems of M/s. SCSL for the purpose of creation of records which depicts his privy and involvement in the conspiracy.He also made M/s SCSL to generate certain letters addressed to the banks directing the banks to directly inform to the auditors.However, these letters were generated merely for the purpose of record which shows the role of Sri Talluri Srinivas in the conspiracy.From the investigation, it is clear that the whole fraud was designed and orchestrated by Shri B.Ramalinga Raju (A-1), Shri B.Ramaraju (A-2) and Shri V.Srinivas (A-3) and they got the same implemented with the active connivance of Shri G. Ramakrishna (A-7), Shri D. Venkatapathi Raju (A-8) and Shri S. Srisailam Chetkuru (A-9).Further Sri G.Gopalakrishnan (A-4) and Shri Talluri Srinivas (A-5) have actively participated in the conspiracy by auditing the fudged balance sheets and certified the same and thereby connived with the other accused.Further Sri.B. Suryanarayana Raju (A-6) has actively participated in the conspiracy by assisting Sri B.Ramalinga Raju (A-1), Sri B.Ramaraju (A-2) in reaping maximum benefit from this fraud and in rotating funds amongst the companies.In view of the above have committed the offences of conspiracy, cheating, cheating by personation, generating forged valuation securities, forging the LPA 885-886/2010 Page 42 of 59 documents for the purpose of cheating and knowingly using these forged documents as genuine.The said list reads as under:"LIST OF WITNESSES IN THE MATTER OF SHRI S. GOPALAKRISHNAN AND SHRI S. TALLURI BY THE DISCIPLINARY COMMITTEEConcerned official from ICAIShri A.V.Y. Krishna, CBI, HyderabadThe then Investigating Officer of SEBI LPA 885-886/2010 Page 43 of 59LPA 885-886/2010 Page 43 of 59Concerned official from Citi Bank, HDFC Bank, ICICI Bank, HSBC Bank, BNP Paribas and Bank of Baroda.The concerned official (Finance Department) of Satyam Computer Services Ltd.The concerned official (Sales Department) of Satyam Computer Services Ltd.Main Partners of Price Waterhouse (FRN)Main Partners of Lovelock & Lewes (FRN)Through Mr. Ramji Srinivasan, Sr.Advocate with Mr. J S Bakshi, Mr. Amitesh S. Bakshi, Mr. Zeyaul Haque, Mr. Rakesh Agarwal and Mr. Pulkit Agarwal, Advocates for ICAI/Respondent No.1 Mr. Jatan Singh, CGSC with Mr. Ashish Kumar, Advocate for UOILPA 886/2010 TALLURI SRINIVAS ..... Appellant Through Mr. T. Andhyarujina, Sr.Advocate with Mr. R. Sudhinder, Mr. Rahul Ravindran and Ms. Prerna Amitabh, Advocates versus INSTITUTE OF CHARTERED ACCOUNTNTS OF INDIA & ANR ..... Respondents LPA 885-886/2010 Page 1 of 59 Through Mr. Ramji Srinivasan, Sr.Advocate with Mr. J S Bakshi, Mr. Amitesh S. Bakshi, Mr. Zeyaul Haque, Mr. Rakesh Agarwal and Mr. Pulkit Agarwal, Advocates for ICAI/Respondent No.1 Mr. Jatan Singh, CGSC with Mr. Ashish Kumar, Advocate for UOI CORAM:LPA 885-886/2010 Page 1 of 59HON'BLE THE CHIEF JUSTICE HON'BLE MR.JUSTICE SANJIV KHANNAWhether reporters of the local papers be allowed to see the Yes judgment?2. To be referred to the Reporter or not?Whether the judgment should be reported in the Digest? Yes DIPAK MISRA, CJ Keeping in view the similitude pertaining to the legal controversy in both the appeals, despite the fact that there is a slight difference in the factual matrix, these appeals were heard together and are being disposed of by a common order.LPA 885-886/2010 Page 4 of 59Gopalakrishnan and Mr.Srinivas had been arrested by the local police and they were out of reach.As is manifest, on 20th February, 2009, the criminal investigation was transferred to the Central Bureau of Investigation (CBI) and RC No.4(S)/2009 was registered against Mr. S. Gopalakrishnan, Mr. Srinivas and seven other accused persons for offences punishable under Sections 409, 420, 468, 471, 477A, 201 and 120B of the Indian Penal Code.One of the conclusions recorded by the said group is to the following effect:As is evincible, on 7th April, 2009, the CBI filed its charge sheet in the Court of the Additional Chief Metropolitan Magistrate (ACMM) arraigning Gopalakrishnan, Srinivas and seven others as accused persons.LPA 885-886/2010 Page 6 of 59The documents which were relied upon by the CBI was the report of the ICAI Group which was a part of the MDIT.At this juncture, the Director (Discipline) of ICAI placed a prima facie opinion before the disciplinary committee and the committee was of the prima facie view that the said chartered accountants were guilty of professional misconduct within the meaning of clauses (5), (6), (7), (8) and (9) of Part I of the Second Schedule to the CA Act. A prima facie opinion was also formed that the said two chartered accountants were guilty of other misconduct within the meaning of Section 22 read with Section 21 of the CA Act. On the basis of the said prima facie opinion, a notice was sent to the chartered accountants enclosing a copy of the prima facie opinion and requiring each of them to send their written statement along with supporting documents and a list of witnesses within 21 days.It is apt to note that at that time, both the appellants herein were in judicial custody and at that juncture, the CBI filed a supplementary charge sheet.On 4th February, 2010, Srinivas was enlarged on bail by virtue of the order passed by the Apex Court in Criminal Appeal No.257/2010 on certain conditions.LPA 885-886/2010 Page 7 of 59As pleaded, on 26th February, 2010, notices were issued by the ICAI to Srinivas with respect to the disciplinary proceedings pending against him as well as Ravindranath.Srinivas replied to the ICAI stating that Ravindranath had been cited as a witness in the criminal case pending before the Special Court, CBI against Srinivas.It was contended by Srinivas that his appearance as a witness in the disciplinary proceedings against Ravindranath would severely prejudice his position in the criminal case pending trial.As regards the disciplinary proceedings against him, he asseverated that he would be dealing with that separately and thereafter, on 26th March, 2010, he stated that the initiation of the disciplinary proceedings against him should be deferred since the alleged acts of commission or omission on the basis of which the disciplinary proceedings had commenced not only form the basis of a prima facie opinion but also form the basis of various charges against him in the criminal cases and, hence, any disclosure of his explanation or defences until the final conclusion of the criminal trial pending before the Special Court at Hyderabad would seriously impact his defence in the criminal trial.When the ICAI decided to proceed with the disciplinary LPA 885-886/2010 Page 8 of 59 proceedings, Srinivas filed WP(C) No. 2505/2010 and the learned Single Judge initially directed postponement of the disciplinary proceedings for some time.LPA 885-886/2010 Page 8 of 59As is reflectible, on 25th June, 2010, Gopalakrishnan was granted bail by the High Court of Andhra Pradesh with certain conditions and thereafter, similar proceeding was initiated against him and he also took the same plea.It was urged before the learned Single Judge that the charge sheet in the criminal case and the prima facie opinion formed by the Director (Discipline), ICAI are more or less identical and the list of witnesses in both the proceedings are same and if they are allowed to continue simultaneously, serious prejudice would be caused to the writ petitioners as their defence would be disclosed.A reference was made to the report dated 5th April, 2009 of the ICAI group which formed a part of the MDIT, the conclusion of which formed the basis for the prima facie opinion dated 17th September, 2009 of the Director (Discipline), ICAI and the said report LPA 885-886/2010 Page 9 of 59 formed the basis of the charge sheet and, hence, the allegations are identical.The ICAI charges against the appellant, in turn, relies on the charge sheet filed by the prosecution.The prosecution has also listed the Director (Discipline) of ICAI as a witness who had formed the prima facie opinion against the appellant for the purpose of issuance of the notice to show cause and, this is bound to cause prejudice to the appellant.The LPA 885-886/2010 Page 17 of 59 prosecution has also listed Sh.Similarly, certain witnesses are common and on their examination the appellant would be put in a disadvantageous position.The allegations, inter alia, involve complicated questions of facts pertaining to falsification of LPA 885-886/2010 Page 18 of 59 accounts and fabrication of documents, etc. which make the appellants presence imperative to assist his counsel.The appellant has to necessarily spend close to 10 to 12 hours a day to participate in the proceedings and to defend his life and liberty which is extremely time consuming.Therefore, the appellant will not have any effective opportunity to defend himself in the disciplinary proceedings as there will be no time left for preparing himself for the disciplinary proceedings.Therefore, the appellant would be severely prejudiced if the disciplinary proceedings are allowed to continue until the completion of the trial.LPA 885-886/2010 Page 18 of 59(b) In view of the conditions imposed by the Court in its order dated 25.06.2010 granting bail, it would be physically impossible for the appellant to defend himself before the ICAI without consulting his team members who had conducted the audit.It was, inter alia, a condition of bail that the appellant shall not tamper with any evidence and shall not influence the prosecution witnesses.The appellants team members have been arrayed as prosecution witnesses.Despite this glaring discrepancy and having both the confirmations i.e. the original confirmations received from the banks and the forged blank confirmations provided by the other accused, Sri S.Gopalakrishnan in furtherance of the conspiracy, has accepted forged bank confirmations provided by the accused, certified the same and incorporated in the final accounts.He has flouted the prescribed Audit and Assurance Standard number 30 of the Institute of Chartered Accountants of India, thereby facilitated the projection of falsified data in the Annual Financial Statements of the Compare continuously.The presentations made by him to the audit committee about the health of the company were misleading and in fact he gave a very good certification regarding the financial discipline and controls available in the company contrary to the reality.LPA 885-886/2010 Page 32 of 59As a consideration for his acts in accommodating the accused persons, he has received an exorbitant audit fee from M/s SCSL over and above the market rate which reflects a quid pro quo arrangements.Shri Talluri Srinivas (A-5) affixed his signature on the financial statements as a partner of M/s Price Waterhouse the Statutory Auditors for M/s. SCSL for the financial year 2007-2008.. Sri Talluri Srinivas continued the legacy of Sri S. Gopalakrishnan (A-4) and he actively took part in the conspiracy hatched by Sri V.Srinivas (A-3), Sri B. Ramalinga Raju (A-1) and Sri B. Ramaraju (A-In spite of this, Sir S. Gopalakrishnan deliberately did not make any extensive changes in the audit plan which clearly establishes his motives and intentions in allowing the fraudulent practices to continue in M/s SCSL.Sir Talluri Srinivas has also followed the suit in furtherance of the conspiracy allowed the above deficiencies to continue.LPA 885-886/2010 Page 38 of 59Even though as many as 135 control deficiencies were identified in the integrated audit conducted in accordance with the Standards of Public Company Accounting Oversight Board which has severe impact on the internal control and financial accounting.Gopalakrishnan continued the trend and deliberately did not LPA 885-886/2010 Page 39 of 59 bring these control deficiencies to the notice of the Audit Committee and thereby facilitated the continuance of the fraudulent practices unabated.He did not comment on these control deficiencies in his Audit Report even though they are material in nature, thereby his privy and active role in the conspiracy is established.Sri Talluri Srinivas also did not take remedial action and continued the same practices to continue which establishes his role in perpetuating the fraud by the other accused.The above acts of Sri Talluri Srinivas reveal the offences punishable u/s 120B r/w 420, 419, LPA 885-886/2010 Page 41 of 59 467, 471, 477A of the IPC.LPA 885-886/2010 Page 41 of 59Further they have falsified the accounts of the company and also caused disappearance of evidence of the offence to screen themselves from legal punishment.Therefore, all the accused are liable for commission of offences punishable under sections 120B r/w 420, 419, 467, 468, 471, 477A and 201 of the Indian Penal Code and substantive offences thereof.LPA 885-886/2010 Page 42 of 59In the course of hearing, Mr. Ramji Srinivasan has also filed the list of witnesses who would be examined in the disciplinary proceedings against the appellants.Quite apart from the above, it is contended that the appellants cannot take shelter under the umbrella that they have stopped practising inasmuch as the institute has no power to suspend their registration.Additionally, it is urged by learned senior counsel that the charges levelled against them do not involve complex questions of law and fact and, hence, it is not desirable to invite an interdiction in exercise of the inherent jurisdiction of this Court.LPA 885-886/2010 Page 56 of 59On a perusal of the comparative chart of the charges levelled in the disciplinary proceeding and the chargesheet in the criminal proceeding, the list of witnesses, the nature of enquiry, the purpose of enquiry and arraigning the appellants as accused persons in the criminal case are on a different base.In addition, the charges levelled against the appellants in the departmental proceeding/the proceeding under the Act do not involve grave and complex questions of law.LPA 885-886/2010 Page 57 of 59

['Section 120B in The Indian Penal Code', 'Section 471 in The Indian Penal Code', 'Section 420 in The Indian Penal Code', 'Section 201 in The Indian Penal Code', 'Section 468 in The Indian Penal Code', 'Section 409 in The Indian Penal Code']

http://www.judis.nic.in Crl.O.P.(MD)No.16285 of 2019J, aav Crl.O.P.(MD)No.16285 of 2019 and Crl.M.P(MD) No.9695 of 2019 12.11.2019This Criminal Original Petition has been filed to quash the proceedings in Crime No.46 of 2018 on the file of the first respondent police.http://www.judis.nic.in Crl.O.P.(MD)No.16285 of 2019The learned Counsel appearing for the petitioner would submit that the petition is innocent he has not committed any offence as alleged by the prosecution.Without any base, the first respondent police registered a case in Crime No.46 of 2018 for the offences under Sections 379, 406, 420 and 506(ii) of IPC as against the petitioner.The learned counsel for the petitioner further submitted that the petitioner is the wife of the first accused and she has nothing to do with the crime.He also submitted that even on earlier three occasions, the second respondent lodged a complaint and the same has been closed after enquiry.Thereafter the second respondent filed private complaint and the same has been forwarded under Section 156(3) Cr.P.C. Based on the same, the first respondent registered a case and also during the pendency of the same, she appeared before the first respondent and gave statements along with the entire evidence showing that the petitioner is not involved in any crime as alleged by the first respondent.The learned Government Advocate(Crl.Side) would submit that the investigation is almost completed and the respondent police have only to file final report.4. Heard both sides and perused the materials available on record.A.No.255 of 2019 dated 12.02.2019 - Sau.Kamal Shivaji Pokarnekar vs. the State of Maharashtra & ors., as follows:-If it appears on a reading of the complaint and consideration of the allegations therein, in the light of the statement made on oath that the ingredients of the offence are disclosed, there would be no justification for the High Court to interfere.9. Having heard the learned Senior Counsel and examined the material on record, we are of the considered view that the High Court ought not to have set aside the order passed by the Trial Court issuing summons to the Respondents.Further the first respondent is directed to consider the submission made by the learned counsel for the petitioner and to complete the investigation and file final report before the concerned Magistrate, within a period of three weeks from the date of receipt of a copy of this Order.Consequently, connected miscellaneous petition is closed.12.11.2019 Internet:Yes/No Index:Yes/No Speaking/Non speaking order aav ToThe Inspector of Police Central Crime Branch Police Station Madurai City2.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.http://www.judis.nic.in Crl.O.P.(MD)No.16285 of 2019 G.K.ILANTHIRAIYAN.

['Section 420 in The Indian Penal Code', 'Section 506 in The Indian Penal Code', 'Section 379 in The Indian Penal Code', 'Section 406 in The Indian Penal Code']

The gist of the oral report (Exhibit 36) is that the accused is one of the three brothers of Bhojram Bharre (P.W.1).The ancestral agricultural land is partitioned between the four brothers.However, the well is common.The informant and some other labours were working in the field.P.W.1 fell in the well and the accused lifted the stones near the well and threw them::: Uploaded on - 26/02/2018 ::: Downloaded on - 27/02/2018 02:21:35 ::: 3 apeal282.14 at P.W.1, who shouted for help.P.W.8 and other rushed to rescue P.W.1 and were threatened by the accused with stones.th ORAL JUDGMENT :The appellant is aggrieved by the judgment and order dated 15-4-2014 rendered by the learned Additional Sessions Judge, Bhandara in Sessions Trial 15/2012, by and under which the appellant- accused is convicted for offence punishable under Section 307 of the::: Uploaded on - 26/02/2018 ::: Downloaded on - 27/02/2018 02:21:35 ::: 2 apeal282.14 Indian Penal Code ("IPC" for short) and is sentenced to suffer rigorous imprisonment for seven years and to payment of fine of Rs.1,000/-.::: Uploaded on - 26/02/2018 ::: Downloaded on - 27/02/2018 02:21:35 :::Heard Shri R.P. Joshi, learned Counsel for the accused and Shri V.P. Maldhure, learned Additional Public Prosecutor for the respondent-State.3. P.W.8 Vimal Bharre lodged oral report at Andhalgaon Police Station on 18-12-2011 to the effect that the accused pushed her husband in the well and assaulted him with stones.P.W.1 started the motor pump installed in the well to water the crops.At 11-30 a.m. the accused arrived at the scene and accused P.W.1 of tampering with the pipe of his motor pump and of having thrown the starter in the well.P.W.1 denied the allegation.A verbal altercation ensued.P.W.1 was peeping in the well when the accused pushed him from behind.Villagers and the labours working in the field rescued P.W.1 from the well.P.W.1 suffered injuries to leg, waist and thighs.::: Uploaded on - 26/02/2018 ::: Downloaded on - 27/02/2018 02:21:35 :::On the basis of the oral report (Exhibit 36) and printed first information report (Exhibit 38) offence punishable under Section 307 of the IPC was registered against the accused.Investigation ensued, upon completion of which charge-sheet was submitted in the Court of Judicial Magistrate First Class, Mohadi, who committed the proceedings to the Sessions Court.The learned Sessions Judge framed charge (Exhibit 10).The accused abjured guilt and claimed to be tried in accordance with law.The defence of the accused is of total denial.It is also suggested to the prosecution witnesses that P.W.1 fell in the well accidentally.The learned Counsel for the accused Shri R.P. Joshi would submit that the prosecution has not excluded the possibility of an accidental fall.He would further submit that even if the evidence of the prosecution is accepted at face value, the ingredients of Section 307 of the IPC are not established.The intention or knowledge is not borne::: Uploaded on - 26/02/2018 ::: Downloaded on - 27/02/2018 02:21:35 ::: 4 apeal282.14 out from the evidence on record, is the submission.He would emphasize that concededly, the water depth in the well was only four feet.The common well was used by all the four brothers.Both, P.W.1 and the accused were well aware of the water depth.The evidence on record does not suggest that P.W.1 was under any threat of drowning.This is not even the prosecution version, is the submission.::: Uploaded on - 26/02/2018 ::: Downloaded on - 27/02/2018 02:21:35 :::In the case at hand, eyewitnesses to the incident, who are believed by the learned Sessions::: Uploaded on - 26/02/2018 ::: Downloaded on - 27/02/2018 02:21:35 ::: 5 apeal282.14 Judge and I do not see any reason to take a contrarian view, rule out the possibility of an accidental fall.::: Uploaded on - 26/02/2018 ::: Downloaded on - 27/02/2018 02:21:35 :::When P.W.1 went near the well to check why the pump was not working and was peeping in the well, the accused pushed him into the well and pelted stones.P.W.1 shouted, he sustained injuries to waist shoulder and thigh and fell unconscious.Maroti, Bandu, Tulshiram, Moreshwar, Bandu, Chudaman and Beniram rescued P.W.1 lowering a cot inside the well on which P.W.1 sat and was pulled out from the well.Before pushing P.W.1 in the well, the accused accused him of throwing the starter of his pump in the well.P.W.1 is subjected to intense cross-examination, a major portion of which is directed to bring on record the inimical relationship between P.W.1 and the accused.Few minor and insignificant omissions are brought on record, which do not dent the core of the testimony.A suggestion is given that P.W.1 fell in the well accidentally, which suggestion is denied.The testimony of P.W.1 is corroborated by Maroti Bharre::: Uploaded on - 26/02/2018 ::: Downloaded on - 27/02/2018 02:21:35 ::: 6 apeal282.14 (P.W.2) who was working in the field as a labour.In the cross- examination, he suggested that he did not witness the incident since he was standing at a distance of 500 feet from the well.The suggestion is denied and P.W.2 volunteers that he was at a distance of hardly 10 feet from the well.::: Uploaded on - 26/02/2018 ::: Downloaded on - 27/02/2018 02:21:35 :::9. P.W.3 Dr. Uday Chaudhary issued injury report (ExhibitP.W.3 states that he noticed the following injuries on the person of P.W.1 :1)two abrasion left buttock size 3 cms x 2 cms and 2 cms x 2 cms respectively.2)lacerated wound over thigh left posterior aspect size 5 cms x 0.5 cms.X 0.05 cms.3)abrasion over left thigh, lateral aspect size 3 cms x 3 cms reddish.4)abrasion over left thigh just above the left popliteal fossa size 4 cms x 2 cms reddish.5)lacerated wound left popliteal fossa of size 1 cm x 0.05 cm x 0.05 cm.6)abrasion over left calf, lateral side of 7 cms.X 2 cms.7)abrasion over right buttock 2 cms x 2 cms.8)contusion over back right and left middle third 5 cms x 4 cms reddish.Patient complaint of pain in low back, but no visible injury.::: Uploaded on - 26/02/2018 ::: Downloaded on - 27/02/2018 02:21:35 :::10. P.W.4 Suresh Misar has proved the spot panchanama (Exhibit 23) which reveals that the depth of the water was four feet.He is an eyewitness.Nothing is elicited in the cross-examination to dent the credibility of witness.The omissions brought on record are duly proved by the defence.13. P.W.7 Dr. Dinesh Kuthe is examined to prove that P.W.1 suffered fracture of L-2 vertebra with 30 percent compression.He has proved injury report (Exhibit 34).Nothing is elicited in the cross-examination to destroy the credibility of the witness.Suggestions are given to bring on record the strained relationship.The witness admits the strained::: Uploaded on - 26/02/2018 ::: Downloaded on - 27/02/2018 02:21:35 ::: 8 apeal282.14 relationship.However, as is well known, strained relationship can either be a motive for the false implication or a motive for the crime.::: Uploaded on - 26/02/2018 ::: Downloaded on - 27/02/2018 02:21:35 :::Having given anxious consideration to the evidence on record, I have no hesitation in recording a finding that the accused pushed P.W.1 in the well.In the teeth of the eyewitness account, the defence of accidental fall in the well is not probablised.However, I find substantial merit in the submission of Shri R.P. Joshi, learned Counsel, that the evidence on record is not sufficient to hold that the accused intended to cause death or that the accused can be attributed with the knowledge that death or an injury leading to death is likely to be caused.It is not in dispute that the depth of the water was hardly four feet.It is not the case of the prosecution that P.W.1 was under any threat of drowning.It was known to both, P.W.1 and the accused that the depth of the water was four feet.It cannot be said with any degree of certainty, that the intention of the accused was to cause death or that he was aware that by pushing P.W.1 in the well, death or injury leading to death would be the likely consequence.The accused must, however, be convicted under Section 326 of the IPC since the prosecution has proved that P.W.1 suffered fracture which is grievous hurt within the meaning of Section 320 of the IPC.::: Uploaded on - 26/02/2018 ::: Downloaded on - 27/02/2018 02:21:35 :::::: Uploaded on - 26/02/2018 ::: Downloaded on - 27/02/2018 02:21:35 :::The conviction of the accused under Section 307 of the IPC is set aside.The accused is entitled to set-off under Section 428 of the Criminal Procedure Code.The appeal is partly allowed and disposed of.JUDGEadgokar ::: Uploaded on - 26/02/2018 ::: Downloaded on - 27/02/2018 02:21:35 :::::: Uploaded on - 26/02/2018 ::: Downloaded on - 27/02/2018 02:21:35 :::

['Section 307 in The Indian Penal Code', 'Section 326 in The Indian Penal Code', 'Section 320 in The Indian Penal Code']

He not only executed the possession receipt in that behalf but also filled in and filed a declaration form mentioning the names of the members of his family depending upon him.The other members of his family were his wife Parvatibai, his three sons Prakash, Vasant, Nivrutti and his daughter, Mangala.There is no dispute that Block No. 4 allotted to him consists of two rooms and a kitchen and a balcony in addition to the sanitary block.The prosecution case further is that in the year 1976 the Anti-Corruption Bureau received a report regarding the practice of some of the employees in the Government Central Press of sub-letting the Government quarters allotted to them at Bandra as well as Kala Chowky and of profiteering at the Government expense.But all that he had charged to Dr. Mrs. Ranganayaki was the same amount which he was paying to the Government.As mentioned above, the question involves a widespread social evil.Hundreds of them keep waiting for months and years together for their turn to arrive.The significance of this stringent condition will be mentioned presently.It is further mentioned in the order that the allotted residential accommodation could be used by the Government employee only for his own residence and for the residence of the members of his family.In pursuance of the report, investigation was conducted in connection with the various Government quarters.It was on the basis of this F.I.R. that an offence was registered by Sub-inspector Desai on the same date 17th March, 1978 and after duly obtaining the sanction for investigation, the investigation was carried on.During the course of the investigation the statements of Dr. Mrs. Ranganayaki and others were recorded.The trial Court accepted the evidence of Dr. Mrs. Ranaganayaki entirely.The learned Judge turned down the argument that her evidence was not corroborated by pointing out that Dr. Ranganayaki was not a complainant in this case.He negatived the contention based upon the provisions of Government Premises Eviction Act observing that after all the civil and criminal remedies were concurrent remedies and the aims of both of them were entirely different.Before me, at the very outset, Shri Samant, the learned Counsel for the accused, stated specifically and categorically that he was not disputing and was specifically conceding the two factual positions.Secondly, he conceded that her evidence that she was paying Rs. 110/- per month also could not be cavilled at.The learned Counsel specifically proceeded to advance his quite vehement and repeated arguments, made after taking adjournment after adjournment for bringing various authorities on the points, upon the explicit concessions that the findings recorded by the learned Judge about the exclusive possession of Dr. Mrs. Ranganayaki and about the payment of compensation of Rs. 110/- per month to the accused were unimpeachable findings.The concessions, to my mind, were not only justified but unavoidable.I have gone through the entire evidence on record and after going through the evidence of Dr. Mrs. Ranaganayaki as also the other evidence, I find that no room is left for doubt that it is just inconceivable that Dr. Mrs. Ranganayaki would have been living in the premises along with the accused during the relevant period or that she had been allowed to reside in the premises without payment of any monies to the accused.So far as he himself was concerned even if he had received a rupee more than Rs. 110/- from Dr. Ranganayaki, he could possibly, be said to be helping himself with such wrongful gain of a rupee.But in order to cut short the argument.

['Section 5 in The Indian Penal Code', 'Section 409 in The Indian Penal Code']

(Delivered on this the 2nd day of August, 2018) This criminal appeal under Section 374 (2) of the Code of Criminal Procedure has been preferred by the appellant being aggrieved of the judgment dated 27/11/2017 passed by the Sessions Judge, Chhindwara in ST No.121/2015, whereby the present appellant has been convicted under Section 304 (Part-I) of IPC and sentenced to five years' rigorous imprisonment with fine of Rs.5,000/- with default clause.In brief the facts of the case are that on 7.2.2015 at around 9:15 PM in the night complainant 2 Mitesh's elder brother Monu @ Ritesh and co-accused Vijesh had an altercation near Hanuman temple.On hearing the same complainant Mitesh and his father Ram Prasad went to the house of co-accused Vishnu where Monu @ Ritesh was telling that accused Vijesh had assaulted him as he was asking for the consideration which was fetched by selling his motorcycle, at that time other accused Vishnu and Ajesh, the present appellant also came there with sticks in their hands.Complainant Mitesh and his father Ram Prasad were abused and were thrashed by sticks.Ram Prasad got injured in the incident and fell down after receiving the injuries and when other villagers intervened, they were separated.After the incident the injured was taken to the Primary Health Centre, Junnardev and intimation of the crime was given to ASI C.S.Uike, who recorded the Dehati Nalishi (Ex.P-27).Injured Ram Prasad (deceased) was examined by Dr. Raghuvir Singh (PW-9) vide MLC (Ex.P-14).Similarly, Dr. Raghuvir Singh (PW-9) also examined injured Mitesh, who had injury on his right hand and was advised for x-ray.Ram Prasad succumbed to the injuries at about 1:45 AM in the night on 8.2.2015, hence a Marg intimation was also made and in the post-mortem report 3 prepared by Dr.Manish Gathoriya (PW-10), the following injuries were found on the person of the deceased:- " " "So far as injured Mitesh is concerned, he had fracture of third metacarpal of his right hand vide Ex.P- 12, which has been proved by Dr.Shikar Surana (PW-8).After investigation, a charge sheet was filed and the learned Judge of the trial Court after recording the evidence has convicted the appellant as aforesaid, whereas other co-accused persons namely Vishnu and Vijesh were convicted under Section 323 of IPC and sentenced to the period one already undergone by them.Learned counsel for the appellant has submitted that the appellant has wrongly been convicted by the learned Judge of the trial Court, as the incident has taken place on the spur of moment and there was no intention to cause the death of deceased Ram Prasad.On the other hand, learned counsel for the State has opposed the prayer of the appellant and has submitted that the appellant has rightly been convicted by the learned Judge of the trial Court, and hence his appeal may be dismissed.7. Heard the learned counsel for the parties and perused the record.In the post-mortem report, it is clearly mentioned that three injuries which were received by the deceased are lacerated wounds, however it appears that in his deposition before the Court, the injury No.1 has wrongly been typed as incised wound "kata huwa ghav", instead of lacerated wound i.e. "fata huwa ghav" and the cause of death is also stated to be shock arising out excessive bleeding due to head injury.In this regard the deposition of PW-1 Suresh assumes importance, who happens to be an independent witness and has not been declared hostile.According to him, he came out of his house after hearing the persons quarrelling with each other and saw that Monu @ Ritesh and Mitesh were beating Vishnu, at that time Ajesh and Vijesh also came and in this scuffle an assault was made by Ajesh on the head of Ram Prasad, who fell down.In these circumstances, when this witness has not been declared hostile, the prosecution is bound by his deposition.In this regard Dr. Raghuvir Singh (PW-9) in 6 his cross examination has admitted that on 07.10.2015 he also examined Vishnu Suryavanshi who had received the following injuries:-^^1 duiVh ds ck,a fgLls ij 4x2 bap Ropk dh xgjkbZ rd A 2 ck,a ?kqVus esa fNys dk fu'kku Fkk ftldk vkdkj 1x1 bap Fkk vkSj yky dyj esa Fkk A 3 nk,a ?kqVus esa fNys dk fu'kku Fkk ftldk vkdkj 1x1 bap Fkk vkSj yky dyj esa Fkk A^^ The said injuries were simple in nature.This witness also examined Munnibai wife of Vishnu Suryavanshi who had received minor abrasions.The other witnesses have also deposed more or less on the same lines and all of them have stated that the incident has taken place in front of Vishnu's house.It is also on record that both the parties are closely related to each other and the genesis of the incident is said to be the amount which Monu @ Ritesh was demanding from Vishnu.Thus, in the considered opinion of this Court, there appears no intention on the part of the appellant to cause death of Ram Prasad, as apparently the incident took place on the spur of moment in front of accused Ajesh's house whose father Vishnu's was beaten by complainant's side and thus he also intervened in the said 7 fight and caused injuries to Ram Prasad, which cannot be said to be premeditated in any manner and appears to have been so cause on the spur of the moment.Though looking to the injuries received by Ram Prasad, it may be said that while causing such injuries, the appellant must have knowledge that such injury may cause the death of the deceased and his intention to commit the murder does not appear to be present on record.Thus, under the facts and circumstances of the case instead of Section 304-I of IPC, the appellant is liable to be convicted under Section 304-II of IPC.Although in both these sections under Section 304-I and 304-II of IPC, the maximum imprisonment is life, however there is fine distinction between these two provisions and it is of intention and knowledge of causing the death, and the knowledge of death shall definitely be on a lower pedestal than intention to cause death.In the circumstances, instead of conviction under Section 304 Part-I of IPC, the appellant is convicted under Section 304-II of IPC.So far as question of quantum of sentence is concerned, the submission advanced by the learned counsel for the appellant that the appellant may be 8 sentenced to the period already undergone by him, as he has already undergone three years and six months' RI out of five years' RI, appears to be reasonable.In the result, the criminal appeal stands partly allowed.

['Section 304 in The Indian Penal Code', 'Section 323 in The Indian Penal Code']

The restoration application, CRAN 2338 of 2018, is allowed.CRM 1028 of 2018 is allowed.15 md.Mr. P.K. Datta, Sr.Advocate Mr. S. Deb Roy, Advocate .. for the Petitioner Mr. Shibaji Kumar Das, Advocate .. for the State Sufficient grounds have been made out as to why the petitioner was not represented on August 20, 2018 when CRM 1028 of 2018 was dismissed for default.The order dated August 20, 2018 is recalled and CRM 1028 of 2018 is restored to the file.In the matter of:-1 2 In the matter of:-The petitioner seeks anticipatory bail in connection with Taltala Police Station Case No.126/17 dated 22.09.2017 under Sections 498A/406/419/323/341/504/506/34 of the Indian Penal Code read with Section 3 /4 of D.P. Act.At the outset, the State produces the report from the investigating officer confirming that some SMS messages have been sent by the petitioner to the de facto complainant during the pendency of the present proceedings.The petitioner says that it would not be appropriate to consider such matter while considering the present prayer since no complaint in such regard has been filed.On the basis of the material evident against the petitioner from the case diary, there does not appear to be any impediment to grant anticipatory bail to the petitioner.However, the petitioner has to provide for the basic maintenance of the wife.In addition, the petitioner will also report to the Investigating Officer at such time and place as may be specified by the concerned police officer.Further, if the petitioner sends any threatening or otherwise objectionable message on the wife's phone or puts up any inappropriate post on the social media, the de facto complainant and the State will be entitled to seek cancellation of the petitioner's bail.3 4 A certified copy of this order be immediately made available to the petitioner subject to compliance with all requisite formalities.(Abhijit Gangopadhyay, J.) (Sanjib Banerjee, J.) 4

['Section 34 in The Indian Penal Code', 'Section 498A in The Indian Penal Code', 'Section 419 in The Indian Penal Code', 'Section 506 in The Indian Penal Code', 'Section 323 in The Indian Penal Code', 'Section 341 in The Indian Penal Code', 'Section 504 in The Indian Penal Code', 'Section 406 in The Indian Penal Code', 'Section 438 in The Indian Penal Code']

Jai Narain, who is the petitioner here, was the informant.A free translation of what he said is as under : 'Iam a resident of village Deendarpur and cultivate land.A civil litigation was going on between my father, Ami Lal, and Fazal.Mohammed in respect of some land.Yet, there can be complexities as is borne out by this petition for revision, which has arisen in the following circumstances.The case against them appears sufficiently from the first information recorded by the police.The land was about 30 or 35 bighas in area.In front of the house of Raghunath and Kanwar Singh, there is some land belonging to the Gaon Sabha on which everyone throws their garbage.Today, when Sarvati, the wife of Chhotu Ram, who is my uncle's son, was throwing garbage there as usual, Zile Singh, Khushi Ram and Fazal Mohammed came there and using foul abuses they scolded her.They forbade her from throwing garbage there.IN the meantime, on hearing the noise, my father and Chhotu Ram, the son of my uncle, came there and told Fazal Mohammed and the others not to use abusive, language.On hearing the loud voices, Raghunath, Mani Ram, Attar Singh, Reham Ali.Kanwar Singh and Rattan Singh also came there.At that time, Fazal Mohammed was holding a ballam (a short spear), Zile Singh a bhala (a large spear), Khushi Ram a jaili (a rake), and the others had lathis (staffs) in their hands.Then Fazal Mohammed attacked my father with the ballam, and my father fell down as he had been hit on the head and face.In order to save him, I and Chhotu Ram lay upon my father, who had fallen to, the ground.Zile then struck me with the bhala and I sustained injuries .on my head arid left leg.Raghunath, Mani Ram, Rattan Singh, Kanwar Singh and Attar Singh caught Chhotu Rain.He, too, has sustained injuries.Ram struck me and my father with both sides of the jaili he was holding and caused injuries.In the course of this, Deen Dayal,.Subey Singh and Jage Ram came to our rescue with lathis, and saved us from their clutches.MY father Ami Lal had become unconscious at the spot.Thereafter, all of us first came to the Najafgarh dispensary.There, my father succumbed to his injuries.All of us who were injured were then brought to Safdarjang Hospital in a vehicle belonging to the hospital.I know Fazal Mohammed, Khushi Ram, Zile Singh, Reham Ali, Raghunath, Mani Ram, Ratt an Singh, Attar Singh and Kanwar Singh from before.(These are the nine respondents).They collected together and wounded me, my father Ami Lal, and Chhotu Ram with the bhala, ballam, jaili and lathis with ' the intention of murdering us.I am lodging this complaint against them.This incident occurred at about 9.30 a.m.' IN the course of in,ves'iigation, the police recorded the statements of a number of persons.(3) On 9th March 1981, the Additional Sessions Judge framed three joint charges against the respondents.In all of them it was alleged that the offence charged had been committed in furtherance of their common intention, and section 34 of the Indian Penal Code was recited..The second was under se Section 307 for attempting to murder Ghhota Ram.the third, was under sections 323 and 324 for having voluntarily caused' simple hurt to Jai Narain by means of a sharp edged and blunt weapons'.Before framing these charges, the matter was fully argued and the judge made a reasoned order.On all these scores, Jai Narain is aggrieved and seeks revision of that order.Although the State has not itself applied for revision (I was told that its petition was delayed by administrativ.e procedures but was in the offing), the Additional Public Prosecutor unreservedly supported all the submissions made on behalf of Jai Narain.

['Section 302 in The Indian Penal Code', 'Section 149 in The Indian Penal Code', 'Section 148 in The Indian Penal Code', 'Section 147 in The Indian Penal Code', 'Section 307 in The Indian Penal Code', 'Section 323 in The Indian Penal Code', 'Section 300 in The Indian Penal Code', 'Section 324 in The Indian Penal Code', 'Section 34 in The Indian Penal Code']

The factual background which needs to be noticed is as follows:-"On 9th November, 2005, DD No.30-A (copy Ex.PW5/A) was assigned to Sub Inspector Lal Chand Yadav at Police Station Welcome, Delhi for investigation who alongwith Constable Des Raj went to Prachin Hanuman Mandir, Welcome, Delhi at about 4.00 pm where Sushil Kumar Tiwari met them.Sub Inspector Lal Chand Yadav, Investigating Officer recorded the statement of Sushil Kumar Tiwari and after making endorsement thereon sent the same to police station for registration of this case.Sushil Kumar Tiwari produced appellant as well as dagger and mobile phone, besides a sum of rupees 150/- before the investigating officer.The aforesaid objects were converted into separate parcels and sealed with the seal of LC and were taken into possession vide memo Ex.PW1/E and Ex.PW1/A respectively.The Crl.A. No. 397/2006 Page 2 sketch of the dagger was prepared before converting it into a parcel.Appellant was arrested.Sushil Kumar Tiwari was having stab injuries on first finger of his right hand and was sent to Hospital for medical examination.In this appeal, Appellant is challenging impugned judgment of 11th May 2006 of learned Additional Sessions Judge, Karkardooma Courts, Delhi, vide which he has been convicted for committing offences under Section 455/392/394 and 397 of Indian Penal Code and also under Section 25 of the Arms Act and order of the trial court of the same day, vide which he has been sentenced to undergo rigorous imprisonment for four years and Crl.A. No. 397/2006 Page 1 to pay a fine of Rs.1,000/- separately on two counts, i.e., for the offences under Section 392 and 455 of the Indian Penal Code.In default of payment of fine he has been directed to undergo rigorous imprisonment for six months each.Appellant is further sentenced by the trial court to undergo rigorous imprisonment for seven years with fine of Rs.1,000/-, separately on two counts, i.e., for the offence punishable under Section 394 and 397 of Indian Penal Code.In the event of default of payment of fine, Appellant has been directed to undergo rigorous imprisonment for six months each.The above said substantive sentences have been ordered, by the trial court, to run concurrently.Investigating officer inspected the site and prepared the site plan Ex.PW5/B, recorded the statements of witnesses, got the appellant medically examined and thereafter he was produced before the court concerned.After completion of investigation, charge sheet for the offence under Section 379/382/506/ 411/394/ 397/393 of IPC and Section 25/27 of Arms Act was filed against the accused/appellant."Since the Appellant/accused had claimed trial in this case, by pleading not guilty to the charges framed against him for the offences punishable under Section 455/392/394/397/506 of Indian Penal Code and for offence punishable under Section 25 of the Arms Act, before the trial court, evidence of six witnesses was recorded during the trial in support of the charges framed against the Appellant.Out of them, the main witnesses are the injured/first informant - Sushil Kumar (PW-4); eye witness Dhiraj Shukla (PW-2); Dr. Prabhakar (PW-6), who has proved the MLC - Ex.PW6/A of injured (PW-4) and the Investigating Officer SI Lal Chand, (PW-5).Appellant in his statement under Section 313 of Cr.P.C., before the trial court, denied the prosecution case and stated that he was going to Ghazipur Mandi and Constable Desh Raj (PW-1) met him at Welcome turn and told him that he was called by SHO, Police Station Welcome and took him there and framed Crl.A. No. 397/2006 Page 3 him in this case.However, Appellant did not lead any evidence in his defence before the trial court.After the trial, Appellant stands convicted and sentenced as noticed above.Contention advanced by both the sides have been pondered over and the evidence on record has been scrutinised.In short, the prosecution case is that on the night intervening 8th and 9th November 2005, during the night at about 3.30 AM, Appellant/accused alongwith his associate trespassed into Pracheen Kuainwala Mandir at A-1 Block, Welcome, Delhi and removed cash of Rs.150/- and a mobile phone from the pocket of the shirt of Sushil Kumar (PW-4) and the said shirt was hanging on a peg on the wall inside the aforesaid temple.While associate of Appellant / Accused was searching for the goods in the other room of the temple, Dheeraj Shukla (PW-2) woke up to urinate and he noticed the Appellant/accused in the temple and raised alarm of thief-thief.Then, Sushil Kumar (PW-4) also woke up and rushed towards the Appellant/accused, who gave a knife/ dagger blow on the right hand of Sushil Kumar (PW-4).However, Appellant/accused was overpowered by Sushil Kumar (PW-4) and from the possession of the Appellant/accused cash of Rs.150/- and mobile phone of Sushil Kumar (PW-4) and the knife/dagger was recovered.However, trial judge has concluded that the knife/dagger Ex.P-1 was used by accused/appellant, when he attempted to carry away the stolen property and hurt was caused to injured Sushil Kumar (PW-4) while committing robbery.A bare perusal of the testimony of the injured (PW-4) makes it clear that injured (PW-4) got up upon hearing the alarm of 'Thief-Thief" being raised by eye witness (PW-2) and he had seen that eye witness (PW-2) and accused/appellant were grappling and when injured (PW-4) went to rescue eye witness (PW-2), then appellant/ accused gave knife blow to injured (PW-4) as soon as he reached near the injured.It has also come in Crl.A. No. 397/2006 Page 5 the evidence of injured (PW-4) that he had snatched the knife of the hands of accused/appellant.Possibility of injured (PW-4) sustaining 1/2x1/2 Cm injury on index finger of his right hand, in the process of injured (PW-4) snatching the knife from the hand of accused/appellant, cannot be ruled out.It has not come in the evidence of the injured (PW-4) or the eye witness (PW-2) that accused/appellant had caused hurt to the injured (PW-4) while committing robbery or that accused/appellant had used knife/dagger Ex.P-1 while attempting to carry away the stolen property.Thus, it is evident from the evidence on record that the aforesaid finding of the trial court is factually incorrect.Apparently, there is misreading of the evidence by the trial judge, which renders the conviction of accused/appellant for the offence under Section 392/394/397 of the Indian Penal Code illegal and is hereby set aside.Simply because the injury/lacerated wound on the index finger of the hand has been opined to be blunt/simple in the MLC Ex.P-1 as it has not come in the evidence on record about knife/dagger Ex.P-1 being blunt on one side.In any case, nothing turns on it as the accused/appellant was arrested at the spot and the aforesaid knife/dagger Ex.P-1 was recovered from him at the spot only.The offence made out against accused/appellant falls under Section 379 and 324 of the Crl.A. No. 397/2006 Page 6 Indian Penal Code which is lesser offence than those under Section 392/394/397 of the Indian Penal Code, for which accused/appellant had faced the trial.Appellant be informed of this order through the concerned Jail Superintendent.

['Section 394 in The Indian Penal Code', 'Section 397 in The Indian Penal Code', 'Section 392 in The Indian Penal Code', 'Section 379 in The Indian Penal Code', 'Section 506 in The Indian Penal Code', 'Section 411 in The Indian Penal Code']

The prosecution case regarding arrest of these two accused was sought to be established by PW16 Insp.Rajender Gautam who deposed that on 14/6/1996 he along with Insp.Paras Nath, (PW-101) Insp.Suresh Chander, SI Surender Verma etc. joined the investigation of the case.At about 6:20 PM PW-101 got secret information that A3 along with his companion, a Kashmiri youth would be going to Gorakpur in Vaishali express.He organized a team and they all reached New Delhi Railway station.ACP PP Death Sent.2/10; Crl.A.948 to 951/10 Page 134 Singh also joined the police party at New Delhi Railway Station.They all reached Platform no. 4 of New Delhi Railway Station and held a 'nakabandi'.At about 7.30 PM at the pointing out of the informer, A3 and A 4 were apprehended; both were interrogated by Insp.Paras Nath and were arrested.Their personal search memos Ex. PW16/A and 16/B were prepared.The witness was declared hostile, because he did not testify about many particulars.In the cross examination by the prosecution, he said that he had witnessed the arrest of A-6 and A-7 and witnessed the personal search memos (in relation to them) Ex. PW-16/D and PW-16-E; he also claimed - in cross examination by prosecution - to have witnessed the recovery of a Re. 2/- note (seized by Memo Ex. PW-16/F).Similarly, he agreed to the prosecutions suggestion about having witnessed the disclosure statements of A-5 Latif (Ex. PW-16/H) and A-6 Killey (Ex. PW-16/I).He stated further that A-9 Javed and A-6 were arrested in his presence.He agreed with the suggestion that Latif and Killey were arrested in his presence, given by the prosecution.However, he also stated that due to passage of time, he could not identify Killey and Latif.He admitted in prosecutions cross examination that Mirza Hussain had made disclosure statement Ex. PW-16/J, and pointed out Shop No. 3/32 at Bhogal, through memo Ex. PW-16/K, and Killey pointed out to Shop No. C-1/59, Lajpat Nagar (Ex PW-16/B).The witness was cross examined about where the police party was present before moving to New Delhi Railway station, whether other passengers and members of the public were present on the railway platform, whether the entire paperwork was done on the railway station; if so how long it took to complete, etc. The witness was unaware if anyone was arrested from Gorakhpur, nor knew the name of the police station at Gorakhpur from whose jurisdiction any such Death Sent.2/10; Crl.A.948 to 951/10 Page 135 arrest took place, or even the locality from where any such arrest took place; he said it was near the Gorakhpur railway station.149. PW-39 corroborated PW-16 and deposed that he joined in the investigation on 14.6.1996 along with PW-16, other police personnel and PW-101 and went to Jama Masjid near Urdu bazaar where at about 06:20 PM, information was received that Naushad with one other boy would go to Gorakh Pur from New Delhi Railway Station by Vaishali Express and that from there they would proceed to Nepal.PW-101 organized a raiding party and informed ACP P.P. Singh on the phone.All of them reached the Railway Station; P.P. Singh also reached there.On the pointing out of informer at about 07:35 PM, Naushad and Saba were apprehended.In his cross examination by the APP, he admitted that the police had brought two persons with muffled faces and on un-muffling their faces, he had admitted to the police that they had purchased a solder iron and wire from Death Sent.2/10; Crl.A.948 to 951/10 Page 155 his shop.He said that one of these persons may have been Naushad (this after Naushad was pointed out to him by APP); he was not certain of the identity of the other person being Naza.He said that the pointing out memo had been prepared and he had signed on it at point B (Ex. PW-31/K).This memo is dated 19.06.1996, and stated that Naushad and Naza, under police custody, voluntarily with muffled faces pointed out to Imperial Sound and Service and identified Jitender Singh and stated that on 13.05.1996 they had purchased a soldering iron and wire from that shop and that they had used the solder for making the bomb.The omission to cross examine PW-31 and 39 was adversely commented in the findings.Case of the prosecution is that A4 led the police party at BJ24, Shalimar Bagh and from there obtained Rs. 1 lac on the strength of two rupee currency note from Mangal Chand."In para 243, the Trial Court discussed the sequence of events; the police party had arranged to go to Shalimar Bagh; at that stage, PW-35 was joined in the proceedings.According to his deposition, SI Sanjay Kumar, A-4 as well as another police officer reached the premises at Shalimar Bagh.I however, told the police that one of those two accused persons namely Mirza Nisar Hussain @ Nasa who is present in the court might have purchased from me.It is Death Sent.2/10; Crl.A.948 to 951/10 Page 169 wrong to suggest that I categorically identified accused Mohd. Ali Bhat @ Mohd. Killey as the only person who came at my shop with accused Mira Hussain @ Naza for purchasing battery on 21.5.1996 when police removed the muffled from his face..."In the cross examination PW-60 Rajesh Kumar further stated that; "..... after picking up from my shop the van was driven to Central Road to Masjid road, where from a man from Vijay Electrical shop was picked up and from there in the same van I was taken to one police station situated in Lodhi road area...."He also stated that:The police witnesses, however, sought to depose that PW-60 had identified A-5 and A-6 as those who had approached him and purchased a battery.The Trial Court discussed the circumstances surrounding the arrest of Javed (A-9) and Asadullah (A-10); it believed that the two accused persons were arrested from Ahmedabad on 01.06.1996 along with Rashid and Juber Bhatt @Maqbool Bhatt from near Rupali Cinema.The Court relied on the testimonies of PW-98, PW-99, and the Judgment of Ld.The Court observed that the stay of the four, including A-9 and A-10 at Anukul Guest house in Ahmedabad on 24.05.1996 was proved by entry made in the hotel register at Serial number Death Sent.2/10; Crl.A.948 to 951/10 Page 183 4310 dated 25.05.1996; it was in the name of Rashid.However their stay at Anukul Hotel and arrest dated 01.06.1996 was believed.The object of the gathering was not proved and the articles recovered from their possession were not able to connect the accused with the crime.The Trial Court held that A-9 was not able to show the purpose of his visit to Ahmedabad and why he alongwith his associates had stayed at Anukul Guest House on 24.05.996; it was also held that the presence of A-9 in a suspicious circumstance in Ahmedabad from 24.05.1996 to 01.06.1996 and his failure to explain the purpose of his visit was an incriminating circumstance against him.As far as A-10 was concerned, the Trial Court held that his mere apprehension on 01.06.1996 and his stay at Anukul Hotel on 24.05.1996 without any further incriminating evidence was not enough to connect him with the commission of offence.The Counsel for the Appellants urged that there was no evidence on record to show where the accused persons were from 25.05.1996 to 01.06.1996 (i.e. after they checked out from Anukul Hotel and till they were arrested).Javed (A-9) in his statement under Section 313 Cr.Even in his confessional statement (Ex.PW-100/A; pg.220 Vol.7), Javed, in reply to Question 1 stated Death Sent.2/10; Crl.A.948 to 951/10 Page 184 that he was arrested from a hotel in Ahmedabad on 24.05.1996 at about 03:00 PM.It would therefore be necessary to analyze the evidence of the two Gujarat Policemen, PW-98 and PW-99 in this regard.PW-98, B.R. Patil, deposed that in May 1996, while he was posted as DSP, ATS Ahmedabad, a TP was received giving information that Asadullah and Rashid would be crossing over the Indo Nepal border and that they would be reaching Gujarat to carry out explosions in Ahmedabad.Rajvanshis (PW-99s) team started searching for these persons in Ahmedabad.He further deposed that on 01.06.1996, PW-99 found 4 persons who disclosed their names as Asadullah (A-10), Rashid Ahmed, Juber Bhatt (Zulfikar) and Javed Khan (A-9).They were interrogated by PW-99 and an FIR 12/1996 was lodged against them u/s 120B, 121, 122 IPC.He further deposed that on 02.06.1996 further investigation of the case was handed over to him; PW-99 had prepared the personal search memos and seizure memos of the accused.PW-98 identified accused Javed (A-9) and pointed to another accused and identifies him as Asadullah (A-10).However the accused said that his name was Abdul Gunny Goni to which the witness stated that Asadullah was one of the aliases of Abdul Gunny Goni.PW-98 further deposed that during the investigation Javed (A-9) made a disclosure statement regarding the bomb blast at Lajpat Nagar, New Delhi before Insp.Rajvanshi (PW-99).PW-99, B.M. Rajvanshi, of Gujarat Police deposed that on 24.08.1995 Death Sent.2/10; Crl.A.948 to 951/10 Page 185 he was posted in the Anti-Terrorist Squad, Ahmedabad, Gujarat and that on 23.05.1996 he was ordered by the Deputy Inspector General of Police, ATS to look into intelligence received regarding two terrorists Asadullah and Rashid entering India from Nepal.The tele-printer message and fax received by the Director General of Gujarat Police stated that these two terrorists would be reaching Ahmedabad via Mumbai from Kathmandu and that they would be renting a house in Ahmedabad and would plan explosions in big markets in Ahmedabad.PW-99 further deposed that SI Wagela informed him about these facts and thereafter he went to the hotel and saw Rashids name in the hotel register.He deposed to searching the four persons and that at around noon they found four suspicious persons near Rupali Cinema and his bringing them to the ATS office.He further deposed that after interrogation it was discovered that the said four persons had come from Kathmandu with the intention to sabotage the city.He further deposed that the 4 persons arrested were Asadullah (A-10), Rashid, Javed Khan (A-9) and Maqbool Butt.An FIR bearing no 12/1996 was lodged against them u/s 120B, 121, 122 IPC.PW-99 further deposed that Asadullah made a disclosure statement in which he gave details about how the conspiracy to cause sabotage in India was hatched in Pakistan.He further deposed that the fact that Asadullah and Javed were involved in the Lajpat Nagar blast was disclosed by both the accused.He further deposed that he prepared both the disclosure statements (Ex.PW-99/A and Ex. PW-99/B).On the basis of Javeds (A-9s) disclosure statement ATS Ahmedabad sent a wireless message Ex.PW-91/A and Ex.PW-91/B on 02.06.1996 to Delhi Police informing them about the possible involvement of A-10, A-9 and Maqbool Butt in the Lajpat Nagar blast.In the wireless message, ATS Ahmedabad also mentioned about delivery of explosives at Wajid Kasais house in Delhi.They used to live in Naya Bazar, Kathmandu.In April 1996, prior to Eid he had seen a bag and an attach (case) in the room they used to reside in.The bag contained gun powder (Barud) and the attach contained a wireless set, detonator, time pencil and remote control.He further stated that Javed Seniors (Javed Kirwas A-15) boss Bilal Beg (A-11), whom he (A-9) had never seen, used to reside in Pakistan.On 29.04.1996, the day of Eid, Julfikar alias Ayub came from Pakistan to Kathmandu and both A-9 and Latif (A-7) went to receive him at the airport (Bilal Beg had told Latif that Death Sent.2/10; Crl.A.948 to 951/10 Page 189 Julfikar had worn a black pant and a yellow colour shirt).A-9 further stated that he asked Zulfikar whether he lives in Pakistan to which Julfikar replied that he is not a citizen of Pakistan and was a resident of Kashmir; he had gone to Pakistan for training.A-9 further stated that he showed Zulfikar the attach and bag and asked him what type of articles were kept in it; Zulfikar replied that they were Time Pencil, Detonator and Remote Control.A-9 knew about the wireless set from before.On 06.05.1996 two more persons came from Pakistan and stayed with them at Kathmandu.Both these persons told Latif (A-7) that nobody should visit their room; A-9 did not know their names.On 08.05.1996 Javed Kirwa (A-15), Mahmood Killey (A-6), Naza (A-5) and Riyaz Moula (A-13) came to Kathmandu (A-9, Latif A-7 and Javed Kirwa A-15) used to work together.In the evening of 08.05.1996 Javed Kirwa (A-15) asked A-9 to accompany him to Delhi alongwith a bag containing gun-powder (barud) and two detonators.On 10.05.1996 Javed Kirwa @ Javed Senior (A-15) had sent Naza (A-5) to Delhi to make arrangements for the blast in Delhi.On the evening of 11.05.1996 A-9, with Javed Kirwa @ Javed Senior (A-15), Mohd. Killey (A-6), Riyaz Maula (A-13) and Javed Soparewala left for Delhi from Kathmandu.In the morning of 12.05.1996 they reached the border.A-9 remained at the border and the rest moved ahead.Javed Kirwa @ Javed Senior (A-15) and Naza (A-5) had asked him (i.e A-9) to leave the bag at Nazas friends house i.e. at Wajid Kasais house (PW-13).The Trial Court, in its impugned judgment, has highlighted - indeed gone into some details - about the prosecutions deficiencies, in examining witnesses, failure to follow leads, and present evidence sufficient to prove its case beyond reasonable doubt against all those brought to trial (A-1 to A-10).On an analysis of the evidence, the Trial Court concluded that the materials proved before it were inadequate, as far as four accused were concerned (A-4, A-7, A-8 and A-10).This resulted in their acquittal.So far as A-1 and A-2 were concerned, the Court held that apart from recovery of explosives, there was no material to prove their role as conspirators in the bomb blast; the Court also held that there was no evidence to show that A-1 and A-2 had facilitated, or participated in, movement of materials, resources or in the planning of the crime.The prosecution has miserably failed to justify as to why no TIP of the case property recovered in this case or that of the accused persons arrested in the case conducted from the prosecution witnesses.The case of the prosecution is that the accused persons led the police team at various places during investigation and pointed out various places from where they had arranged articles for preparation of cylinder bomb planted in the maruti car in question.Perusal of the file reveals that number of prosecution witnesses examined by the police during investigation and whose statements were recorded under Section 161 Cr.PC have turned hostile and did not support the prosecution.The police during investigation did not seize relevant record pertaining to the visits/stay of the accused persons in the hotels/guest houses prior to their arrest.Statements of the concerned employees/Managers of the hotels were not recorded.The police did not join the local police at any stage during investigation and did not make any entries of their visits out side Delhi.They were arrested and a personal search was conducted (Ex.PW-16/A and Ex.PW-16/B).Disclosure statement of A-4 was recorded (Ex.PW-16/C) in the Operation Cell.The witness signed it.The Appellant A-3 questioned his arrest, as claimed by the police and submitted that the prosecution did not prove this circumstance.Having regard to this , and the fact that PW- 13 (who is supposed to have been met and been entrusted with explosives, and who in turn disclosed about A-3 to A-9), never supported the prosecution case, the first link in the chain about A-3's involvement in itself is not proved. A-3 therefore argued that his involvement in and further role not having been proved, the prosecution was unable to establish the primary facts as to how he was one of the perpetrators of the crime.Counsel emphasized the fact that this link in the chain of circumstances alleged against A-3 was vital; having snapped it, the prosecution had been dealt with a severe blow at the initial threshold and the Trial Court fell into error in proceeding to hold as it did that he was involved in the bomb blast.It was next argued that one of the reasons for the acquittal of A-4 was based on the ground that the circumstances of his arrest were not proved.In not having done so and having glossed over the fatal infirmities alleged against A-4, which were material and relevant for A-3, the Trial Court fell into error.Although PW-105 deposed about his presence in the railway station, the fact remains that none of the other three witnesses i.e. PW- 16, PW- 39 and PW- 101 mentioned about his appearance during the proceedings at all.The prosecution had alleged that soon after the bomb Death Sent.2/10; Crl.A.948 to 951/10 Page 137 blast, A-3 went missing.However, A-3 was not traceable.In the circumstances, the police kept vigil near his house.There is some other evidence by way of oral testimony of other witnesses to this effect.However, PW- 92 did not support the prosecution.A-3 on the other hand relied upon the testimony of PW- 92 that in fact on 28th of May 1996, he witnessed him (A-3) being taken away by the police.On the basis of this as well as a telegram said to have been sent by a A-3's father, to the National Human rights Commission, it was argued that the arrest in fact never took place on 14-06-996 and was a completely stage-managed affair.The prosecution had almost closed its evidence when an application under Section 311 Cr.PC was moved almost 12 years after the incident, and the testimony of this witness was permitted to be recorded.However, PW-16 did not mention about PW-105's presence.In these circumstances, there is some doubt as to whether PW-105 was present during the arrest and the immediate aftermath.The argument on behalf of A-3 that A-9's confession did not mention him, though attractive, is not relevant, and is inconsequential.A-9s role appears to have been to reach Delhi via Gujarat and hand over the explosives.This seems to be the substance and tenor of his statement made to the Gujarat police immediately after his arrest and in the disclosure statement.Therefore, it was not necessary for him to mention A-3 or his role.For inexplicable reasons, PW- 13 (who was supposed to have been given the explosives, and in turn facilitated the handing over or actually handed them over to the other accused involved in scheming and Death Sent.2/10; Crl.A.948 to 951/10 Page 139 implementing the ghastly crime) was not named as accused.PW- 13 did not support the prosecution story at all during the trial.The court therefore had to deal with this situation.The prosecution had recorded a statement from Wajid during the course of the investigation which mentioned A-3. PW-13 did not support this and he turned hostile during the trial.That would, in this Courts opinion, itself not give a lie to the entire circumstance leading to the possible role of A-9 which may otherwise be independently proved as also the circumstances of his arrest.Recoveries made at the behest of A-3 Naushad from his residence (Circumstance No. 10 - para 181 of the impugned judgment)The Trial Court held that A-3s statement after arrest, i.e. Ex. PW 31/B pursuant to which he led the police team to his residence at P7, First Floor, DDA Flats, Turkman Gate, Delhi from where, he led to the recovery of two RDX bricks (Ex. PW18/64 and 65) in a green polythene bag (Ex. P17); a timer watch (Ex. P8), the iron solder (Ex. P9), a wire Ex.P10, screw driver Ex.P11, pliers Ex. P12, wire cutter Ex. P13, two araldite tubes Ex. P14, electric wire Ex. P15 and one gas cylinder had all been proved.The witnesses who spoke about this circumstance were PW-31, PW-41 and PW-101, who were members of the raiding party.The two RDX slabs were seized pursuant to A-3 leading the police to a room on top of the premises, and pulling it; they were lying under a steel box.Other articles recovered were a timer-watch (Ex. P8), an iron solder (Ex. P9), a wire Ex.P10, screw driver Ex.P11, pliers Ex. P12, wire cutter Ex. P13, two araldite tubes Ex. P14, electric wire Ex. P15 and one gas cylinder.The witnesses mentioned that the raid took place during early hours of 15/6/1996, after A-3s disclosure statement was recorded pursuant to his arrest the previous evening.The prosecution had relied on the testimony of Death Sent.2/10; Crl.A.948 to 951/10 Page 142 PW-92, Abdul Samad, who resiled from the statement recorded during investigation.He also admitted his signatures on the recovery memo.The prosecution version about the circumstances surrounding the recovery of the RDX, in the opinion of the Court, was adequately established.The disclosure statement of A-3 mentioned that those explosives were hidden in his house; he led the police to the place, resulting in the recovery.As far as the testimony of PW-92 goes, undoubtedly he did not support the prosecution.However, he did not deny his signatures on the recovery memo; he also mentioned that A-3 was arrested by the police, but much earlier.Now, even if his testimony were unsupportive of the prosecution, yet two things were not denied by him.These, in the opinion of the Court, lend corroboration to the prosecution witnesses deposition about the recovery of RDX slabs from A-3s premises.Naushads stay at Gorakhpur (Circumstance No. 13 - para 208 of the impugned judgment)The prosecution had sought to prove that A-3 Naushad fled Delhi after the bombing incident, and went to Gorakhpur, where he stayed in Gupta Guest house.The witness recorded the statement of the person from whom he had got the photocopy (Mr Chakarborty).He then went to Gupta Hotel from where he obtained a photocopy of the visitors book (Ex. Pw-40/C which was seized by memo (Ex. PW-40/D) which had the details of Mohd. Naushad.He went back to Gorakhpur on 29.6 1996 with Constable Surinder and seized one original visitors book (Ex. PW-40/1, through recovery memo Ex PW-40/E) from Hotel Gupta (where A3 had stayed) and an original visitors book from Hotel Buddha (where A5 and A6 had allegedly stayed).He recorded the statements of witnesses from where the visitors registers had been seized.He conceded to not having any record of investigations being handed over to him and he could not member if the fact Naushads train reservation was recorded in any document.He said that his statement regarding his investigation in Gorakhpur had not been recorded.He stated that he had obtained only the photocopy of the reservation chart and the witness statement to this effect only stated that that witness had handed over the photocopy to him.He stated that he had not obtained the reservation requisition slip.He said that he had not recorded any reason for not obtaining the original visitors book from the hotel at the first instance.He says that he did not try to verify the handwriting of the accused at Death Sent.2/10; Crl.A.948 to 951/10 Page 144 Gorakhpur; He could not recall the DD of his arrival in Delhi following his trip to Gorakhpur.PW-66 Constable Surinder joined PW-40 on 29.6.1996 in the investigation in Gorakhpur, when they seized the original register which contained Mohd. Naushads name at SI.No. 1283, which contained his name and address, vide seizure memo Ex. PW-66/A. In his cross-examination he admitted that the Serial nos. were not printed, but handwritten.He stated that he could not identify the writing on the register as belonging to Naushad since he was not personally acquainted with the man.The testimonies of PW-82 and PW-83 were also sought to be relied on.PW-82 was the owner of Gupta Hotel and Lodge.His statement pertains to the police having seized the visitors register in which there was an entry with Naushads name in it.PW-83 - Vijay Kumar Gupta the hotel manager of Gupta Hotel, stated that on 27.5.1996 Mohd. Naushad had stayed in the hotel and had made an entry in the Register (SI No. 1285) in his own handwriting.He said that the Police seized the register on 29.6.1996, and that his signature was on the relevant recovery memo (Ex. PW-66/A).The Trial Court, however, did not attach much credence to the alleged handwriting of Naushad on the hotel register, holding that the sample handwritings were not obtained in accordance with established procedure.The interesting feature of this circumstance is that the prosecution did not offer much less prove any departure and arrival memos for investigating Death Sent.2/10; Crl.A.948 to 951/10 Page 145 officers.Despite the fact that over the course of the investigation, the police claimed to have travelled to different parts of the country frequently, in no instance, have records of these been produced as evidence to establish the veracity of their claims.Even in the present circumstance, PW-40 SI Baljit Singh had visited Gorakhpur twice, and PW-66 Const.Surinder traveled there once, they were unable to recall the relevant DD entries recording their movements.Neither was permission sought from the concerned Metropolitan Magistrate to obtain the sample, nor was the sample obtained in the presence of a magistrate, or any public witness.Even if there had been no such irregularities, the expert witness PW-94 was unable to fix the authorship on the basis of comparison between the questioned and test handwritings.This can be gathered from a reading of the opinion, which reads as follows:A.948 to 951/10 Page 146As far as the railway Reservation Chart (Ex. PW40/A) is concerned, the Trial Court held as follows:A 3 has not disputed his name appearing at Serial No.7 in Reservation chart Ex. PW 40/A. No suggestion was put to PW40 SI Baljeet Singh that A3 had not travelled by Shaheed Express on 27/5/1996 from Gorakhpur to Delhi.Genuiness of the chart Ex. PW 40/A was not challenged."This Court notices that the chart was not proved by any public witness.The railway official from whom the Railway Reservation Chart was taken, (Shri Chakravarthy) was not produced as a witness; even the original chart, or its authenticated or certified copy was not produced; what was placed on record is a photocopy.It would be unsafe to assume that A-3 had in fact undertaken the journey, as alleged by the prosecution.So the railway reservation chart cannot be relied on, since this person has not proved it.PW-82s statement has been believed despite the fact that this witnesss statement pertains only to him having been a witness to the seizure of a photocopy of the visitors book of his hotel, and his statement, as well as the statement of police witnesses PW-40 and 66 seem to have been accepted at face value.PW-83 Vijay Kumar Gupta, a manager at the hotel says that on 27.5.1996 Mohd. Naushad Death Sent.2/10; Crl.A.948 to 951/10 Page 147 had stayed in the hotel and had made an entry in the Register (SI No. 1285) in his own handwriting.However, before this witness can be considered an eyewitness to the stay of A3 in Gorakhpur, it must be kept in mind that despite him having said that he had seen A3 in the hotel on 27.5.1996, he was not, at any point, shown the accused in order to verify his identity, during the trial.The Trial Court however, took the same line here as in the case of PW-40 and PW-66:"Again nothing was suggested to this witness in the cross examination, that A3 had not stayed at Gupta Hotel.A3 did not deny that the writing in the register was not in his hand."On the basis of the accuseds silence at the time of cross examination, the Trial Court seems to have inferred his guilt.This is a flawed approach, because the question of accuseds silence gaining significance would only arise if the witness who saw them in the hotel, or saw them travel on the train, or some other unimpeachable material, apart from the unverified photocopy of a railway reservation chart, had been produced.It also ignores the failure of the prosecution to match the handwriting of A-3 with the handwriting on the hotel register.The prosecution had alleged that on 19-06-1996, A-3 and A-5 led the police party to a shop M/s. Unique Agencies at 2610, Churiwalan, Delhi from where they had purchased a gas cylinder.This was sought to be proved by PW-31 and PW-36, who both deposed that they went with the accused, who took them to that shop, where the shopkeeper identified them, and a pointing out memo Ex. PW 31/M was prepared, which contained his signatures.The Trial Court first held that the accused did not challenge the two police witnesses testimony, which was an adverse circumstance against them."334 Prosecution has further examined PW54 Mehmood Kamal as a prosecution witness.In his deposition before the court, the witness admitted that he was running gas agency Death Sent.2/10; Crl.A.948 to 951/10 Page 150 under the name of M/s. Unique Agencies at 2610, Churiwalan, Delhi.The witness further supported the prosecution and deposed that in May, 1996 two persons had come at his shop for purchasing a gas cylinder.The gas cylinder was not available with him on that day.He asked the said two persons to deposit the price of the gas cylinder and to come on the next day to collect the same.Those two persons deposited with him Rs.290/and left on that day.Next date again they came at his shop and he delivered them one empty gas cylinder.This witness further substantiated the police version that on 19/6/1996 some police personnel came at his office and took him at their office at Lodhi Colony.The witness however failed to support the prosecution regarding identification of two persons who had come at his shop and who had purchased the gas cylinders.The witness was got declared hostile by ld.Addl PP for the State and was cross examined.In the cross examination, the witness admitted that his statement was recorded by the police.He further admitted that his signatures appeared on the pointing out memo Ex. PW 31/M at point 'B'.The witness however added that this memo was an already written document.The witness admitted that he had told the names of the said two persons to the police as Mohd. Naushad (A3) and Mirza Nissar Hussain @ Naza (A5).This witness did not allege if he had put his signature under any pressure by the police on the memo Ex.Had these accused persons not taken the police to the shop of PW54 Mehmood Kamal, the police must not have come to know about the names of these two persons as mentioned in the memo Ex. PW 31/M. The name and address of this witness was not known to the police prior to the disclosure statements of these accused persons.The police discovered the factum of this witness running gas agency in the name of M/s. Unique Agencies at 2610, Churiwalan only in pursuance of the disclosure statements made by these accused persons.It, however, stands established that both A3 and A5 in pursuance of their disclosure statements led the police team at the shop of PW 54 Mehmood Kamal.This circumstance also points an accusing finger against A3 and A5 for purchasing gas cylinders from his shop in the absence of any specific purpose.A3 & A5 did not offer any explanation for visiting the shop of PW Mehmood Kamal for purchasing gas cylinder.They did not justify purchase of any such cylinder for any particular purpose.They did not claim their presence on any other place on the day of visit to PW54 Mehmood Kamal."The Trial Court later concluded that:However, this fact was established by PW31 Insp.Surinder and PW39 Insp.Hari Ram Malik and PW36 Insp.Rajeshwar that it were both A3 and A5 who had taken them to the shop of PW 54 Mehmood Kamal.PW54 Mehmood Kamal in the cross Death Sent.2/10; Crl.A.948 to 951/10 Page 152 examination by the ld.Addl PP for the State however admitted that police had recorded his statement and pointing out memo Ex. PW 31/M contained his signature.In statement u/s 313 Cr.P.C A3 and A5 did not explain this incriminating circumstance against them as to why and for what purpose they had purchased gas cylinders from PW54 Mehmood Kamal."A plain analysis of the above discussion of evidence would show that PW-54 was unable to identify the accused; he was cross examined by the prosecution.In the cross examination, this witness denied the facts put to him:"It is wrong to suggest that the said two persons had led the police team to my shop on 19/6/1996 and had pointed out my shop as being the place wherefrom they had purchased two gas cylinders.I also did not make any such statement to the police.Confronted with point B to B of Ex. PW-54/A....It is correct that my signatures appear on pointing out memo Ex. PW-31/M at Point B-however this was already written document and was not read over to me when I signed it.It is correct that I had been told the names of the two persons by the police as being Mohd. Naushad and Mirza Nissar Hussain @ Naza....It is incorrect to say that accused Naushad (ld APP points towards accused Naushad) and accused Mirza Nissar Hussain @ Naza (shown to the witness by ld. APP) are the said two persons who had come to my shop on 13-05-1996 and were delivered gas cylinders on 14/5/1996.."It can be seen from the above extract of PW-54s testimony that the Death Sent.2/10; Crl.A.948 to 951/10 Page 153 witness not only failed to identify the accused, he refused that they had gone to his shop.This was his consistent story, both in examination in chief, as well as cross examination by the prosecution.In these circumstances, the Trial Courts inferring that the accused had, in fact, gone to his shop, along with the police on 19-6-1996, and even on 13-5-1996 for purchasing the gas cylinders is unsupportable.Like in the case of the stay of A-3 at Gorakhpur, the Trial Court imposed a reverse burden of proof, and drew adverse inference against the accused, for omission to cross examine PW-31, who merely stated that they had led the police party to the shop of PW-54, from where they had purchased gas cylinders.This is evident from the following excerpt of the Trial Courts judgment:This statement of the witness was not challenged in the cross examination.No suggestion was put to this witness in the cross examination that both these accused persons had not led the police party at the shop of M/s. Unique Agencies."An interesting fact is that PW-54 was not shown the gas cylinder which was recovered from A-3 Naushads premises, pursuant to his disclosure statement.Though a fairly commonplace article, the prosecution was in a position to put this article for identification during trial; it deliberately omitted to do so; not even a TIP was held in this regard.Taking into consideration all the facts and circumstances, it is held that the Trial Court fell into error in holding that the pointing out of M/s Unique Agencies, from where two gas cylinders were supposedly bought by A-3 and A-5, were proved.The Court also fell into error in completely ignoring the contradictory statement of PW-54, who did not, during the trial, at any stage, identify the accused.The evidence here was akin to those circumstances Death Sent.2/10; Crl.A.948 to 951/10 Page 154 which the Trial Court consciously rejected, whenever the prosecution based its case, solely on the testimony of police witnesses.For these reasons, it is held that Circumstance No. 30 alleged against A-3 and A-5 was not proved.Pointing out of Shop from where soldering was made (Circumstance No. 28 para 309 of the impugned judgment)PW-31 deposed that Naushad and Killey pointed out to Vijay Electronics on 19.06.1996 as the place from where they got the wires soldered to the battery.With respect to Imperial Gramaphone Company he said that the accused pointed out to this shop as the place from where the Jayco wall clock was purchased.PW-39 Inspector Hari Ram Malik corroborated PW-31 to say that they pointed out to Imperial Gramaphone Company, where they had purchased the soldering iron and that a pointing out memo was prepared and the shop owner signed on the same.PW-58 Jitender Pal Singh, the owner of the electronics store Imperial Sound and Service deposed that on 19.6.1996, the police went to his shop along with two people and told him that one soldering iron and solder had been purchased by the two people who had come with them.He said that he could remember these two people who had purchased the same from him and had made a statement to this effect to the police.He said the items were sold for Rs. 35/-.He even stated that he could identify the two persons if shown to him, but when they were shown to him, in a group of ten accused persons, he said that due to the passage of time he was unable to identify them.This witness was cross examined by the ld.Addl PP for State after declaring him hostile.In his cross examination by the ld.Addl PP, the witness admitted that the police had recorded his statement.The witness further admitted that the said two persons had come with muffled faces and they were seen by him when their faces were unmuffled in his presence by the police.He further admitted that he had told the police that the said two persons had come at his shop and purchased a soldering iron and solder wire from his shop.The witness further stated that A3 present before the court today might be Death Sent.2/10; Crl.A.948 to 951/10 Page 156 one of the two persons.However he could not say anything about the other accused A5 as having come to the shop for the above said purchase.The witness further admitted that the pointing out memo Ex. PW 31/K was prepared on which he signed at point 'B'.The witness stated that he could identify the soldering iron purchased from his shop if shown to him.The witness identified the soldering iron Ex. Z1after it was shown to him before the court.********** ******************Scanning the over all testimony of this witness reveals that soldering iron Ex. Z1 recovered by the police in this case from the residence of A3 was identified by this witness to be the same which was purchased from his shop for a sum of Rs. 35/- There is no denial that this independent public witness was not running his electronics spare parts shop at stall no. 8A in the name and style of Imperial Sound and Service.Statement of the witness is also categorical that both these accused persons were brought by the police in muffled faces at his shop in a police vehicle.Their faces were unmuffled and the accused persons were shown to the witness.He had informed the police that the said two persons brought at his shop on19/6/1996 had purchased the soldering iron and solder from his shop.The names of these two accused persons find mention in the pointing out / identification memo Ex. PW 31/K. This witness has categorically identified his signatures on Ex. PW 31/K which has not been challenged by the accused persons.No suggestion was put to this witness in the cross examination that both these accused persons had not come at his shop on 13/5/1996 and had not purchased any soldering iron and solder from his shop for Rs. 35/.No motive was imputed to this witness to falsely plead that both these accused persons whose names were disclosed as A3 and A5 had accompanied the police at his shop.Death Sent.2/10; Crl.A.948 to 951/10 Page 157Accused persons did not explain how and for what purpose they happened to purchase soldering iron and solder from the shop of this witness.There is no denial by the accused persons that soldering iron Ex. Z1 was not recovered from their possession or that it was never purchased from PW 58 Jitender Pal Singh.Police was not aware about the shop of the witness prior to the two accused persons leading the police party at his shop.Only after both these accused persons led the police party to the shop of this witness, the police came to know that they had purchased the soldering iron and solder from his shop.The existence of the shop at that specific place has not been controverted by the accused persons.The Trial Courts findings depended largely on the failure to cross examine the witness, and what was elicited from him during the cross examination by the prosecution.The Court did not focus on the inability of the witness to identify either accused.There is also no material on record to suggest that the soldering iron was of a distinctive nature or make, as to be dubbed an uncommon or out of the ordinary article, which the witness could have identified, especially since he dealt with and sold such articles in a routine manner.This circumstance therefore, was not proved against the accused, and the Trial Courts reasoning and findings are, therefore, erroneous on this aspect.The recovery of a key was discussed as Circumstance No. 26 in paras 291-295 of the impugned judgment.The prosecution had alleged that on 18.06.1996, A-3, A-5 and A-6 led the police party to a place behind the Nizamuddin ITI Bus Stand from where at Arab-ki-Sarai, a key was recovered.The prosecution alleged that the key had been prepared at Jama Masjid and was seized under Memo, Ex.31/F. The key was alleged to be a duplicate one in respect of the stolen Maruti Car, placed on record as Ex.The prosecution had entirely relied on the police testimonies of PWs-31,39 and 101 for this purpose.The Trial Court had rejected this circumstance, i.e. Recovery of duplicate key, stating as follows:On screening the testimony of prosecution witnesses on this aspect, again, I am of the view that the prosecution has failed to prove if duplicate key, Ex.P-7 was got recovered by the accused persons in pursuance of their disclosure statement or that it was the key which was used at the time of commission of theft of Maruti Car belonging to PW-8 - Atul Nath.......Moreover, as per prosecution, this duplicate key was got prepared from PW-64, Mohd. Rizwan at Jama Masjid.PW-64, Mohd. Rizwan appeared in the witness box.He turned hostile regarding preparation of duplicate key.The key (Ex.P7) was not shown to PW-64 to prove that it was the same key which was got prepared by the accused persons from him."In the light of the above reasoning, the Trial Court rejected this circumstance and also added that the absence of any public witness to support the recovery did not lent credence to the prosecution version in this regard.On analysis of circumstances discussed at S. No. 9, Death Sent.2/10; Crl.A.948 to 951/10 Page 159 10, 23, 26, 30, 31, 32 and 46(C), and in the absence of evidence to the contrary, the prosecution has proved beyond reasonable doubt that A-3 along with his associates not only hatched criminal conspiracy to cause bomb blast at Lajpat Nagar Market, Delhi but also actively participated in procuring various articles to execute the plan."This Court is of the opinion that ex-facie, the approach of the Trial Court pertaining to Circumstance No. 26 in holding in one part of the judgment that the prosecution had not proved its allegation, and concluding to the contrary while summing-up the incriminating evidence against the accused, is unsupportable.It was alleged that on 17.06.1996, A-4 led the police party to the house of Mangal Chand at BJ-24, Shalimar Bagh and on the production of a two rupee currency note, cash of Rs.1 lac was obtained from him.The cash was seized.The two rupee currency note had been seized earlier.The recovery of Rupees one lac in cash from Mangal Chand, which according to the prosecution, was obtained after showing a two rupee currency note to Mangal Chand, was part of the sequence which started with the arrest of A-4, who pointed-out A-7; two Death Sent.2/10; Crl.A.948 to 951/10 Page 160 rupee currency note was seized from A-7 and A-4 led the police party to Shalimar Bagh where the currency was recovered.The Trial Court concluded in para 542 that this circumstance had to be held against A-3 for the following reasons:Prosecution has proved recovery of Rs. one lakh by A4 from Mangal Dass.This money was meant for A3.Only A3 was beneficiary as A4 had accompanied him on 14/6/1996 to go to Gorakhpur where both were apprehended.A3 did not explain presence of A4 with him.He did not assert if money collected by A4 was not meant for him.This circumstance also is at par with the contents of disclosure statement made by him."He, A-4 and SI Sanjay Kumar went inside the home. A-4 gave two rupee currency note to Mangal Chand, who verified it and gave Rupees one lac currency note in another bag.At that stage, other police staff reached the premises and seized the two rupee currency note and the one lac rupee currency which was kept under seal "RPG".The seizure memos were Ex.PW-17A and 17C. The currency notes were produced before the Court.The prosecution nowhere mentioned that A-3 was taken with the police party and either identified by Mangal Chand or PW-35 did not produce any identification in the form of an Employment or Voter Identification Card.In the cross-examination, what emerged was that summons was sent by the Court to his Sonepat, Haryana address.The appellant had urged that there were no details of that address in the list of witnesses filed together with the charge-sheet.The witness, in the course of his statement submitted that he never mentioned he had office at Shalimar Bagh nor resided there.His testimony, in this regard, can only be seen by the Court as regards the alleged handing-over of the seal to him.PW-17, SI Sanjay supported the recovery.Furthermore, and most importantly, the prosecution made no attempt to produce Mangal Chand from whom the amount - alleged to be payable and in fact held to be payable to A-3, was recovered.If so, Mangal Chands role was, at least, as one of a facilitator; and at no stage did the prosecution attempt to explain why he was not interrogated or taken into custody.All these have to be viewed in the backdrop of the somewhat startling conclusion drawn by the Trial Court in para 251 that the recovery of Rupees one lac was an incriminating circumstance against A-3, Naushad "despite the fact that it was at the instance of A-4 and on the showing of two rupee currency note allegedly recovered from A-7."The following conclusion was drawn by the Trial Court on the basis of such material:Death Sent.2/10; Crl.From the testimonies of the prosecution witnesses referred above it stands established that A4 in pursuance of his disclosure statement obtained Rs. 1 lac from Mangal Chand residing at BJ24, Shalimar Bagh on the strength of two rupee currency note shown to him.The police was not aware about all these facts prior to A4 leading the police team at that specific place.A4 has failed to explain as to how and under what circumstances, he was to get Rs. 1 lac from Mangal Chand.He also failed to explain as to for what purpose, he had collected the heavy amount from Mangal Chand.Memo Ex. PW 17/C contains signature of Mangal Chand which shows that Mangal Chand was residing at the given address.Obtaining of Rs. 1 lac by A4 from Mangal Chand substantiates the story presented by the prosecution that Rs. 1 lac collected from Mangal Chand were meant to be received by A3 for his role in the incident."The conclusion of the Trial Court in the above regard is not only on the basis of any evidence but it appears to be entirely on hearsay.This can be clearly seen from the discussion with regard to the role of A-7, appearing at paras 596-602 of the impugned judgment.In para 597 it was in fact stated that:This occurrence took place on 16/6/1996 when conspiracy to cause bomb blast had already came to an end.Prior to 21/5/1996 no active participation of A7 in the incident has been brought on record.It could have been given even by one person.This version of the prosecution has not been believed in the circumstances referred above.Even if it is assumed that A7 had delivered two rupee currency note to A4 on 16/6/1996, it does not establish him to be a member of conspiracy to cause bomb blast on 21/5/1996 at Death Sent.2/10; Crl.A.948 to 951/10 Page 163 Delhi which was no more in existence.The testimony of PW-35 nowhere reveals that at any stage was Mangal Chand questioned as to whom the money was meant to be given to.Even if he were to have implicated A-3, without the primary evidence of Mangal Chand, PW-35 could not have proved that fact.All that could have been concluded was that at the instance of A-4, two rupee currency note was shown to Mangal Chand, who handed-over Rupees one lac.This fact was disbelieved by the Trial Court, in paras 596 to 602 of the impugned judgment.The Trial Court also held that the post-event recovery of something not connected with A-7 could not be attributed to A-7 or held to be incriminating as against him.Similarly, it also concluded in respect of A-4 that the conclusion of the amount could not be held as incriminating against that accused (A-4), in the following manner:Since Mangal Dass was not directly known to A4, collection of Rs. 1 lakh by him only on the strength of two rupee currency note is not a factor to prove his involvement in the incident.Anybody having a currency note of Re. two could have got the cash from PW Mangal Dass.In the absence of any material, there was no basis for the police to arrest A4 in this incident.The prosecution had alleged 17 circumstances - 15 against A-5 Naza.These were:Now, their testimonies are in direct conflict with that of PW-60; that witness could not identify any accused as the purchaser; he said in the cross examination after being declared hostile that he was not sure whether the two accused had visited his shop.The Trial Court, however, held that since the witness admitted that when the two accused persons pointed out his shop and identified him, police prepared memo Ex. PW 31/L and he signed the same at point 'B'.It was also held that:"Overall testimony of this witness reveals that no material discrepancies have been elicited in the cross examination of this witness to discard his version given before the court.Nothing has come on record to show that this independent public witness did not run his shop under the name and style of Death Sent.2/10; Crl.A.948 to 951/10 Page 170 Ganesh Electronics at shop no. 21 Jangpura.This witness categorically testified that on 21/5/1996 two persons had purchased 9 volt battery from him for a sum of Rs. 95/-.No enmity has been imputed to this witness for falsely claiming sale of 9 volt battery from him for Rs. 95/. Again this witness is categorical that on 19/6/1996 police had brought two persons at his shop and one of them had identified his shop from where 9 volt battery was purchased.This witness pointed out towards A5 to be one of the said accused persons and did not identify the other accused who had accompanied him.This witness has no ulterior motive to falsely identify A5 to be the person who had purchased 9 volt battery from him.This witness elaborated his version and voluntarily stated that the two persons were brought in the maruti van at his shop and the said persons were in muffled faces.When the said two persons were unmuffled, he was asked whether they had purchased the battery from his shop and he replied that when the said persons were saying that they had purchased the battery from his shop, they might be correct.He further admitted that out of those two persons, A5 might had purchased the battery from him.However, in the subsequent cross examination, the witness cleared the doubt and asserted that he had told the police that the above named two accused persons pointed out his shop and identified him.The police prepared the memo Ex. PW 31/L and he had signed the same at point 'B' and the above named two accused persons had also signed the said memo.No suggestion has been put in the cross examination that memo Ex. PW 31/L was not prepared at his shop or that the accused persons did not sign the same.Accused persons have failed to state as to how and under what circumstances, their signatures appeared on the pointing out memo Ex. PW 31/L. These signatures of both these accused persons on the pointing out memo Ex. PW 31/L in the presence of PW60 Rajesh Kumar categorically establishes that both of them had led the police team to the shop of PW 60 Rajesh Kumar and had pointed out the shop from where they had purchased 9 volt battery.Again this fact was not in the knowledge of the police prior to the accused persons taking the Death Sent.2/10; Crl.A.948 to 951/10 Page 171 police party to the shop of PW60 Rajesh Kumar in pursuance of their disclosure statements.Case of the prosecution is that this battery was used in the bomb blast.This Court is of the opinion that the witnesses doubt regarding A-5 and inability to identify the other accused, and his volte face, renders his testimony that they had led the police to his shop, shaky.Though in the examination in chief, the witness mentioned about purchase of battery from his shop by two individuals, his inability to identify either clearly, during the trial undermines the prosecution story.He had also stated that one of the buyers had a "massa" on his face (i.e. a scar or birthmark).The prosecution did not attempt to connect this aspect with either accused; the Trial Court also overlooked this fact.Like in the case of other circumstances, such as purchase of gas cylinder, purchase of araldite, pointing out by the shop keeper of "Dulhan Dupatta" etc, the primary fact is the identification of the accused concerned, as the individuals who went to the shop to buy the article, on some day prior to the incident.This was to establish a link in the chain of circumstances, which tied up to the various act preparatory to the offence itself.The absence of positive identification nevertheless led the court to hold as proved - in our view erroneously, that the accused had led them to a place which was hitherto unknown to the police, and from where the shopkeeper made some kind of identification, which was not refuted during cross examination, which in turn resulted in their involvement in the crime.The law is not concerned with proof of possibility of involvement, Death Sent.2/10; Crl.A.948 to 951/10 Page 172 which is all that the prosecution achieved through such evidence, but proof beyond reasonable doubt, i.e. such proof as would rule out all controversy or doubt that these accused did what was alleged against them, in respect of such circumstance.Reliance on the accuseds signatures, on the pointing out memo, in the absence of their clear identification, in the courts opinion, could not have been resorted to, to implicate them.(ii) Pointing-out of the place from where soldering of battery was done (Circumstance No.28)The prosecution had alleged that sometime in 1996, A-5 and A-6 had visited the shop of PW-38, Vijay Kapoor, and asked that two wires be soldered to a battery.He stated that the soldering was done for Rs. 5/-.He also stated that a month later, the accused had gone to his shop, and identified it, a fact which was recorded in Ex. PW13/N. In cross examination, this witness stated that his signatures were taken on blank paper, and that the memo was written in the Lodhi Office of the police.He also admitted not remembering how many customers had visited his shop that day, and further that his employee did the soldering requested for.Unlike in the case of other circumstances, the witness in this case was able to identify one of the accused (A-5) positively during examination in chief.However, his admission that the pointing out memo was prepared somewhere else, and that he signed on blank papers, was not contradicted.His further admission that he could not remember how many customers visited him the same day further weakens proof of this circumstance.The Death Sent.2/10; Crl.A.948 to 951/10 Page 173 absence of any date approximate period, further injects some vagueness into the evidence.The identification of A-5 has to be viewed in the backdrop of all these facts, which point to his unreliability, and having been tutored by the police.Here, a TIP would have been crucial, in lending assurance to the fact alleged, since the prosecution case is that this circumstance was to prove an act preparatory to the crime, and intrinsically connected with its execution.On an overall conspectus of the materials on the record, it is held that this circumstance was not proved beyond reasonable doubt, by the prosecution.(iii) Pointing out of the shop from where a clock was purchased (Circumstance No 29).To prove this, reliance was placed on the testimonies of PW-50 and PW-48. PW-48 Parmod Kumar during his examination stated that one person aged 19-20 years had visited his shop and had purchased a wall clock; he identified A-7 Latif.He was declared hostile by the prosecution; at its behest, during cross examination by the prosecutor, the witness deposed:"...it is wrong to say that the said two persons were in muffled faces, when they came to the shop with the police and that their faces got unmuffled after their arrival to the shop for getting them identified from me and that I had identified the said two persons on being the same who had come to the shop on 14.5.1996 for purchasing the wall clock.I did not make any statement to \the police.It is wrong to say that I had made a statement mark PW-48/A to the police.The witness is read over mark PW-48/A which he denied having made to the police.Death Sent.2/10; Crl.A.948 to 951/10 Page 174 "... It is wrong to say that the said three persons had come to the shop for the purchase of the wall clock."".... It is wrong to say that the accused Mirza Nisar Hussain and Mohd. Ali Bhatt @ Mohd. Killey (accused shown to the witness by Ld. APP) were the person who led the police team to the shop.It is wrong to say that I am deliberately not identifying the accused persons out of fear or having been worn over by them and deposing falsely....."The prosecution also relied upon PW-50 Yogesh Kumar Gupta to prove the said circumstance.PW-50 Yogesh Kumar Gupta deposed during his examination in chief that:During the cross examination of PW-50 Yogesh Kumar Gupta by Ld. APP, it was stated by the witness that:"... I cannot admit or deny whether accused Mirza Nisar Hussain @ Nasa and Mohd. Ali Bhatt @ Mohd. Killey (witness is shown and pointed out these two accused by Ld. APP) were the same two boys who had led police team to my shop on 19.6.1996......"The Trial Court, after noticing that the shop owner could not identify A-5 or A-6 as the two individuals who went to his shop to purchase a wall clock, for which a receipt was issued by PW-48 (recovery Memo PW-31/G) nevertheless held that they had taken the police to his shop, where they had stated that the purchase was made:This witness has nevertheless proved that on 19/6/1996 the police had brought two persons at his shop and theyhad told Death Sent.2/10; Crl.A.948 to 951/10 Page 175 about the purchase of wall clock from his shop.This witness also proved his signatures on the recovery memo Ex PW-31/G. He has admitted his signatures on the pointing out memo ExPW 31/H. This witness further admitted that the names of those two boys who had come at his shop on 19/6/1996 were mentioned in the memo and he had signed that memo after reading the same."Similarly, the Trial Court did not feel it strange to return a similar finding, with regard to appreciation of PW-48s evidence:It further stands established that on 19/6/1996 two persons whose names were disclosed as A5 and A6 had led the police team to the shop of the witness and had pointed out that it was the same shop from where they had purchased the wall clock.The statement of the witness was corroborated from the documentary evidence whereby sale receipt Ex. PW 48/A was issued out of the receipt book Ex. G1 which was seized vide seizure memo Ex. PW 31/G. This testimony of this witness substantiates the version of the prosecution that on 19/6/1996 both A5 and A6 had led the police team to the shop of PW48 Pramod Kumar from where they had purchased the Jayco wall clock.No suggestion was put to this witness in the cross examination that these two accused persons had not led the police team to the shop of the witness or that they had not purchased any Jayco wall clock from him.The prosecution had thus established that the Jayco wall clock was purchased from the shop of PW48 Pramod Kumar and PW50 Yogesh Kumar Gupta on 14/5/1996...."In the opinion of this Court, when both these independent witnesses, in the first instance, failed to identify the accused concerned, i.e. A-5 and A-6, who had allegedly visited the shop to purchase the clock, and one of Death Sent.2/10; Crl.A.948 to 951/10 Page 176 these witnesses, i.e. PW-48, identified someone else, the Court ought not to have drawn the inference based solely on the signatures in the "Pointing-out Memo", that the fact stood established.The shop owner, i.e. PW-50 was consistent in his omission or failure to identify the accused; PW-48 not only did not identify them but even went one step further and positively identified A-7 as the only individual who had gone to the shop and purchased the clock.The conclusion based on the fact that the witnesses had signed Ex.PW-31/G and Ex.PW-31/H, goes beyond the permissible limits of what can be considered by a Court under Section 27 of the Act read with proviso to Section 162 of the Cr.PC.Neither PW-50 nor his shop assistant, PW-48, corroborated this.Their failure to identify the accused was constituted as fatal blow to the prosecution allegations in this regard.In such circumstances, to seize the clutch at the pointing-out memo, in order to say that the said accused had led the police party to the shop and that in turn established the incriminating circumstance, was impermissible.Once the preliminary fact, i.e. purchase of the object or article from the shop by the accused could not be established, the secondary aspect that such accused had led the police party to the shop became irrelevant, under no circumstances did that secondary fact link the accused to the offence.(iv) Regarding A-5's travel from Kathmandu to Delhi (Circumstance No. 36).The prosecution had alleged that A-5 had travelled from Kathmandu Death Sent.2/10; Crl.A.948 to 951/10 Page 177 to Delhi before the bomb blast at Lajpat Nagar.He also identified the list as Ex.67/A. That list contained A-5s name.The IO of the case, PW-101 also deposed to this and further, seizure of A-5s Boarding Card which was marked and produced as Ex.The Trial Court in its findings (in paras 379-381) upheld the prosecution allegations."In the evening of 8th May itself Javed Senior had asked me to accompany (him) to Delhi along with the bag containing gun powder (barood) and two detonators.Thereafter on 10th May, Javed Senior had sent Naza to Delhi, who had to make a setting for blast in Delhi."(c) Circumstances alleged against A-6The Trial Court had analysed the evidence which included depositions of police witnesses as well as independent witnesses and took into consideration materials such as seizure memos, articles etc. and in the impugned judgment held that several circumstances alleged against A-6 Death Sent.2/10; Crl.A.948 to 951/10 Page 178 were not proved.The only surviving circumstance which has to be considered by this Court is the factum of A-6s arrest.In regard to this circumstance, the Trial Court relied on the discussion made by it vis--vis the arrest of A-7 who was alleged to have been along with A-6 at Gorakhpur; the Trial Court held that:Arrest of A-7 on 16/17-6-1996 in the manner claimed by the prosecution has not been believed by the Court as discussed above.Similarly apprehension of A-6 along with A-7 in the said circumstances cant be believed.(d) Circumstances alleged against A-9 JavedAs far as A-9 is concerned, the Trial Court discussed the evidence in respect of Circumstances No. 34 (Confessional statement); his stay at Satyam Hotel (No. 35) and his arrest (Circumstance No. 40) and held that all those circumstances were proved.(i) Arrest of A-9: Circumstance No. 40The prosecution had alleged that the Gujarat Police received information, sometime in May, 1996 about two individuals, i.e Asadullah and Rashid crossing the border at Nepal and entering India, and ultimately going to Ahmedabad to carry out a bomb explosion there.The State police, on receipt of information, started searching the city.He deposed that the police conducted a search, and eventually arrested Javed (A-9) and Asadullah (A-10) on 1-6-1996, along with the other two, near Rupali Cinema.He identified Javed Khan (A-9) and pointed to another accused and identified him as Asadullah (A-10), however the accused says his name was Abdul Gunny Goni to which the witness stated that Asadullah was one of the aliases of Abdul Gunny Goni.The Appellants counsel had argued that A-9s arrest did not take place on 1-6-1996 and that, in reality, he was taken into custody much earlier, on 24-5-1996, and kept in illegal detention.A-9 no doubt says this, in the statement recorded under Section 313, Cr. PC.However, the testimonies of PW-98 and PW-99 are consistent on this aspect.The appellants allegation of having been arrested on 24-5-1996 was not put to PW-99, who deposed about the arrest.After the Ahmedabad police arrested Javed (A-9), Asadullah (A-10), Maqbool Butt and Rashid on 01.06.1996 from near Rupali Cinema, Ahmedabad, A-9 and A-10 made disclosure statements before PW-99 B.M. Rajvanshi (Ex.PW-99/A and Ex. PW-99/B).Javed (A-9) in his disclosure statement mentioned about his involvement in the Lajpat Nagar blast and mentioned the name of all the accused persons except for Naushad (A-3).He stated visiting the house of Wajid Kasai (PW-13) on 14.05.1996 and leaving a bag containing explosives with his (PW-13s) sister for Naza (A-5).On receipt of the wireless message from Ahmedabad, on 02.06.1996 itself Insp.Paras Nath (PW-101) went to Wajid Kasais (PW-13s) house at Turkman Gate, Delhi and made enquiries from PW-13 and his sister Pappe (PW-14).A.948 to 951/10 Page 188It was alleged that A-9 was taken from Ahmedabad to Jaipur, where he was kept in connection with a bomb blast at Dausa, Rajasthan.The confessional statement made by A-9 was proved by PW-100, the Magistrate.A-9 further stated that when he reached Wajids house, Wajid and Naza (A-5) were not there and only women and children were present there.A-9 asked them to give the bag to Naza (A-5) and told them that it contained Death Sent.2/10; Crl.A.948 to 951/10 Page 190 Nazas clothes.Javed Kirwa @ Javed Senior (A-15), Mohd. Killey (A-6) and Riyaz (A-13) had reached Kathmandu before him.A-9 further stated that on his asking about the task in Delhi, they replied "that Naza (A-5) had been given after making the same and Riyaz Maula (A-13) was the mechanic because only he was the trained person." On 19.05.1996, Mohd. Killey (A-6) and Riyaz (A-13) went back to Delhi and Javed Kirwa @ Javed Senior (A-15) informed A-9 that the work in Delhi had not been done due to some defect.A-9 further stated that earlier on 06.05.1996 two persons had come from Pakistan and their names were Asadullah (A-10) and Rashid (he came to know of their names later).A-9 further stated that on reaching Mumbai, Asadullah (A-10) told them that they were to go to Ahmedabad and in the evening at 8:30 PM the four of them left for Ahmedabad and reached it on 24.05.1996 at 12:00 PM.A-9 further stated that on reaching Ahmedabad they went to a hotel, had a bath and then had their meal.Asadullah (A-10) and Rashid both left for Namaz whereas A-9 and Julfikar stayed back; 15 minutes later CBI officials and the manager of the hotel came to the room and conducted a search.At about 4/5:00 PM Asadullah (A-10) and Rashid came to the hotel from where the CBI officials took all of them and interrogated them.A-9 further stated that he told them that he had gone upto Patna only and he did not know anything Death Sent.2/10; Crl.A.948 to 951/10 Page 191 and did not have any knowledge regarding other things.He further stated that he only brought the bag to Delhi and there Javed Kirwa @ Javed Senior (A-15) informed him about the blast; Javed Kirwa @ Javed Senior (A-15) had himself done all the work regarding the blast on the basis of planning of Bilal Beg.A-9 further stated that he did not know anything about any other blast.The first three were awarded death sentence; A-9 was awarded life imprisonment.It would be relevant at this stage to extract the relevant parts of the Trial Courts judgment:At no Death Sent.2/10; Crl.A.948 to 951/10 Page 202 stage the police opted to put any of the accused persons for TIP from the prosecution witnesses.No DD entries regarding any such visits was proved on record during trial.The police failed to show by documentary evidence their visits to specific places.The accused arrested from outside Delhi were never produced before the concerned Court and no transit remand of any of the accused was obtained creating doubt of the date, place and the manner in which the accused persons were apprehended and arrested in this case.Number of witnesses cited in the list of witnesses were not examined by the prosecution during trial.Insp./ACP P.P. Singh is stated to be the overall incharge of the investigation.Death Sent.2/10; Crl.A.948 to 951/10 Page 203 However, at the first instance, he did not bother to appear as witness before the Court.Only when application u/s 311 Cr.No memos contain signatures of PW-105 ACP PP Singh.P.P. for the State during trial and specifically during final arguments always complained about non-cooperation from the IO of the case.He expressed his inability to address arguments in detail due to non-cooperation from the IO.No efforts were made during the last about more than 14 years to apprehend the co-accused persons against whom challan was presented as Proclaimed Offenders.Antecedent of none of the accused was collected by the police during investigation.In the disclosure statement of the accused persons, the police had come to know about the details of the antecedents of the accused persons and also regarding their various activities.However, no independent evidence was collected by the prosecution to substantiate the information recorded in the disclosure statements of the accused persons.No worthwhile evidence was collected by the police to show the activities of these accused persons prior to the incident and to find out as to in how many similar cases they were involved or any of them was ever convicted at any time."The Trial Court, as noticed from the extracts of its judgment, faulted the investigation with defective presentation of evidence, and omissions in regard to proof of allegations.A close reading of the impugned judgment itself would reveal that obvious inferences about lack of credibility of witnesses, in regard to circumstances, or general unreliability of prosecution in that regard, on specific aspects such as identification were glossed over, and superficially explained.These, in the opinion of this Court, point to a flawed understanding of "proof beyond reasonable doubt" in a criminal trial.The deficiencies are highlighted below, in respect of lack of identification of Death Sent.2/10; Crl.A.948 to 951/10 Page 204 accused by independent witnesses and use of signatures on memos (pointing out memos) as proof that the accused had led the police to a certain place, despite the failure of independent witnesses to identify the concerned accused.Gupta Hotel, at Gorakhpur.Furthermore, the passenger list of the train was not produced; only a photocopy was produced.Even the concerned witness, Shri Chakravarthy, did not depose during the trial.The Court did not believe the handwriting report; it does not anywhere corroborate that the sample writings of A-3 matched with that in the hotel register.All these omissions were overlooked and the Trial Court held that the prosecution proved the circumstance alleged.(b) The prosecution failed to examine Mangal Chand, who had given A-4 Rs. One lakh, on the latters showing the Rs. 2 currency note; this was to prove the incriminating circumstance against A-3 and the allegation that he was to receive such money for illegal purposes.The prosecution neither arrested Mangal Chand, who was prima facie an accessory to the crime; according to its showing; no explanation was offered in this regard.It did not even choose to examine him, or record his statement.This crucial omission was not given any weightage, and the Trial Court uncritically accepted the prosecution version that the money recovered was meant for A-3; no witness - neither independent witness, PW-35, nor even any other Death Sent.2/10; Crl.A.948 to 951/10 Page 205 witness - spoke about it.(c) A-3 was sought to be identified by PW-61, shop owner of "Dulhan Dupatta".The witness did not identify A-3; even after he was declared hostile, he denied the incident of A-3s visit during investigation.The witness however did not identify others - A-5 and A-6 even during the prosecutions cross examination.In spite of these obvious infirmities, and question mark about the credibility of the witness, as regards identification, the Trial Court whole heartedly accepted the police version.(d) PW-60, a shop owner, did not identify A-5 and A-6 in examination in chief, as the two individuals who had purchased a battery from him.He stated - in cross examination by prosecution that A-5 "might be" one of the two, purchasing a battery from him.Yet, this was accepted as proof of identification of the accused.(e) Similarly, the statement by PW-38 that A-6 "might have" been one - (along with A-5, whom he identified) as the individual who got soldering of wires done.(f) The statement of PW-48 regarding purchase of clock by A-7 (and not A-5 or A-6).He did not identify these two; yet his testimony was used against them.(2) Using signatures on pointing-out/recovery memos as incriminating circumstance.Death Sent.2/10; Crl.A.948 to 951/10 Page 206The previous discussion in this judgment would reveal that a large number of independent prosecution witnesses did not support the official version; they resiled from the statements made during investigation, and were declared hostile, and cross examined by the prosecution (these were PW-33, 48, 50, 58, 60, 61 and 92).The Trial Court noticed these facts, but went on to hold that the signatures of such witnesses in "Recovery Memos" or "Pointing out" memos were not denied, and consequently the statement recorded in Section 161 - about secondary facts that one or the other accused had visited the premises of such witness, during the investigation, had not been denied; consequently, the fact was proved, and that, in turn, was an incriminating circumstance.These instances are detailed below.(b) The statement of PW-50 - who could not identify A-5 or A-6 (alleged to have purchased a wall clock from him) "nevertheless" was used as establishing purchase of a wall clock "by two boys" (Ref.Para 324, impugned judgment) and that PW-50 had "no enmity to make false deposition against the accused in this regard." Proof of his signatures on Memos PW-31/G and PW-31/H were held corroborative and incriminating as to the fact that police had taken PW-5 and PW-6 to his shop during investigation.(c) PW-48s failure to identify A-5 or A-6 - who purchased a wall clock, and his identification of A-7 was nevertheless interpreted as incriminating A-5 and A-6 because of seizure memo, Ex.31/G.The Court noticed (para 335) that the witness "failed to support the prosecution regarding identification." Yet, the Court inferred, on the basis of the Memo, Ex. PW-31/M, signed by PW-54 on the basis of its observation that "no suggestion was put to this witness in the cross-examination that both the accused persons had not led the police party to his shop", (para 337) and that though the witness "opted not to support the prosecution on material circumstance", yet, "it stands established" that A-3 and A-5 "led the police team to the shop of PW-54" (para 337).(e) Similarly, the failure of PW-64 to identify A-3 and A-5 as those who got a duplicate key made, was ignored and the circumstance that the said accused had led the police to the witnesss shop, during investigation, when he allegedly identified them, was based on his signatures on PW-31/J.(f) PW-58 - from whom the prosecution alleged that A-3 and A-5 had purchased a solder iron - did not identify the accused in Court.He was arrested on 14th June.The recovery of lethal explosives, similar to the kind which resulted in the explosion at Lajpat Nagar, was not explained by him.Although other conspirators, such as Javed Kirawa and Bilal Beg were not tried, and there is no direct evidence forthcoming about A-3s role in the blast, the circumstances proved are sufficient to establish Death Sent.2/10; Crl.A.948 to 951/10 Page 227 that he was a conspirator, who intended to aid such crimes.Their appeals (Crl.Appeal Nos.950/2010 and 951/2010 filed by Mirza Nissar Hussain @ Naza and Mohammed Ali Bhatt Death Sent.2/10; Crl.A.948 to 951/10 Page 230 @ Kille) are allowed.The conviction and sentences as against A-9 are sustained.His appeal i.e. Crl.

['Section 120B in The Indian Penal Code', 'Section 302 in The Indian Penal Code', 'Section 307 in The Indian Penal Code', 'Section 411 in The Indian Penal Code']

ORDER S. Ratnavel Pandian, J.This is an appeal by State.The four respondents were convicted under Section 302 read with Section 304, I.P.C. by the trial Court.It is alleged that Ramesh Chander, the second respondent herein, who is armed with the firearm shot dead the deceased persons.He set up a plea of self-defence.The trial Court, however, convicted all the appellants and sentenced three of them to undergo imprisonment for life but Ramesh Chandra, however, was sentenced to death.The High Court which heard the appeals filed by the accused as well as the confirmation of the case acquitted three of the respondents.So far as the accused Ramesh Chandra is concerned the High Court took the view that he has exceeded the right of self-defence and accordingly convicted him under Section 304, Part 1, I.P.C. and sentenced him to undergo imprisonment for life.In this appeal the State has questioned the judgment of the High Court on the ground that all the four respondents ought to have been convicted under Section 302 read with Section 34 of I.P.C. The prosecution case is as follows:The respondent Suresh Chandra is the Pradhan of village Maagdapur and has a licensed pistol.The second respondent Ramesh Chandra is his brother and had a licensed rifle.Shyam Sunder, father of the third respondent also had a licensed gun.There were dispute in respect of an auction for the fishery rights between the first respondent and the deceased.Three days before the incident the deceased and his two sons and P.W. I went to respondent No. 2 with their money a bid amount.There was exchange of harsh words between them.On 3-10-76 the deceased and his three sons including P.W. 1 went to the market for purchasing some foodgrains.About 4.00 P.W. when PWs.1 and 2 were also there all the four appellants came there armed with weapons.The first respondent abused the deceased and he grappled with him.At this juncture, on the exhortation of the other respondents Ramesh Chandra shot the three deceased persons.The High Court acquitted the three of the respondents mainly on the ground that they did not play any role and that Section 34 cannot be applied in their case.Now coming to the case of Ramesh Chandra, the High Court has accepted the right of private defence set up by him.In any event he was convicted under Section 304, Part I and was awarded life sentence.This is an appeal against an acquittal and we see no good ground to interfere with the judgment of the High Court.

['Section 34 in The Indian Penal Code', 'Section 304 in The Indian Penal Code', 'Section 302 in The Indian Penal Code']

This petition has been filed for the relief of direction, directing the second respondent to release the buses of the petitioner bearing Registering Nos.NL01B1408 and NL01B1409, within the stipulated time as fixed by this Court.2.The learned counsel appearing for the petitioner would submit that the respondent police without considering the actual occurrence happened earlier, based on the false complaint given by the Thasildhar, without any enquiry registered the case in Crime No. 433 of 2020 for the offences under Sections 269, 271, 465, 468, 471, 484 and 420 IPC r/w Section 3 of the Epidemic Act and Section 51 of Disaster Management Act. As of now, during the time of investigation, the buses bearing Registration Nos.NL01B1408 and NL01B1409 are recovered by the respondent police and kept in the Police Station, without any safety and security.Hence, it is necessary to direct the respondent police to produce the buses and hand over the same to the petitioner, since the petitioner is the owner of the said buses.3.The learned Additional Public Prosecutor appearing for the respondent would submit that during the time of occurrence, thehttp://www.judis.nic.in 3 buses now alleged to be recovered, ran with false records and was carrying the passengers without any e-pass.Only because of the said reason, a case has been registered and the buses, which are the material objects, were recovered and kept in the Police Station.The respondent police is directed to produce the petition mentioned buses before the jurisdictional Judicial Magistrate's Court ie., Judicial Magistrate Court, Andipatti, within a period of one week from the date of receipt of a copy of this order.http://www.judis.nic.in 4 R.PONGIAPPAN, J.Ns On production of such vehicles, the petitioner is at liberty to file a petition for interim custody as provided under the Code of Criminal Procedure and thereafter the Presiding Officer of the said Court has to pass necessary order only on merits.6.In view of the above, this Criminal Original Petition is disposed of.

['Section 420 in The Indian Penal Code', 'Section 471 in The Indian Penal Code', 'Section 468 in The Indian Penal Code', 'Section 465 in The Indian Penal Code']

The respondent police registered a case in Crime No. 174 of 2006, against the revision petitioner for the offence under Section 279 and 304(A) IPC.After investigation, the respondent police laid a charge sheet against the revision petitioner before the learned Judicial Magistrate No.8, Coimbatore.The learned Judicial Magistrate taken the charge sheet on file, subsequently, the same was transferred to the learned Chief Judicial Magistrate, Coimbatore.The learned Chief Judicial Magistrate has taken the case on file in C.C.No.535 of 2010, after trial the learned Chief Judicial Magistrate found guilty of the accused for the offence under Sections 279 and 304(A) IPC and convicted him as follows:Magistrate,Coimbatore, the accused filed an appeal before the learned Principal District and Sessions Judge, Coimbatore, in Crl.The learned Principal District and Sessions Judge, made over the appeal to the learned IV Additional District and Sessions Judge, Coimbatore.After hearing the arguments, the learned IV Additional District and Sessions Judge, dismissed the appeal and confirmed the judgment of the learned Chief Judicial Magistrate.As against the said judgment of the learned IV Additional District and Sessions Judge, Coimbatore, in Crl.A.No.128 of 2011 dated 08.10.2012 the revision petitioner had filed the present Criminal Revision Case before this Court.3 The learned counsel for the petitioner would submit that the occurrence place of the road is very narrow, the revision petitioner came from east side and turned towards north and could not have maintain the speed more than 20 k.ms., he could not have driven the vehicle in a rash and negligent manner.The rider of the motor cycle even did not posses a valid license, there is no insurance and R.C., book.None of the witnesses have spoken about the accident and not stated that the accident happened due to the rash and negligent driving of the offending vehicle (i.e.,) Lorry bearing Registration No.The Courts 3http://www.judis.nic.in Crl.R.C.No.1544 of 2012 below failed to consider the contradictory statements of prosecution witnesses.The deceased driven his motor cycle in a rash and negligent manner and he has not possessed valid license for driving the two- wheeler, did not wear helmet and transported heavy loaded Milk can in the said two-wheeler.The Courts below ought to have acquitted the appellant by giving the benefit of doubt, which warrants interference by this Court.4 The learned Government Advocate (Criminal Side) appearing for the respondent would submit that the occurrence had happened due to rash and negligent driving of the petitioner.P.W.1, P.W.4, P.W.6 have clearly spoken about the rash and negligent driving of the lorry driver.Prosecution has proved its case beyond reasonable doubt and the Courts below have rightly appreciated the prosecution witnesses and convicted the accused, which does not warrant any interference by this Court.5 Heard the learned counsel for the petitioner and the learned Government Advocate (Criminal Side) appearing for the respondent and perused the materials available on record.6 On reading of the entire evidence and on seeing the rough sketch, the revision petitioner came from east and turned towards the 4http://www.judis.nic.in Crl.R.C.No.1544 of 2012 north, he almost came in the center place of the road and the scooter came from the west to east that also came almost in the center place of the road.If the driver of the lorry and the rider of the motor cycle maintain the moderate speed then the accident could have been avoided.But, in this case, on reading of the evidence none of the witnesses except P.W.1 and P.W.6 has stated that the accident had occurred only to the rash and negligent manner of the petitioner.P.W.1 and P.W6, only have stated that the lorry driver of the offending vehicle, came with a high speed and hit the motor cycle and he did not raise any horn or warning and dashed against the motor cycle.The motor vehicle Inspector has stated that the width of the road is only 20 feet and while, turning the vehicle, one cannot maintain the speed more than 20 Kms.The motor vehicle Inspector has also spoken about the inspection report and the damages caused to the vehicle, which itself clearly shows that the accident could have happened due to the negligence of the rider of the motor cycle also.6 Even the defence counsel has put a suggestions before the Investigating Officer who laid a charge sheet, that the deceased has not possessed valid license at the time of accident, he has submitted that the rider of the motor cycle/deceased did not posses a valid license, even the prosecution has not found out the owner of the motor cycle.Therefore, in 5http://www.judis.nic.in Crl.R.C.No.1544 of 2012 the absence of specific materials, the prosecution has not proved its case beyond reasonable doubt and as stated by the learned counsel for the petitioner and also on seeing the rough sketch and from the evidence of the prosecution witnesses, this Court finds that prosecution has failed to prove its case beyond reasonable doubt, both the Courts below have failed to appreciate the evidence properly.7 This Court finds that there is perversity in appreciation of the evidence by both the Courts and especially the witnesses have not specifically spoken that the revision petitioner driven the vehicle in a rash and negligent manner, therefore under these circumstances this criminal revision case is liable to be allowed.8 Accordingly, the present criminal revision case is allowed and judgment of both the Courts below are set aside.The fine amount if any paid by the revision petitioner shall be refunded.The petitioner is acquitted from the offences under Section 279 and 304(A).Consequently, connected Criminal Miscellaneous petition is closed.30.07.2019 Index : Yes/No Speaking order/non speaking order sbn 6http://www.judis.nic.in Crl.R.C.No.1544 of 20121.The learned Chief Judicial Magistrate, Coimbatore.2.The learned IV Additional District and Sessions Judge, Coimbatore.3.The State rep by, The Inspector of Police, Traffic Investigation Wing (Central) Police Station, Coimbatore District4.Public Prosecutor, High Court, Chennai.7http://www.judis.nic.in Crl.R.C.No.1544 of 2012 P.VELMURUGAN.J sbn Crl.R.C.No.1544 of 2012 and M.P.No.1 of 2012 30.07.2019 8http://www.judis.nic.in

['Section 304 in The Indian Penal Code', 'Section 279 in The Indian Penal Code', 'Section 397 in The Indian Penal Code']

Rajesh Mahajan learned Amicus Curie who has been nominated by the Delhi High Court Legal Service Committee to argue the appeal on behalf of the appellant, it may be noted that Ram Chander PW-1 who is the father of the child kidnapped; namely Mukesh PW-2, while deposing in Court has not uttered any word of any threat conveyed to him pertaining to the kidnapped child of causing death or bodily injury to the kidnapped child.There is no reference in the testimony of Ram Chander of any conduct of the accused where from an apprehension would arise in the mind of Ram Chander that if ransom was not paid, his child would be hurt or killed.We note that Ram Chander has simply stated that when he received a call from the appellant he was told to bring money.With reference to the testimony of Ram Chander PW-1, Mukesh PW-2 and Raj Kumar PW-3, the learned trial Judge has returned a finding that the prosecution has successfully established that the appellant has committed the offence punishable under Section 364-A IPC.For the offence held committed by the appellant, he has been sentenced to undergo imprisonment for life and pay fine in sum of Rs. 1000/-; in default of payment of fine it has been directed that the appellant shall undergo RI for further six months.Conceding that there is no blemish in the testimony of Crl.738/2003 Page 1 of 10 PW-1 and PW-2, learned counsel for the appellant points out a serious procedural infirmity during conduct of trial which has considerable bearing on the testimony of Raj Kumar PW-3 and the commission of the offence punishable under Section 364-A IPC.738/2003 Page 1 of 103. To appreciate the submissions urged at the hearing of the appeal by Sh.He categorically stated that no specific amount to be paid as ransom was conveyed to him.The kidnapped child i.e. Mukesh PW-2 has simply stated that the appellant had kidnapped him and when he wept he Crl.738/2003 Page 2 of 10 was beaten.738/2003 Page 2 of 10Raj Kumar PW-3, who runs a milk dairy in front of the tea shop belonging to Ram Chander stated that at his telephone number 2634918 when ransom call was received by him to be conveyed to Ram Chander, he was categorically informed that the police should not be told anything, otherwise the kidnapped child would be killed.In the back drop of the evidence afore-noted, submission made by learned counsel for the appellant is that, as held in the decision reported as JT 2007 (5) SC 48 Vishwanant Gupta Vs.With reference to the testimony of PW-3, learned counsel points out that PW-3 was examined on 08.08.2002 and was partially cross-examined on said date.Counsel submits that as recorded by the learned trial Judge, since no further time was left on 08.08.2002, further cross- examination was deferred.On said date, Crl.Learned counsel points out that the appellant was in custody on 29.10.2002 and was produced before the Court from the police lock-up in the Court premises when the case was called.Counsel wonders as to how could the appellant go in the Court complex to search for his lawyer.With reference to the record, counsel draws our attention to the order dated 30.10.2002 which records that the accused told the Judge he was a poor man and that his counsel was not appearing and he be provided with the service of a counsel at the State expense.On the same date Sh.Sanjiv Goel, Advocate was appointed as Amicus Curie.Vide order dated 30.10.2002 the application was allowed and it was directed that PW-1 and PW-3 would be summoned for further cross-examination.738/2003 Page 3 of 10At this stage, we may note that PW-1 was not cross- examined on 29.10.2002 i.e. the date fixed for his cross- Crl.738/2003 Page 4 of 10 examination for the reason counsel for the accused was absent.738/2003 Page 4 of 10On 31.10.2002 PW-1 appeared and was cross-examined.Inspite of being served PW-3 did not appear.What has happened as a result of the afore-noted fact is that a valuable right of the accused to cross-examine PW-3 on a very vital aspect of the matter has been violated.First is to set aside the impugned judgment and remit the matter for further evidence with directions that Raj Kumar PW-3 be summoned and tendered for further cross-examination.The other is to close the chapter in the appeal noting that the appellant has Crl.As of today the appellant has served an actual sentence of 8 years 4 months and 20 days.738/2003 Page 5 of 10There was evidence of threat being given to the victim being put to death.738/2003 Page 8 of 10The conviction of the appellant for the offence punishable under Section 364-A IPC is set aside.The appellant is convicted for the offence punishable under Section 363 IPC.Since the appellant has undergone a sentence in excess of the prescribed period for the maximum term under Section 363 Crl.738/2003 Page 9 of 10 IPC, we direct that unless required to be kept in custody in some other case, the appellant be set free forthwith.738/2003 Page 9 of 10Copy of this order be sent to the Superintendent Central Jail, Tihar for compliance.PRADEEP NANDRAJOG, J SURESH KAIT, J JANUARY 06, 2010 'mr' Crl.738/2003 Page 10 of 10738/2003 Page 10 of 10

['Section 363 in The Indian Penal Code']

The Investigating Officer, ASI Arvind Kumar, identifies the petitioners as well as the second respondent / complainant.They are also identified by their respective counsel.M.A. No.12182/2014 Exemption, as prayed for, is allowed, subject to all just exceptions.This application is disposed off.This petition under Section 482 Cr.P.C. seeks quashing of FIR No.44/2014 dated 16.01.2014 registered under Section 420, 468, 471 IPC at Police Station Jahangir Puri, on the ground that the matter has been compromise between the parties.A copy of the Compromise Deed executed between the parties on 30.05.2014 has been annexed to this petition.It is further stated that the original deed has been duly filed in the court of Sh.Narender Singh, SDMJ, Ganaur, Haryana in Civil Suit No.152/2011, which has also been duly settled and withdrawn in terms of the aforesaid compromise.Issue notice.Mr. P.K. Mishra, Additional Public Prosecutor for the State, and N.M.C. No.3533/2014 Page 1 of 6Kapoor, Advocate for respondent No.2 / complainant, accept notice.FIR Crl.M.C. No.3533/2014 Page 5 of 6 No.4/2005 registered against the petitioners under Section 307 read with Section 34 IPC with Police station Samay Pur Badli is quashed and all consequent proceedings pursuant thereto are also ordered to be dropped."M.C. No.3533/2014 Page 5 of 6I am of the opinion that since the matter has arisen out of a dispute between uncles and brothers of the same family, all of whom are primarily agriculturists; and since the complainant is also not interested in supporting the case of the prosecution in view of the aforesaid compromise between the parties; the likelihood of the prosecution succeeding is remote and therefore it will be in the fitness of things if this matter, which is still under investigation, is given a quietus.Consequently, the petition is allowed and FIR No.44/2014 dated 16.01.2014 registered under Section 420, 468, 471 IPC at Police Station Jahangir Puri, and all proceedings emanating therefrom, are quashed.The petition is disposed off.SUDERSHAN KUMAR MISRA, J AUGUST 11, 2014 dr Crl.

['Section 307 in The Indian Penal Code', 'Section 420 in The Indian Penal Code', 'Section 471 in The Indian Penal Code', 'Section 482 in The Indian Penal Code', 'Section 468 in The Indian Penal Code', 'Section 34 in The Indian Penal Code']

Mr. Raj Kumar Khanna, a practicing lawyer of this Court has sought for the quashing of the FIR No. 146/99 registered at Police Station Naraina, under Section 498A/406/34 Indian Penal Code (In short IPC) against him and his family members at the instance of his daughter-in-law Ms. Inderjit Kaur Sidhu, respondent No. 5 another practicing lawyer of this Court.2. Son of the petitioner Manoj Kumar is also a practicing lawyer of this Court.He got married to Inderjit Kaur Sidhu on 22nd September, 1996 according to Hindu rites at Gurudwara in Sarojini Nagar, New Delhi.After the marriage the newly married couple started living with the petitioner in his apartment.Relations between newly married couple became strained.According to petitioner, respondent No. 5 did not subscribe to the view points and values of petitioner and his family.She was adamant and not interested to live with her husband in the family of her husband.It is further averred that respondent No. 5 on becoming aware of Manoj Kumar's filing of a petition of divorce, fabricated a complaint not only against her husband, but implicated all family members of the petitioner with oblique motives and as a retaliation to the divorce proceedings initiated by Manoj Kumar.Respondent No. 5 filed a well thought out complaint so that all members of petitioner's family could be implicated.The said complaint was registered on 9th July, 1999 itself under Section 498A/406/34 IPC at Police Station Naraina.At that time the petitioner was about to leave his house in order to attend his cases in the High Court.Entire house of the petitioner was ransacked, every article stored in trunks and/or in wooden diwans and almirahs were pulled out.Each and every drawer and filing rack of his office was ransacked.it was procured to falsely implicate the petitioner and his family.My mother-in-law at that time quietly took over the money, but moment they left all of them punched on me with the same taunts and also my father-in-law and my husband gave me beating with sticks.I had no option at that moment but to be quite and suffered silently and also did not tell anybody about the same since I wanted to save my marriage and probably thought that one day they will realize their mistake.On 13th January' 97 my mother-in-law in the night told me that since tomorrow is an auspicious day i.e. 14th January, I will remove your Chudda, ask your father to send same gifts and cloths for her.But I could not inform my father, so next morning I myself went to market and bought a suit for her along with certain Puja items and sweets but she didn't like them and started abusing me and my parents for not giving her anything.As a mark of respect I used to hand over all the items and gifts to my mother-in-law i.e. jewellery.Sarees and were being kept with my mother-in-law.In fact he was so unfair and cruel in making statements like if you meant to be happy in this house you earn about Rs. 20,000/- to Rs. 25,000/- a month an give it to them.Nobody would dare to say anything to you.He further used to give me example of his cousins who were married into rich families and he used to tell me that their wives are earning Rs. 30,000/-, 40,000/- per month and nobody dares to say anything to them and at the time of monetary needs their in-laws always help them, but look at your parents, they have not given anything to make you happy.My father-in-law and on different occasions my mother-in-law and my husband used to tell me that my parents should sell of their immovable properties lying useless at my native place and should arrange to buy a flat for them in a good locality in Delhi.To save my matrimonial life I continued suffer silently and did not raise my voice and tried to adjust to the maximum.However they did nt mend their ways and continued to torture me in different ways including the way mentioned above.Because of this torture and the cruel behavior of my husband, brother-in-laws, and mother-in-law and father-in-law I suffered great physical and mental pain and agony.In the morning my husband and my brother-in-law had a fight for some reason and my husband became furious and asked me to leave the place along with him.I did same when my husband asked for the car keys from my brother-in-law & my brother-in-law and my mother-in-law told my husband in front of me "Iske baap ki gaadi nahin hai, gadi mein ghumna hai to Iske baap ko bol kam se kam thodi sharm kar le aur apni beti aur damad ke liye ek car to kharid de, itni hasiyat to hai uski." That day I came back with my husband in scorching heat.My husband then dragged me to my room and locked me inside my room, luckily the phone was in my room and I immediately called my father and asked him to come as soon as possible, Since I could not bear the humiliation and injuries I could hear outside the room filthiest abuses and languages being said by my mother-in-law an brother-in-law. "YEH DO TAKE KI AURAT APNE APP KO KYA SAMAJHATI HAI, IS KE BAAP NE KYA DIYA HAI, JO ISSE APNE GHAR MEIN RAKHE JO ISKE PAAS THA, WOH TO MIL GYA AB KYA RAKHA HAI IS MEIN DAFA KARO YAHAN SE." I immediately phoned my father and asked him to come home directly.I through all quarters kept on making efforts and always hoped that some sense would prevail over them but thing went bad to worse.I may also inform your goodself that my relatives namely Mr. Ranjeet Brar, Mr. Joginder Mann, Mr. Gurdev Brar, My father and My younger brother and common friends namely Mrs. Anusuya Salwan etc. had made efforts to reconcile the issue but due to the greedy nature of the accused persons and their lust for dowry they had refused for any settlement.That recently I have started receiving threatening telephonic calls from my in-laws or at their behest that in case I do not accept their illegal and unjustified demands me and my family will have to face dire consequences.Now I am left with no option but to lodge this complaint and I request your goodself to kindly book the accused persons and take appropriate actions by registering a case against Mr. Manoj Khanna, Mr. Raj Kumar Khanna, Rohit Khanna and Mrs. Nirmal Khanna for causing physical and mental torture for demanding dowry and for not returning my Shri Dhan and refusing to maintain me.JUDGMENT Usha Mehra, J.She left the matrimonial home on 5th September, 1997 informing her husband that she would never come back.Son of the petitioner filed a petition for divorce.Summon on that petition was ordered to be issued.Ms. Inderjit Kaur removed the sarees and gold jewellery of petitioner's wife claiming those to be hers.Police accordingly seized even the articles belonging to petitioner's wife.Inderjit Kaur not only got seized sarees and gold ornaments but removed letters, greeting cards which she had written to her husband during the period she stayed away from her husband.Those letters, greeting cards when produce would show that she was all complements for petitioner and his wife.Protest was raised by the petitioner and his wife than the articles like letters, photos, diary and greeting cards could not form "Stridhan" hence these could not be seized.But police in particular respondent No. 4 in connivance with respondent No. 5 brushed aside the protests of the petitioner.Illegally and forcibly police permitted respondent No. 5 remove those letters, greeting cards, diary and photographs.Petitioner insisted signing the seizure memo.Respondent No. 4 forced by petitioner allowed him to counter sign the letters, greeting cards, photos and the diary.Seizure memo was prepared at the spot.Thereafter the petitioner and his wife were arrested.However, bail was granted to them subsequently.The police authorities acted on extraneous consideration and in a hurry without verifying the facts in raiding his house.Mr. D.C. Mathur, Senior Advocate, appearing for the petitioner has sought quashing of FIR on the following grounds:- (1) that the procedure adopted by SI Nirmal Sharma was extraordinary.It is contrary to the well regulated procedure followed by the police in other similarly situated case; (2) that the allegations levelled against the petitioner do not make out any case either under Section 406 IPC or under Section 498-A IPC; (3) The complaint dated 9th July, 1999 was lodged at the instance of respondent No. 5 after two years of her leaving the matrimonial home.It is a meticulously executed legally drafted document and well thought out comprehensive complaint.This smacks of malafide on the part of the investigating officer who in connivance with connivance with respondent No. 5 falsely implicated each and every member of petitioner's family.Complaint was lodged by respondent No. 5 with the Deputy Commissioner of Police (South-West District) Delhi on 9th July, 1999 and at a super speed the FIR bearing No. 146/99 was ordered to be registered at Police Station Naraina against the petitioner and his family members.The speed at which the FIR was got registered shows malafide on the part of police officials.In the normal course the complaint ought to have been endorsed by SHO Police Station Naraina and then forwarded it to Crime Against Women Cell.Since there was a connivance between respondent No. 2 i.e. Dy.The proceedings taken up by the Crime Against Women Cell are mainly directed to bring about a reconciliation between the strained spouses.It is always kept in mind that the petitioner-wife should not drag the husband-respondent straight to the Court, lest the relations between the couple become more strained.663/1995 wherein he has stated as under:-"The proceedings by the Crime Against Women Cell are in the nature of enquiry to find out the truth as to the allegations made in the complaint before registering a case.For example it becomes necessary to ascertain the factum of marriage, even and also the allegations of cruelty and Stridhan."But police contrary to its own affidavit as referred to above acted just in the reverse.It did not bother to verify the facts nor bothered to call the parties for reconciliation.Instead police in a hurry registered the case in super speed.Commissioner of Public could have verified the complaint as per the requirements as spell out in the affidavit of Dy.Commissioner of Police (Hqrs.).Nothing has been placed on record to show what was the grave urgency in registering the case without holding preliminary inquiry particularly when the complainant herself conveniently slept over the matter for almost two years.This shows malafide on the part of the police who in connivance with respondent No. 5 wanted to harass the petitioner and his family and also wanted to destroy the evidence against her.No attempt was made to resolve the difference between Manoj Kumar and respondent No. 5 nor efforts were made to bring about amicable settlement for which purpose Crime Against Women Cell was created.This cell is meant to safeguard the marriage and not to ruin it by registering case immediately on the asking of the complainant.As per her own showing she continued to keep channel of communication open with her husband even after leaving the matrimonial home.But when the petitioner's son filed divorce petition on 26th May, 1999 as a retaliation she lodged the present complaint in order to wreck vengeance.There was no question of petitioner voluntarily handing over these documents.Police is trying to cover up its misdeeds.Even otherwise respondent No. 5 has made general allegations against the petitioner ascribing no specific role to him.The allegations made being omnibus allegations can be read to his advantage.Complainant has named each and every member of the family just as a pressure tactics.To Deputy Commissioner of Police, South West District, Vasant Vihar, New Delhi Complaint AgainstMy mother-in-law and relatives from husband's side gave me few items as gifts, the details of which is also enclosed as Annexure 'B'.Shockingly just within few days of my marriage, my husband, his brother and his parents all of them started taunting me for not bringing sufficient dowry as per their standard and expectations.My mother-in-law used to taunt me and use to say "that me and my family have fooled them and has played fraud on them since I had not brought enough dowry and said that since she belongs to Amritser and has known the Jat community very well and they are known for giving lot of dowry on their daughters wedding, but in my son's case you people had played fraud on us.My son used to get lot of proposals of rich girls." She used to use the filthiest abuses for me like "KUTTI, HARAMZADI, KAMINI, HAMARE PALLE PAD GAI HAI, HAMARE SATH DHOKHA HUA HAI, ASSEE TE SOCHYA SI KI JATTAN VICH BAHUT KUCHH DITA JANDA HAI."All of them in fact used to use abusive and filthiest of language to taunt me and harass me.On 23.9.96 I went back to my parents house along with my husband for Pheras and my parents gave me sweets and gifts for my in-laws (as stated in the Annexure-A).On my return to the house some of the relatives from in-laws side were also present in the house and when I showed the gifts and sweets to them, they made fun of me and taunted me along with my mother-in-law and brother-in-law that they are not happy with what I have got and said that all these things even a Peon can give to his daughter and look at your standard.My agony continued with each occasion which followed month after month.On Karva Chauth i.e. 22.10.96 my father along with one of his cousin came to my house with lot of gifts, cloths, sweets and utensils as per the custom for my mother-in-law, brother-in-law, husband and father-in-law.My mother-in-law also demanded that as per this custom gold is to be given on this occasion, but your parents have not given anything and I was aghast and shocked with their behavior and tried to ask my husband as to what is wrong in the gifts which have been given.Instead of replying he slapped me and I had no option but to suffer and sulk within myself which resulted in lot of mental trauma and physical tension which effected my health.On the Diwali day i.e. 10.11.96 again my parents Along with my relatives came to our house with lot of gifts and sweets and my in-laws instead of welcoming them were rude and dry to them.After they left once again my brother-in-law Along with my mother-in-law showered the filthiest abuses and taunts and also did not give any food to me to eat on that day.On the next morning my mother-in-law gave stale food for me to eat.My father-in-law and husband also taunted me and said that I am a liability on them as there are no gains from me to them.Certain cloths of my daily use were with me and were Along with some piece of jewellery like 2 pairs of gold earrings and 2 rings for my daily use, but the keys of the almirah were always with my husband.It is worth mentioning here that the items like tape recorder, transistor, emergency light, certain sarees, 6 bed sheets, certain crockery items which were given to me on different occasions by my parents were handed over to my brother-in-law by me on instructions of my mother-in-law as she told me that these items will berequired at the time of the brother-in-law as she told me that these items will be required at the time of the brother-in-law's marriage.My in-laws and my brother not only used to taunt me but all of them use to beat me on one pretext or the other.I was not allowed to touch anything of the house and also even if there were any phone calls for me which I used to attend, my brother-in-law in the filthiest language to use tell me "PHONE TERE BAAP KA NAHIN HAI, BILL TERE BAAP KE GHAR SE NAHIN JATA, JO PHONE use KARTI HIA." He further started insulting everyone, who so ever use to call me like my friends, relatives and including my parents.My brother-in-law was so cruel and a rowdy character that he is fact used to beat me with belt and a stick lying in the house.On my complaint my husband used to tell me that since I was not earning enough of money so therefore these problems would continue.So much so that on number of occasions I had nervous breakdown and the Doctors attending to me categtorrically diagnosed that my indisposition was mainly became of mental tension.Apart from this on more than once occasion I suffered physical injury in my body on more than one occasions as mentioned above.My brother-in-law, mother-in-law, also started taunting and insulting me at the relatives places whenever I used to go there with them and used to make fun of me.In the month of June' 97 on once such occasion me my husband my mother-in-law and brother-in-law went to reside for a day at one of the relative in Faridabad.Since we had to walk for about two kilometres to catch the bus for Delhi, I suffered from severe sunstroke and no body took care of me.On 5.9.1997 it was a usual morning in the house as usual there was a fight between my husband and my father-in-law which I have seen right from the day one of my entering the house with regard to some joint property money.I told my husband that why he is fighting for money with his father, he should stand on his own feet.To this my husband told me that I will be like this only if you don't like you can leave this house and slapped a newspaper on my face.I was slightly agitated on this and proved my father and asked him to come to the Court as I was wanted to tell him some thing since things were unbearable for me.I came outside the room and my mother-law-law started abusing me for nothing.To which I told that you are the one who has created all the problems because of her greediness of money.Moment I said this my brother-in-law started hitting me on my head with a belt in his hand and seeing my father-in-law and my husband silently watching this later on also joined my brother-in-law and also started hitting me with blows and legs.My father reached in 40 minutes.My husband in the meantime and opened the door and pushed me outside the house so I sat in the neighbours house.When I saw my father climbing up I called him and told him about the incidents and my father told me not to worry and pacified me and told me that he will talk to them.My brother-in-law had already left the house.My father-in-law and my husband apologised to my father for their act and requested him that you take her back for few days and my husband said that he would pick me up after 3-4 days.Despite their tortures and the cruel behavior I did not inform to anybody about this incident except my father for the sake of saving my marriage.However, I continued my efforts to talk my husband after this.But he always deferred the issue on one pretest or the other.Of late he even started saying that "I was their with him only on a trial basis since the trial period is over the file must be consigned to record room." My husband always used to boost about his contacts in judiciary and other circles and used to say that nobody can do any harm to him, no matter what may come he will never continued this relationship.During my stay with my parents number of time I demanded my Shri Dhan from my husband, his brother and parents, but all of them point blank refused to return the same which was kept with them.All of them on different occasion had a strange demand that I should agree for divorce on mutual consent so that my husband could be remarried to a rich family, according to them there were lot of such offers, even after my marriage to him and my mother-in-law also told me that girls are available in plenty of numbers there is no dearth of girls for his boy.They can choose and get anything they want among the girls an there was no need of yours.She use to say "KUDIYAN DA KOI GHATA NAHIN, BATHERIAN MILDIYAN NE".On number of occasions I told my husband in the court premises that since I was not having sufficient income to support myself, so therefore he should pay me at least my pocket expenses and day to day expenses to maintain myself, but he always refused to do so.New Delhi Dated: ; 9-7-99 Complainant Inderjeet Sidhu d/o Sh.Though the complaint was not paragraphed but for the sake of convenience it has been paragraphed and numbered.Except the allegation in para 9 she has not attributed any cruelty against the petitioner linking with any kind of demand.In para 11 she says she left the house on 5th September, 1997 because of he fight had nothing to do with her.Reading of para 11 shows that petitioner has not been accused of any cruelty rather as per her own showing, the petitioner apologised to her father who came to take her.She left the matrimonial home on 5th September, 1997 and after almost two years she lodged the complaint on 9th July, 1999 involving all the members of her husband's family.

['Section 498A in The Indian Penal Code', 'Section 406 in The Indian Penal Code', 'Section 155 in The Indian Penal Code', 'Section 34 in The Indian Penal Code', 'Section 324 in The Indian Penal Code', 'Section 156 in The Indian Penal Code', 'Section 306 in The Indian Penal Code', 'Section 304B in The Indian Penal Code']

He has drawn the attention of this court to the list of cases alleged to be registered against the present appellant.There are as many as 6 cases mentioned in the said list.The aforesaid table is reproduced as under :With the consent of both the parties, the appeal is heard finally.The appellant filed a writ petition under Article 226 of the Constitution of India being aggrieved by the order dated 17-12-2018, whereby the statutory appeal under the provisions of Madhya Pradesh Rajya Suraksha Adhiniyam, 1990 (hereinafter referred to as ' the Adhiniyam') filed by the petitioner was dismissed affirming the order of externment dated 12-10-2018, passed by the District Magistrate by which the appellant was externed from the municipal limits of District Sidhi for the period of eight months.The order passed by the learned Single Judge dated 25-02-2019 as well as the impugned order of externment dated 12-10-2018 passed by the respondent no.3 and the order dated 17-12-2018, passed by the appellate authority, the respondent no.2 are hereby quashed .

['Section 5 in The Indian Penal Code', 'Section 506 in The Indian Penal Code', 'Section 294 in The Indian Penal Code', 'Section 325 in The Indian Penal Code', 'Section 326 in The Indian Penal Code', 'Section 34 in The Indian Penal Code', 'Section 323 in The Indian Penal Code']

The appellant being the mother, it is stated she is entitled to compensationAs per the prosecution case, the respondent Nos. 2 and 3 in furtherance of common intention had committed murder of Darshan Singh on 23rd March, 2005 at his house RZ-S-285, Nihal Vihar, Delhi at about 9/9.15 P.M. PW-6 claims and has stated that she was an eye witness to the occurrence.She has deposed that respondent Nos. 2 and 3 had come to her house and had asked for a knife for cutting salad.She gave them the knife and thereafter respondent Nos. 2 and 3 sat in Crl.A. No. 245/2012 Page 3 of 14 the open portion of the plot and started consuming liquor.She did not approve of this.When her husband, the deceased Darshan Singh, returned home, she expressed her grievance and annoyance to her husband.Darshan Singh started speaking to respondent Nos. 2 and 3 and PW-6 went to the kitchen for preparing food.During the discussion, Darshan Singh and the respondent Nos.2 and 3 entered into fisticuffs and she came out after hearing the commotion.She was pushed by the respondent Nos. 2 and 3 and she tore the clothes worn by them.Respondent Nos. 2 Randhir Singh @ Dhira gave a couple of stab blows by knife to the husband in his abdomen but she was not able to state the total number of stab wounds given.She called the police by making a call at telephone No. 100 and in the meanwhile respondent Nos. 2 and 3 ran away from the spot.She took the deceased to Sanjay Gandhi Memorial Hospital.There he was treated and his statement (Exhibit PW-6/A) was recorded.Thereafter, on 24th March, 2005, the respondent Nos. 2 and 3 were arrested from a liquor shop at Nihal Vihar.She had witnessed their arrests.She deposed that respondent Nos. 2 and 3 had started grappling with her husband and when she tried to save him, the two respondents had pushed her.She further deposed that respondent No. 2 had stabbed her husband, whereas Crl.PW-6 is clear and categorical in her examination- in-chief and cross-examination that after her husband came back at 8.30 P.M. she had gone to the kitchen to prepare food.It is, therefore, clear that there was a time gap between the deceased coming back to the house and the occurrence, i.e., the fight which took place.He had claimed that earlier he had liquor with the respondent Nos. 2 and 3 at bus stand and thereafter had travelled with the respondent Nos. 2 and 3 on the scooter but had got dropped at a location before his house.The deceased was admitted to Sanjay Gandhi Memorial Hospital at about 10.30 P.M. on 23rd March, 2005 as per MLC (Exhibit PW-9/A).In these circumstances, we are inclined to discount the dying declaration of the deceased, as purportedly recorded in Exhibit PW-6/A that the deceased had objected to drinking of respondent No. 2 and 3 in the open portion of his house, after returning home at 8.30 P.M. One of the reasons we are inclined to disbelieve the deceased's statement to the said effect is that PW-6 has stated that she on request of the respondent Nos. 2 and 3 had given them a knife for cutting salad.This Crl.At another portion in the MLC (Exhibit PW-9/A) it is mentioned that stab wound of 3 x 3.5 cm was present in epigastric region to the right side of the middle line.We note that there was only one stab wound.Through Mr. Sanjay Lao, APP for the State.HON'BLE MR. JUSTICE SANJIV KHANNA HON'BLE MR.JUSTICE SIDDHARTH MRIDUL SANJIV KHANNA, J. (ORAL):Surinder Kaur, mother of the deceased-Darshan Singh, has filed the present appeal impugning the judgment dated 29th October, 2011 and order of sentence dated 9th November, 2011 passed by the Additional Sessions Judge in the charge sheet emanating from FIR No. 266/2005, Police Station Nangloi, under Sections 302/34 of the Indian Penal Code, 1860 (IPC, for short).By the impugned judgment, the respondent No. 2 Randhir Singh Crl.A. No. 245/2012 Page 1 of 14 @ Dhira has been convicted under Section 304 Part-I read with Section 326 and 34 IPC and sentenced to Rigorous Imprisonment of five years and fine of Rs.1 lakh.In default of payment of fine, the appellant has to undergo Simple Imprisonment for a period of six months.The other co-accused Jaspal Singh has been convicted under Section 326 read with Section 34 IPC and sentenced to Rigorous Imprisonment for a period of one year and six months.He has also been directed to pay fine of Rs.1 lakh and in default of payment of fine to undergo Simple Imprisonment for six months.A. No. 245/2012 Page 1 of 14At the outset, we record that the State has accepted the judgment and the order on sentence and has not preferred any leave to appeal.Learned counsel for the appellant impugning the judgment and order on sentence has raised three contentions; (i) the conviction should have been under Section 302 IPC; (ii) the sentence under Section 304 Part-I IPC for five years and fine of Rs.1 lakh is inadequate and (iii) Jaspal Singh was wrongly convicted under Section 326 IPC and should have been convicted under Section 302 read with Section 34 IPC.An additional prayer is made with regard to compensation, which was directed to be paid to the wife, i.e., Jagjit Crl.A. No. 245/2012 Page 2 of 14 Kaur.A. No. 245/2012 Page 2 of 14The three contentions are somewhat inter-connected and, therefore, have to be examined together.The trial court judgment is lucid and elaborate and sets out the circumstances why respondent No. 2 has been convicted under Section 304 Part-I IPC and not under Section 302 IPC.The judgment also explains why respondent No. 3 has been convicted under Section 326 read with Section 34 IPC and not under Section 304 Part-I IPC.We have examined the reasoning given by the trial court judgment and also the statements of the relevant witnesses, namely, Jagjit Kaur (PW-6) wife of the deceased, Dr. Vivek Bindal (PW-12), Dr. Kulbhushan (PW-13) and Dr. Manoj (PW-9).We note here that the learned counsel appearing for the respondents have relied upon statement of ASI Dharam Singh (PW-8).A. No. 245/2012 Page 4 of 14 respondent No. 3 kept watching the occurrence.She deposed that she knew Randhir and identified him.She also identified respondent No. 3 who was present in the court and had stated that she did not know his name.PW-6 was cross-examined by the Public Prosecutor.A. No. 245/2012 Page 3 of 14A. No. 245/2012 Page 4 of 14PW-6 in her cross-examination has deposed that she did not know respondent No. 3-Jaspal but she had given a knife to the respondent Nos. 2 and 3 for cutting salad.She has stated that these persons had come to their house at 8 P.M. on 23rd March, 2005, whereas her husband arrived at the house at 8.30 P.M. The occurrence in question as per the telephone call made to the police control room phone had taken place between 9 to 9.12 P.M. The PCR form (Exhibit PW-15/B) records that a telephone call was made to the control room at 9.12 P.M. stating that in the house RZ-285, S Block, Munna Property Dealer, there was a quarrel and exchange of blows.Thereafter, DD entry No. 26 was recorded at P.P. Nihar Vihar, Police Station Nangloi at 9.15 P.M. Crl.A. No. 245/2012 Page 5 of 14 (Exhibit PW-7/A).A. No. 245/2012 Page 6 of 14 shows that PW-6 at least knew the respondent No. 2 fairly well.As per PW-6 and the dying declaration of the deceased (Ex. PW-6/A), the respondent Nos. 2 and 3 were already drunk when they came to the house and after that they had asked for the knife.The aforesaid conduct of the said two respondents and PW-6 shows that she was acquainted and knew drinking habits of the respondent No. 2 and her husband, deceased Darshan Singh.A. No. 245/2012 Page 5 of 14A. No. 245/2012 Page 6 of 14The PW-6 has clearly deposed that there was a sudden quarrel between the deceased and the respondent Nos. 2 and 3, who were otherwise drinking together.However, the consequences can be ascertained from the medical records.The MLC (Exhibit PW-9/A) records that the patient was conscious and oriented and had one stab wound 3 cm x 1 cm on epigastric region.The patient was declared fit for statement.The aforesaid MLC was proved by Dr. Manoj (PW-9) but the said doctor had not personally examined the deceased.PW-9 has deposed that Dr. Deepak had initially examined Darshan Singh and thereafter he was examined by Dr. Vivek, Senior Resident, Surgery.Dr. Deepak and Dr. Vivek were not produced.A. No. 245/2012 Page 7 of 14A. No. 245/2012 Page 7 of 14He has stated that he had visited Darshan Singh in his house on 26th March, 2005 and at that time Darshan Singh had complained about pain in stomach.PW-8 did not record any statement to the this effect.Later on he came to know on 1st April, 2005 at 12.45 at night that Darshan Singh had expired at LNJP Hospital.Thus, there is dispute, whether the deceased Darshan Singh was discharged from Sanjay Gandhi Memorial Hospital on or about 25th March, 2005 or was referred to LNJP Hospital for further treatment without being discharged as such.In these circumstances, we are inclined to disbelieve the statement made by PW-8 and accept the position as contended by the appellant that the deceased was referred from Sanjay Gandhi Memorial Hospital to LNJP Hospital.The medical records in the present case, which have been recorded contemporaneously, support the said Crl.A. No. 245/2012 Page 8 of 14 contention.A. No. 245/2012 Page 8 of 14The cause of death as recorded in Exhibit PW-12/A was hepatic failure with acute renal failure with metabolic acidosis with septecemia.The post-mortem report was proved by Dr. Kulbhushan (PW-13).He has stated that the post-mortem was conducted by one Dr. Rohit but he has left the hospital and his whereabouts were not known.We may note that two injuries were noticed in the post-mortem and they are as under:"1) Contusion 25x10 cms present on right chest region and upper front of abdomen on ..side.2) Stab wound 2x0.5x3 cms present on right upper abdomen 11 cms above the umbilicus and 2.5 cm to the right of midline.As already recorded above, it is not injury No. 2 but as per the post-mortem report, injury No. 1 was the cause of death.PW-13 in his deposition in the court has stated as under:"Injury No. 1 is antimortum, around 1 week in duration and could be caused by blunt force impact.Injury No. 2 is caused by sharp edged weapon.Injury No. 1 is sufficient to cause death in ordinary course of nature."A. No. 245/2012 Page 9 of 14As per the post-mortem, the deceased had sustained five external injuries, namely, (i) contusion 12x10 cms on right lower chest region and upper front of abdomen on right side (ii) stab wound of 2x0.5x3 cms on the right upper abdomen, (iii) lapratomy, i.e., operation wound of 22 cms in front abdomen (iv) scabbed abrasion of .5x.5 cm on the left knee and (v) scabbed abrasion of 1x1 cm on left leg.The stab wound as per the post-mortem report and as per the testimony of PW-13 was not sufficient or the cause of death.The said injury resulted in damage/injury to the liver and consequent thereupon Darshan Singh died after an operation.He had remained hospitalized for eight days.In these circumstances, we feel that the respondent No. 2 has been rightly convicted under Section 304 Part-I and not under Section 302 IPC.That apart, we also feel that Explanation 4 to Section 300 IPC would be applicable as there was a sudden quarrel and in that process there was a scuffle causing Injury Crl.No doubt a kitchen knife, which was given by PW-6 for cutting salad, was used but then that would not draw or take the case out of Explanation 4 to Section 300 IPC.The stab wound was not the cause of death.A. No. 245/2012 Page 10 of 14Neither was he found to be instigating the other respondent on goading him on.In view of the statement of PW-6, an eye witness to the occurrence who was deposing after the loss of her husband, it is held that respondent No. 3 has been rightly convicted Crl.Generally, the order of acquittal Crl.A. No. 245/2012 Page 12 of 14 shall not be interfered with because the presumption of innocence of the accused is further strengthened by acquittal.A. No. 245/2012 Page 12 of 14Both of Crl.

['Section 34 in The Indian Penal Code', 'Section 302 in The Indian Penal Code', 'Section 326 in The Indian Penal Code', 'Section 300 in The Indian Penal Code', 'Section 304 in The Indian Penal Code']

This Criminal Original Petition has been preferred under Section 482 of the Code of Criminal Procedure, against the criminal proceeding in C.C.No.168 of 2004 on the file of the Judicial Magistrate, Avinashi, seeking an order to call for the records and quash the same.The petitioner herein is the accused in the criminal proceedings, pending before the Judicial Magistrate, Avinashi, for the alleged offence, punishable under Sections 417, 418, 420, 465, 468 and 471 of I.P.C r/w Section 200 of Cr.P.C. The respondent / complainant had already filed a complaint against the petitioner for the offence under Sections 138, 141 and 142 of Negotiable Instruments Act in C.C.No.30 of 2000 on the file of the Judicial Magistrate, Avinashi.In the said case, the petitioner herein filed a petition in Crl.2368 of 2000 to discharge him, on the ground that no notice was served upon the petitioner, the same was dismissed by the Judicial Magistrate.Subsequently, the respondent herein filed Crl.Aggrieved by which, the petitioner herein filed Criminal Revision in Crl.By order, dated 17.11.2003, this Court allowed the criminal revision, whereby held that the petition to amend the charges, so as to incorporate Section 148 r/w 420 IPC and 468 r/w 471 IPC are not legally maintainable in the pending proceeding, that was initiated under Section 138 of Negotiable Instruments Act. There is no dispute with regard to the aforesaid facts.Aggrieved by which, the Criminal Original Petition was filed under Section 482 of the Code of Criminal Procedure.On the other hand, the learned counsel appearing for the petitioner relied on the decision, Sagar Suri vs. State of U.P, reported in 2000 (II) CTC 107, wherein the Hon'ble Apex Court has held that after instituting complaint under Section 138 of Negotiable Instruments Act on account of dishonour of cheques, criminal proceedings under Section 406 and 420 IPC could not be initiated against the family members of the drawer of the cheque and accordingly, the proceedings under Section 406 and 420 IPC were quashed by the Hon'ble Apex Court.In the instant case, it is seen that the respondent had filed complaint against the petitioner in C.C.No.30 of 2000, since the cheque, dated 03.12.1999 issued by the petitioner was dishonoured.It is not in dispute that the respondent subsequenlty filed Crl.M.P.No.3639 of 2001 in C.C.No.30 of 2000 for amending the complaint, so as to incorporate offence under Section 148 r/w 420 IPC and 468 r/w 471 IPC.Though the same was allowed by the learned Judicial Magistrate, in the revision, by order, dated 17.11.2003 made in Crl.In the result, the Criminal Original Petition is allowed and the criminal proceeding in C.C.No.168 of 2004, pending on the file of the Judicial Magistrate, Avinashi is quashed.Consequently, connected miscellaneous petitions are closed.No order as to costs.02-12-2008Index : Yes Internet : Yes tsvnToThe Judicial Magistrate, AvinashiThe Public Prosecutor, High Court of Madras, Chennai.CRL.O.P.No.24260 of 2004

['Section 420 in The Indian Penal Code', 'Section 406 in The Indian Penal Code', 'Section 417 in The Indian Penal Code', 'Section 468 in The Indian Penal Code', 'Section 465 in The Indian Penal Code', 'Section 471 in The Indian Penal Code']

06.01.2015 Shri Sharad Verma, Advocate for the applicants.Ms. Pratibha Mishra, Public Prosecutor for the State.This is the first bail application filed by the applicants under Section 439 of the Cr.P.C. for grant of bail.The applicants are in custody in connection with Crime No.556/2014 registered at P.S. Kundipura, District Chhindwara for the offence punishable under sections 341, 147, 148, 149, 307, 354, 506-B, 195-A of IPC.As per prosecution, it is alleged against the applicants that one case is pending against co-accused Pappu Patel.It is further alleged that Pappu Patel along with Umesh and these applicants had restrained the complainant and gave blows by rod and lathi to him, thereby he sustained many injuries.Learned counsel for the applicants submits that the applicants have been falsely implicated in this case.He further submits that as per prosecution, main accused is Pappu Patel and Umesh.There is specific allegation against them that they assaulted the complainant on his foot and wrist.He further submits that there is general allegation against these applicants that they were accompanied with Pappu Patel and also assaulted the complainant by using stick and knife.Charge sheet has been filed.The applicants are in custody and trial would take considerable time to conclude, therefore, they be released on bail.(G.S.Solanki) Judge ravi

['Section 147 in The Indian Penal Code', 'Section 341 in The Indian Penal Code', 'Section 307 in The Indian Penal Code', 'Section 148 in The Indian Penal Code', 'Section 354 in The Indian Penal Code', 'Section 149 in The Indian Penal Code']

Sunder Lal, Ram Bahadur, Ram Chander, Ram Shankar and Ram Bharosey tied both legs of Beni Ram with towel.Ram Bahadur pressed legs of Beni Ram, Ram Bharosey, Ram Shankar caught hold his both hands, Sunder Lal by spade and Ram Chander by spear started jabbing to Beni Ram stating to kill him, Sunder Lal cut the neck of Beni Ram, Ram Chander gave spear blow on the stomach.Informant and Smt. Ram Rati wife of Beni Ram alarmed.On their alarm Subedar Khan resident of the same village and Ram Singh of village Bharuwa arrived.All of them tried to save Beni Ram but accused threatened to them of dire consequences.After killing Beni Ram, assailants went away towards village through the bank of river.On the oral information of Shyam Bihari (P.W.1) Case Crime No.258 of 1991, under Sections 147, 148, 302 I.P.C. was registered on 22.11.1991 at 15:30 p.m. under chik F.I.R. Ext.Ka-1 and G.D. Entry No.32 Ext.Ka-2 was also prepared on same day at 15:30 P.M. Investigation of the case was handed over to S.I. Gyan Singh (P.W.5).Investigating Officer reached the place of incident, prepared inquest memo (Ext.Ka-4) and relevant documents Ext.Ka-5 to Ext.Ka-11 i.e. address of the deceased, letter to R.I., letter to C.M.O., letter to C.M.O., police form-13, police form 379 and specimen seal respectively and dispatched the dead body for post-mortem.The witness replies in accordance to the question put to him.Thus, on the basis of statements of P.W.1 Shyam Bihari and P.W.5 Gyan Singh Investigating Officer it can't be inferred that the place of incident is not established.Apart from it, in spot map Ext.Ka-12, it is clearly mentioned that at place marked as ''D' dead body was found and at the place marked as ''3' blood was found and both places are situated towards east side of the river.On asking by defence in cross-examination Investigation Officer has stated that apart from place D he did not see blood of the deceased.As per recovery memo Ext.He has proved F.I.R. Ext.Ka-1 included in the file, in the handwriting and signature of Babu Ram Yadav.He has also proved disclosure of F.I.R. no.258/1981 in the G.D. No.32 at 15:30 P.M. as Ext.Regarding registration of F.I.R. No any question has been put to this witness so that registration of F.I.R. at 15:30 P.M. can be doubted.37. P.W.1 Shyam Bihari has stated that his report was scribed in the police station on his dictation and after hearing it, he had put his thumb impression and he has proved it as Ext.Hon'ble Ali Zamin,J.(Per : Ali Zamin, J.)1. Heard Sri Apul Mishra alongwith Sri Rahul Mishra and Sri Raghuvansh Misra, learned counsel for the appellants and Sri Ajit Ray, learned A.G.A. for the respondent and perused the material on record.This appeal has been filed against the judgement and order dated 29.01.2002 passed in Session Trial No.568 of 1996 (State vs. Ram Bahadur and 3 others), Police Station Beesalpur, District Pilibhit by which learned Additional Session Judge, Pilibhit has convicted the appellants-accused Ram Chander, Ram Shankar, Ram Bharosey and Ram Bahadur and sentenced appellant Ram Chander to undergo two years rigorous imprisonment under Section 148, appellants Ram Shankar, Ram Bharosey and Ram Bahadur have been sentenced to undergo one year rigorous imprisonment under Section 147 I.P.C. and all the appellants have been sentenced to undergo life imprisonment and fine of Rs.2000 under Section 302 read with Section 149 I.P.C. in default of fine to undergo further a period of 6 months additional imprisonment.In brief facts of the prosecution case are that Gaon Sabha land was allotted on lease to the deceased Beni Ram, brother of the informant in which one Sunder Lal (since died during trial) was claiming his land.Munendra Pal Singh village head (Pradhan) resident of village Bharuwa settled the dispute between them a day before the incident and it was decided that Beni Ram will leave three and half bigha land in favour of Sunder Lal.On 22.11.1991 at 11:00 A.M. Ram Bahadur, Sunder Lal of the village came to the house of deceased Beni Ram having spade in hand and asked for measurement as decided yesterday, on which Beni Ram (deceased), Shyam Bihari (informant) and Smt. Ram Rati wife of Beni Ram proceeded for measurement taking gattha of wood (log) and rope.When they reached at 1:00 p.m. on the field, Ram Chander having a spear in hand, Ram Shankar and Rama Bharosey met there.Dr. A.K. Sharma (P.W.3) conducted post-mortem on 23.11.1991 at 3:30 P.M. and prepared report Ex.Ka-2, according to which following injuries were found on the body of the deceased Beni Ram:Incised wound 14 c.m. x 7 c.m. cavity deep at the front of abdomen 5 c.m.below the umbilicus, intestine coming out.Incised wound 9 c.m. x 5 c.m.below trachea the left ear and running below mandible, left carotid artery jagutar vein cut.Incised wound 4 c.m. x 3 c.m.x muscle deep right side of the neck, 3 c.m.below the left angle at mandible on deep dissection carotid artery cut.Incised wound 1 c.m.Incised wound 3 c.m. x 1 c.m. bone deep on the back of right shoulder scapula.Incised wound 5 c.m. x 1 c.m. bone deep on the back of right shoulder 1 c.m. above injury no.5 cardio process of right scapula cut.Incised wound 1 c.m.x 5.7 c.m. x chest cavity deep over the angle of right scapula.Abrasion 3 c.m.x 1 c.m.on the inner end of right collar bone.Abrasion 7 c.m.x 1 c.m.over the left side of neck 5 c.m. above the middle left collar bone.In his opinion cause of death was shock & haemorrhage due to ante-mortem injuries and death of the deceased was near about one day old.After dispatching the dead body for post-mortem Investigating Officer inspected the place of incident and prepared spot map Ext.He also took into possession rope, log (lattha), blood stained and plain earth (sand), spade along with handle, old towel and prepared memo Ext.After completing the investigation submitted charge sheet Ext.Ka-3 under Sections 147, 148, 302 I.P.C. against the accused-appellants before the C.J.M., Pilibhit, who committed accused for trial to the court of Sessions Judge where Case Crime No.258/1991 was registered as Session Trial No.568 of 1996 (State vs. Ram Bahadur and others).The Sessions Judge transferred it to the court of Special Judge (E.C. Act), Pilibhit for trial.The trial court framed charge under 147 and 302/149 I.P.C. against the accused-appellants Ram Bahadur, Ram Shankar, Ram Bharosey and under Section 148, 302/149 I.P.C. against accused-appellants Sunder Lal and Ram Chander.The accused denied the charge and claimed trial.Prosecution to prove its case has produced six witnesses.P.W.1 Shyam Bihari informant, P.W.2 Smt. Ram Rati are witnesses of fact while P.W.3 Dr. A.K. Sharma conducted post-mortem, P.W.4 Mohd. Anees second Investigation Officer, P.W.5 Gyan Singh first Investigating Officer and P.W.6 Constable Narendra Pal Singh are formal witnesses.The accused-appellants in their examination under Section 313 Cr.P.C., have stated that the witnesses have deposed against them due to enmity and denied the prosecution case, but they led no evidence in their defence.Trial court after hearing learned counsel for the parties and perusal of records has passed the impugned judgement and order.Hence, this appeal.9. Learned counsel for the appellant No.2 Ram Bharosey, appellant No.3 Ram Bahadur and appellant No.4 Ram Shanker, Sri Apul Mishra has submitted that appellants are not connected with the offence.He further submitted that if the whole story of prosecution as stated by P.W.1 Shyam Bihari is accepted that the appellants grappled the deceased, then it was not their intent to commit murder covered under Section 34 of I.P.C. In support of his contention he relied on the following judgements of Hon'ble Supreme Court:Learned counsel for the appellant no.1 Ram Chander, Sri Rahul Mishra assisted by Sri Raghuvans Mishra has submitted that P.W.1 Shyam Bihari has specifically stated that he reached the place of incident at 1:00 P.M. going from the police station whereas per chik report Ext.Ka-1 first information report has been registered at 3:30 P.M. Shyam Bihari has also stated that he met daroga and put his thumb impression on the paper when he came police station along with the dead body.He has also stated that he reached police station along with the dead body at 10:00 P.M. in the night while P.W.2 Smt. Ram Rati has stated that the dead body reached police station at 6:00 P.M. and Shyam Bihari was also along with her.Both witnesses also stated that their statements might have been recorded on the same day, from which it becomes clear that first information report is anti-timed.It is also submitted that on the point of lodging F.I.R. and reaching of the informant to the police station question could have been put to the scribe of the chik and G.D. but scribe of chik and G.D. has not been produced by the prosecution so he has been deprived of the opportunity of cross-examination also.He has also submitted that according to prosecution a spear injury was caused to the deceased in the stomach.Injury by spear will be punctured one but according to post-mortem report injury no.1 has been found to be stomach injury cavity deep incised wound of 14 c.m. x 7 c.m.Thus, the injury alleged to have been caused by spear does not match with the medical report.His next submission is that according to P.W.1 Shyam Bihari the incident took place 20 steps away from the west side of the river and its natural sense will be that incident took place towards west side of the river while P.W.5 Investigating Officer Gyan Singh has stated that the dead body was at a distance of 20 steps in the east from the river, as such from the prosecution evidence place of occurrence is also not established.He further submitted that Smt. Ram Rati has stated that in the incident her forefinger of right hand was cut off but there is no medical report to support her statement and Investigating Officer has stated that if finger of Smt. Ram Rati was cut off then she must have told him and he would have got her medically examined thus Investigating Officer does not support her statement, which makes her presence at the spot doubtful.Next submission is that P.W.1 Shyam Bihari has stated that he was residing along with his son in Sitarganj and he was residing separate with his deceased brother.What was occasion to come on the day of incident has not been explained.Therefore, his presence at the time of incident is doubtful.Lastly he has submitted that P.W.1 Shyam Bihari informant is brother, Smt. Ram Rati is wife of the deceased, both are highly interested witnesses.P.W.1 Shyam Bihari states that he does not know about share and side of the deceased land.He also states that as soon as the accused reached on the field, the accused grappled with his brother while P.W.2 Smt. Ram Rati states that reaching the field marking for partition were made, talks took place between them, near about half an hour period was spent in the field and when her husband sat to smoke chilam, incident took place.Thus, inference will be either P.W.1 Shyam Bihari or P.W.2 Smt. Ram Rati is telling a lie or both of them are telling a lie.Learned counsel prayed that prosecution has failed to prove the charge beyond reasonable doubt against the appellants.The impugned judgement and order is not sustainable.Accordingly, judgement and order is liable to be set aside and appellants are liable to be acquitted.On the other hand Sri Ajit Ray, learned A.G.A. for the respondent submits that on the basis of oral information of the informant Shyam Bihari, F.I.R. Ext.Ka-1 was registered at 3:30 P.M. and in Ext.Ka-1 itself time of the incident has been mentioned 1:00 P.M., not a single question has been put by the defence from the witness P.W.6 Narendra Pal Singh regarding the time of registration of the case.The informant P.W.1 Shyam Bihari, P.W.2 Smt. Ram Rati are rustic persons and their statements in the trial court have been recorded near about after lapse of 6 years from the date of incident.According to Prabhu Dayal v/s State of Rajasthan (2018) 3 SCC (Cr.) 518 rustic witnesses can develop a tendency to exaggerate and this does not make that the entire testimony of such witnesses is falsehood.Minor contradiction in the testimony of witnesses are not fatal to the prosecution case.In State of Karnataka v/s Suvarnamma (2015) 1 SCC (Crl.) 663, Hon'ble Supreme Court has held that in regard to exact time of an incident or the time of duration of an occurrence, usually people make their estimates by guess work on the spur of the moment at the time of interrogation.It depends on the time sense of individuals which varies from person to person.A witness is liable to be overawed by the court atmosphere and piercing cross-examination by the 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 witnesses nowdays go on adding embellishments to their version perhaps for the fear of their testimony being rejected by the court.The courts should not disbelieve the evidence of such witnesses altogether if they are otherwise trustworthy.So, on the basis of the statement of informant Shyam Bihari and P.W.2 Smt. Ram Rati, it cannot be said that the F.I.R. is anti-timed.Placing reliance on Vijai Pal v/s State (Govt. of NCT Delhi) (2015) 2 SCC (Cr.) 733, he has submitted that value of medical evidence is only corroborative and testimony of Shyam Bihari and Smt. Ram Rati with regard to causing spear injury in stomach by Ram Chander is intact and their statements in this regard are reliable.He also submitted that P.W.1 Shyam Bihari and P.W.2 Smt. Ram Rati have stated that after taking meal they had gone to the field which is corroborated by medical evidence as in post-mortem report Doctor has also found that 2-3 hours before the incident deceased could have taken meal.Shyam Bihari has stated that he lived separately with the deceased in the village and he also lived at Sitarganj along with his son.In his cross-examination nothing has been elicited from which it can be inferred that on the date of incident he was not present on the spot and in the village, where the incident took place.The spot map Ext.ka-12 has been proved by the Investigating Officer P.W.5 Sub-Inspector Gyan Singh, who had taken the blood stained and plain sands from the place of incident and it has been sent to Forensic Science Laboratory, Agra.According to expert report human blood has been found on it from which the place of occurrence is established.Shyam Bihari has stated that place of incident is 20 steps away from the west side of the river.On the basis of his statement it cannot be inferred that the place of incident is changed.He has further submitted that the witnesses have stated that in murder of Jagdish, case was registered against the deceased.He has also stated that a gangster case was also registered against the deceased brother and another case under Section 25 Arms Act was also registered against him which indicates that the witness is not concealing the facts but speaking truly, thus he is reliable and trustworthy witness.Lastly he has submitted that so far as discrepancy regarding incident taking place on reaching the place of incident and after sometime reaching the place of incident is concerned due to the lapse of time and witnesses being rustic one, this discrepancy has taken place but P.W.2 Smt. Ram Rati has stated that on reaching the spot places were dug for marking in which half an hour was spent and when her husband sat for smoking chilam the incident was caused.She has also stated that from the house in reaching the spot it took half an hour.The estimated time has been told by the witness which also corroborate the time of incident to be 1:00 P.M. mentioned in the F.I.R. Ext.He submitted that from the evidences produced by the prosecution charges are fully proved against the appellants.The trial court has rightly convicted and sentenced the appellants-accused.In cross-examination P.W.1 Shyam Bihari has stated that he reached the spot at 1:00 P.M. going from the police station, while as per F.I.R. Ext.Ka-1, the report of the incident has been made on 22.11.1991 at 15:30 P.M. In cross-examination Shyam Bihari has also stated that dead body reached the police station at 10:00 P.M. P.W.2 Smt. Ram Rati has stated that dead body came to the police station at 6:00 P.M. As such there is a discrepancy between statements of Shyam Bihari and Smt. Ram Rati with regard to reaching the dead body at the police station.P.W.1 Shyam Bihari has stated that by dictating he lodged the report and after hearing it, he had put his thumb impression.From his statement it is very much clear that when he went to the police station for lodging report at that very time after dictating and hearing the report he put his thumb impression on the report.He has also stated that he is illiterate and he by profession is a farmer.P.W.2 Smt. Ram Rati has also stated that she is illiterate.As per F.I.R. Ext.Ka-1 informant Shyam Bihari is by caste Dhobi (washerman).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 -- Perhaps it is a sort of a psychological defence mechanism activated on the spur of the moment."In the instant case the incident has occurred on 22.11.1991 and statement of P.W.1 Shyam Bihari was recorded on 23.10.1997 and statement of P.W.2 Smt. Ram Rati was started on 23.10.1997 and completed on 03.03.1998 i.e. the statements of both witnesses were recorded near about after a lapse of six years.In the first information report, Ext.Ka-1 the time of incident has been mentioned 1:00 P.M. and time of giving information to the police station is mentioned as 15:30 P.M. The witness has stated very clearly that he reached the police station and at the police station he had no talk with the daroga.This much talk too did not take place that you reach on the spot.Further he has stated that after lodging report he had gone at the spot and he reached on the spot from the police station at about 1:00 P.M. in the afternoon.It appears that due to his testimony being recorded after a lapse of six years from the date of incident and witness is also a rustic witness overawed by the court atmosphere and piercing cross-examination made by counsel and out of nervousness mixing up facts, getting confused regarding sequence of events or fill up details from imagination on the spur of the moment as held by Hon'ble Supreme Court in Bharwada Bhoginbhai Hirjibhai v/s State of Gujarat, (supra), he has stated that he reached on the spot at 1:00 P.M. going from the police station.Informant Shyam Bihari has further stated that he had talk with darogaji at the police station at the time when he made thumb impression on the paper.He has also stated that when he came along with the dead body at the police station then he had met darogaji.He has clearly stated that after lodging report he had gone on the spot.From his whole statement it is clear that after lodging the report, informant Shyam Bihari returned to the spot thereafter dead body of the deceased was taken to the police station.It appears that due to statement being recorded after six years from the date of incident and informant being rustic one out of nervousness mixing the fact with regard to putting thumb impression has stated that he put his thumb impression on papers when he met darogaji on coming along with dead body.Considering his whole statement it can't be inferred that he lodged the report when dead body reached the police station.Thus, on the basis of statements of P.W.1 Shyam Bihari that he reached the place of incident at 1:00 P.M. going from the police station and statement of Smt. Ram Rati as well as his statement with regard to time of reaching dead body at the police station, time of lodging F.I.R. 15:30 P.M. mentioned in Ext.Ka-1 and informant's putting thumb impression on paper when he met daroga along with dead body, it can't be inferred that F.I.R. was lodged when dead body reached the police station.In view of the above discussion, we do not find any substance in the contention of learned counsel for the appellants that F.I.R. is anti timed.24. P.W.1 Shyam Bihari in his cross-examination has stated that the incident has taken place at a distance about 20 steps from the west side of the river and as per P.W.5 Gyan Singh Investigating Officer and spot map Ext.Ka-12 distance of the dead body from the river is 22 steps towards east of the river.The veracity of spot map Ext.Ka-12 proved by Investigating Officer P.W.5 Gyan Singh has not been disputed by the defence.In the Ext.Ka-12 dead body has been shown at place marked as ''D' which is towards east of the river and distance of the dead body from the east of the river has been shown to be 22 steps.P.W.1 Shyam Bihari has stated that the incident took place at about 20 steps from the west side of the river which cannot be taken as the dead body was 20 steps towards west from the west side of the river.It is tact of the counsel as to how he puts question to a witness.Ka-13 Investigating Officer took into his possession blood stained (sand) from the place of incident.He also took into his possession the towel from which legs of deceased alleged to have been tied and a spade shown in the spot map at place F was found.According to scientific report available on record human blood were found on the materials recovered from the place of incident.These facts clearly establish the place of incident towards east of the river.As such prosecution regarding place of incident is consistent, corroborated and reliable.In view of the above, we also find no substance in the contention of learned counsel for the appellants that on the basis of statement of informant P.W.1 Shyam Bihari and P.W.5 Investigating Officer, Gyan Singh, place of incident is not established.As per post-mortem report Ext.Ka-2, seven incised wounds and two abrasions have been found on the person of the deceased, in which injury no.1 is incised wound 14 cm.x 7 cm.cavity deep at the front of abdomen 5 c.m.below the umbilicus, intestine coming out.In Ext.Ka-1 proved by P.W.1 Shyam Bihari, it has been mentioned that Ram Sunder inflicted spear injury on the stomach.P.W.1 Shyam Bihari through his testimony also has supported the prosecution version and has stated that accused Ram Chander caused spear injury in the stomach of deceased Beni Ram.P.W.2 Smt. Ram Rati too supporting the prosecution story has stated that Ram Chander caused spear injury in the stomach of her husband.Statement of both the witnesses regarding inflicting spear injury in the stomach of deceased Beni Ram by appellant-accused Ram Chander has not been impeached.Thus, the statement of P.W.1 Shyam Bihari and P.W.2 Smt. Ram Rati is consistent and corroborative to each other.For instance, while the accused were armed with kantas and spears, only one punctured wound was found.The use which the defence can make of the medical evidence is to prove that the injuries could not possibly have been caused in the manner alleged and thereby discredit the eye-witnesses.The significance of the evidence of the doctor lies vis--vis the injuries appearing on the body of the deceased person and likely use of the weapon and it would then be the prosecutor's duty and obligation to have the corroborative evidence available on record from the other prosecution witnesses.In cross-examination she has stated that she had shown the cut finger to the Investigating Officer.The Investigating Officer P.W.5 Gyan Singh has stated that he cannot tell whether finger of Smt. Ram Rati was cut or not.Smt. Ram Rati had not received any injury and her finger was not cut, if it happened, so, then she certainly would have told him and he would have got her medically examined for the same.In first information report, it is mentioned that along with deceased Beni Ram, Smt. Ram Rati had also gone at the place of incident.In spot map Ext.Ka-12 at place-1 shown in a circle presence of wife of the deceased has been mentioned.As per statement of P.W.5 Gyan Singh, the spot map was prepared on the day of incident and from cross-examination nothing has been extracted so that its veracity can be doubted.P.W.2 Smt. Ram Rati has also stated that she had accompanied her husband and in her cross-examination by defence nothing material has been extracted, so that her presence on the spot at the time of incident can be doubted.P.W.1 Shyam Bihari in examination-in-chief as well as in cross-examination has stated that he and his sister-in-law (bhabhi) were present on the spot together.He has also stated that due to fear of accused his bhabhi did not go to the deceased to save him.Thus, with regard to presence of P.W.1 Shyam Bihari and P.W.2 Smt. Ram Rati at the time of incident on the spot, prosecution evidence is consistent, corroborative to each other.P.W.2 Smt. Ram Rati in last day of her cross-examination has stated that when her husband was caught, tied and killed she cried and wept, five persons were there so, she could not dare save him.As such the prosecution evidence of P.W.1 Shyam Bihari and P.W.2 Smt. Ram Rati is consistent and corroborated to each other that due to fear of accused, Smt. Ram Rati did not go to the deceased to save him which in the facts and circumstances of the case appears credible.She has also stated that she tried to save her husband but accused caught hold her.She has further stated that when her finger was cut blood dropped on the place of incident.Next, she has stated that she did not feel finger was cut off.Again she has stated that finger was fallen there on the spot.She has also stated that as the spade was jabbed on neck, she fell down over her husband and injury was caused in her hand.It is the prosecution case that accused Sunder Lal was jabbing with spade and accused Ram Chander with spear and according to Smt. Ram Rati her forefinger was cut as the spade was jabbed on the neck she fell over her husband to save him.As per Ext.It is also mentioned in it that report was lodged on 22.11.1991 at 15:30 P.M. We have already discussed in preceding paras of the judgement with regard to F.I.R. being ante time and in para 23 of the judgement has found that F.I.R. is not anti-timed.The prosecution has produced the informant P.W.1 Shyam Bihari and defence was provided opportunity of cross-examination to this witness.In such circumstances, although scribe of the chik F.I.R. and G.D. has not been produced by the prosecution and defence had no opportunity to cross-examine the scribe of the chik F.I.R. and G.D. but as prosecution has produced informant P.W.1 Shyam Bihari, who orally lodged F.I.R. Ext.Ka-1 and to prove chik F.I.R. and G.D. prosecution has also produced P.W.6 Constable Narendra Pal Singh and no question with regard to registration of F.I.R. has been put to him.38. P.W.1 Shyam Bihari in cross-examination has stated that he was also residing along with his son, separate with his deceased brother.He has also a house in Sitarganj.His son Sohan Lal was residing with him in Sitarganj.He has stated that on the day of incident at about 11:00 A.M. Ram Bahadur and Sunder Lal came at his house to call deceased Beni Ram, at that time Sunder Lal had a spade.He has also stated that Sunder Lal asked from them to measure the field as decided yesterday on which he, deceased Beni Ram and his wife Smt. Ram Rati reached lease field.He and Beni Ram were bare hand and Smt. Ram Rati had a khurpi.They reached on the field at about 11:00 A.M. and he has narrated the story of the incident.In the spot map Ext.Ka-12, his presence has been also shown by mark 2 in a circle.From his cross-examination nothing has been extracted by defence from which his presence at the time of incident can be doubted.On going through his testimony, it is also clear that the defence has not tried to clarify from him with regard to opportunity of being present in the village where the incident took place.Apart from it, it is also notable that the witness Shyam Bihari has clearly stated that he was also residing along with his son, separate with the deceased brother.In such a situation, his presence at the time of incident appears natural also.P.W.2 Smt. Ram Rati also has supported the presence of Shyam Bihari at the time of incident.In view of the above discussion, on the basis of statement of informant Shyam Bihari that he has also a house in Sitarganj and he was residing along with his son separate with the deceased, his presence on the spot can't be doubted.Accordingly, we find no substance in the contention of learned counsel for the appellants that presence of informant Shyam Bihari at the time of incident is doubtful.It is true that P.W.1 Shyam Bihari in his cross-examination has stated that he does not know what share and in which side the accused Sunder Lal had to get in the lease land but in cross-examination itself he has stated that in between field of Beni Ram and accused Sunder Lal field of Siya Ram, Damodar Lal, Ram Gopal and Pancham Rai are adjoining to each other.In cross-examination he has also stated that he did not go in the panchayat.It is case of prosecution that land was allotted to the deceased on lease and prosecution evidence in this regard is intact.Thus, in view of his statement that he did not go in the panchayat, on the basis of statement of informant Shyam Bihari that he does not know what share and which side accused Sunder Lal had to get, no any adverse inference against prosecution can be derived.40. P.W.1 Shyam Bihari has stated that after reaching the field accused assembled and grappled his brother and fallen down him.P.W.2 Smt. Ram Rati has stated that on reaching the field marking for partition were made, talks took place between them near about half an hour was spent in the field and when her husband sat to smoke chilam incident took place.P.W.5 Investigating Officer Gyan Singh in cross-examination has stated that he did not find chilam or spread tobacco on the place of incident.As per recovery memo Ext.Ka-13 a rope of mooz and jute, a spade, a log of wood and an old towel by which both legs of the deceased alleged to have been tied have been recovered by P.W.5 Gyan Singh Investigating Officer but chilam and tobacco were not recovered by him.If really it was a fact that deceased Beni Ram putting chilam in his mouth as tried to smoke accused persons caused the incident, then certainly chilam and tobacco should have been there and found by the I.O. but it was not so.Apart from it her statement itself appears inherently contradictory as she has stated that firstly Ram Bahadur fallen down the deceased, Ram Bahadur and Ram Shankar tied his legs, Ram Bharosey caught the hand, Sunder Lal cut neck by spade and Ram Chander inflicted spear injury in the stomach.In Ext.Ka-1 the first information report which has been made just after the incident, it is mentioned that when informant Shyam Bihari, deceased Beni Ram and Smt. Ram Rati reached the field accused Ram Chander, Ram Shankar and Ram Bharosey also met there and accused Sunder Lal, Ram Bahadur, Ram Chander Ram Shankar and Ram Bharosey fallen down his brother Beni Ram and tied legs of his brother Beni Ram, Ram Bahadur pressed legs of his brother, Ram Bharosey and Ram Shankar caught his both hand, Sunder Lal by spade and Ram Chander by spear started jabbing stating to kill him.Sunder Lal cut neck of his brother by spade and Ram Chander gave spear blow on stomach.This version has been supported by P.W.1 Shyam Bihari through his testimony also and from his cross-examination nothing has been extracted, so as to doubt his testimony.It appears that Smt. Ram Rati being a rustic and illiterate lady and her statement also has been recorded after a lapse of six years from the date of incident as held by Hon'ble Supreme Court in Prabhu Dayal v/s State of Rajasthan (2018) e SCC 517 has exaggerated the prosecution story with regard to digging of places for demarcation thereafter sitting the deceased on earth put chilam in his mouth and as he tried to smoke the incident was caused and as discussed in para 31 of the judgement in order to save deceased her forefinger was also not cut off but in material particulars of prosecution case, her testimony like allotment of land on lease to her husband, claim by accused Sunder Lal in the lease land, matter being decided by village head Ram Chander @ Munendra in the evening of the past night, coming of accused Sunder Lal to call the deceased, going on the lease land of deceased Beni Ram, informant Shyam Bihari and herself, tying leg of the deceased by accused Ram Bahadur, Ram Shankar catching hand by Ram Bharosey, causing spade injury on the neck by accused Sunder Lal and spear injury on the stomach by accused Ram Chander is intact.As such on reading her statement as whole core of the case is not shaken and appears to have a ring of truth, as such on the basis of her statement that on reaching the field marking for partition were made, talks took place, her husband sat and as he tried to smoke chilam, incident was caused and in saving deceased her forefinger was cut, her whole statement can't be discarded.Accused Ram Bahadur pressed legs of the deceased Beni Ram, Ram Bharosey and Ram Shankar caught hold his both hands.Sunder Lal cut the neck of Beni Ram and Ram Chander gave spear blow on the stomach which is supported by the post-mortem report Ext.Ka.2 proved by P.W.3 Dr. A.K. Sharma.As per post-mortem report as a result of stomach injury intestine of the deceased came out.Over the neck three incised injuries, on right shoulder two incised injuries and one incised injury chest cavity deep over the angle of right scapula have been found.Causing spade injury on the neck and spear injury on the stomach as found in Ext.Ka-2 post-mortem report in the condition of hands being caught by two accused and legs by one accused is possible one.Pressing legs of deceased by one accused, catching hold of both hands by two accused and causing spade and spear injury by two accused indicates that all the accused shared common intention in perpetration of crime.Testimony of P.W.1 Shyam Bihari with regard to going of accused persons through the bank of river is corroborated by spot map Ext.Ka-13 as such prosecution evidence in this regard also is consistent, corroborated and reliable.The facts, circumstances and the observation of five cases referred by learned counsel for the appellants Sri Apul Mishra are follows.In the case of Balwantbhai B. Patel vs. State of Gujarat and another, it has been stated that on 30th November 1993, at about 9 p.m., Ghulam Hussain Ansari, Sagir Ahmed Ansari, since deceased, Gyasuddin Ahmed Ansari and Kitabuddin Ansari were sitting at their house in Falia, District Bharuch, when the three accused Thakorbhai Somabhai, Jagdishbhai Nanjibhai Patel and Balwantbhai Patel, the present appellant, arrived at that place in a drunken condition.They abused Sagir Ahmed Ansari and others sitting there and when they objected, Thakorbhai inflicted a knife blow in the abdomen of Sagir Ahmed and another knife blow on the left side of his head.Gyasuddin Ansari and Kitabuddin Ansari intervened so as to rescue Sagir Ahmed whereupon Balwantbhai, the present appellant, caught hold Gyasuddin and Jagdishbhai inflicted a blow on his head with an axe.The appellant thereafter ran away hurling abuses on the other side.Sagir Ahmed died soon after he reached the Civil hospital.The trial court convicted all the accused and judgement of the trial court was confirmed in appeal by the High Court.In the appeal it was contended that the appellants herein had caught hold of Gyasuddin Ahmed Ansari, PW which had enabled Jagdishbhai, the co-accused, to cause a simple injury on him.It was pointed out that the injury report of Gyasuddin Ahmed Ansari was not on record which clearly falsified the prosecution story.It was also submitted that, in any case, the story of catching hold of a witness or of a deceased or an allegation of exhortation made by an accused are invariably used to cast the net wide with respect to the incident.The Supreme Court has held as under:"There is no evidence to show that Gyasuddin Ansari had received any injury as his injury statement is not on record.The finding, therefore, of the High Court about the appellant's presence appears to be on shaky foundations.We are also not unmindful of the fact that allegations of catching hold of an attack victim or of an exhortation are invariably made when the number of injuries on the injured party do not co-relate to the number of accused or in the alternative in an attempt to rope in as many persons as possible from the other side.In the case of Bishu Sarkar and others vs. State of West Bengal, AIR 2017 SC 1729, prosecution relied on the testimony of PW 2 Nepal Dey, PW 3 Gopal Dey and PW 5 Kanai Sharma.According to PW2 Nepal Dey, he saw accused Tarit Kundu, Sahadeb Sarkar, Sasthi Sarkar, Bishu Sarkar, Sukumar Ghosh and Paresh Sarkar and all six persons caught hold of the collar of shirt of Raju Bose and assaulted him by fist and blows......Accused Sukumar Ghosh and Paresh Sarkar gave the order to kill Raju Bose.Then accused Sasthi Sarkar, Bishu Sarkar, Sahadeb Sarkar had remained engaged in catching hold of Raju Bose.Accused Tarit Kundu gave a blow on the back of Raju Bose with the help of a sharp-cutting weapon like ''bhojali'.The Hon'ble Supreme Court held as under:"It is true that PWs 2 and 5 assert that the present appellants had caught hold of Raju Bose.But it is not clear from the record whether such act was so intended to enable accused No.1 to deal the fatal blow.Further, PW 3 is completely silent on this aspect.In the circumstances we deem it appropriate to grant benefit of doubt to the present appellants and acquit them of the charge under Section 302 read with Section 34 IPC."In the case of Gaya Yadav and others vs. State of Bihar and others, AIR 2003 SC 1759, accused Gaya Yadav belonged to neighbouring village Kurkut Bigha and came to the deceased Jagannath Singh, Mukhiya of Mau Gram Panchayat in Mau Bazar and requested the deceased for supper for the night in his village on the occasion of "Holika Dahan".The deceased was reluctant to accept the invitation.At this time the accused Karu Yadav, who is also of the village Kurkut Bigha arrived there and both the accused insisted upon Mukhiya for the supper.The deceased succumbed to the request of the accused, P.W.3 Lallan Bihari the informant also accompanied him, as they made their way out of Mau village P.W.3 saw 9-10 persons coming from the opposite direction.P.W.3 thought that these persons might be going somewhere on the occasion of "Holika Dahan".Soon those persons came closer to them and the accused Gaya Yadav and Karu Yadav gave a push to the deceased Mukhiya and thereafter all other accused persons surrounded him.Out of them he could recognize Bhagat Yadav, Mukhiya Yadav, Madeshwar Yadav, Rahish Yadav, Deo Prasad Yadav and Khalitra Yadav.Having seen the accused surrounding the deceased the informant retreated about 10-15 steps backward and thought that the accused persons would leave the deceased Mukhiya but instead accused Khalitrar Yadav and Rahish Yadav caught hold of Mukhiya and accused Gaya Yadav and Bhagat Yadav fired at him from country made pistol.Thereupon, Mukhiya fell down.Thereafter, the accused Mukhiya Yadav who was armed with pausli bent over Mukhiya as if he was cutting the neck of Mukhiya.Simultaneously, all of them were uttering that Mukhiya should not survive.P.W.3 Lallan Bihari, informant during trial deposed that he went back 4 or 6 steps from where he saw that Rahish Yadav and Khalitra Yadav were catching hold the two arms of the deceased and the accused Gaya Yadav and Bhagwat Yadav each fired a shot from the pistol at the deceased who fell down.Thereafter, the accused Mukhiya Yadav began to cut the neck of Mukhiya by pausli.The Hon'ble Supreme Court has held as under:"So far as A-2 Madheshwar Yadav, A-3 Khalitra Yadav and A-4 Rahish Yadav are concerned, there is no evidence to show that they have shared the common intention to murder the deceased.No overt act has also been attributed to them.Therefore, the prosecution has failed to establish its case against them for the offence under Sections 302/34 I.P.C. beyond reasonable doubts.Their appeal is, accordingly, allowed."on account of the same there was ill feeling between the two groups and on the date of occurrence on 22nd September, 1990 at 8:00 P.M. when one Natarajan was coughing on account of his fever the accused No.1 was passing by that road on his scooter.Shortly thereafter at 10:00 P.M. the complainant PW1 and the deceased - Mohan were returning from a theatre and when they had reached the house of one V. Murli the five accused persons formed themselves into an unlawful assembly and attacked the complainant and the deceased with deadly weapons.PW-1 then raised an alarm and on hearing the cries his relatives including Sekhar who is the other deceased came out of their houses and rushed towards Mohan.The five accused persons then also attacked these people and while accused No.3 caught hold of Sekhar, accused No.2 stabbed him with knife on his abdomen and caused fatal injury.These accused persons more particularly accused Mukhiya and 6 hurled stones which caused injury to the member of the complainant group.Accused No.1 also stabbed one Ravi Kumar with a knife on his left elbow, as a result of which said Ravi Kumar was injured.The injured persons were taken to the hospital for treatment and Mohan died during the midnight on account of shock and haemorrhage as a result of the injuries sustained by him.The Hon'ble Supreme Court held as under:"We find considerable force in the submission of Mr. Parasaran, the learned senior counsel for the appellants, that prosecution has not explained the grievous injury on the head of accused-appellant No.1 and such non-explanation persuades us to draw an inference that the prosecution has not presented the true version at least so far as the role played by accused appellant No.1 and the witnesses who have been examined and who have ascribed a positive role to the appellant No.1 that he caught hold of Mohan when appellant No.1 stabbed Mohan are not true on material point and their evidence thus has become vulnerable.It has been also held that Mr. Parasaran is right in his submission that the witnesses ascribed the role of catching hold of Mohan by accused No.1 and role of caching hold of Sekhar by accused No.3 and the High Court gave the benefit to accused No.3 since the witnesses had not narrated the same to the police when examination under under Section 161 Cr.P.C. took place and therefore the self same infirmities having crept in when the prosecution witnesses stated about catching hold of Mohan by accused No.1, the said accused No.1 is entitled to the benefit of doubt.In fact as stated earlier Mrs. Amreshwari, the learned senior counsel appearing for the State also fairly stated that possibly it would be difficult to sustain the conviction of accused No.1 when the accused No.3 has got benefit of doubt and has been acquitted and no appeal against the said order of acquittal has been filed by the State.On account of such infirmities the prosecution as indicated above and more particularly when the prosecution has failed to offer any explanation for the grievous injuries sustained by accused No.1 on his head and the High Court has already found that the said injury was caused in course of the incident, we have no hesitation to hold that the accused-appellant No.1 D.V. Shanmugam is entitled to the benefit of doubt and accordingly set aside the conviction and sentence of the said accused- appellant No.1 both under Section 302/34 IPC as well as under Section 324 I.P.C."In the case of Sushil vs. State of U.P., 1994 Law Suit Supreme Court 995, it has been stated that a day earlier to the occurrence there was an altercation between the deceased Jai Prakash and the appellants when the appellants had threatened to kill him.On 15th August, 1982 at about 5:45 A.M. the deceased Jai Prakash along with his uncle Hoshiyara PW 2 had gone to the jungle close by to their village to answer the call of nature.At about 6:30 A.M. after they had eased themselves, Hoshiyara cleaned his hands and when the deceased Jai Prakash was cleaning his hands it is at that point of time the accused Sushil, Tapeshwar and Ram Niwas arrived there.The accused/appellant Tapeshwar caught hold the hands of the deceased Jai Prakash, Ram Niwas attacked with a knife in the abdomen and stomach while Sushil gave knife blows on the waist and knee.When Hoshiyara saw this assault on Jai Prakash he raised hue and cry.The witnessess Charan Singh PW 3, Chandermal PW 4 and Dharampal PW 5 rushed there.The three assailants named above ran away from the place of occurrence after assailing Jai Prakash.The Hon'ble Supreme Court has held as under:"The appellant Tapeshwar was not armed with any weapon nor he is alleged to have made any assault on the deceased.There is no evidence that Tapeshwar was aware of the fact that the co-accused Sushil and Ram Niwas were armed with knives which may be used by them in the crime.The prosecution evidence is also silent on the point whether these two accused took out the knives suddenly with or without the knowledge of Tapeshwar or came with knives openly and visibly and inflicted knife injuries to the victim.In these facts and circumstances, it is difficult to say with certainty as to what extent, if at all, the appellant Tapeshwar shared the common intention with the other two appellants Sushil and Ram Niwas.In view of the opinion of Hon'ble Supreme Court expressed in Ramesh Singh @ Photti v/s State of A.P. and Ashif Khan v/s State of Maharashtra and another (supra), the acts and conducts of the appellants no.2, 3 and 4 in the instant case as mentioned in para 51 of the judgement prior to the incident, like going of accused Sunder Lal and Ram Bahadur to call the deceased for measurement as decided in the evening of past night, on reaching the deceased and witnesses meeting of all the accused persons on the place of incident situated in a remote area on the bank of the river, falling down the deceased by the accused persons thereafter tying both legs of the deceased and pressing legs by accused Ram Bahadur catching hold both hands by accused Ram Bharosey and Ram Shankar inflicting spade and spear injuries, seven in number by Sunder Lal and Ram Chander respectively, making no effort by any accused to save the deceased, after the incident going away together of all accused through the bank of river indicates that all accused persons had shared the common intention in killing the deceased Beni Ram.The accused in their statement under Section 313 Cr.P.C. have stated that witnesses have deposed against them due to enmity but what was the enmity, it has not been explained by them.Since, Sunder Lal (died during trial) was claiming land in the lease land of the deceased, so with regard to him it may be said that witnesses of fact had enmity but so far as appellants are concerned, there is no material on record to draw such an inference.Without any explanation or evidence it cannot be accepted that there was enmity between the deceased and accused persons and witnesses of fact deposed against them due to enmity.Therefore, on the basis of their statement under Section 313 Cr.P.C., it cannot be accepted that accused persons have been falsely implicated and witnesses deposed against them due to enmity and appellant Ram Chander to undergo two years rigorous imprisonment under Section 148 I.P.C.Thus, upon a wholesome consideration of the facts of the case, attending circumstances and the evidence on record, we do not find that the learned trial Judge committed any illegality or legal infirmity in convicting and sentencing appellants Ram Chander, Ram Shankar, Ram Bharosey and Ram Bahadur each to undergo life imprisonment and fine of Rs.2,000/- under Section 302 read with Section 149 I.P.C., in default of fine six 6 months additional imprisonment, appellants Ram Shankar, Ram Bharosey and Ram Bahadur to undergo one year rigorous imprisonment under Section 147 I.P.C. and appellant Ram Chander to undergo two years rigorous imprisonment under Section 148 I.P.C.This appeal lacks merit and is accordingly, dismissed.The C.J.M. concerned shall send his report with regard to the accused-respondents within one month thereafter.The lower court record shall be returned to the court concerned.Order Date :- 17.12.2019 Jitendra

['Section 34 in The Indian Penal Code', 'Section 302 in The Indian Penal Code', 'Section 147 in The Indian Penal Code', 'Section 148 in The Indian Penal Code', 'Section 149 in The Indian Penal Code', 'Section 324 in The Indian Penal Code']

Heard the learned counsel for the parties.This is the fourth repeat application filed under Section 439 of Cr.P.C. by the applicant whereas his earlier two bail applications (Mcrc No.6840/2016 & Mcrc No.12493.2016) have been dismissed on merits vide orders dated 08.07.2016 & 26.10.2016 respectively.The applicant is in custody since 09.03.2016 relating to Crime No.129/2016 registered at Police Station Civil Lines, District Morena (M.P.) for the offence punishable under Sections 353, 332, 333, 186, 294, 506, 34, 394, 397, 201 of IPC and under Section 11, 13 of the MPDVPKAfter considering the submissions made by the learned counsel for the parties and looking to the facts and circumstances of the case, without expressing any opinion on the merits of the case, I am of the view that there is no change in the circumstances or no new ground could be shown by the applicant so that the view taken on 08.07.2016 and 26.10.2016 may be changed.It was also mentioned in the order dated 26.10.2016 that appreciation of evidence cannot be done at this stage.(N.K. Gupta) Judge pd

['Section 353 in The Indian Penal Code', 'Section 394 in The Indian Penal Code', 'Section 294 in The Indian Penal Code', 'Section 332 in The Indian Penal Code', 'Section 506 in The Indian Penal Code', 'Section 186 in The Indian Penal Code', 'Section 34 in The Indian Penal Code', 'Section 397 in The Indian Penal Code', 'Section 201 in The Indian Penal Code']

(DIPANKAR DATTA,J.)W.P.9956(W) of 2014 pg (Asha Mondal @ Ashalata Mondal & Ors.vs. The State of West Bengal & Ors.) Mr. Bikash Ranjan Bhattacharya Mr. Uday Sankar Chattopadhyay Mr. Suman Sankar Chattopadhyay...for the petitioners Mr. Amrita Lal Chatterjee....for the State A report has been filed by the Circle Inspector, Amta Circle, Howrah Rural District through Mr. Chatterjee, learned advocate for the State.It appears therefrom that investigation of Amta Police Station Case No. 46 of 2014 dated February 05, 2014 under Sections 448/427/342/323/325/379/506/376-D/120B of the Indian Penal Code has been completed and police report under Section 173(2) of the Code of Criminal Procedure (hereafter the 'Code') has been filed before the learned magistrate vide Amta Police Station Charge Sheet No. 91 of 2014 dated April 26, 2014 under Sections 448/427/342/323/ 325/379/506/376-D/120B against eight F.I.R. named accused persons and two persons whose names transpired in course of recording the statements of the victims and the complainant under Section 164 of the Code.The report shall be retained with the records.Mr. Bhattacharya, learned senior advocate for the petitioners submits that some other persons, whose names transpired in course of recording of the statements of the victims and the complainant under Section 164 of 2 the Code, have not been charge sheeted.He prays for an opportunity to look into the report.Put up the writ petition under the same heading on Tuesday next (13.05.2014).Learned advocate on record for the petitioners shall be at liberty to look into the report.

['Section 342 in The Indian Penal Code', 'Section 323 in The Indian Penal Code', 'Section 427 in The Indian Penal Code', 'Section 325 in The Indian Penal Code', 'Section 448 in The Indian Penal Code', 'Section 379 in The Indian Penal Code', 'Section 120B in The Indian Penal Code', 'Section 164 in The Indian Penal Code', 'Section 506 in The Indian Penal Code']

And In the matter of: Apurba Saha ....petitioner.It is submitted on behalf of the petitioner that the allegation of compelling the victim to cohabit with him on threat of uploading pictures are patently absurd.Accordingly, the petitioner is directed to be released on bail upon furnishing a Bond of Rs. 10,000/- with two sureties of like amount each, one of whom must be local, to the satisfaction of the Learned Additional Chief Judicial Magistrate, Howrah subject to the condition that during bail he shall appear before 2 the learned trial court regularly till disposal of the trial and he hall not intimidate witnesses or tamper with evidence in any manner whatsoever.In the event the petitioner fails to comply with the conditions as enshrined hereinbefore, it is open to the trial court to cancel the bail without any further reference to this Court.The application for bail is, thus, disposed of.(Suvra Ghosh, J.) (Joymalya Bagchi, J.)

['Section 509 in The Indian Penal Code', 'Section 376 in The Indian Penal Code', 'Section 506 in The Indian Penal Code']

By this present Miscellaneous Criminal Case under Section 482 of the Cr.P.C. the applicant is challenging order dated 6.1.2020 passed by the Additional Sessions Judge, Khategaon, District-Dewas.Earlier the applicant has filed an application bearing M.Cr.C.No.32396/2019 under Section 439 of the Cr.P.C. The said application has been withdrawn vide order dated 26.8.2019 with a liberty to renew the prayer after two months of the statement of the prosecutrix.As per prosecution story, on 15.7.2019 complainant lodged a report against the petitioner that, at about 12 o' clock when she was sitting on her shop, at that time applicant teasing to the complainant and from his ship and when the prosecutrix asked him that, why he is teasing her then the applicant came with ballam (sharp object) to cause injury in the shop of the complainant and the complainant entered in her house and the applicant also entered in the house of the complainant and caused injury to her.Upon crying, her husband and his brother came there and save her.The applicant caused injury to the husband of the complainant by sharp object.On the basis of the said report, offence under Sections 452, 354(A), 509, 323, :2: M.Cr.C.No..2637-2020 325 and 506 of the IPC has been registered against the applicant at police station Harangaon, District-Dewas.:2:Against the said order, the applicant has filed an application under Section 439 of Cr.P.C. before the learned Additional Sessions Judge.Being aggrieved by the said order, the applicant has filed the present application under Section 482 of the Cr.P.C.Learned counsel for the petitioner submits that, the learned Judge while rejecting the application has failed to consider the provisions of Section 437 (6) of Cr.P.C. whereas as the said Section, if in any case triable by Magistrate, the trial of the person accused of any no-viable offence is not concluded within a period of sixty days from the first date fixed for taking evidence in the case, such person shall, if he is in custody during the whole of the said period, be released on bail to the satisfaction of the Magistrate and in the present case the first date for evidence was 30.10.2019, but none of the prosecution witnesses present before the trial Court.As per the said provisions, the applicant is entitled to be released on bail.C.No..2637-2020Learned Public Prosecutor for the State submits that no sufficient ground is made out for releasing the applicant on bail; hence he prays for rejection of the application.Heard learned counsel for the parties and perused the record.However, till 3.1.2020 the trial could not have been completed and none of the prosecution witnesses has been examined.

['Section 437 in The Indian Penal Code', 'Section 506 in The Indian Penal Code', 'Section 509 in The Indian Penal Code', 'Section 452 in The Indian Penal Code', 'Section 325 in The Indian Penal Code', 'Section 354 in The Indian Penal Code', 'Section 323 in The Indian Penal Code']

C.R.M. 9259 of 2018 In Re: - An application for anticipatory bail under Section 438 of the Code of Criminal Procedure filed on 09/10/2018 in connection with Chanchal P.S. Case No.581 of 2018 dated 11/09/2018 under Sections 341/323/325/307/34 of the Indian gd Penal Code.And In the matter of: Gour Ch.Das @ Gour Das @ Gora Das & Ors.....petitioners.Mr. A. Sarkar ...for the petitioners.Mr. Bitasok Banerjee ...for the State.The petitioners seek anticipatory bail in connection with Chanchal P.S. Case No.581 of 2018 dated 11/09/2018 under Sections 341/323/325/307/34 of the Indian Penal Code.The petitioners claim that following a dispute over the felling of a tree with a neighbour, there was a fight and injuries were suffered on both sides.The petitioners say that an exaggerated complaint has been lodged against them.The State produces the case diary and refers to one of the injuries.The concerned victim suffered two deep-cut scalp injuries.The State says that wooden sticks were used to mercilessly beat up the complainant and his associates.Considering the nature of the incident and the extent of the injury, the immediate detention of the petitioners may not be called for, particularly since they have been identified.The petitioners must, however, cooperate with the investigation.In addition, the petitioners will also report to the Investigating Officer at such time and place as may be specified by the concerned police officer, till the investigation is completed.The petition for anticipatory bail is allowed on the conditions indicated above.A certified copy of this order be immediately made available to the petitioners, subject to compliance with all requisite formalities.(Sanjib Banerjee, J.) (Suvra Ghosh, J.)

['Section 341 in The Indian Penal Code', 'Section 307 in The Indian Penal Code', 'Section 323 in The Indian Penal Code', 'Section 325 in The Indian Penal Code', 'Section 34 in The Indian Penal Code']

A.No.674/2007 Page 1 of 10The reason why learned counsel for the appellant has made restricted submissions is the fact that the dead body of Smt. Sudershan Pahuja was recovered from the house of the appellant.The body had been concealed in a trunk which was placed in the kitchen of the house.Indeed, the photographs taken by PW-7 being Ex.PW-7/A to Ex.PW-7/K negatives whereof are PW-7/1 to Ex.PW-7/10 are indisputably the kitchen of the house of the appellant.That the deceased had gone to the house of the appellant stands proved by the testimony of her son Harish Pahuja PW-1, his wife Rubi Pahuja PW-5 as also Parminder Singh PW-3 who have deposed that the deceased Smt. Sudershan Pal had gone to the house of the appellant to collect Rs.20,000/- Crl.A.No.674/2007 Page 2 of 10 which she had loaned to the mother of the appellant.A.No.674/2007 Page 2 of 10Case of the prosecution is that the deceased had loaned Rs.20,000/- to Sumitra, the mother of the appellant, and on 17.2.2001 had gone to the house of the appellant to receive back the said money.Needless to state, the mother of the appellant was residing with him.Since the deceased did not return home till late afternoon, hence her son and her daughter- in-law were naturally alarmed.Harish Pahuja the son of the deceased and his friend Parminder Singh went to the house of the appellant but found the same locked.Since the deceased did not return home and could not be located even by late evening, the son i.e. Harish Pahuja lodged a missing person's complaint, Ex.PW-10/A, informing that his mother had gone to the house of the appellant.This led the police to track down the appellant and his mother.Since their house was locked, from the neighbours they learnt that a daughter of the appellant was married and was residing some where at Tughlak Road, New Delhi.The police located the house of the daughter of the appellant, where they met Deepa, the youngest daughter of the appellant, then aged about 8-9 years, who informed the police Crl.A.No.674/2007 Page 3 of 10 that the deceased had come to their house at 5628/78, Regar Pura, Karol Bagh and had demanded Rs.20,000/- from her grandmother.Her grandmother did not pay the money.The deceased bit her grand-mother and on seeing this her father got enraged and picked up an iron rod and repeatedly hit the deceased on the face and the skull.That the deceased died.That her father and her grand-mother cleaned the blood stains from the floor and put the body inside a trunk and put the trunk in the kitchen.She was sent to the house of her sister.Her father and her grandmother went away.A.No.674/2007 Page 3 of 10On the basis of the said statement, Ex.PW-2/A, made by Deepa, the police went to the house of the appellant.Indeed, from the kitchen, a trunk was found and on it being opened, the dead body of the deceased was recovered.After the appellant was apprehended he made a disclosure statement and got recovered the weapon of offence which he had used to inflict injuries on the deceased.We note that Deepa who was examined as PW-2 turned hostile and refused having made any statement to the police.A.No.674/2007 Page 4 of 10A.No.674/2007 Page 4 of 10Indeed, learned counsel for the appellant has, after making very feverish submissions on merits, restricted Crl.The deposition of young Deepa in Court is belied from the fact that when her grand-mother, who was also apprehended, was sent for medical examination, as per MLC Ex.PW-20/A the doctor noted that she had a bite mark on the under-side of the left arm and bruises on the arm.Sumitra, the grand-mother of Deepa has not explained the said bite mark injury on her fore-arm and this gives credence to the statement made by Deepa which ultimately led the police to recover the dead body of the deceased from the house of the appellant.Indeed, in view of the afore-noted over whelming evidence, coupled with the fact that the injuries on the body of the deceased being 12 in number, as per the MLC Ex.PW-8/A; injuries being fatal and by no stretch of imagination can any one argue that he who inflicts said injury does not intend to cause the death of the victim, learned counsel did not venture much into the evidence.The 12 injuries on the deceased are as under:-"1. CLW 11 x 2 x bone deep cms over left side forehead starting from the outer end of the left eyebrow going upwards, outwards and backwards upto a point 4 cms above the top of left ear pinna.A.No.674/2007 Page 5 of 10CLW stellate shape shaped 3 x 1.5 x bone deep cm over middle of forehead, 0.5 cm above the root of the nose.CLW 5.1.8 x bone deep cm obliquely placed over right side forehead 1.2 cm above the right eyebrow.CLW 2.5 x 0.7 x bone deep cm over right side face 2 cm left in front of right ear.CLW 1 x 0.3 x bone deep cm over left side chin 1 cm left to mid line.Flapping of the skin margin present.Flapping of the skin margin present.CLW 6.8 x 1.9 x bone deep cm over right temporal region 4 cm behind the lower end of injury no.9."A.No.674/2007 Page 6 of 10Indeed, the weapon of offence has been recovered pursuant to the disclosure statement of the appellant and on his pointing out.Learned counsel for the appellant urges that the evidence establishes that the deceased bit the mother of the appellant who was aged 85 years.At that, the appellant attacked the victim.A.No.674/2007 Page 7 of 10

['Section 300 in The Indian Penal Code', 'Section 302 in The Indian Penal Code', 'Section 304 in The Indian Penal Code', 'Section 201 in The Indian Penal Code']

P.W. 3 tried to protest when appellant no. 1 and others assaulted him with sword and lathi.Thereupon, the appellants also assaulted Parboti Debi with sword 3 and lathi.Asoke Kahar (P.W.1) is the son of Jagannath Kahar and is the defacto complainant in this case.He intervened in the skirmish and was also assaulted by the lathi.P.Ws. 2 and 3 sustained bleeding injuries and were admitted in hospital.P.W. 1 was also struck 4 on his right shoulder with lathi and he also fell down.He lodged first information report which was exhibited and he proved his signature thereon.The police came to the place of occurrence and seized blood stained clothes of the victim and P.W. 1 signed on the seizure list.He identified the wearing apparels of his father and sister.In cross-examination P.W. 1 stated that his father was struck by the backside of the sword.She corroborated the evidence of P.W. 1 and stated that when she requested the appellants not to assault P.W. 3, they assaulted her causing bleeding injuries.In cross-examination she stated that she was in hospital for 11 days.P.W. 3 is the father of P.W. 1 and 2 and is the other injured victim who corroborated their evidence.He stated that appellant no. 1 assaulted him on the head with a sword.He further stated that P.W. 2 was also assaulted by the miscreants.He lost his consciousness and was admitted in hospital.P. W. 4 is a neighbour, who stated that he came to the place of occurrence after the incident.He made arrangements to take P.W. 2 to the hospital.04.1985 around 9-30 p.m. the appellants along with other miscreants came to the house of Jagannath Kahar (P.W.3) at Mominpara, Block No. 9 and House No. 18 under P.S. Jagatdal, being armed with deadly weapons like lathi, nepala, sword etc. forming an unlawful assembly with the object of causing rioting.Appellant no. 1 asked P.W. 3 why they had not been invited the 'annaprasan ceremony' of his grandson.Thereafter, the appellants threatened P.W. 3 to kill him.The case being a sessions triable one was committed to the Court of Sessions and transferred to the Additional Sessions Judge, 2nd Court, Alipore for trial and disposal.Charges were framed under Section 148 /307/34 of the Indian Penal Code.The appellants claimed to be not guilty and claimed to be tried.The prosecution has examined 12 witnesses.The defence of the appellants were one of innocence and false implication.In conclusion of trial, the trial court by judgment and order dated 29th July, 1987 convicted and sentence the appellants as aforesaid.Hence, the present appeal.P.W. 1, 2 and 3 are the injured witnesses in the instant case.He stated that on the fateful day when he was taking his food along with his father and sister in their house the appellants came to their residence and abused their father as to whey they were not invited on the 'annaprasan ceremony' of his son which was being celebrated on that day.Thereafter the accused persons assaulted P.W. 3 with sword.He fell down and sustained bleeding injuries.When P.W. 2 tried to intervene she was also assaulted with sword and lathi.She suffered bleeding injuries as also a fracture on her hand.He signed on the seizure list.He corroborated the evidence of the other prosecution witnesses and deposed about the assault on P. Ws. 2 and 3 by appellant no. 1 and his nephew.In cross-examination, P.W. 6 stated that he saw the incident while fetching water.P. W. 7 is an ASI of Police, who received the FIR.He proved the written complaint as well as the formal FIR.P. W. 8 and 9 are the medical witnesses in the instant case.P. W. 8 stated that he had examined Jagannath Kahar (P.W. 3) and found the following injuries :-1. Lacerated injury over the left side of the scalp 3" x 3 " x ".2. Lacerated injury over the left forearm 1 " x " x " plus 1" x " x ".3. Lacerated injury over the right forearm 1 " x " x ".He further deposed that the victim was conscious when he examined him.He stated that he was assaulted by Kana Pandit, Kamala Mondal, Bimala Mondal, Jalal Mondal, Rajballav Singh and nephew of Kana Pandit on 1.4.85 at about 9.30 P.M. with bamboo, heavy sharp instrument (nepala).He also examined Parbati Debi (P.W. 3) and found the following injuries :1. Lacerated injury over the scalp 1 " x " x 1".Swelling and tenderness on left forearm.In cross-examination, he stated that lacerated injury can also be caused by sword.P. W. 9 stated that one Jagannath Singh was admitted multiple lacerated injuries over the scalp and both forearms.On x-ray of the scapula, it was found that there was a doubtful crack fracture of the neck of left scapula.He also stated that the x-ray of Parboti Debi, (P.W. 2) showed fracture of left radius.P. W. 11 is a neighbour, who was, however, declared hostile.P. W. 12 is the Investigating Officer of the case, who submitted the charge sheet.It is the evidence of P.W. 1 that the blunt side of the sword was used.He further submitted that independent witness, P. W. 11 has not supported the prosecution case.He, accordingly, prayed that the conviction to be set aside.Mr. Ghosh, learned Counsel appearing for the State submitted that the evidence of injured witnesses were consistent and is supported by medical evidence.Under such circumstances, no corroboration is necessary to bring home the guilt of the accused/appellants.He prayed for dismissal of the appeal.It is true that they are relations of the injured witnesses.Furthermore, the names of the appellants transpired as assailants at the earliest opportunity before the Medical Officer, namely, P. W. 8 as recorded in the injury report.Hence, I do not find any reason to disbelieve the injured witnesses whose ocular version is corroborated by the medical evidence merely on the ground that the same is not corroborated by independent witnesses.Corroboration by independent witness is not a rule of law but a rule of prudence and caution.If the evidence of the injured witnesses are unequivocal, consistent and is corroborated by medical evidence, there is no reason to disbelieve them merely on the ground of lack of corroboration.It is true that P. W. 6 in cross-examination claimed that he did not see anyone apart from appellant no.1 and his nephew at the place of occurrence.However, one ought not lose sight of the fact that he was not inside the house of P.W. 3 where the incident occurred but P. W. 6 had seen the incident from a distance when he was fetching water and it is possible that he was unable to notice the presence of all the assistants at the place of occurrence.Accordingly, I am of the opinion that the incident as portrayed by the prosecution has been proved beyond reasonable doubt.Hence, the intention to kill P.W. 1 is not evident in the facts of the case.Accordingly, I alter the conviction of appellant no.1 from Section 307 IPC to 326 IPC.In view of the aforesaid discussion, I maintain the conviction of the appellants under Section 148 IPC.Coming to the sentence I find that the incident had occurred four decades ago.The appellants do not have any criminal antecedent.Accordingly, I reduce the sentence imposed on the appellants for commission of offence punishable under Section 148 IPC and direct that they shall suffer imprisonment for a period already undergone and pay a fine of Rs.200/-, in default to suffer rigorous imprisonment for seven days more.With regard to the conviction under Section 326/34 IPC, I direct the appellant no.1, who is the principal assailant upon P.W. 3, shall suffer rigorous imprisonment for six months and shall pay a fine of Rs.200/-, in default, to suffer rigorous imprisonment for fifteen days more and the appellant nos.2 to 4 herein shall suffer rigorous imprisonment for three months and shall pay a fine of Rs.200/- each, in default, to suffer rigorous imprisonment for seven days.All the sentences shall run concurrently.Let a copy of this judgment along with LCR be sent down to the trial court at once for compliance and execution of the sentence in accordance with law.The appeal stands disposed of.Urgent Photostat Certified copy of this order, if applied for, be supplied expeditiously after complying with all necessary legal formalities.(Joymalya Bagchi, J.) Aloke/AB Item no. 417

['Section 148 in The Indian Penal Code', 'Section 307 in The Indian Penal Code', 'Section 34 in The Indian Penal Code', 'Section 326 in The Indian Penal Code']

In short, the facts of the case are that on 01.10.2013 complainant, Mr. Yogesh Tyagi lodged a complaint that one Mohd. Tasim who is working as Property Dealer told the complainant that the petitioner, who is owner of plot measuring 400 sq. yds.situated in Khasra No.27/19, Village Jharoda Majra, Burari, Delhi, has agreed to sell the said plot to Munavvar Hussain, S/o.Anuddin Hussain at the rate of Rs.45,500/- per sq. yd., total amounting to Rs.1,82,00,000/- and an agreement to sell dated 17.07.2012 was executed.Pursuant to the said agreement, Munavvar Hussain paid Rs.19,00,000/- (Rupees Nineteen lakhs only) as earnest money.Mr. Tasim handed over a Crl.M.C. No.3387/2014 Page 1 of 7 photocopy of the agreement and a receipt.The complainant agreed to purchase the said plot at the rate of Rs.46,500/- per sq. yd.from Munavvar Hussain.The complainant paid a sum of Rs.21,00,000/- (Rupees Twenty one lakhs only) on 25.08.2012 as earnest money to Tasim and Manavvar Hussain, which was paid to Kuldeep Singh (petitioner) on the same day in respect of the said plot.Thereafter, the petitioner entered into his house and after some time came out armed with revolver and refused to return the original agreement and to issue the receipt by showing pistol.The complainant has also alleged that the complainant along with his brothers Rajesh Tyagi, Ashwani Crl.Thereafter, the complainant demanded the agreement to sell from petitioner but he refused to hand over the same.M.C. No.3387/2014 Page 7 of 7The petitioner acknowledged the receipt of the said amount on the backside of the agreement.Thereafter, two post dated cheques bearing Nos.699782 and 699783 amounting to Rs.4,00,000/- (Rupees Four lakhs only) and Rs.3,00,000/- (Rupees Three lakhs only) respectively both dated 25.09.2012 drawn on State Bank of India were issued and given to the petitioner.On 22.09.2012 a sum of Rs.15,00,000/- (Rupees Fifteen lakhs only) and on 25.09.2012 a sum of Rs.29,00,000/- (Rupees Twenty nine lakhs only) were paid to Tasim in respect of the said plot, who handed over the said amount to the petitioner and obtained receipt on the backside of copy of the agreement.The complainant has also alleged that he had also paid a sum of Rs.40,00,000/- (Rupees Forty lakhs only) to Tasim on 22.10.2012 in respect of purchase of said plot, which was to be paid to the petitioner.Mr. Tasim told him that he went to Kuldeep Singh (petitioner) and paid Rs.40,00,000/- (Rupees Forty lakhs only) to him and asked him to acknowledge the receipt of the said amount.The complainant tried to contact the petitioner and was ready to pay the balance amount but neither the documents of title were executed by the petitioner nor the amount of Rs.1,31,00,000/- (Rupees One crore thirty one lakhs only) was returned.The Investigating Officer verified the photocopy of agreement and bayana receipt from Notary Public and concerned stamp vendor regarding purchase of stamp paper and notarisation.The petitioner was absconding.Accordingly, proceedings under Section 82 of Cr.P.C.M.C. No.3387/2014 Page 3 of 7were initiated against the petitioner vide order dated 16.07.2014 and the process under Section 82 of Cr.P.C. were executed on 22.07.2014 vide DD No.27, P.S. Burari, Delhi and the proclamation was published in the newspaper.I have carefully considered the material on record and I find that the petitioner was fully aware of the proceedings pending before the trial Court regarding issuance of the proceedings under Section 82 of Cr.P.C. against the petitioner as he could not be arrested despite Crl.M.C. No.3387/2014 Page 6 of 7 issuance of non-bailable warrants.The petitioner also received a notice dated 29.03.2014 sent by the Investigating Officer but the petitioner did not join the investigation.It appears that the petitioner tried to avoid the process of the Court.M.C. No.3387/2014 Page 6 of 7Having considered the facts and circumstances of the case, there is no ground for quashing the proceedings under Section 82 of Cr.P.C. Hence, the petition deserves to be dismissed and the same is hereby dismissed.M.A. No.11725/2014 The application is dismissed as infructuous.(VED PRAKASH VAISH) JUDGE AUGUST 25th, 2014 hs Crl.M.C. No.3387/2014 Page 7 of 7

['Section 406 in The Indian Penal Code', 'Section 420 in The Indian Penal Code', 'Section 506 in The Indian Penal Code', 'Section 120B in The Indian Penal Code', 'Section 34 in The Indian Penal Code']

No.23 of 1998 whereby the appellants were convicted for offences punishable under Sections 304 (Part II) of I.P.C or 304 (Part II) read with Section 34 of I.P.C and sentenced for seven years rigorous imprisonment.The prosecution's case, in short, is that on 18.7.1997 the deceased Ramratan along with his son Keshav (PW3) went to plough the field situated at Village Dani (Police Station Gudh, District Rewa).There was a dispute relating to ownership and possession of that particular field with the appellants and therefore, the appellants along with one Sukhlal came to the spot and stopped the complainant/deceased to work on the fields.The 2 Criminal Appeal No.730 of 1999 appellants were armed with the sticks and therefore, the deceased Ramratan and Keshav left the field and went back to the village.On the way the appellants Ram Dutt, Sudarshan, Manoj alias Chottan Mishra restrained the deceased and assaulted the deceased Ramratan and his son Keshav with sticks.Both the injured persons fell upon the earth.On their shouting Chhotelal (PW4), Chandrakali (PW1) and Ishwari etc. came to the spot.They took the injured persons to the Village Dani.Thereafter, the deceased Ramratan was taken to the Police Station Gudh where he lodged an FIR Ex.All the injured persons were sent to Government Hospital Rewa for their medico legal examination and treatment.Dr. M. K. Tiwari (PW6) after examining the victims Ramratan and Keshav gave his reports Ex.P/6 and P/7 respectively.He found swelling and tenderness on the left hand of Ramratan and bony cervix sound was also there at the first metacarpal bone in his hand.No other injury was found on him whereas, Keshav sustained 4-5 injuries caused by hard and blunt objects on his chest, back, left side of the head, fore arm, right knee and other places of the body.Both the patients were admitted in the hospital and Ramratan was referred for his X-Ray examination.Dr. Atul Singh (PW7) examined the victim Ramratan radiologically and gave his report Ex.(Delivered on the 10th day of October, 2012) The appellants have preferred this appeal against the judgment dated 10.3.1999 passed by the IInd Additional Sessions Judge, Rewa in ST.He found a fracture in his first metacarpal bone.Again the victim Ramratan was referred for radiological examination on 22.7.1997 and a fracture was found in his head.Panchayatnama lash Ex.P/25 was prepared of the deceased and body of the deceased Ramratan was sent for post mortem.Dr. B. K. Sharma (PW10) did the post mortem on the body of the deceased Ramratan and found that he died due to complications of head injury.After due investigation a charge sheet was filed before the JMFC, Rewa who, committed the case to the Court of Sessions Judge, Rewa and ultimately it was transferred to the IInd Additional Sessions Judge, Rewa.The appellants abjured their guilt.They did not take any specific plea in the case but, they have stated that they were falsely implicated in the matter.In defence Shivendra Kumar Agnihotri (DW1) and Baijnath Tiwari (DW2) were examined to prove the alibi of accused Manoj and Surendra Prasad Mishra (DW3) was examined to prove the alibi of the accused Sukhlal .After considering the evidence adduced by the parties the learned Additional Sessions Judge acquitted the other accused persons from all the charges.The appellants were also acquitted from the charges of offences punishable under Section 307, 302, 341, 294, 323 and 506-B of I.P.C but the appellants Ram Dutt, Sudarshan, Manoj @ Chottan Mishra were convicted for offences punishable under Section 304 (Part II) read with Section 34 of I.P.C whereas, the applicant Mola was convicted for the offence punishable under Section 304 (Part II) of I.P.C and all of them were sentenced for 7 years rigorous imprisonment.I have heard the learned counsel for the parties.Criminal Appeal No.730 of 1999The learned counsel for the appellants have submitted that the evidence of the various eye witnesses may be perused.They did not support the prosecution story.The learned Additional Sessions Judge convicted the appellants on the basis of the FIR lodged by the deceased Ramratan considering it as a dying declaration.The learned Additional Sessions Judge was confused about the overt act of the appellants as an individual.While convicting the appellants the learned Additional Sessions Judge convicted them for offence punishable under Section 304 (Part II) read with section 34 of I.P.C, whereas at the time of granting the sentence he sentenced the appellant Mola for offence punishable under section 304 (Part II) read with Section 34 of I.P.C, whereas the remaining appellants were sentenced for offence punishable under Section 304 (Part II) of I.P.C. There was no overt act specifically mentioned in the FIR as to who had caused the head injury to the deceased Ramratan and therefore, no accused could be convicted for main offence of Section 304 (Part II) of the I.P.C. It is also submitted that FIR was not at all a dying declaration in the eyes of law.In support of his contention the learned counsel for the appellants placed his reliance upon the judgments passed by Hon'ble the Apex Court in the case of "Sukhar Vs.Under such 5 Criminal Appeal No.730 of 1999 circumstances, such FIR cannot be believed.To disbelieve the FIR (dying declaration) the learned counsel for the appellant placed his reliance upon the judgment of Hon'ble the Apex Court in the case of "Maniram Vs.After considering the submissions made by the learned counsel for the parties and looking to the facts and circumstances of the case it is to be considered as to whether the appeal filed by the appellants can be accepted ? And whether the sentence directed against the appellants can be reduced ?The present case is a peculiar case in which Keshav (PW3) son of the deceased Ramratan, an injured witness, turned hostile.Chandrakali (PW1), Keshav (PW3) and Chhotelal (PW4) were examined as eye witnesses who turned hostile.They simply stated that they saw the victim Ramratan lying injured on the earth.Ramratan was taken to the Police Station Gudh where he had lodged an FIR Ex.The incident took place on 18.7.1997 and Ramratan expired after that incident.There is no allegation that the mental condition of the deceased Ramratan was not sound and therefore, the FIR which was lodged within reasonable time 6 Criminal Appeal No.730 of 1999 after the incident and proved by the Head Constable Shiv Pratap Singh (PW8) is acceptable.Dr. M.K. Tiwari (PW6) examined the victim Ramratan and Keshav and found the corresponding injuries as mentioned in the FIR.Initially one visible injury was found on the victim Ramratan which was in his fingers of left hand.No visible injury was found on his head.Though symptoms of vomiting etc. were not reiterated then on 22.7.1997 a second X- Ray was done to the victim Ramratan and Dr. Atul Singh (PW7) gave his report Ex.He found that the victim Ramratan sustained a fracture in the fronto parietal region of the skull corresponding to parietal border at orbit.By that discovery it was found that victim Keshav sustained some injuries on his head.The deceased Keshav died after some time due to complications which arose in his head injury and when, the injuries were not of such nature so that they were sufficient to cause his death initially, therefore, it was rightly observed by the trial Court that the culprits who, assaulted the deceased Ramratan were guilty of offence punishable under section 304 (Part II) of I.P.C and not guilty of offence punishable under Section 302 of I.P.C.The prime question is about the culprit who assaulted the deceased or participated with the common intention.It is no where clear in the judgment of the learned Additional Sessions Judge that how he selected the culprits for conviction.In the FIR Ex.P/13 it was stated that the deceased Ramratan and Keshav ran from the spot and thereafter Ram Dutt and Manoj restrained the 7 Criminal Appeal No.730 of 1999 victim and assaulted them.It is no where mentioned in the FIR that the appellant Mola had also participated in the assault but the learned Additional Sessions Judge convicted the appellant Mola without any basis.In the present case when the FIR was recorded there was no possibility of death of the deceased Ramratan and FIR was written in a routine manner therefore, it cannot be said that the FIR cannot be treated as a dying declaration under Section 32 of the Evidence Act.The FIR Ex.P/13 is the only evidence against the appellants in the present case and therefore, it should be observed as to whether the dying declaration given by the deceased by way of FIR is trustworthy or not.The dying declaration have various qualities.It should be clear and it should allege against the culprits with some clarity.In this case initially six accused persons were prosecuted.The deceased Ramratan in the FIR Ex.P/13 made omnibus statements against three persons viz. Ram Dutt, Sudarshan and Manoj that they assaulted him.The deceased sustained only two injuries.One was there on his fingers and another was on his head.His head injury was so peculiar that no visible injury was found on his head.It could be located after four days of the incident when radiological examination of his head was done.Dr. B. K. Sharma (PW10) has informed that the deceased was 70 years old man who lost his resistance.At such an age various bones of the body turn brittle and therefore, one stroke on the head could cause several 9 Criminal Appeal No.730 of 1999 fractures in the head.Under such circumstances, it cannot be accepted that more than one stroke was given on the head.If more than one stoke was given on the head then there must be some visible injury on his head and he must be in coma from the very beginning but, the deceased Ramratan was conscious at the time of lodging the FIR.During the MLC examination neither he complained about his injury on his head nor the doctor found such an injury.Under such circumstances, it is also possible that he sustained the head injury later on and therefore, it cannot be said that initially he sustained more than two stroke on his body.The deceased Ramratan had alleged in the FIR Ex.P/13 that three persons had assaulted him and his son.It is an omnibus allegation against the culprits.He did not make any specific allegation that out of those culprits who assaulted upon him.The culprit who gave a stroke on his head was mainly responsible for the offences punishable under Section 304 (Part II) of the I.P.C and a culprit who, assaulted the deceased Ramratan on his hand could be convicted for offence punishable under Section 304 (Part II) of I.P.C due to his common intention but, a person who did not assault the victim Ramratan could not be convicted for offence punishable under Section 304 (Part II) of I.P.C either directly or on the basis of Section 34 of I.P.C because there was nothing on record to say that he had any common intention with the main accused and therefore, the learned Additional Sessions Judge acquitted the two accused persons on 10 Criminal Appeal No.730 of 1999 this count.If only two persons had assaulted the deceased Ramratan out of these appellants, it is clear from FIR Ex.P/13 that there is no allegation upon the appellant Mola that he assaulted the deceased Ramratan and therefore, his common intention cannot be presumed with other co-accused persons.Similarly out of the remaining three appellants viz. Ram Dutt, Sudarshan and Manoj one person appears to be innocent, who did not participate in the crime.It is possible that he had assaulted the victim Keshav but, by such an act it cannot be said that he had any common intention with the other co-accused persons who assaulted the deceased Ramratan.If the omnibus allegations in the FIR Ex.P/13 are accepted then it would be injustice to one of the appellant who, did not participate in the crime and when the appellant in not isolated in the case then it is possible that he could be either Ram Dutt, Sudarshan or Manoj.In such circumstances, the FIR Ex.P/13 the dying declaration of the deceased Ramratan is not specific and clear by which any conviction can be drawn against any specific appellant.Under such circumstances, it would be risky to convict all the three persons for the offences whereas only two persons had participated in the crime done against the deceased Ramratan. 11Under such circumstances, none of the appellants could be convicted for offence punishable under Section 304 (Part II) of I.P.C or any inferior offence of the similar nature either directly or with the help of Section 34 of I.P.C. The learned Additional Sessions Judge erred in convicting the appellants for offence punishable under section 304 Part II read with Section 34 of I.P.C.On the basis of the aforesaid discussion the appeal filed by the appellants appears to be acceptable and therefore, it is accepted.(N.K.GUPTA) JUDGE 10.10.2012 bina

['Section 304 in The Indian Penal Code', 'Section 34 in The Indian Penal Code', 'Section 302 in The Indian Penal Code', 'Section 323 in The Indian Penal Code', 'Section 294 in The Indian Penal Code', 'Section 341 in The Indian Penal Code', 'Section 307 in The Indian Penal Code']

1 .2018 m No.33 No.34 owed C CRM No. 5835 of 2018 In Re:- An application for anticipatory bail under section 438 of the Code of Criminal Procedure filed on 07.08.2018 in connection with Kolaghat Police Station Case No. 216 dated 14.05.2018 for alleged offence punishable under Sections 341/325/307/506/34 of the Indian Penal Code.And In Re:-Surajit Maity & anr.... Petitioners Mr. Suman De, Advocate .. for the petitioners Mr. Aniket Mitra, Advocate ..for the State The petitioners seek anticipatory bail in connection with Kolaghat Police Station Case No. Case No. 216 dated 14.05.2018 for alleged offence punishable under Sections 341/325/307/506/34 of the Indian Penal Code.The petition for anticipatory bail is allowed subject to the conditions as indicated above.A certified copy of this order be immediately made available to the petitioners subject to compliance with all requisite formalities.(Moushumi Bhattacharya, J.) (Sanjib Banerjee, J. ) 2

['Section 325 in The Indian Penal Code', 'Section 34 in The Indian Penal Code', 'Section 307 in The Indian Penal Code', 'Section 506 in The Indian Penal Code', 'Section 341 in The Indian Penal Code', 'Section 438 in The Indian Penal Code']

He grew paddy on the land and reaped it.ORDER Sen, J.This rule has been obtained by the two accused who have been convicted of having committed theft.The first accused Yakub Sheikh has been sentenced to pay a fine of Rs. 200 in default to undergo rigorous imprisonment for three months.Half of the fine has been directed to be paid to Kalu Santal as compensation.The case for the prosecution is that Kalu Santal was in possession of certain land as the adiar of one Charan Das Chatterjee.

['Section 200 in The Indian Penal Code', 'Section 156 in The Indian Penal Code', 'Section 190 in The Indian Penal Code']

rt Learned counsel for the appellant submits that at the time of ou incident, age of prosecutirx was 16 years and she was a consenting party and he has been falsely implicated.Alternative submission was C that prosecutrix sustained injury in her private part when she was h attending the call of nature.ig The submission is opposed by the Government Advocate and he H submitted that at the time of incident, the prosecutrix was only 08 year old girl and she was sexual assaulted by the appellant.As a result of the sexual assaulted she had sustained injury in a private parts.This fact is duly proved by Dr.Rashmi Kurariya (PW-7) as well as mother of the prosecutrix Nanhi Bai who lodged the FIR.After going through the evidence adduced by the prosecution before the Trial Court.Accordingly, I.A.No.1401/2017 stands rejected and closed.Hence, I.A.No.16059/2017, an application for suspension of fine amount stands disposed of.sh C.C. as per rules.

['Section 376 in The Indian Penal Code']

The petitioners are the accused in Summary Criminal Case No. 346/2011, pending before the Judicial Magistrate (First Class), Amalner.The case arises on a complaint filed by the respondent no.1 herein and in respect of offence punishable under Section 500 of the IPC read with Section 34 of the IPC.The petitioners have approached this Court, invoking its jurisdiction under Articles 226 and 227 of the Constitution, praying that by a writ of certiorari, or any other appropriate writ, direction or order, the order dated 21-12-2013, passed by the learned Magistrate, rejecting the application (Exhibit 85) made by the petitioners, for recording their statement under Section 313 of the Code of Criminal Procedure [For short, "the Code"], afresh, be quashed and set aside, and that the learned Magistrate be directed to record the statement of each accused afresh.::: Downloaded on - 27/01/2014 23:10:49 :::On going through the copies of the record of the examination of the accused persons, as are annexed to the petition, I find substance in this contention.I find that, the questions put by the Magistrate are actually composite questions and each question consists of some sub-questions.It is obvious that, answers given to such questions cannot be properly comprehended.In the view that I am taking, it is not necessary to elaborately discuss the matter, but by way of example, the Question No.13 put to the petitioner no.1 - Kalyan s/o.Sahebrao Patil - is taken into consideration.This question reads as under :" In the statement of witness no.2- Kanti Arjun Patil - it is stated that, on 28-7-2011, a news was published in the newspaper.In that, it was published that, the complainant was expelled from MNS.In that news item the message was that, by taking photos with superiors, a business was made.She read the news item in 'Punyanagari' ::: Downloaded on - 27/01/2014 23:10:49 ::: (5) newspaper.She received phone calls from many women.How such news came out in respect of the complainant ?::: Downloaded on - 27/01/2014 23:10:49 :::Because of that news item, the complainant was defamed.What you have to say about this ?"The above question is answered as "हे खोटे आहे" (It is false).Now, this question consists of the statements that, on a particular date, a news was published in a newspaper.The question also states what was the matter published by way of said news.The question also says that, the witness no.2 read the news in a particular newspaper.The question also says that, thereafter, the said witness received phone calls from a number of women.The question also states that, the said witness then made inquiries with the accused no.2 (Not the petitioner no.1 who was examined).The quesetion also states that, the accused no.2 said that he would tender an apology.The question then finally says that, because of the publication of the said news item, the complainant i.e. the respondent no.1 was defamed.Now, the answer, 'It is false', cannot be properly understood, inasmuch as, it is not clear, whether the denial is in respect of publication of news, or about the matter containing the news, or about the witness no.2 having read that in a particular newspaper, or about the witness having received a number of telephone calls from certain women, or about the witness having made ::: Downloaded on - 27/01/2014 23:10:49 ::: (6) inquiries with the accused no.2, about the accused no.2 having said that he would tender an apology, and ultimately about, that, because of the publication of the said news item, the complainant was defamed.The answer, 'It is false', would be the right answer even if the denial is in respect of any one of these facts.::: Downloaded on - 27/01/2014 23:10:49 :::

['Section 313 in The Indian Penal Code', 'Section 500 in The Indian Penal Code', 'Section 34 in The Indian Penal Code']

JUDGMENT J.H. Bhatia, J.Leave granted.Amendment be effected immediately.2. Rule.Rule made returnable forthwith.With consent of the Counsel for both the parties, the matter is taken up for final hearing immediately.To state in brief, the wife and minor children of the present petitioner had filed Criminal Misc.Application No. 130/1997 under Section 125 of Cr.P.C. for maintenance before the J.M.F.C., Ichalkarnji.The application was contested by the petitioner.After hearing the parties, respondent No. 1 Mr. J.B. Anandgaonkar, the then J.M.F.C., passed the order dated 14/11/1997 allowing the maintenance application.That order was challenged by the petitioner in Criminal Revision Application No. 222/1997 before the Sessions Court, Kolhapur contending that the learned Magistrate had not made proper inquiry about the various aspects.That revision application was allowed by order dated 16/1/2001 and the maintenance application was remanded back to the J.M.F.C., Ichalkaranji for fresh inquiry.After fresh inquiry respondent No. 2 Mr. G.G. Bhansali passed the order dated 4/4/2003 granting maintenance to the wife and the children.The petitioner filed a complaint against respondent Nos. 1 to 3 for the offence punishable under Sections 219 and 220 of I.P.C. in the Court of J.M.F.C., Ichalkaranji on 24/11/2004, which was registered as M.A. Application No. 312/2004 and the matter was put up for arguments on the point of maintainability of such a complaint.After hearing the petitioner and after going through the relevant provisions of law, the learned Additional Sessions Judge, Ichalkaranji, dismissed the Revision Application with costs of Rs. 5000/-.The petitioner has filed this writ petition challenging the dismissal of his complaint by the Courts below.However, that order was set aside by the Additional Sessions Judge in Revision Application No. 222/1997 and the matter was remanded back to the trial Court.After remand respondent No. 2, while discharging his duties, as Judicial officer, considered the evidence led by both the parties and passed the order of the maintenance against the petitioner.The learned Additional Sessions Judge directed the petitioner to pay costs of Rs. 5000/- in view of his conduct in filing the complaint against the Judicial officer in respect of judicial orders passed by them.The learned Additional Sessions Judge has also observed that the petitioner had not only made the complaint against the Judicial Officers but he had also made the allegations against several advocates, who were appointed by him from time to time, for not performing their duties in proper manner.The learned Additional Sessions Judge noted as follows:This conduct of the complainant should not be taken lightly and while dismissing this revision, heavy costs of Rs. 5000/- payable to the State deserves to be imposed against the complainant." These observations made by the learned Additional Sessions Judge are perfectly justified.Such practice of making wild allegations against judicial officers only because they had passed certain orders against the particular party needs to be deprecated strongly.

['Section 190 in The Indian Penal Code']

Subsequently, the appellant was heard on the question of sentence and by an order dated 5th March, 2002, he was sentenced to undergo imprisonment for life.The deceased, Laxmi Kanta, was an employee with the Central Reserve Police Force (for short the CRPF).On 23rd October, 1996, police station Najafgarh received intimation that a woman was burning in Naveen Place Colony, Jharoda Road, Najafgarh, New Delhi.The report indicated that the woman was an employee of the CRPF.On receipt of the information, the police went to the spot and came to know that the woman, Laxmi Kanta, had been removed to the CRPF Base Hospital in a police van.When the police reached the CRPF Base Hospital, they came to know that she had been referred to Safdarjung Hospital.It appears that in the meanwhile, Laxmi Kanta had informed the doctor in CRPF Base Hospital that her husband, Jaya Kumar Nair, the appellant had poured kerosene oil on her and set her on fire.She gave similar information to her Commanding Officer who had come to see her in the Base Hospital.The police reached Safdarjung Hospital and made inquiries from the doctor on duty and were informed that the deceased was fit to make a statement.Accordingly, the Investigating Officer Constable Vinod Kumar recorded her statement in which she stated that her husband had poured kerosene oil on her and lit a matchstick and threw it on her as a result of which her saree caught fire.The Police then completed their investigations and a challan under Section 173 of the Code of Criminal Procedure; (for short Cr.PC) was filed.On 7th May, 1997, the following charge was framed against the appellant-That on 23-10-1996 at 9 p.m. Navin Place Colony near Kali Payau, Najafgarh, Jharoda Road, New Delhi, within the jurisdiction of PS Najafgarh, you had committed murder of Ms. Laxmi Kanta and thereby committed an offence punishable Under Section 302 IPC, within my cognizance.The accused pleaded not guilty and accordingly a trial was held.The appellant did not lead any evidence in his defense.The evidence on record shows that PW-1 Anil Kumar who was neighbour of the deceased stated that on 23rd October, 1996 he heard shouts from Laxmi Kanta.He immediately came out of his room and saw Laxmi Kanta burning.He extinguished the fire with the help of his mother and soon thereafter the police came.He stated that he did not know how Laxmi Kanta had caught fire but he pointed out the place in the open chowk (courtyard) where her burnt clothes were lying.By the impugned judgment and order, the appellant was convicted of having committed an offence punishable under Section 302 of the Indian Penal Code (for short IPC).Significantly, he stated that the appellant was not present in the courtyard when Laxmi Kanta was on fire.PW-2 Dr. S.N. Patnayak from the CRPF Base Hospital proved the MLC Exhibit PW-2/A in which it is recorded that Laxmi Kanta had stated that her husband had poured kerosene on her body at about 9.00 pm on 23rd October, 1996 and lit it.He noted the burns on her body and after initial treatment the deceased was sent to Safdarjung Hospital for further treatment and the police informed.In his cross-examination, he stated that the deceased was fully conscious but was crying due to pain.During the first year of marriage, the couple lived happily and thereafter they began quarreling and that the appellant often demanded some money from him.This witness was declared hostile.Inspector Neeraj Tyagi who was the Officer Commanding of the deceased was examined as PW-10, He stated that he was informed about her admission to the CRPF Base Hospital and he met Laxmi Kanta and inquired as to what had happened.She told him that a quarrel had taken place between her and her husband who then burnt her.He lodged an FIR against the appellant in police station Najafgarh.The doctor on emergency duty in Safdarjung Hospital, that is, Manoj Shukla was examined as PW-13 and he certified that the deceased was competent to make a statement.He took down the statement given by Laxmi Kanta in Safdarjung Hospital (Exhibit PW 13/A).Her statement was to the effect that her husband, that is, the appellant had poured kerosene oil on her and set her on fire.Exhibit PW-5/A is the post mortem report in respect of the deceased.It shows extensive burn injuries and it has been certified that the cause of death is due to septicemia shock as a result of 55% deep infected ante mortem burns.The appellant did not lead any defense evidence but in his statement under Section 313 of the Cr.PC he stated that the allegations against him were false and fabricated.The deceased was cooking food when her clothes caught fire.He tried to save her from getting burnt and as a result he received some burn injuries on his hands.He stated that he had taken her to the hospital in a police van.He further stated that the marriage between him and the deceased was a love marriage and the parents of the deceased were not happy with the marriage and were not on speaking terms with the appellant.He stated that since it was a love marriage, there was no question of any dowry demand.Learned amices curiae, submitted that the prosecution should have investigated how and why the appellant's hands got burnt.It was submitted that the case of the appellant was that the deceased had accidentally caught fire and his hands were burnt while he was trying to extinguish the fire.We do not find any substance in this contention urged by learned Counsel.For one, it has come on record that only his right hand sustained some burn injuries.It is quite unlikely that if he was trying to extinguish the fire, he would do so with only one hand and not use both hands.Moreover, we also find from the evidence on record that the appellant was nowhere to be seen when his wife was burning in the courtyard and when PW 1 Anil Kumar and his mother tried to extinguish the fire.It is also not acceptable that the appellant had accompanied the deceased to the CRPF Base Hospital.There is nothing whatsoever to suggest this.On the contrary, Exhibit PW-2/A suggests that the deceased was brought in a van of Delhi Police to the CRPF Base Hospital.Similarly, when PW-10 Insp.Neeraj Tyagi met the deceased in the CRPF Base Hospital, there is nothing to suggest that the appellant was present nor is there anything to show that when the dying declaration was recorded in Safdarjung Hospital, the appellant was available.If on these critical moments the appellant was not found showing any concern for his wife, it is very unlikely that he would have tried to extinguish the fire, as claimed by him.In fact, the appellant visited Safdarjung Hospital only on 25th October, 1996 when he was taken there after his arrest for a medical examination.The OPD card, Exhibit C-1 shows that he did not get his burnt hand treated in any hospital prior to that date.It was also submitted by learned amices Curiae that the arrest of the appellant was made under somewhat suspicious circumstances in as much as he was allegedly waiting at a bus stop on 24th October, 1996 when he was arrested.We do not find this submission of any consequence.On the contrary, what is suspicious is that the appellant ran away from his house.There was no reason for him to do so if nothing had happened at his instance.There is no report from the Central Forensic Science Laboratory (for short the CFSL) to indicate that kerosene oil was used in burning the deceased.In this regard, an effort was made to demolish the cause of death by burning on the basis of the opinion given by Dr. G. K. Chobey in the post mortem report Ex. PW-5/A as cause of death due to septicemia shock as a result of 55% deep infected ante mortem burns.But the fact remains that she made three statements before her death which can be treated as dying declarations.However, given the circumstances of (he case, it was not required for the doctor to lift the food and send it to CFSL to rule out any possibility of poisoning.Exhibit PW- 15/A1 is the death summary prepared by Dr. S. Kumar.It is clearly observed by the doctor in the death summary that the patient was admitted in Safdarjung Hospital with 55% deep burns on 23rd October, 1996 (wrongly written as 27th October, 1996) in a very critical condition.She was treated properly but her condition did not improve.She was also put on humidified oxygen inhalation but her condition did not improve and she could not be revived despite all C. P. R. measures.When an incident takes place within the four walls of a room, the prosecution ordinarily would not get any eye witness.Therefore, such cases have to be judged having regard to the entirety of the circumstances which are brought on record by the prosecution during the trial of the case.We may note that in this case the deceased had made three statements before her death.Firstly, she had stated before PW2 Dr. S. N. Patnayak in the CRPF Base Hospital that her husband had poured kerosene on her and set her on fire.Her second statement was made before PW-10 Insp.Neeraj Tyagi her Commanding Officer before whom she stated more or less the same thing and, finally also before PW-14 SI Shyam Pal Singh, Investigating Officer.We have not been pointed out any inconsistency in any of these three statements.Both PW-2 Dr. S. N. Patnayak before whom she made the first statement and PW-13 Manoj Shukla from Safdarjung Hospital were satisfied that the deceased was conscious and capable of giving the statement.There is, therefore, no reason to doubt the capability of the deceased to make the dying declaration.

['Section 302 in The Indian Penal Code']

A.No.219/1996 Page 1 of 19A.No.219/1996 Page 1 of 19Briefly put, case of the prosecution is that in the aftermath of the assassination of the Prime Minister Smt. Indira Gandhi, violent anti-Sikh riots erupted in Delhi, which continued for a few days from 31.10.1984 onwards.On 02.11.84, at around 5:30 pm, a telephonic information was received at Police Station Kalyan Puri through Inspector Rajesh of PCR that the Additional Commissioner of Police Shri Nikhil Kumar had intimated on telephone that a massacre was going on in Block No.32, Trilok Puri and the police force may be sent there.The information was recorded in the daily diary as DD No.12A dated 02.11.84 and the copy of the DD report was entrusted to SI Man Phool Singh, who immediately proceeded for the place of occurrence along with Constable Pat Ram.The SHO and the other staff also reached Block No.32 Trilok Puri in an official vehicle, where they found houses No.123, 124, 484 and 485, besides many other houses, on fire.One Sucha Singh and Lacha Singh were found there in injured condition and they were removed to the hospital.In the meanwhile, some senior officers also reached at the spot of occurrence with additional force and about 107 rioters were rounded up.The women and children belonging to the Sikh community were also sent to the Police Station.Some other injured persons, who were found at the spot, were sent to the hospital.SI Man Phool Singh met the complainant Rijju Singh at the spot of occurrence and recorded his statement, which disclosed the commission of various offences punishable under Section 147/148/149/436/304/323 IPC.SI Man Phool Singh appended his Crl.A.No.219/1996 Page 2 of 19 endorsement to the statement of the complainant Rijju Singh and sent it to the Police Station for the registration of the case and on the basis of said statement, formal FIR No.426/84 was recorded at the Police Station Kalyan Puri.We may note the complaint of Rijju Singh was specific to the incident relating to his family and the murder of his brother-in-law Lakha Singh.Besides the above said specific allegations, Rijju Singh also made general allegations pertaining to the loss of life and property caused by the rioters to several Sikh families.A.No.219/1996 Page 2 of 19Subsequent to the riots, Justice Rang Nath Misra Commission was constituted by the Government to inquire into the various aspects of the riots including the role of the police.The Commission invited petition/affidavit from dissatisfied victims of riots.Baujhi Bai, PW6 also submitted her affidavit Ex.In the aforesaid affidavit, she averred that on 01.11.1984, a mob of rioters led by the Block Pradhan Ram Pal Saroj of Block No.32, Trilok Puri came at her house.She, her son Inder Singh and his wife Raj Rani requested Ram Pal Saroj to save them, but Ram Pal Saroj responded that he was not concerned whether they live or die.By that time, three/four police Constables came there and told her son Inder Singh to go inside and thereafter he closed the door of the house from outside.The said police officials told the mob that there were Sikhs inside the house and thus the mob forced open the door.The appellant Abdul Rashid and Nisar Ahmed @ Hansar were leading said mob.Her daughters-in-law prayed for mercy, but they were dragged Crl.A.No.219/1996 Page 3 of 19 aside and the mob started looting their house.She further averred in the affidavit that thereafter the aforesaid mob caught hold of the male members and started dragging and beating them.When they started beating Inder Singh, he tried to escape, but he was caught and thereafter the mob put a burning quilt on him and when Baujhi Bai tried to remove that burning quilt, she was beaten and pushed away.The mob also assaulted her son Gopal Singh with lathies and he was thrown on a burning rickshaw.Thereafter, the mob found that her husband was hiding on the roof.They uttered the words "Budhey Tu Kaise Bacha" and killed him on the roof itself.A.No.219/1996 Page 3 of 19On the recommendation of Rang Nath Misra Commission, a Committee comprising of Justice Jain and Shri Agrawal was constituted to go through the affidavits filed by various victims and make recommendations regarding the registration and investigation of cases pertaining to specific incidents.The Committee, on consideration of the above affidavit of Baujhi Bai and the investigation file of Case FIR No.426/84 P.S. Kalyan Puri found that the Investigating Officer, apart from recording the statement of PW6 Baujhi Bai in respect of the incident in hand had not examined any other witness.In order to bring home the guilt of the appellants, prosecution examined as many as 13 witnesses.The material witnesses being the purported eye witnesses, PW5 Raj Rani, PW6 Baujhi Bai and PW7 Devi Kaur.The co-accused Ram Pal Saroj died during the trial, as such proceedings against him stood abated.The case of the prosecution rests mainly on the eye witness account given by PW5 Raj Rani, PW6 Baujhi Bai and PW7 Devi Kaur.PW5 Raj Rani has stated that in November, 1984, she was living with her family members namely, Baujhi Kaur (mother-in-law), Devi Kaur(sister-in-law), Vidya Kaur (sister-in-law), Jeevan Singh (father-in- law), Inder Singh (husband) and four children.On 01.11.84, at around 4:00 pm, a 3000 to 4000 number strong mob came to their house.The members of the mob were carrying lathies, stones and swords etc. The mob entered their house after breaking open the door and started looting the household goods.Thereafter, they asked them to go out and assured that they would not cause any harm to the ladies and children, but would not spare the male members.The mob then started beating her husband Inder Singh and father-in-law Jeevan Singh with lathies and when they became unconscious, the mob poured kerosene oil over them and set them on fire.She further stated that out of the aforesaid mob, she was able to identify Ram Pal Saroj, Hansar @ Nasir and the appellant Abdul Rashid.She identified Abdul Rashid and Ram Pal Saroj in the court, but failed to identify Hansar @ Nasir.We may note at this juncture that PW5 Raj Rani has not stated anything about presence of her two brothers-in-law Gopal Singh and Makhan Singh at the time of incident or their having been beaten and killed by the rioters in her presence.A.No.219/1996 Page 6 of 19A.No.219/1996 Page 6 of 19PW6 Baujhi Bai has stated that on the fateful day at around 4:00 pm, she was present in her house along with her husband Jeevan Singh (deceased) and sons Inder Singh (deceased), Gopal Singh (deceased) and Makhan Singh (deceased) when a huge mob of rioters entered their house after breaking open the door.She has stated that they set their house on fire with the help of kerosene oil and when they came out of burning house, she noticed that members of the crowd were carrying Churras, knives and "dandas" etc. Accused Ram Pal Saroj (since deceased) was leading the crowd and on his instigation, the rioters killed her husband and three sons with churras, swords and iron rods and thereafter set them on fire after pouring petrol over them.She further stated that her household goods were looted.Her daughter-in-law Devi Kaur and Raj Rani ran away from the house after the killing and she remained there outside the house near the burnt bodies of her husband and sons till 10:00 pm.Though PW6 Baujhi Bai identified Ram Pal Saroj in the court, she expressed her inability to identify the appellant Abdul Rashid and the other co-accused.She further stated that she had submitted the affidavit Ex.PW4/A before the Commission.Though in her examination-in-chief, she did not say anything about the appellant Abdul Rashid being one of the rioters who had killed her husband and sons, but in the cross-examination she denied the suggestion on behalf of the appellant Abdul Rashid that she had named Abdul Rashid as one of the rioters because he was the youth Congress leader at that time.Therefore, considering that the investigation done was perfunctory, the Committee recommended further investigation into the allegations vide letter Ex.PW3/A. Pursuant to the recommendation, further investigation in the matter was conducted by the Riots Cell constituted in this regard.A.No.219/1996 Page 4 of 19A.No.219/1996 Page 4 of 19During further investigation, the statements of Raj Rani PW5, Baujhi Bai PW6 and Devi Kaur PW7 were recorded under Section 161 Cr.P.C. wherein they more or less supported the averments made in the affidavit of Baujhi Bai.On conclusion of investigation, a supplementary charge sheet under Section 137(8) in respect of case FIR No.426/84 P.S. Kalyan Puri was filed.The learned Trial Court, on consideration of the challan, charged the appellant and his co-accused persons for the offences punishable under Section 147 IPC, 302 read with Section 149 IPC, 436 read with Section 149 IPC, 395 read with Section 149 IPC.The appellant and his co-accused persons pleaded innocence and claimed trial.The learned Trial Court, on conclusion of trial, found the appellant Abdul Rashid guilty for the offences punishable under Section 148 IPC, 302 read Section 149 IPC, 397 and 436 IPC read with Section 149 IPC and convicted him accordingly.The co-accused Nisar Ahmed @ Hansar, however, was given benefit of doubt and acquitted.A.No.219/1996 Page 5 of 19A.No.219/1996 Page 5 of 19A.No.219/1996 Page 7 of 19A.No.219/1996 Page 7 of 19PW7 Devi Kaur, another eye witness, has stated in the court that in November, 1984, she was living at House No.32/1, Trilok Puri with her family, including father-in-law Jeevan Singh, mother-in-law Baujhi Bai, husband Makhan Singh, Jeth Inder Singh, Devar Gopal Singh and Nanad (husbands sister) Gopi Kaur.She also stated that on 01.11.84 at about 4:00 pm, a 300/400 number strong mob, including Ram Pal Saroj (since deceased), Hansar @ Nisar (acquitted) and the appellant Abdul Rashid came to their house.They were carrying "dandas", churras, knives and petrol etc. The accused persons along with other rioters caught hold of the male members of the family, including her husband, Devar, Jeth, father-in-law and assaulted them with iron rods, churras and knives etc. and killed them.Thereafter, the mob burnt their bodies by pouring petrol upon them.She further stated that the mob dragged them out of the house and then looted their house and burnt it.She, Vidya Kaur, Devi Kaur and Raj Rani ran away, but her mother-in-law remained behind with the dead bodies.She further stated that she knew above named three accused persons since before as they were residents of the same lane in which she was living.The appellant in his statement under Section 313 Cr.P.C. denied the prosecution case.According to him, he was not in the group of rioters and actually he was not in Delhi at the relevant time.In defence, the appellant examined DW1 Padam Sharma who has deposed that on 27/28.10.84, he had arranged a car for the appellant from Shakarpur taxi stand for enabling him to take a Sikh brother to Crl.DW2 Mohd Hanif is running a Madarsa at Mauza Anup Pur Dibai, District Ghaziabad, U.P. According to him, on 01.11.84 at about 10:00 am, the appellant met him in connection with the treatment of his brother who on checking was found to be behaving like a mad man.The witness has stated that he gave three "Taveez" to the appellant for his ailing brother.The appellant stayed with them for three days and on the fourth day, when the condition of his brother did not improve, he advised the appellant to show his brother to some Doctor.A.No.219/1996 Page 8 of 19PW4/A, which is stated to have been submitted before Justice Rang Nath Misra Commission constituted by the Government to inquire into 1984 riots, including the role of the police.Learned counsel has contended that admittedly prior to the filing of said affidavit, the statements of PW6 Baujhi Bai and PW5 Raj Rani were recorded during the investigation of the case FIR No.426/84 on 17.11.84 and 06.12.84 respectively and in those statements neither Crl.A.No.219/1996 Page 9 of 19 Baujhi Bai nor Raj Rani named the appellant as one of the members of the mob of rioters though they had named some other persons whom they were able to identify in the mob.Agrawal Committee to the Administrator, Union Territory of Delhi dated 05.04.91 reveals that in the said letter there was no comment made upon the fairness of the investigation as regards the recording of the correct statement of the witness Baujhi Bai, but it was only stated that the investigation was done in perfunctory manner inasmuch as that no effort was made by the Investigating Officer to examine any other ocular witness to corroborate the testimony of Baujhi Bai.Thus, it is argued that since the name of Abdul Rashid as being part of the mob was not mentioned by Baujhi Bai and Raj Rani in their statements earlier made to the police, it is not safe to rely upon the testimony of the prosecution witnesses, who are also related to each other.A.No.219/1996 Page 9 of 19Learned counsel for the appellant has further submitted that PW5 Raj Rani and PW7 Devi Kaur had categorically stated that Abdul Rashid, who was identified by them in the mob, was resident of Block No.32, Trilok Puri, whereas the appellant was not residing in Block No.32, Trilok Puri at the relevant time.In support of this contention, he has relied upon the voter list of East Delhi Parliamentary Constituency for the years 1984, 1987 and 1993 wherein name of Abdul Rashid S/o Ashraf Ali, resident of House No.320, Block No.32 is mentioned at Crl.A.No.219/1996 Page 10 of 19 Serial No.784 and submitted that from this it is obvious that there was one other Abdul Rashid S/o Ashraf Ali living in Block No.32 at the relevant time and, therefore, a possibility cannot be ruled out that the person named by Baujhi Bai in her affidavit Ex.PW4/A and by PW5 to PW7 during trial may be the aforesaid Abdul Rashid S/o Ashraf Ali and not the appellant, who is son of Abdul Aziz, resident of 33/55, Trilok Puri.A.No.219/1996 Page 10 of 19Learned counsel for the appellant has submitted that PW5 Raj Rani, PW6 Baujhi Bai and PW7 Devi Kaur are interested witnesses being closely related to each other and also the wives of the deceased Inder Singh, Jeevan Singh and Makhan Singh respectively.It was submitted that though there is no bar under law to base conviction on the testimony of interested witnesses, if found reliable, yet the rule of prudence demands that the testimony of said witnesses be approached with due care and caution.Learned counsel has argued that PW5 to PW7 are not worthy of reliance because of contradictions and infirmities in their testimonies.He has argued that case of the prosecution is that the incident took place in presence of the above referred witnesses, yet PW5 Raj Rani in her testimony has not deposed anything about the killing of her brothers-in-law Makhan Singh and Gopal Singh by the mob.He has further submitted that even regarding the identification of the accused persons, the testimony of these witnesses is at variance.PW7 Devi Kaur identified all the three accused Ram Pal Saroj, Hansar @ Nisar and Abdul Rashid and she also Crl.A.No.219/1996 Page 11 of 19 claimed that she knew Hansar @ Nisar as he was well known to her "devar" Gopal Singh, whereas PW5 Raj Rani has contradicted her version by stating that the accused Hansar on trial before the court was not the same Hansar whom she saw in the crowd of rioters.Further, PW6 Baujhi Bai failed to identify either the appellant Abdul Rashid or his co-accused Hansar, though she identified the other accused Ram Pal Saroj.In view of the aforesaid contradictions, learned counsel for the appellant has urged us to conclude that the testimony of these witnesses is doubtful.A.No.219/1996 Page 11 of 19Besides the above arguments, it is also argued on behalf of the appellant that even the death of Jeevan Singh, Inder Singh, Makhan Singh and Gopal Singh is not established because the investigating agency has neither seized the dead bodies or their ashes, which may lead to an inference that actually the incident referred to by the witnesses did not take place and in that incident the above referred persons were killed by the mob.Learned counsel has argued that since in the aftermath of 1984 riots, the Government had announced compensation for the victims, a possibility cannot be ruled out that these witnesses have concocted the story to obtain compensation and their husbands might be alive.On the other hand, learned counsel for the State has submitted that the guilt of the appellant is firmly established from the testimony of PW5 Raj Rani, PW6 Baujhi Bai and PW7 Devi Kaur, which is Crl.A.No.219/1996 Page 12 of 19 consistent and of corroborative nature.Learned counsel took us through the testimony of above three ocular witnesses and submitted that they have withstood the test of cross-examination and there is no reason to suspect their testimony.So far as failure of the investigating agency to seize the burnt dead bodies of the deceased persons or their ashes is concerned, learned counsel for the State has submitted that the aforesaid factor, by no means, is of any help to the appellant and it cannot be taken as a circumstance to infer that the murders of Jeevan Singh, Inder Singh, Makhan Singh and Gopal Singh have not been established, particularly when it was an extraordinary situation prevailing at the relevant time and even the police force virtually abdicated its functions.Learned counsel for the State has submitted that it was precisely for that reason that the Government had appointed Justice Rang Nath Misra Commission.He has submitted that the deliberate failure of the police to perform its duty properly cannot be taken as a circumstance to discard testimony of the eye witnesses, if found reliable.Otherwise also, he submitted that there is no evidence on record to show that any one of the above referred victims is alive.Learned counsel for the State further submitted that the contradictions pointed out by the learned counsel for the appellant in the testimony of PW5 Raj Rani, PW6 Baujhi Bai and PW7 Devi Kaur are not so material as to discard their testimony.If Baujhi Bai, because of her weak eyesight, could not identify the appellant and his co-accused Hansar, that by itself is no reason to discard the testimony of the other Crl.A.No.219/1996 Page 13 of 19 two witnesses, who did identify the appellant as a participant rioter.Lastly, it was submitted by learned counsel for the State that the appellant cannot take advantage of the earlier statements of Baujhi Bai and Raj Rani recorded under Section 161 Cr.P.C. because he has not confronted the witnesses with said earlier statements to seek their explanation in that regard.A.No.219/1996 Page 12 of 19A.No.219/1996 Page 13 of 19We have considered the rival contentions of the parties and perused the material on record.The main issue for determination in this appeal is whether or not the appellant Abdul Rashid was a member of the mob which indulged in rioting and committed the murder of Jeevan Singh, Inder Singh, Makhan Singh and Gopal Singh, besides indulging in looting and mischief.The prosecution in order to bring home this fact has heavily relied upon the testimony of PW5 Raj Rani, PW6 Baujhi Bai and PW7 Devi Kaur.PW4/A to the Commission and the aforesaid affidavit, along with the affidavits Crl.A.No.219/1996 Page 14 of 19 of others were then referred to Justice Jain and Shri Agrawal Committee to go through the affidavits and make recommendations regarding registration and investigation of the case.Perusal of said affidavit Ex.PW4/A submitted by Baujhi Bai reveals that in the aforesaid affidavit Baujhi Bai affirmed the facts regarding the murder of her husband and three sons.She also affirmed in the affidavit that the mob of rioters were led by Rashid Neta and Hansar.PW3/A is the letter written by the Secretary to Justice Jain-Sh.Agrawal Committee.In para 3 of the letter it is, inter alia, stated thus:On perusal of the above mentioned facts narrated in the letter Ex.PW3/A, it appears that Justice Jain-Sh.Agrawal Committee recommended further investigation in this case on a solitary ground that investigation was conducted in casual and perfunctory manner.There is nothing in the letter on the record to Crl.A.No.219/1996 Page 16 of 19Learned counsel for the State has submitted that even if the testimony of PW5 Raj Rani and PW6 Baujhi Bai is discarded because of material improvements made by them in respect of introducing the name of Abdul Rashid as a rioter, yet the guilt of the appellant is established by the testimony of PW7 Devi Kaur, who has fully supported the case of the prosecution and who has even withstood the test of cross-examination.It is true that Devi Kaur, PW7 did name and identify the appellant Abdul Rashid as one of the rioters.None of the witnesses in their statement under Section 161 Cr.P.C. has given the address of other Rashid, whom they purportedly saw amongst the rioters.A possibility cannot be ruled out that since one of the accused on trial was Abdul Rashid, the witnesses, including PW7 Devi Kaur, routinely identified the appellant as one of the rioters.

['Section 149 in The Indian Penal Code', 'Section 147 in The Indian Penal Code', 'Section 148 in The Indian Penal Code', 'Section 436 in The Indian Penal Code', 'Section 323 in The Indian Penal Code', 'Section 397 in The Indian Penal Code', 'Section 302 in The Indian Penal Code', 'Section 304 in The Indian Penal Code']

::: Downloaded on - 19/08/2015 23:58:20 :::The respondent No.1 has filed his written statement and opposed the claim made by the petitioner.He has also filed an application under Order VII, Rule 11(a) of the Civil Procedure Code for rejection of the petition on the objection that "the present election petition does not contain statement of material facts as to how the result of the election is materially affected, in so far as it concerns the returned candidate.Section 32 provides that a person may be nominated as a candidate for election to fill a seat, if he is qualified to be chosen to fill that seat under the provisions of the Constitution and the said Act.Section 33 relates to the presentation of nomination ::: Downloaded on - 19/08/2015 23:58:20 ::: 5 ep1.14.odt paper and requirements for a valid nomination.::: Downloaded on - 19/08/2015 23:58:20 :::Presentation of nomination paper and requirements for a valid nomination.--(1) On or before the date appointed under clause (a) of section 30 each candidate shall, either in person or by his proposer, between the hours of eleven O'clock in the forenoon and three O'clock in the afternoon deliver to the returning officer at the place specified in this behalf in the notice issued under section 31 a nomination paper completed in the prescribed form and signed by the candidate and by an elector of the constituency as proposer:In terms of the aforesaid provision, the nomination paper completed in the prescribed form and signed by the candidate and by an elector of the constituency as proposer, is to be delivered to the Returning Officer.In terms of 36 of the said Act, the nomination paper is to be scrutinized by the Returning Officer.Section 36(2) provides that the Returning Officer, on the objections filed to any nomination or on his own motion, may hold a summary enquiry in connection thereof.(4) The returning officer shall not reject any nomination paper on the ground of any defect which is not of a substantial character."::: Downloaded on - 19/08/2015 23:58:20 :::A nomination can be rejected on several grounds mentioned in Section 36(2)(a) to (c) and clause (b), which is relevant, is that there has been a failure to comply with any of the provisions of Section 33 or Section 34 of the said Act. Sub-section (3) is in the nature of exception and creates a bar to reject the nomination paper on the ground of any irregularity.Sub-Section (4) provides that the Returning Officer shall not reject any nomination paper on the ground of any defect, which is not of a substantial character.The present election petition is filed challenging the election of the respondent No.1 on the grounds mentioned in Section 100(1)(d)(i) and (iv) of the said Act. Section 100(1) of ::: Downloaded on - 19/08/2015 23:58:20 ::: 10 ep1.14.odt the said Act being relevant is reproduced below :In para 6, it is stated that along with the nomination paper (Annexure III), the respondent No.1 submitted affidavit dated 26-9-2014 in Form No.26 mentioned criminal cases pending against him and the copy of the affidavit is annexed as Annexure IV.The relevant contents of affidavit in Form No.26, filled in and said to have been delivered by the ::: Downloaded on - 19/08/2015 23:58:20 ::: 12 ep1.14.odt respondent No.1 are reproduced below :::: Downloaded on - 19/08/2015 23:58:20 :::(5) I am not accused of any offence(s) punishable with imprisonment for two years or more in pending case(s) in which a charge(s) has been framed by the court(s) of competent jurisdiction.If the deponent is accused of any such offence(s) he shall furnish ::: Downloaded on - 19/08/2015 23:58:20 ::: 13 ep1.14.odt the following information:-::: Downloaded on - 19/08/2015 23:58:20 :::(i) The following case(s) is/are pending against me in which charges have been framed by the court for an offence punishable with imprisonment for two years or more:-(a) Case/First Information Report No. FIR No.252/91 P.S. together with complete details of Sitabuldi Nagpur concerned police station/ District/State(b) Section (s) of the concerned Act(s) and 147, 148, 324 I.P.C. short description of the offence(s) for which charged(a) Name of the Court, Case No. P.S. Sitabuldi, J.M.F.C. No.2, and date of order taking Case No.11390/09, Dt.10/08/2009 cognizance Case No.10009/09 Dt.16/07/2009 Case No.164/98, Dt.13/02/1998 Case No.1303/96, Dt.05/10/1996 ::: Downloaded on - 19/08/2015 23:58:20 ::: 14 ep1.14.odt Case No.573/93, Dt.20/05/1993 Case No.219/98, Dt.26/02/1998 Case No.962/09, Dt.21/01/2009 Case No.18282/06::: Downloaded on - 19/08/2015 23:58:20 :::(b) The details of cases where the Section 135 B.P. At 143, 147,148, court has taken cognizance, 323 IPC, 143, 427, IPC, section (s) of the Act(s) and all cases are registered for description of the offence(s) for agitations.which cognizance taken(c) Details of Appeal(s)/ N.A.Applications for revision (if any) filed against the above order(s)(a) Name of the Court, Case No. P.S. Sadar, J.M.F.C. No.6, and date of order taking Case No.28/04, Dt.13/02/2004 cognizance Case No.13871/08 Dt.22/09/2008 Case No.14170/09, Dt.24/09/2009(b) The details of cases where the Section/143, 147,148,323, 427, IPC, court has taken cognizance, 135, BP.(c) Details of Appeal(s)/ N.A.Applications for revision (if any) filed against the above order(s)(a) Name of the Court, Case No. P.S. Dhantoli, J.M.F.C.No.2, ::: Downloaded on - 19/08/2015 23:58:20 ::: 15 ep1.14.odt and date of order taking Case No.5652/09, Dt.25/04/2009 cognizance Case No.945/2000::: Downloaded on - 19/08/2015 23:58:20 :::(b) The details of cases where the Section/188, 171 (g 34), IPC, 135, court has taken cognizance, B.P.section (s) of the Act(s) and all cases are registered for description of the offence(s) for agitations.(a) Name of the Court, Case No. P.S. Ganeshpeth, J.M.F.C.No.1, and date of order taking Case No.14315/09, Dt.29/09/2009 cognizance Case No.4240/10 Dt.05/05/2010(b) The details of cases where the Section/3,4, 135, B.P. court has taken cognizance, all cases are registered for section (s) of the Act(s) and agitations.description of the offence(s) for which cognizance taken(c) Details of Appeal(s)/ N.A.Applications for revision (if any) filed against the above order(s)(a) Name of the Court, Case No. P.S. Ambazari, C.J.M.and date of order taking Case No.331/05, Dt.27/04/2005 cognizance Case No.333/05 Dt.27/06/2005(b) The details of cases where the Section/188 IPC, court has taken cognizance, all cases are registered for section (s) of the Act(s) and agitations.::: Downloaded on - 19/08/2015 23:58:20 :::(a) Name of the Court, Case No. P.S. Koradi, J.M.F.C.No.6, and date of order taking Case No.2815/09, Dt.04/03/2009 cognizance(b) The details of cases where the Section/188,IPC, court has taken cognizance, all cases are registered for section (s) of the Act(s) and agitations.description of the offence(s) for which cognizance taken(c) Details of Appeal(s)/ N.A.Applications for revision (if any) filed against the above order(s)(a) Name of the Court, Case No. P.S. Kotwali, J.M.F.C.No.8, and date of order taking Case No.427/99, Dt.13/08/2009 cognizance(b) The details of cases where the Section/134, 135, B.P. Act court has taken cognizance, all cases are registered for section (s) of the Act(s) and agitations.::: Downloaded on - 19/08/2015 23:58:20 :::(a) Name of the Court, Case No. P.S. Wadi, J.M.F.C.No.8, and date of order taking Case No.305/99, Dt.30/09/1999 cognizance Case No.307/99, Dt.08/10/1999(b) The details of cases where the Section/188, 134, 135, IPC, court has taken cognizance, all cases are registered for section (s) of the Act(s) and agitations.description of the offence(s) for which cognizance taken(c) Details of Appeal(s)/ Applications for revision (if N.A.any) filed against the above order(s) (6) I have not been convicted of an offence(s) (other than any offence(s) referred to in sub-section (1) or sub-section (2) or covered in sub-section (3), of Section 8 of the Representation of the People Act, 1951 (43 of 1951) and sentenced to imprisonment for one year or more.If the deponent is convicted and punishable as aforesaid, he shall furnish the following information:In the following cases, I have convicted and sentenced to imprisonment by a court of law:::: Downloaded on - 19/08/2015 23:58:20 :::In para 7, it is alleged that the petitioner searched the information regarding the pending criminal matters against the respondent No.1 and verified it from the official website of District Court, Nagpur.While searching the information, the petitioner came to know about the two criminal matters, which are not mentioned by the respondent No.1 in his affidavit in Form No.26 submitted along with his nomination paper."i) Regular Criminal Case No.343/2003 - Madanlal Parate vs. Shri Hastak & others pending before the 21 st Jt.Civil Judge, Junior Division and Judicial Magistrate First Class, Nagpur (Corporation Court No.2); and ::: Downloaded on - 19/08/2015 23:58:20 ::: 19::: Downloaded on - 19/08/2015 23:58:20 :::ii) Summary Criminal Case No.231/1996 -Madanlal Parate vs. Devendra Fadnavis pending before the 15th Civil Judge, Junior Division and Judicial Magistrate First Class, Nagpur (JMFC Court No.6)."It is further alleged that the respondent No.1 has signed the personal release bond of Rs.3,000/- on 18-9-2010, i.e. Exhibit 28, before the Judicial ::: Downloaded on - 19/08/2015 23:58:20 ::: 20 ep1.14.odt Magistrate First Class, Court No.2, Nagpur.The petitioner has annexed the copy of the complaint as Annexure VII.::: Downloaded on - 19/08/2015 23:58:20 :::The petitioner has annexed the copies of complaint and bail bond as Annexures VIII and IX.It is further alleged that the non-disclosure has materially affected the election of the respondent No.1 as a successful candidate and, therefore, the petition is being presented under Section 100(1)(d)(i) and (iv) of the said Act.::: Downloaded on - 19/08/2015 23:58:20 :::By way of amendment introduced in para 27-A in the election petition, which was allowed by consent of the parties on 17-4-2015, it is alleged that the respondent No.1 also concealed the materials facts in his affidavit dated 26-9-2014 filed along with his nomination paper.The concealment is made in column (5)(i) about the Sections under which the chargesheet has been filed by the Police Station Officer, Sitabuldi, in Crime No.252 of 1991 under various Sections 149, 294, 448, 324 and 336 along with Sections 147, 148 and 325 of the Indian Penal Code (Sections 147, 148 and 324 of the Indian Penal Code were ::: Downloaded on - 19/08/2015 23:58:20 ::: 22 ep1.14.odt only disclosed by the respondent No.1).It is further alleged that the concerned Judicial Magistrate First Class has accordingly framed the charges against the respondent No.1 even under the other Sections of the Indian Penal Code, which are not mentioned by the respondent No.1 in column 5(i).::: Downloaded on - 19/08/2015 23:58:20 :::This petition seeks a declaration essentially in terms of prayer clause (4), which is reproduced below :"4] declare that the Respondent no.1's nomination had been improperly accepted by the Respondent no.5 for the Maharashtra Legislative Assembly Election, 2014 for the 52, South-West Nagpur Constituency, Nagpur and the election of the Respondent no.1 i.e. returned candidate is void due to non-compliance of the provisions of Constitution of India, The Representation of People Act as well as the Rules and Orders framed thereunder and the other laws."It is not necessary to reproduce the other prayer clauses made in the petition.::: Downloaded on - 19/08/2015 23:58:20 :::::: Downloaded on - 19/08/2015 23:58:21 :::::: Downloaded on - 19/08/2015 23:58:21 :::Association for Democratic Reforms and another, reported in (2002) 5 SCC 294, is a milestone and triggered electoral reform in the country, which has led to introducing the said provision.The Apex Court has held that it was incumbent upon every candidate, who is contesting the elections, to give information about his criminal background, which requirement is not only essential part of fair and free elections, but also every voter has a right to know about the details of the candidate and such requirement is also covered by freedom of speech granted under Article 19(1)(a) of the Constitution of India.::: Downloaded on - 19/08/2015 23:58:21 :::We may give an example at this stage.It can be stated with certitude that this can definitely be called antecedents for the limited purpose, that is, disclosure of information to be chosen as a representative to an elected body."::: Downloaded on - 19/08/2015 23:58:21 :::::: Downloaded on - 19/08/2015 23:58:21 :::(i) The object and purpose of introducing Section 33-A of the Representation of the People Act, 1951 calling information in Form No.26 on affidavit under Rule 4-A of the Conduct of Election Rules is to effectuate the fundamental right of freedom of speech and expression, as granted to the voters under Article 19(1)(a) of the Constitution of India, to know the criminal antecedents of the candidates at an election, which is necessary concomitant for a free and fair election.[Para 18](ii) The candidate filing an affidavit with false information as well as the candidate leaving particulars in the affidavit blank, are treated on par, resulting in breach of fundamental right guaranteed under Article 19(1)(a) of the Constitution of India, rendering affidavit ::: Downloaded on - 19/08/2015 23:58:21 ::: 33 ep1.14.odt nugatory.The exercise of electoral right would not be an advised one and he will be exercising his franchisee with the misinformed ::: Downloaded on - 19/08/2015 23:58:21 ::: 34 ep1.14.odt mind.[Paras 21 and 22]::: Downloaded on - 19/08/2015 23:58:21 :::::: Downloaded on - 19/08/2015 23:58:21 :::Such petition is not required to be supported by an affidavit, as contemplated by the proviso to Section 83(1) and there is no other legal impediment in treating this petition on the ground under Section 100(1)(a) of the said Act. Though this petition challenges the election of the ::: Downloaded on - 19/08/2015 23:58:21 ::: 36 ep1.14.odt respondent No.1 on the grounds under Section 100(1)(d)(i) and::: Downloaded on - 19/08/2015 23:58:21 :::After the petition was closed for orders on 10-7-2015, the petitioner filed an affidavit in Form No.25 under Rule 94-A of the Conduct of Election Rules on 13-7-2015 stating that it is in support of the allegation of corrupt practice of "undue influence"::: Downloaded on - 19/08/2015 23:58:21 :::According to him, the petition challenges the election of the respondent No.1 on the grounds under Section 100(1)(d)(i) and(iv) of the said Act and, therefore, the petitioner has to specifically plead and prove the material fact that the result of the election "insofar as it concerns the returned candidate" has been materially affected by improper acceptance of such nomination paper by the Returning Officer.::: Downloaded on - 19/08/2015 23:58:21 :::He has, therefore, urged that it is not permissible for the petitioner to lead evidence to prove this fact and hence the petition is liable to be rejected for failure to make out a cause of action.In support of all his ::: Downloaded on - 19/08/2015 23:58:21 ::: 39 ep1.14.odt contentions, he has relied upon the following decisions of the Apex Court :::: Downloaded on - 19/08/2015 23:58:21 :::::: Downloaded on - 19/08/2015 23:58:21 :::::: Downloaded on - 19/08/2015 23:58:21 :::The appeal before the Apex Court was dismissed.::: Downloaded on - 19/08/2015 23:58:21 :::::: Downloaded on - 19/08/2015 23:58:21 :::There were 17 candidates in the field, excluding the appellant, who was defeated by the respondent No.1, who was elected.The case was that the nomination form of the respondent Nos.2 to 18 ought to have been rejected for non-compliance of Sections 33-A and 33-B of the said Act. The petition was on the ground mentioned in Section 100 (1)(d)(i) of the said Act, i.e. in respect of wrongful acceptance of the nomination papers of the candidates other than the "returned candidate" and the petitioner.In this background, the Court considered the question of failure to plead material fact that the election of the "returned candidate" was materially affected by ::: Downloaded on - 19/08/2015 23:58:21 ::: 48 ep1.14.odt such improper acceptance and the petition was dismissed on that ground alone by the Apex Court.::: Downloaded on - 19/08/2015 23:58:21 :::The appellant was declared elected by one vote and the question of validity of three votes held in favour of respondent No.1, which were wrongly rejected, and one vote counted in favour of the appellant, ought to have been rejected.In this background, the question of pleading and proof that the result of the election has been materially affected, was considered.The High Court declared that the respondent No.1 was elected by a margin of two votes and the Supreme Court modified the said order.It was a case under Section 100(1)(d)(iii) and not under Section 100(1)(a) or ::: Downloaded on - 19/08/2015 23:58:21 ::: 49 ep1.14.odt Section 100(1)(d)(i) of the said Act. This decision is not an authority for the proposition that in case of improper acceptance of the nomination paper of the returned candidate, the requirement of pleading and proof that the result of the election insofar as it concerns a returned candidate is materially affected, as contained in Section 100(1)(d)(i) of the said Act, is attracted.::: Downloaded on - 19/08/2015 23:58:21 :::The Court will have to make an enquiry to ascertain the number of valid votes caste for the candidate whose nomination was improperly accepted, to determine whether such votes have materially affected the result of the election of a returned candidate.::: Downloaded on - 19/08/2015 23:58:21 :::::: Downloaded on - 19/08/2015 23:58:21 :::The Apex Court observed in Kisan Shankar Kathore's case that when the objections are raised to the correctness of the information or alleging that there is non-disclosure of certain important information in the affidavit filed along with the nomination paper, it may not be possible for the Returning Officer at that time to conduct a detailed examination and to reject the nomination paper.Where such a detailed enquiry is needed, would depend upon the outcome thereof in an election petition, as to whether the nomination was properly accepted or it was a case of improper acceptance.::: Downloaded on - 19/08/2015 23:58:21 :::::: Downloaded on - 19/08/2015 23:58:21 :::In view of the aforesaid decisions, the position of law can be summarized as under:[Paras 25 and 41 to 43] ::: Downloaded on - 19/08/2015 23:58:21 ::: 57 ep1.14.odt::: Downloaded on - 19/08/2015 23:58:21 :::[Para 39](iv) Once it is found that it is a case of improper acceptance of nomination paper of a returned candidate on the ground of suppression of material information, it would result in rejection of nomination paper and the declaration would be that the returned candidate was not entitled to contest and his election is void.[Paras 41 to 43](v) Necessary corollary of improper acceptance of ::: Downloaded on - 19/08/2015 23:58:21 ::: 58 ep1.14.odt nomination paper of a returned candidate would be that all the votes secured by him at the election in question have to be ignored.The only consequence would be that the result of his election automatically gets materially affected.::: Downloaded on - 19/08/2015 23:58:21 :::It is further held that upon proof of the fact that the nomination paper of the respondent No.1 carried the defect of a substantial character requiring the Returning Officer to reject the nomination under Section 36(2) of the said Act, the petitioner shall be entitled to a declaration claimed in the petition.::: Downloaded on - 19/08/2015 23:58:21 :::Presently, I am dealing with the application under Order VII, Rule 11(a) of the Civil Procedure Code claiming rejection of the petition at the threshold on the ground that it fails to disclose the cause of action for want of pleading of material facts.Section 83(1)(a) of the said Act inter alia provides that an election petition shall contain a concise statement of the material ::: Downloaded on - 19/08/2015 23:58:21 ::: 60 ep1.14.odt facts, which is analogous to Order VI, Rule 2(1) of the Civil Procedure Code.This provision states that every pleading shall contain a concise form of the material facts on which the party relies for the reliefs claimed.The entire chain of material facts leading to a relief claimed in the petition should be complete and any missing in the link shall result in failure to disclose the cause of action.::: Downloaded on - 19/08/2015 23:58:21 :::::: Downloaded on - 19/08/2015 23:58:21 :::(b) the Court of Competent jurisdiction had framed a charge against him in respect of such offence.In order to enable the voters to effectively exercise the right of ::: Downloaded on - 19/08/2015 23:58:22 ::: 63 ep1.14.odt franchise with well informed mind, the material information considered to be the bare minimum, to form an opinion to choose the candidate to be voted at an election, is called from every candidate in Column (5)(i) in the affidavit in Form No.26 is under Rule 4-A of the Conduct of Election Rules.::: Downloaded on - 19/08/2015 23:58:22 :::If the petitioner is coming with a case of failure to disclose or non-disclosure or concealment or suppression of such information by the respondent No.1 in Column (5)(i) in the affidavit in Form No.26, the petition must contain the following material facts based upon the information called, viz. -(i) the fact that the respondent No.1 is an accused in the offences under specific Section/s of specific Act/s with short description of such offence/offences together with Cases/FIR number with the details of the concerned Police Station,(ii) the fact that the offence/offences alleged against ::: Downloaded on - 19/08/2015 23:58:22 ::: 64 ep1.14.odt the respondent No.1 is/are punishable with imprisonment for a period of two years or more,::: Downloaded on - 19/08/2015 23:58:22 :::(v) the fact that there is a failure to disclose or non-disclosure or concealment or suppression of the aforesaid material facts by the respondent No.1 in his affidavit in Form No.26 delivered along with the nomination form under Section 33A(2) of the said Act to the Returning ::: Downloaded on - 19/08/2015 23:58:22 ::: 65 ep1.14.odt Officer.::: Downloaded on - 19/08/2015 23:58:22 :::It is thereafter the Court can proceed further to complete the trial.The petitioner has pleaded that the respondent No.1 has concealed the information that he is an accused in Regular Criminal Case No.343 of 2003 for the offences under Sections 109, 217, 218, 220, 420, 425, 466, 467, 468, 469, 471, 474 and 506-B read with Section 34 of the Indian Penal Code, which is pending in the Court of Judicial Magistrate First Class at Nagpur.The petitioner has also pleaded that the respondent No.1 is also an accused in Summary Criminal Case No.231 of 1996 for the offence punishable under Section 500 of the Indian Penal Code, which is pending in the Court of Judicial Magistrate First ::: Downloaded on - 19/08/2015 23:58:22 ::: 66 ep1.14.odt Class, Nagpur (Court No.6).::: Downloaded on - 19/08/2015 23:58:22 :::::: Downloaded on - 19/08/2015 23:58:22 :::Coming to the Item No.(iv), it is necessary for the petitioner to plead the material fact that prior to the date of delivery of nomination paper under Section 33(1) of the said Act, the charge/charges were framed against the respondent No.1 in respect of the offences which are not disclosed in Column (5)(i) in the affidavit in Form No.26 by the Court of competent jurisdiction.The date of framing of charge/charges becomes a material fact.Such pleadings are completely absent in the petition.When the charge is framed prior to the date of submitting nomination paper, it raises a presumption about the ::: Downloaded on - 19/08/2015 23:58:22 ::: 68 ep1.14.odt knowledge of the pendency of such proceedings to the respondent No.1 and the statutory obligation to disclose it in Form No.26 arises.A specific question was put to the petitioner Shri Satish Uke as to whether the charge/charges were framed against the respondent No.1 prior to the delivery of nomination paper under Section 33(1) of the said Act in respect of the offences not disclosed, his response is that such charges were not so framed.::: Downloaded on - 19/08/2015 23:58:22 :::The period of limitation has expired and the petitioner cannot be permitted to cure this defect by incorporating such pleadings.No amount of evidence can be permitted to be led.The lack of pleading of such material facts becomes fatal for the Court to ::: Downloaded on - 19/08/2015 23:58:22 ::: 69 ep1.14.odt proceed on the trial of the election petition.::: Downloaded on - 19/08/2015 23:58:22 :::According to him, all the three cases were required to be disclosed at least in Column (5)(ii) in Form No.26 by the respondent No.1 and since ::: Downloaded on - 19/08/2015 23:58:22 ::: 70 ep1.14.odt there is undisputed non-disclosure, it is a case of non-compliance of Section 33-A(1)(i) and (2) of the said Act requiring rejection of nomination paper under Section 36(2) of the said Act.::: Downloaded on - 19/08/2015 23:58:22 :::The lack of pleading regarding such material facts becomes fatal for the Court to proceed on the trial of the election petition.::: Downloaded on - 19/08/2015 23:58:22 :::The pleading in paragraph 27A in the petition is that though the respondent No.1 has disclosed Crime No.252 of 1991 in Column (5)(i) in which he is an accused in respect of the offences under Sections 147, 148 and 324 of the Indian Penal Code, there is non-disclosure of the other offences under ::: Downloaded on - 19/08/2015 23:58:22 ::: 72 ep1.14.odt Sections 149, 294, 448, 324 and 336 of the Indian Penal Code.::: Downloaded on - 19/08/2015 23:58:22 :::It is therefore not a case of non-disclosure of the information required under Section 33-A(1)(i) of the said Act. Be that as it may, there is no pleading that the defect was of a substantial character and, therefore, the Returning Officer was required to reject the nomination paper of the respondent No.1 under Section 36(2) of the said Act, on that ground alone.::: Downloaded on - 19/08/2015 23:58:22 :::Though in the application filed under Order VII, Rule 11(a) of the Civil Procedure Code an objection is raised that the verification to the petition suffers from a defect of incurable nature, the learned Senior Advocate Shri Manohar has conceded to position that the defect is curable and the petitioner can be permitted to cure such defect and the petition cannot be rejected on that ground alone.I, therefore, need not consider this question in detail.From what has been held above, it is apparent that it is a case of failure to plead material facts of non-disclosure of information in Column (5)(i) and (ii) of the affidavit in Form No.26 delivered under Section 33-A(1)(i) and (2) of the said Act that prior to the date of delivery of nomination paper under Section 33 of the said Act - (i) a charge was framed against the respondent No.1 in a case pending in respect of any offence punishable with imprisonment for a period of two years or more, ::: Downloaded on - 19/08/2015 23:58:22 ::: 74 ep1.14.odt or (ii) he was an accused in a pending case in which cognizance was taken in respect of any offence punishable with imprisonment for less than two years and such defect was of a substantial character requiring the rejection of the nomination paper under Section 36(2) of the said Act.::: Downloaded on - 19/08/2015 23:58:22 :::In the result, Civil Application No.993 of 2015 at Exhibit 13 is allowed.Consequently, the election petition is rejected under Order VII, Rule 11(a) of the Civil Procedure Code.The security deposit is forfeited.No order as costs.PDL/NSN ::: Downloaded on - 19/08/2015 23:58:22 :::::: Downloaded on - 19/08/2015 23:58:22 :::

['Section 324 in The Indian Penal Code', 'Section 147 in The Indian Penal Code', 'Section 148 in The Indian Penal Code', 'Section 149 in The Indian Penal Code', 'Section 294 in The Indian Penal Code', 'Section 448 in The Indian Penal Code', 'Section 336 in The Indian Penal Code', 'Section 34 in The Indian Penal Code', 'Section 500 in The Indian Penal Code', 'Section 354 in The Indian Penal Code', 'Section 325 in The Indian Penal Code']

Heard Sri Brijesh Sahai, learned counsel for the appellant and Sri K.N. Bajpayee, learned A.G.A. for the State.The order which is impugned in the instant application filed by the applicant under Section 482 Cr.P.C. is dated 9.6.2011, passed by Additional Civil Judge (J.D.), Garh Mukteshwar, District Ghaziabad in Case No.317 of 2011 (State Vs.Ilmas) arising out of Case Crime No.35 of 2011 (State Vs.Bablu and others) under Section 302, 506 I.P.C., P.S. Simbhawali, Ghaziabad by which the applicant has been summoned to face trial for the offences punishable under Sections 302 & 506 I.P.C.The brief facts of the case are that the opposite party no.2 Asif lodged a first information report at P.S. Simbhawali on 1.2.2011 (annexure no.1 to the affidavit accompanying this application) at about 8.45 p.m. alleging therein that when on 31.1.2011 at about 6.00 pm the informant, his brother Chaman and one Rahat S/o Tahir after having their meal were going on a walk three persons, namely, Bablu, Nadeem and one unknown person, all armed with country made pistols appeared before them and Nadeem caught hold of Chaman while Bablu shot Chaman in his stomach with his country made pistol and the third person held the informant and Rahat away from Chaman at gunpoint.The injured Chaman was taken to the hospital where he died.On the basis of the aforesaid FIR Case Crime No.35 of 2011 was registered against Nadeem, Bablu and one unknown person.During the course of investigation the Investigating Officer apart from collecting other materials recorded the statements of informant Nadeem and Rahat and upon completion of investigation laid down charge sheet bearing no.33 of 2011 dated 23.2.2011under Section 302 and 506 I.P.C. (annexure no.8) before the concerned Magistrate against Nadeem and Bablu.On the application moved by the complainant/opposite party no.2 before the S.S.P., Ghaziabad the matter was directed to be investigated further by S.I.S., Ghaziabad by his order dated 25.2.2011 which has been brought on record by the applicant as annexure no.S.A.1 to the supplementary affidavit).During further investigation the S.I.S., Ghaziabad examined the informant Asif and two new witnesses Jan Mohammad @ Janu and Aftab who in their statements claimed that they had seen the applicant along with other co-accused armed with country made pistols running away from the place of occurrence on the relevant date after they had reached there upon hearing the sound of gun shot.Relying upon the statements of Jan Mohammad @ Janu and Aftab charge sheet bearing no.33-A of 2011 dated 23.5.2011 was submitted against the applicant after completion of further investigation where upon the court below took cognizance and summoned the applicant by his order dated 9.6.2011 (annexure no.12 to the affidavit accompanying this application).Sri Brijesh Sahai, learned counsel for the applicant vehemently submitted that the impugned order by which the applicant has been summoned by the court below is an absolutely non-speaking and cryptic order which does not reflect any application of judicial mind by the concerned Magistrate to the facts of the case and the materials on record and since before a Magistrate, upon receipt of a complaint or a police report or any other information showing commission of a cognizable offence, takes cognizance and issues process, it is imperative that it must be discernible from the order of the Magistrate that he has taken into consideration the charge sheet and the other papers submitted therewith for satisfying himself as to whether a prima facie case against the accused for the concerned offences is made out and since the impugned orders does not conform to the aforesaid requirement, the same cannot be sustained and is liable to be set aside.Sri Brijesh Sahai, next submitted that the applicant having not been charge sheeted in the investigation which followed the registration of the FIR at the behest of the opposite party no.2, the investigation pursuance to which charge sheet has been submitted against the applicant is without any sanction of law as the said investigation was not further investigation but reinvestigation which is forbidden under the Code of Criminal Procedure, as would be evident from the perusal of the charge sheet submitted against the applicant which has been described as charge sheet (mool) and not as supplementary charge sheet.Sri Brijesh Sahai also submitted that even it is presumed that the impugned investigation was further investigation, the same was bad on account of having been done without the permission of the concerned court.Sri Brijesh Sahai lastly submitted that evidence on the basis of which the court below has taken cognizance and summoned the applicant does not disclose the commission of any offences by the applicant and the same is not at all sufficient for his conviction for the offences with which he has been charge sheeted.LJ 2897, Virendra Prasad Singh Vs.Rajesh Bhardwaj, 2010 (9) SCC 171, Ram Chandra Vs.Adya Kumar and others, 2008 (3) JIC 484 (SC) and Hasan Bhai Vali Bhai Qureshi Vs.Sri K.N. Bajpayee, learned A.G.A. appearing for the state-respondents submitted that it is trite law that no detailed order is required to be passed at the stage of summoning, no meticulous examination of facts is required to be done at that stage and what Section 204 of the code ordains is that if in the opinion of a Magistrate for taking cognizance of an offence there is sufficient ground for proceeding ,he shall issue summons for the attendance of the accused and the aforesaid section no where requires the Magistrate to record reasons for summoning.

['Section 506 in The Indian Penal Code', 'Section 302 in The Indian Penal Code', 'Section 173 in The Indian Penal Code']

The facts giving rise to the present appeals lie in a narrow compass and centre around a criminal conspiracy, allegedly hatched by the family members of the appellant to murder the deceased, Kunal.The case of the prosecution as per the charge-sheet is that in the month of March 1999, deceased Kunal organised an entertainment show, sponsored by the father of the appellant.During the event, the deceased was introduced to the sister of the appellant, Hema.The acquaintance blossomed into love between the two.Appellant's father lodged a complaint alleging that the deceased had kidnapped his daughter.The complainant, namely, the father of the deceased, also reported the matter to the Pune Police.Sometime in June, 2000, Kunal contacted his father and informed him that he was at Gauhati with Hema.Thereupon, the complainant and his wife brought Kunal and Hema to Mumbai.On persuasion by the complainant and his wife, Hema agreed to return and stay with her parents and the marriage between Kunal and Hema is stated to have been annulled.In December, the complainant filed complaints with the S.P., Satara and the Additional Commissioner of Police, Pune against the father of the appellant alleging that he had abused him over the telephone.The complainant also alleged that even thereafter, threatening calls were made by the appellant, his sister, Hema and father.However, the things seem to have settled down with the intervention of the Advocate of the complainant.On 21st April, 2001, the deceased (Kunal) left Panchgani (where he was living with the parents) for Mahabaleshwar in his maruti car.At about 8:30 p.m., a taxi-driver informed the complainant that Kunal was lying in a pool of blood on Mahabaleshwar road.The complainant rushed to the spot and took his son in an injured condition to the hospital where he was declared brought dead.The complainant lodged an F.I.R at Mahabaleshwar Police Station against unknown persons and an offence was registered under Section 302 of the IPC.Therefore, in order to teach a lesson to the complainant they hatch conspiracy to kill his only son, Kunal.Accordingly accused No.1 contacted accused No.6 Suresh Jhajara and further informed him the complainant and his son should be taught a lesson as Kunal Parihar betrayed him.Hence should be taught a lesson and further asked to carry out future plan.Accused No.6, contacted accused No.7 and included him in the aforesaid conspiracy.J U D G M E N TREPORTABLECRIMINAL APPEAL NO. 744 OF 2008Arising Out of S.L.P. (Criminal) No.5514 of 2007WITHCRIMINAL APPEAL NO. 745 OF 2008[Arising out of S.L.P. (Criminal) No.5515 of 2007]D.K. JAIN, J.:Leave granted.These two appeals are directed against orders dated 23rd June, 2006 and 19th September, 2006 passed by the High Court of Judicature at Bombay in Criminal Revision Application No. 288 of 2005 and in Criminal Writ Petition No.1884 of 2006 respectively.By the first order, the High Court has repelled the challenge made to order dated 23rd March, 2005, in Criminal Appeal No.83 of 2004, whereby the Sessions Judge, Satara had affirmed the order passed by the Juvenile Justice Board, rejecting the application filed by the appellant under Section 227 of the Code of Criminal Procedure, 1973 (for short "the Code") for discharge.However, on the next day, the complainant levelled allegation that since marriage of Kunal had been fixed with another girl, the appellant and his family members had developed a grudge and had, therefore, hatched a conspiracy with co-accused Umesh, Suresh, Bhavarlal Sharma, Captain Sharma to murder Kunal.On completion of investigation, charge-sheet was filed against the appellant before the Juvenile Court, Satara, being below 18 years of age, and against fifteen other persons, which included his father (A-1), mother (A-2), sister (A-4), a family friend (A-11), manager of his father (A-12), in Sessions Court, Satara.All of them have been arraigned as members to the conspiracy to murder Kunal.The appellant, herein, and accused A-1, A-2, A-4 to A-7, A-11 and A-12 have been prosecuted for offences under Section 302 and 120B of the Indian Penal Code, 1860 (for short "the I.P.C."), whereas accused A-7 to A-10 and A-13 to A-16 have been prosecuted for offences under Section 302 read with Section 120B and under the Arms Act.The appellant filed an application for discharge before the Juvenile Justice Board, under Section 227 of the Code.The Juvenile Justice Board by order dated 1st October, 2004, rejected the said application.Being aggrieved by the said order, the appellant preferred a criminal appeal before the Sessions Judge, Satara.Still aggrieved, the appellant moved a revision application before the High Court.Vide order dated 23rd June, 2006, the High Court dismissed the criminal revision.Both these orders were challenged by them by means of two Criminal Writ Petitions (Nos.1283 and 1284 of 2006).Inter-alia, observing that the circumstances highlighted by the prosecution, even if accepted in entirety, only created a suspicion of motive, these were not sufficient to make out a case for conviction of the accused and some suspicion or motive cannot serve as a sufficient ground for framing of charge against them.Accordingly, all the four accused/petitioners were discharged.Emboldened by the said order, on 4th August, 2006, the appellant filed a Criminal Writ Petition (No.1884 of 2006) under Article 227 of the Constitution read with Section 482 of the Code for quashing of aforenoted order dated 23rd March, 2005, passed by the Sessions Judge, Satara and for discharge of the charges framed under Section 302 read with Section 120B of the I.P.C. Expressing surprise over the fact that this petition had been filed though the order impugned in the petition stood confirmed on dismissal of criminal revision on 23rd June, 2006, the learned Judge rejected the plea of the appellant that in the light of order dated 7th July, 2006, in the case of co-accused, by reason of parity, he was also entitled to be discharged.Inter-alia, observing that earlier order dated 23rd June, 2006 in the case of the appellant, which was certainly relevant for deciding the Criminal Writ Petitions No.1283 & 1284 of 2006, had not been noticed in order dated 7th July, 2006 (by the Chief Justice), vide order dated 19th September, 2006, the learned Judge dismissed the petition.As noted above, both the orders, dated 23rd June, 2006 and 19th September, 2006 are challenged in these two appeals.At this juncture, two other significant subsequent developments deserve to be noted.Secondly, relying on order dated 7th July, 2006, the father (A-1) of the appellant, termed as the main accused in the charge-sheet, filed an application before the Sessions Judge for discharge from all the charges.Taking note of the said order passed by the High Court, and inter-alia, observing that apart from the fact that the alleged threats are vague and are inadequate to connect the said accused with the crime, vide order dated 14th May, 2007, the Sessions Judge came to the conclusion that there was absolutely no material on the basis whereof a reasonable likelihood of the said accused being convicted could be predicted.Accordingly, he has discharged the said accused.Thus, as on date, the father (A-1), the mother (A-2), the sister (A-4) of the appellant and his two other associates (A-11 & A-Accused No.1 to 4, contacted accused No.16, through accused No.6 and 7, accused No.16 pending is a notorious criminal.Criminal cases are pending against him in the District Court of Pune.In the offence regarding body, accused No.7 contacted him through witnesses Atul Lohar in order to carry out the aforesaid plan.Accused No.7 asked accused No.8, 9, 10, 13, 14, 15 to joint the aforesaid conspiracy and in order to carry out the aforesaid conspiracy successfully accused No.7 purchased one Maruti Car No.14 D-3027 from witness Afzal Khan Ibrahim Khan, resident of Dehu Road and also Motor Cycle No.By using the aforesaid vehicles accused No.7 to 10 and 13 to 15 have committed ghastly murder of Kunal.In order to carry out the aforesaid conspiracy successfully accused No.7 has used revolver, khukri, sickle, sword and iron bar and supplied it to accused No.8 to 10 and from 13 to 15, by using the aforesaid weapons the aforesaid persons have assaulted Kunal Parihar by which he sustained grave injuries and ultimately died.Hence accused No.1, 2, 3, 4, 5, 6, 7, 11 and 12 have charged been under Sections 302, 120B IPC and accused No.7, 8, 9, 10, 13, 14, 15 and 16 have charged u/s 302 read with 120B IPC and under Arms Act Section 3 and 25."bar and supplied it to accused No.8 to 10[Emphasis supplied]Thus, according to the prosecution version, when accused, A-1 to A-5, A-11 and A-12 learnt about the marriage of Kunal with some other girl, they hatched a conspiracy to teach a lesson to the father of Kunal, the deceased.In furtherance thereof, accused A-1 contacted one of the assassins to kill Kunal.It is alleged that accused A-1 to A-4 also contacted accused A-16, a notorious criminal.In other words, the gravamen of the accusation by the prosecution is that it is accused A-1 to A-5, A-11 and A-12 who had hatched the conspiracy; acted in concert to give effect to their plan to get Kunal murdered and in pursuance of the aforesaid criminal conspiracy, the other accused facilitated commission of the said crime.From the material on record, it is manifestly clear that it was the family members of the appellant, one of their employees and a friend who allegedly had all entered into an agreement to eliminate the deceased.Furthermore, in its order dated 7th July, 2006, the High Court has opined that the circumstances, relied upon by the prosecution, even if accepted in its entirety, only create a suspicion of motive, which is not sufficient to bring home an offence of murder.As noted above, State's petition for special leave against the said judgment has already been dismissed.We are, therefore, of the view that in the light of the subsequent events, namely, the orders of the High Court dated 7th July, 2006 in Criminal Writ Petitions No. 1283 & 1284 of 2006, discharging appellant's mother, sister and two close associates, accused Nos.2, 4, 11 and 12 respectively; order dated 30th April, 2007 passed by this Court dismissing the Special Leave Petition preferred by the State against order dated 7th July, 2006 and order dated 14th May, 2007 passed by the Sessions Judge, Satara, discharging the father (A-1) of the appellant, stated to be the mastermind behind the entire conspiracy, for offences under Sections 120B and 302 I.P.C., on same set of circumstances and accusations, no sufficient ground survives to proceed against the appellant for the aforementioned offences.

['Section 120B in The Indian Penal Code', 'Section 302 in The Indian Penal Code', 'Section 482 in The Indian Penal Code']

The case against the accused/appellant is that, the deceased Saranyawas the wife of the appellant and they lived separately as tenant in theupstairs of the house belonged to one Babu.The appellant often quarrelledwith her wife in a drunken mood.On 25.01.2013, from the dawn itself, theappellant and his deceased wife were quarreling with each other and they werealso warned by their house owner, namely Babu.After pacification, both ofthem went to their house at about 12.00 O' clock in the night.On 26.01.2013,at about 00.30 a.m. smoke emanated from the appellant's house and on noticingthe same, the house owner and another person by name Muthuvel came out of their house.At that time the appellant, also came out of his house hurriedlyand when the house owner and said named person enquired the appellant, the appellant replied that he done away his wife, since he has no peace at all inher existence.When both the house owner and Muthuvel entered into the house of appellant, they noticed that the deceased was burning and they tried toextinguish the fire, however, the deceased burnt completely.The Prosecutionfurther alleged that during the course of heated arguments, the appellantdashed her wife's head into the wall and thus, murdered her.The appellant herein was tried by the learned Principal SessionsJudge, Tuticorin, in S.C.No.128 of 2014, for charges under Section 302 and302 r/w 201 IPC.The learned Trial Judge found that the appellant/accusedguilty of the charges under Section 302 IPC and sentenced him to undergo lifeimprisonment and to pay a fine of Rs.1,000/- with default sentence of sixmonths rigorous imprisonment; and 7 years rigorous imprisonment for theoffence under Section 302 r/w 201 IPC with default sentence of rigorousimprisonment for three months.The sentences imposed were ordered to run concurrently.Aggrieved by the judgment of conviction and sentence passed bythe trial court, the accused has preferred the present Criminal Appeal beforethis Court.In order toscreen the murder, the appellant set fire on her body.Thus, the accused wascharged for the offences as stated above.Before the trial court, in order to substantiate its case, theprosecution examined PWs-1 to 16, marked Exs.P1 to P23 and produced MOs1 toOn the side of the accused, neither any person was examined nor anydocument was marked.Out of the above said witnesses PW1/Muthuvel/complainant and PW2/Babu, are the neighbours of the appellant.They have spoken about theoccurrence.However, they did not support the case of the prosecution andhence they were treated as hostile witnesses.Similarly PW3/Mohan, PW4/Ayya Durai, PW5/Vikram and PW6/Ramakrishnan have been treated as hostile witnesses.PW7/Anthonysamy, the father of the deceased Saranya, has spoken about the quarrel between his deceased daughter and the appellant.PW10, is the Doctor who conducted postmortem on the deceased Saranya and he gave Ex.P9/Postmortem certificate.PW14, is the Doctor, who gave treatment to the accused on 26.01.2013 and he has given Ex.P14/Accident Register, inwhich he has mentioned as follows:-?Alleged H/O sustained burns while burning his wife at about 12.30 a.m.on 26.01.2013 at his residence.?The learned trial Judge, after completing the procedure andconsidering the oral and documentary evidence let in, and upon hearing bothsides, convicted and sentenced the accused as aforementioned, resulting infiling of the present Appeal before this Court.7.The point that arises for consideration in this Appeal is as towhether the judgment of conviction and sentence passed by the trial court issustainable in law or not?Learned Senior counsel for the appellant submitted that P.Ws.1 to 5,who are stated to have seen the occurrence and examined as eye-witnesses to the occurrence, have not supported the case of the prosecution and they haveturned hostile and hence the conviction of the appellant is liable to be setaside.He would further submit that the trial court has based its convictiontaking into account the statement said to have been made by the accused toP.W.14 at the time when he was taken by the Police for treatment for the burninjuries sustained by him at the time when he tried to save his wife when shepoured kerosene and set herself on fire to commit suicide and recorded byP.W.14 in Ex.It is the contention of the learned Senior Counsel forthe appellant that since the said statement was given by the appellant at thetime when he was in the custody of police, the same shall not be proved, asper section 26 of the Indian Evidence Act and therefore the conviction of theappellant is liable to be set aside.P.Ws.1, 2, 4 and 5 in their evidence have stated that in the midnight of25.01.2013, they saw smoke coming out from the house where the deceased and the accused were residing and upon seeing the same, they rushed to the house of the accused and found the deceased in flames and immediately they put-offthe fire by pouring water and to that extent their evidence is clear andcogent.He would further submit that the accused himself has admitted beforeP.W.14, the doctor, who gave treatment to the burn injuries sustained by him,that he sustained injuries when he set fire on the body of his wife, thedeceased, which has been duly recorded by P.W.14 in Ex.P-14, Accident Register issued to the accused.He would further submit that from theevidence of Doctor who conducted postmortem and issued postmortem certificate, it is clear that the deceased was done to death before her bodywas set on fire.Therefore, it is his submission that the trial court aftertaking into account all the above has come to conclusion it is the accusedwho has murdered his wife and thereafter in order to screen the evidence hehas set fire on her body and thus convicted the appellant under Sections 302and Section 302 read with 201 IPC and the same does not require any interference, except confirmation at the hands of this Court.We have considered the above submissions and perused the materials on record, carefully.It is admitted that the accused and the deceased were husband andwife and they were living in a house belonged to P.W.2, as tenants, for aboutthree months prior to the occurrence.It is the evidence of P.Ws.1, 2, 4 and5 that there used to be quarrel between the spouses, often and on someoccasions they pacified them.It also emerges from the evidence of P.W.7,father of the deceased and P.W.11, mother of the deceased, that theirdaughter used to call them over phone and complain about the conduct of theaccused in quarrelling with her.There is no denial by accused to the saidfacts.It is the case of the prosecution that at the midnight of25.01.2013, when the accused and the deceased were alone in the house, the accused murdered the deceased by causing such injuries and in order to screenthe evidence, he has set fire on the body of the deceased and in the sametransaction, he also sustained burn injuries.Based on the above statedaccusation, it is to be seen whether it was the accused who caused the deathof the deceased and tried to screen the evidence.Though P.Ws.1 to 5 have turned hostile and did not support the prosecution, it is settled lawthat their evidence to the extent it supports the prosecution case can beconsidered and appreciated.It is the evidence of P.Ws.1, 2, 4 and 5 that atthe midnight of 25.01.2013, they found smoke emanating from the house of theaccused and when they rushed there they found the deceased in flames and immediately they put-off flames by pouring water.But, they did not supportthe case of the prosecution that on 25.01.2013 at about 8.00 p.m., there wasa quarrel between the accused and the deceased and they pacified them.But,the evidence of P.W.7 and P.W.11, the parents of the deceased, would go toshow that their daughter phoned to them at 8.30 p.m. on 25.01.2013 andcomplained about the conduct of the accused in quarrelling with her and alsoinformed them that P.W.1 and P.W.2 intervened and pacified.If the above saidevidence of P.Ws.7 and 11 is considered along with the admitted evidence ofP.Ws.1, 2, 4 and 5, their evidence cannot be brushed aside merely on theground that they are interested witnesses, as it inspires the confidence ofthe Court.It is not the case of the appellant that he and his wife, thedeceased, never quarrelled with each other.Thus, from their evidence it isclear that on 25.01.2013 night the accused and the deceased were alonepresent together in the house and in such circumstances, it is for the Courtto presume that it is the appellant who had committed the offence.When the aboveincriminating materials were put to the accused under Section 313 Cr.P.C., hehas only stated that they were all false and he did not come out with anyexplanation to the satisfaction of the Court.In the above circumstances,the trial court has correctly come to the conclusion that the accused waspresent in the house at the time of occurrence.It is evident from the evidence of P.W.14 that on 26.01.2013 at10.15 a.m., the accused was brought before him for treatment to the burninjuries found on his body and when enquired, he stated that he sustainedthose injuries when he set her wife on fire.The said statement was relied on by the Trial Court only to come to the conclusion that the appellant/accused waspresent at the time of incident in the scene of occurrence.According to him, he found superficial burns all over the body andthe wounds were pale in colour.He found the following ante-mortem injuries:?(i) A contusion of size 6 cms x 4 cms x 1 cm seen over the left sideof forehead.?On dissection of scalp, skull and dura, he found the following:?Scalp contusion of size 8 cms x 6 cms seen over the left frontalregion.Sub-arachanoid haemorrhage seen over the left occipital lobe.?It is his opinion that the deceased would appear to have died ofcomplications of head injury and the death would have occurred 12-24 hoursprior to autopsy and no poison was detected in the viscera analysed.Thus, it is clear from the evidence of P.W.10, the doctor whoconducted autopsy on the body of the deceased, that the death of the deceasedwas not due to the burn injuries but it was due to the complications of headinjury.From the above, it becomes clear that after murdering his wife bycausing the above said head injury, in order to screen the commission of theoffence of murder, the appellant/accused has poured kerosene and set fire onthe body of the deceased.If at all the accused/appellant did not commitmurder of his wife and his wife attempted to commit suicide, as a normalprudent man, he would have sought for the assistance of his neighbours in theeffort of saving his wife.But, he did not do so.On the contrary, hisstatement before P.W.14 was that he sustained injuries when he set fire onthe body of the deceased.Further, if he did not commit any offence, on thearrival of police, he would have made a complaint to the police as to theoccurrence, but he failed to do so.This conduct of the appellant/accusedleads to the inevitable conclusion that it was this appellant/accused whocommitted the murder of the deceased and in order to screen the evidence, hehas set fire on the body of the deceased and thereby committed offencespunishable under Section 302 and Section 302 read with 201 IPC and liable tobe punished thereunder.The trial court has, after appreciating the evidencein detail, found the accused guilty under both the charges and sentenced himthereunder.We find no reason or ground to interfere with the wellconsidered judgment of the trial court.Connected miscellaneous petition is also dismissed.1.The Principal Sessions Judge, Tuticorin.2.The Inspector of Police, Tuticorin North Police Station, Tuticorin District.3.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai..

['Section 302 in The Indian Penal Code']

(Order of this Court was made by P.D.DINAKARAN,J.) The petitioner is the father of the detenu Selvam @ Suresh Kumar.The detenu was incarcerated by order dated 8.4.2007 of the second respondent under the provisions of the Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Drug Offenders, Forest Offenders, Goondas, Immoral Traffic Offenders, Sand Offenders, Slum Grabbers and Video Pirates Act, 1982 (Tamil Nadu Act 14 of 1982) branding him as a Goonda.Hence, the petitioner seeks a writ of Habeas Corpus to call for the records in connection with the order of detention passed by the second respondent dated 8.4.2007 in Cr.M.P.No.5/2007/C1 against his son, who is now confined at Central Prison, Coimbatore, to set aside the same and to direct the respondents to produce the above said detenu before this Court and set him at liberty.The order of detention dated 8.4.2007 came to be passed based on the ground case said to have taken place on 26.2.2007 at 7.30 p.m., on the basis of the complaint lodged by one Sivaprakash on the file of Kavindapadi Police Station.According to the complainant, while he was going along with his wife Thenmalar in his motor cycle towards Kuttiagounden Pudur from Erode, a Tata Sumo Car came speedily and halted, obstructing their way.Three persons came from the car, one was holding a gun and another was having a knife.They demanded the jewels worn by Thenmalar both at gun and knife points.When they refused, one among them snatched the hand bag kept by Thenmalar, which contains a Nokio cell phone, keys of the house and a cash of Rs.450/-.The complainant and his wife raised hue and cry.On hearing their alarm, the public nearby tried to apprehend them on the spot.On seeing the public, the car sped away and the three persons ran in different directions and escaped from the scene of occurrence.In this regard, a case was registered in Crime No.168 of 2007 under Section 392 r/w 397 IPC.During investigation, it was found that one of the three persons is the detenu herein.The detenu was arrested on 13.3.2007 and remanded to judicial custody.The second respondent, taking note of the above case as a ground case and finding that there are six adverse cases pending against the detenu for the offence punishable under Section 379 IPC and having satisfied that there is a compelling necessity to detain him in order to prevent him from indulging in the activities which are prejudicial to the maintenance of public order, ordered his detention dubbing him as a Goonda.The learned counsel for the petitioner challenges the impugned order of detention dated 8.4.2007 mainly on the ground of delay in considering the representation dated 20.4.2007 made on behalf of the detenu, we do not propose to go into the other aspects of the case.But, the file was circulated only on 17.5.2007, with a delay of eight days.The delay in circulating the file by the Government, viz., between 9.5.2007 and 17.5.2007 - a period of eight days, was highlighted by the learned counsel for the petitioner.Even though 12.5.2007 and 13.5.2007 happened to be public holidays, there is no convincing reply on behalf of the State for the delay in circulating the file by the Government.The order of detention dated 8.4.2007 is quashed.The detenu is directed to be set at liberty forthwith unless his presence is required in connection with any other case.The District Collector and District Magistrate Erode District Erode.The Superintendent Central Prison Coimbatore.The Public Prosecutor, High Court Madras.

['Section 379 in The Indian Penal Code']

...petitioners.We have heard the learned advocates appearing for the parties and perused the case diary.dns The application for anticipatory bail is, thus, allowed.( Rajarshi Bharadwaj, J. ) ( Joymalya Bagchi, J. ) 2

['Section 448 in The Indian Penal Code', 'Section 34 in The Indian Penal Code', 'Section 325 in The Indian Penal Code']

The application for anticipatory bail is, thus disposed of.(Pranab Kumar Chattopadhyay-J.) ( Sudip Ahluwalia-J.) 2

['Section 34 in The Indian Penal Code', 'Section 379 in The Indian Penal Code', 'Section 427 in The Indian Penal Code', 'Section 438 in The Indian Penal Code', 'Section 447 in The Indian Penal Code']

2.The brief facts, that are necessary for disposal of this appeal, are as hereunder:-P.W.1, the de facto complainant, is the father of the deceased Theerthakarai; P.W.2 is the mother of the deceased and P.W.3 is the brother of the deceased.The marriage between the deceased and A-1 was solemnized during the month of February 2010 and they were blessed with a male child.The habit of A-1 consuming alcohol led to matrimonial disputes between the spouses and on the fateful day, i.e., on 08.06.2013 at about midnight 01:00 a.m., the deceased committed suicide by pouring 3/26http://www.judis.nic.in CRL.A.(MD)No.73 of 2015 kerosene over her body and setting herself on flames.She was taken to the Government Hospital, Madurai , for treatment, where she succumbed to the burn injuries after five days of the occurrence.On information, the law enforcing agency, initially registered a case on the basis of the statement of the deceased Theerthakarai.However, after the demise of Theerthakarai, a written complaint, Ex.P-1, was lodged by P.W.1 with P.W.13, Sub Inspector of Police, Aviyoor Police Station.On receipt of the said complaint, a case was registered by P.W.13 by preparing printed F.I.R., Ex.Since the death had happened within seven years of the marriage, inquest was conducted by P.W.12, the Revenue Divisional Officer.Printed F.I.R. was forwarded to the learned Judicial Magistrate and also to the higher officials, whereinafter P.W.15, the Deputy Superintendent of Police took up investigation.Thereafter, the investigation was handed over to P.W.16, the Inspector of Police, who went 4/26http://www.judis.nic.in CRL.A.(MD)No.73 of 2015 to the scene of occurrence and prepared observation mahazar, Ex.P-12 and drew the rough sketch.The accused/respondents 1 & 2 herein, who were arrayed as A-1 and A-2 were charged and tried before the Assistant Sessions Court, Virudhunagar District in S.C.No.23 of 2014 for the offences under Section 306 and 498(A) of Indian Penal Code, and the trial Court found that the prosecution having not proved the case as against the accused/respondents 1 & 2 beyond reasonable doubt, acquitted the accused/respondents 1 & 2 herein.The petitioner/P.W.1 aggrieved by the said order of acquittal has preferred the present appeal.2/26http://www.judis.nic.in CRL.A.(MD)No.73 of 2015He examined witnesses and recorded their statements.He also examined the doctors and recorded their statements.The body of the deceased was sent for post-mortem and P.W.9, the doctor, conducted post-mortem on the body of the deceased.After completing the investigation, P.W.16 filed the final report against the accused/respondents for the offences u/s 306 and 498-A IPC.The accused/respondents herein were furnished with the relied upon documents under Section 207 Cr.P.C. and the case was committed to the Sessions Court for trial after framing charges under Sections 306 and 498(A) of I.P.C. When questioned, the accused/respondents herein pleaded not guilty.To prove the case, the prosecution examined P.W.s 1 to 16 and marked Exs.P-1 to P-15 and M.O. When the accused were questioned under Section 313 Cr.P.C. about the incriminating circumstances appearing against them, they denied the same as false.Neither any oral nor any 5/26http://www.judis.nic.in CRL.A.(MD)No.73 of 2015 documentary evidence was marked on the side of the defence.The trial Court, after hearing either side and after considering the materials available on record, both oral and documentary, acquitted the accused aggrieved by which, the de facto complainant/P.W.1 has filed the present appeal.It is the further submission of the learned counsel that on the fateful day, the deceased came to her parental house and informed P.W.s 1 and 2 and she is being harassed by the accused and that she intends to end her life and P.W.s 1 and 2 pacified her and sent her to her matrimonial home.In this connection it may be pointed out that the powers of the High Court in an appeal from order of acquittal to reassess the evidence and reach its own conclusions under Sections 378 and 379 (sic 378) CrPC are as extensive as in any appeal against the order of conviction.But as a rule of prudence, it is desirable that the High Court should give proper weight and consideration to the view of the trial court with regard to the credibility of the witness, the presumption of innocence in favour of the accused, the right of accused to the benefit of any doubt and the slowness of appellate court in justifying a finding of fact arrived at by a judge who had the advantage of seeing the witness.17/26http://www.judis.nic.in CRL.A.(MD)No.73 of 2015The facts as to the relationship of the parties, viz., A-1, A-2, the deceased, P.W.s 1, 2 and 3 are not in dispute.The deceased and A-1 were also blessed with one male child, which is also not in dispute.However, as P.W.s 1 to 3 are related to the deceased, this Court is entrusted with the task of stifling through their evidence to find out whether their evidence is free from embellishments and interpolations and whether their evidence is trustworthy to interfere with the order passed by the trial court.10.1.There are no eye witnesses to the occurrence.However, P.W.s 1 to 3 have been projected by the prosecution to speak about the matrimonial discord between the deceased and A-1 and also the harassment meted out by the accused to the deceased.P.W.s 5, 6, 7 and 8, have turned hostile and, therefore, their evidence in no way furthers the prosecution case.P.W.1 has further deposed that A-1 is residing in the next street and that A-1 frequently consumed alcohol, which led to frequent matrimonial disputes between the spouses.The evidence of P.W.1 further reveals that P.W.s 1 and 2 used to pacify the deceased and send her to her matrimonial house.P.W.1 has further deposed that the deceased came to their house alone and the child was not with her.P.W.1 had further deposed that they pacified her and sent her to her matrimonial home and after some time, they came to know that their daughter committed suicide by pouring kerosene over her body.It is to be borne in mind that initially on receipt of information, the law enforcing agency had recorded the statement of the 19/26http://www.judis.nic.in CRL.A.(MD)No.73 of 2015 deceased at the hospital on the day of occurrence.However, subsequently, when her condition worsened, dying declaration, Ex.P.10, was recorded by the Magistrate in the presence of P.W.s 1 and 2, which was attested by them.It is only subsequent to the dying declaration, the complaint, Ex.P-1 has been lodged by P.W.1 based on which the criminal machinery was set in motion.10.5. P.W.1 has deposed that his daughter had affixed her thumb impression in the complaint, Ex.P-1 as well as the dying declaration recorded by the Magistrate.However, the said deposition of P.W.1 was contradicted by the doctors, P.W.s 9 and 10, who have categorically deposed that since the victim had suffered more than 75% burn injuries, they were not able to affix her thumb impression in the complaint as well as in the dying declaration and, therefore, her left toe impression was only obtained in the above documents.It is to be pointed out at this juncture, at the risk of repetition, that subsequent to the dying declaration, Ex.P-10, given by the deceased, the complaint was given by P.W.1, in which he has pointed a 20/26http://www.judis.nic.in CRL.A.(MD)No.73 of 2015 finger on the accused as the persons responsible for the deceased committing suicide.But the said complaint of P.W.1 stands nullified by the dying declaration recorded from the deceased, in which the deceased has not made any allegations as against the accused.The deceased, nowhere in the dying declaration, has stated that she was instigated by the accused to commit suicide.Except for a statement that A-1 prevented the deceased from frequenting to her parental house, there is no allegation made as against the accused.One other crucial admission of P.W.1, which enures to the benefit of the accused is that in cross examination, P.W.1 has admitted that while the deceased was in the hospital, a panchayat was convened where the accused agreed to deposit a sum of Rs.3,50,000/- in favour of his son and also settle the properties in his favour.It is to be remembered at this stage that the deceased, who was none other than the daughter of P.W.s 1 and 2, was fighting for her life and no prudent and affectionate parent would hold a panchayat to get settlement of properties.The evidence of the above official witnesses categorically reveal that there was no harassment meted out to the deceased by the accused, but however, there were matrimonial disputes between the spouses.It is to be pointed out that the outcome of marriage is matrimonial dispute, which lingers in every family and mere matrimonial dispute between the spouses alone cannot be exaggerated and stated to be a harassment meted out by one spouse on the other.For the reasons aforesaid, this Court does not find any reason to differ from the findings recorded by the Sessions Court to acquit the respondents herein and, accordingly, the appeal is dismissed confirming the order of acquittal recorded in S.C.No.23 of 2014 on the file of the Assistant Sessions Court, Virudhunagar, Virudhunagar District.02.03.2020 Index: Yes / No Internet: Yes / No sts To1.The Assistant Sessions Court, Virudhunagar, Virudhunagar DistrictThe Inspector of Police, Aviyoor Police Station, Virudhunagar District.3.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.25/26http://www.judis.nic.in CRL.A.(MD)No.73 of 2015 M.DHANDAPANI, J.

['Section 306 in The Indian Penal Code', 'Section 498 in The Indian Penal Code', 'Section 498A in The Indian Penal Code', 'Section 379 in The Indian Penal Code']

of the Indian Penal Code along with added Section 304 of the Indian Penal Code.And In Re : Chobi Sk. @ Chhabi Sk. & Anr....... petitioners Mr. Ali Ahsan Alamgir .....for the petitioners Ms. Anasua Sinha ....for the State Heard the learned Counsel appearing for the parties.It is submitted by the learned Counsel appearing for the petitioners that they are in custody for 46 days and it is also submitted that the incident arose with regard to a dispute over a boundary wall.The co-accused persons, similarly situated, have been enlarged on bail.Learned Counsel appearing for the State opposes the prayer for bail.In the event the petitioners fail to appear before the Trial Court, without any justifiable cause, the said Court shall be at liberty to cancel their bail in accordance with law without further reference to this Court.This application for bail is, thus, allowed.(Rajarshi Bharadwaj, J.) (Joymalya Bagchi, J.)

['Section 304 in The Indian Penal Code']

Item No. 66And In the matter of: Md. Sahidul Haque & Ors.- versus -The Petitioners, apprehending arrest in connection with Kaliachak Police Station Case No. 135 of 2013 dated 07.03.2013 under sections 326/307/34 of the Indian Penal Code, have applied for anticipatory bail.We have heard the learned Advocates for the parties.The application for anticipatory bail is not being pressed on behalf of the Petitioner No.1, Md. Sahidul Haque, and, therefore, it is dismissed.As regards the other Petitioners, we have seen the case diary.The application for anticipatory bail is, thus, disposed of.(Nishita Mhatre, J) (Kanchan Chakraborty, J)

['Section 307 in The Indian Penal Code', 'Section 438 in The Indian Penal Code', 'Section 34 in The Indian Penal Code', 'Section 326 in The Indian Penal Code']

13.8.13 Item No. 83 Court No.17 A.B.Item No. 83And In the matter of: Ashoke Kumar Jana & Anr.- versus -The State of West Bengal Opposite Party Mr. Milon Mukherjee Mr. Subir Debnath Mr. Debajit Kundu For the Petitioners Mr. Saibal Bapuli Mr. Arijit Ganguly For the State Mr. Soumen Dutta For the complainant The Petitioners, apprehending arrest in connection with Egra Police Station Case No. 192 of 2013 dated 18.06.2013 under Sections 409/379/120B of the Indian Penal Code, have applied for anticipatory bail.We have heard the learned Advocate for the Parties.We have seen the case diary and the other material on record.The application for anticipatory bail is, thus, disposed of.(Nishita Mhatre, J) (Kanchan Chakraborty, J)

['Section 379 in The Indian Penal Code', 'Section 409 in The Indian Penal Code', 'Section 120B in The Indian Penal Code', 'Section 438 in The Indian Penal Code']

Heard on admission.Having perused the impugned judgment, record of the trial Court and petition of appeal, we find this appeal being arguable.Hence, it is admitted for final hearing.Learned Panel Lawyer has taken notice of admission of this appeal on behalf of the respondent/State, hence no further notice is required to be sent to it.Appearing counsel for the parties also heard on I.A No.15697/2016 filed by appellant Lalla alias Jaychand Sondhiya under Section 389 of the Cr.P.C for suspension of his custodial sentences.Appellant Lalla alias Jaychand Sondhiya and another co-accused Shivdayal have been convicted and sentenced vide judgment dated 27.07.2016 by Fifth Additional Sessions Judge, Rewa in S.T. No.287/2015 under Section 450 of the IPC to undergo ten years R.I with a fine of Rs.500/-, under Section 376-D to undergo R.I for twenty years with a fine of Rs.500/- and under Section 506 part-II of the IPC to undergo six months R.I with a fine of Rs.500/- with default stipulations.All the jail sentences of the appellant have been directed to run concurrently.Learned counsel for the appellant vehemently contended that during trial appellant Lalla alias Jaychand Sondhiya was released on bail and the FIR in relation to alleged offence of gang-rape and others was delayed as it was lodged on 3rd day from the incident and there were contradictions and variations between the report and deposition given by the prosecutrix (PW-7) as to whether sexual intercourse was committed or not by present appellant Lalla.It was further contended that according to FIR, when appellant Lalla pressed mouth of the prosecutrix, then she was raped only by another co-accused Shivdayal, but prosecutrix (PW-7) deposed before the trial Court that firstly Shivdayal committed rape with her, thereafter present appellant Lalla also committed rape with her and at that time Shivdayal had caught hold her hands.It was also contended by the appellant's counsel that according to the medical report and evidence of lady doctor, no any injury was found on the private parts and body of the prosecutrix and thus lady doctor was unable to record any definite opinion regarding recent intercourse.Thus, it was prayed that appellant's custodial sentences be suspended.P.C had taken defence that he has been falsely implicated, but it was suggested by his counsel to the prosecutrix in her cross-examination (para-10) that she herself had invited both the accused persons and the incident had happened with her consent.Having taken into consideration the facts and circumstances of the case, the submissions made by the learned counsel for the parties and having gone through the evidence on record, but without expressing any opinion on merits of the case, we are not inclined to enlarge the appellant on bail, suspending his jail sentences.Hence, I.A No.15697/2016 is dismissed and closed.Office is directed to list the appeal for final hearing in due course keeping in view that the appellant has been undergoing the jail sentences.

['Section 450 in The Indian Penal Code']

::: Uploaded on - 02/08/2018 ::: Downloaded on - 03/08/2018 00:44:52 :::The case of the appellant/prosecution against the respondent(accused), in short, is as under :-PW-1 (victim) and accused were having love affairs.On06.09.2011, after dinner father of PW-1 and other family members weresleeping in the night.At about 02:00 a.m. in the night, his elder sonPankaj got up from sleep for urination.Pankaj noticed that his sister(PW-1) was talking with accused under the tree.Pankaj came back fortaking torch.In the meantime, PW-1 and accused ran away.Pankaj woke PW-2 and his family members and he narratedincident to them.Mother of PW-1 went to the house of accused.Shecame to know that accused came to house, but lateron, he left.Motherof PW-1 did not get phone number of accused.Due to fear ofdefamation, report was not lodged.Complainant took search of hisdaughter.Accused was not responding to the calls on his mobile phone.Accused was contacted from the mobile of another person.Evidence of PW-1 shows that accused taken her to Nagpur.They went to Uttar Pradesh (UP) at Khaga by ST bus.She resided therefor about two months.It is brought on record in her cross-examinationthat the brother of accused scolded them.They were taken to the Court.Marriage forms were filled in.She has stated her age as 21 years and theage of accused was 25 years.Thereafter, she was residing with accusedas his wife.She resided with accused at Khaga (UP), as his wife.She resided therefor about two to three months.Thereafter, her custody was given to her parents.As per the evidence of PW-1 herself, she went to Khaga (UP)along with accused.Accused performed marriage with her.They hadprepared document for marriage.In the document, she has stated her::: Uploaded on - 02/08/2018 ::: Downloaded on - 03/08/2018 00:44:52 ::: 7 apeal40.13age as 21 years.She resided with the accused as his wife for two-threemonths.She was willingly residing with the accused.Her father was notready for their relations.::: Uploaded on - 02/08/2018 ::: Downloaded on - 03/08/2018 00:44:52 :::Complainantcame to know that accused and his daughter proceeded towards Nagpur.Thereafter, report was lodged against accused.On the report of complainant dated 09.09.2011, crime wasregistered against accused.ASI Prabhakar Gainewar prepared spot::: Uploaded on - 02/08/2018 ::: Downloaded on - 03/08/2018 00:44:52 ::: 3 apeal40.13panchnama and recorded the statements of witnesses.On 02.11.2011,accused along with victim came to Ghuggus.Thereafter, accused wasarrested.At that time victim was with accused.Accused and victim weresent for medical examination.After completing investigation, charge-sheet was filed before JMFC, Chandrapur, who, in turn, committed thesame for trial to the Court of Session.::: Uploaded on - 02/08/2018 ::: Downloaded on - 03/08/2018 00:44:52 :::The same was readover and explained to the accused, to which, he pleaded not guilty andclaimed to be tried.The prosecution has examined seven witnesses.Atthe conclusion of trial, accused came to be acquitted.Hence, the presentappeal.Shri A.D. Sonak, learned Additional Public Prosecutor hassubmitted that victim was minor at the time of incident.Therefore, herconsent was immaterial for deciding the offence of rape.Learned APPhas pointed out the evidence of PW-1, her father (PW-2) and PW-6 Dr.Ashok Barapatre.Learned APP has submitted that as per the evidence ofPW Nos.1, 2, 3 and 6, victim was minor aged about 14-15 years at thetime of incident.There is no dispute that accused did sexual intercoursewith her.It is submitted that the learned trial Court wrongly acquittedthe accused.Offences punishable under Sections 363, 366 and 376 of::: Uploaded on - 02/08/2018 ::: Downloaded on - 03/08/2018 00:44:52 ::: 4 apeal40.13the Indian Penal Code are proved by the prosecution.Hence, prayed toallow the appeal and convict the accused.::: Uploaded on - 02/08/2018 ::: Downloaded on - 03/08/2018 00:44:52 :::Heard Shri Y.B. Mandpe, learned Counsel appearing on behalfof the respondent (accused).She herselfleft the house of her parents in the night.As per the evidence of herfather, she was noticed by his son in the night at about 02:00 a.m.,talking with accused.When his son entered the room for taking torch,during that time, she ran away with the accused.9. PW-1 denied material statement recorded by police.Portionsmarked "A", "B", "C", "D" and "E" are proved by the Investigating Officer.PW-1 stated in her police statement that she was in love with accused.::: Uploaded on - 02/08/2018 ::: Downloaded on - 03/08/2018 00:44:52 :::::: Uploaded on - 02/08/2018 ::: Downloaded on - 03/08/2018 00:44:52 :::5 apeal40.13Her parents were abusing.Therefore, she ran away with the accused.Her marriage was performed with the accused at Khaga (UP).She hasstated her age as 21 years in the Marriage Registration Form.Sheresided with accused as his wife.10. PW-2 has stated in his evidence that his daughter was agedabout 14 years at the time of incident.In the intervening night of06.09.2011 and 07.09.2011, at about 02:00 a.m., his son Pankaj got upfrom sleep for urination.He found accused talking with his daughter byholding her hand.He got up him and narrated the incident.They triedto take search of accused and his daughter, but they could not find them.After three days, he lodged report in the Police Station.There is nodispute that accused had sexual relations with victim (PW-1).MedicalOfficer Selokar (PW-4) has stated in his evidence that on 03.11.2011, heexamined the victim.As per his opinion, she was habituated to sexualintercourse.There was no sign of forcible sexual intercourse.When they arrived at Ghuggus, bothwere apprehended.Accused was arrested, victim was sent for medicalexamination.It is::: Uploaded on - 02/08/2018 ::: Downloaded on - 03/08/2018 00:44:52 ::: 6 apeal40.13admitted by her in evidence that since then she is residing with herparents.It is brought on record in cross examination that accusedbelonging to other caste and, therefore, her father was not liking herrelations with accused.Report was already lodged by her father.::: Uploaded on - 02/08/2018 ::: Downloaded on - 03/08/2018 00:44:52 :::The prosecution has to prove material ingredients of Section375 of the Indian Penal Code (before amendment).To prove offencepunishable under Sections 363, 366 and 376 of Indian Penal Code,prosecution has to prove that at the relevant time, victim was minor and,therefore, her consent was immaterial.She has stated her age before the Courtas 15 years.In her evidence, she has stated that at the time of incident(before one year from the time of incident) she was 15 years.In herpolice statement, she has stated her age as 16 years.She has stated herage while drafting papers of marriage as 21 years.Therefore, her father lodged report.::: Uploaded on - 02/08/2018 ::: Downloaded on - 03/08/2018 00:44:52 :::PW-2 father of victim has stated that his daughter was agedabout 14 years at the time of incident.But, in his report (Exh.11), he hasstated her age as 15 years.PW-3 (Ku.Alka Bandawar), Headmistress ofZilla Parishad Higher Primary Hindi School at Ghuggus has producedschool register.As per the evidence of PW-3, entry in respect of date ofbirth was taken in the register without obtaining Birth Certificate orother document.Her date of birth was stated by her mother Sitadevi.Prosecution has not examined the mother of PW-1 namely Sitadevi.PW-2 has stated in his evidence that he himself entered thename of his daughter in the school.He himself stated her date of birth inthe school, but he has not stated the date of birth before the Court.Onlyhe has stated that she was 14 years at the time of incident.There ismaterial contradiction in respect of age stated by PW Nos.1 and 2.Evidence of PW-3 is not helpful to prosecution because as per the entryin the register, the date of birth was stated by the mother of victim.Mother of victim who has stated her date of birth, not examined by the::: Uploaded on - 02/08/2018 ::: Downloaded on - 03/08/2018 00:44:52 ::: 8 apeal40.13prosecution.There is no entry in the register that on what basis date ofbirth of PW-1 was recorded in the school register.::: Uploaded on - 02/08/2018 ::: Downloaded on - 03/08/2018 00:44:52 :::17. PW-6 (Dr. Ashok Barapatre) has stated in his evidence that on23.05.2012, he had taken x-ray of victim.He has conducted ossificationtest to determine the age of victim.As per his opinion, she was inbetween 14 and 16 years.Margin of two years can be taken intoconsideration on either side.This itself shows that she was more than 18years at the time of incident.This itself is clear that to fill up the lacuna, prosecutionhas examined PW-6 (Dr. Barapatre) who has stated that on 23.05.2012,he has conducted ossification test.Therefore, evidence of Dr.Barapatre cannot be taken into consideration.Even if the evidence of Dr.Barapatre is taken into consideration then also victim was more than 18years.Evidence of victim itself shows that she was 21 years at the timeof incident.She herself stated her age as 21 years when the marriageforms were filled in at Khaga.Prosecution has miserably failed to prove that victim was::: Uploaded on - 02/08/2018 ::: Downloaded on - 03/08/2018 00:44:52 ::: 9 apeal40.13minor i.e. below 16 years at the time of incident.On the other hand, itappears that victim was more than 18 years at the time of incident.Thereis no dispute that she herself went with the accused.Her father was notliking her relations with accused.Her evidence shows that she was inlove with accused.She voluntarily resided with accused as his wife fortwo-three months.Prosecution has miserably failed to prove the offencecharged against the accused.Learned trial Court has rightly acquittedthe accused.::: Uploaded on - 02/08/2018 ::: Downloaded on - 03/08/2018 00:44:52 :::R and P be sent back.::: Uploaded on - 02/08/2018 ::: Downloaded on - 03/08/2018 00:44:52 :::

['Section 363 in The Indian Penal Code', 'Section 376 in The Indian Penal Code', 'Section 366 in The Indian Penal Code', 'Section 375 in The Indian Penal Code']

All the brothers haddifference of opinion as to the right of using a pathway.The deceasedMadasamy was claiming that the passage exclusively belonged to him and it shouldnot be used by others.While the matter stood thus, on 18.02.2005, the deceasedMadasamy set fire to the withered plants.The fire spread to accused No.1'sfield also and caused some damage to the plants.This was the motive for theoccurrence.(b)On 20.02.2005, when the deceased Madasamy and his wifeP.W.2 were doing work in their well situate in their land, at about 8.00 a.m.,accused Nos.1 and 2 came there, abused Madasamy and accused No.1 inflicted a cutinjury with aruval on Madasamy's left side of the neck, while accused No.2 cuthim on the back of the neck.When P.W.2 raised alarm, accused No.1 abused herand cut on her left cheek along with her left ear and accused No.2 similarlyabused her and cut on her left palm, in which P.W.2 lost her left thumb.P.W.1,P.W.5 and others have also witnessed the occurrence.Madasamy died on the spot.Both the accused fled away from the scene of occurrence.P.W.5 and P.W.7 tookP.W.2 to Government Hospital, after instructing P.W.1 to inform about theaccident to the police.(c)P.W.3, the Doctor attached to Government Hospital, gavetreatment to P.W.2 and referred her for better treatment to Tirunelveli MedicalCollege Hospital.M.Os.4 to 7 arethe X-rays.Ex.P-5 is the X-ray Expert's Report.M.Os.1 to 3 are thebloodstained personal wearing apparels of P.W.2 recovered by the police from herin the Tirunelveli Medical College Hospital.(d)On 20.02.2005 at about 11.00 a.m., when P.W.15, Sub-Inspector of Police, was on duty in the Sankarankovil Taluk Police Station,P.W.1 appeared before him and gave Ex.P-22 complaint, which was recorded byP.W.15 and on the strength of Ex.P-1, P.W.15 registered a case in CrimeNo.41/2005 under Sections 302 and 307 IPC.P-23 is the first informationreport prepared by him.He despatched the same to the concerned MagistrateCourt and copies to the higher police officials.(e)P.W.16, the Inspector of Police, on receipt of copy ofEx.P-23 FIR, took up the case for investigation.He proceeded to the scene ofoccurrence, made an observation and in the presence of witnesses prepared Ex.P-24, the observtion mahazar and also drew Ex.P-25, the rough sketch.He alsorecovered M.O.12, bloodstained mud and M.O.13, sample mud, from the place ofoccurrence under Ex.P-26, the mahazar.Therafter, in the presence ofpanchayatdars and witnesses, the Investigator conducted inquest on the body ofthe deceased and prepared Ex.P-27, the inquest report.(Judgment of the Court was Delivered by M.CHOCKALINGAM,J) The appellants, who stood charged and tried by the trialcourt, namely the Court of Additional Sessions No.I, Tirunelveli, inS.C.No.227/2005 under Sections 302, 307 and 294(b) IPC, were found guilty andsentenced to undergo imprisonments as detailed below.(a)Convicted under Section 302 IPC and sentenced to undergo lifeimprisonment and also to pay a fine of Rs.10,000/-, in default to undergo sixmonths rigorous imprisonment.(b)Convicted under under Section 307 IPC and Sentenced undergo rigorousimprisonment for seven years and to pay a fine of Rs.5,000/- in default toundergo three months rigorous imprisonment.(c)Found not guilty under Section 294(b) IPC and acquitted of the charge.(a)Convicted under Section 302 IPC and sentenced to undergo lifeimprisonment and also to pay a fine of Rs.10,000/-, in default to undergo sixmonths rigorous imprisonment.(b)Convicted under under Section 326 IPC and Sentenced undergo rigorousimprisonment for five years and to pay a fine of Rs.3,000/- in default toundergo three months rigorous imprisonment.(c)Found not guilty under Section 294(b) IPC and acquitted of the charge.Challenging the said conviction and sentence, the present appeal has beenbrought forth by the appellants.He sent the body forpostmortem with Ex.P-3, the requisition.(f)P.W.3, the Doctor, on receipt of Ex.P-3, the requisition,started the postmortem at 4.55 p.m. on 20.02.2005 and concluded the same at 6.00p.m.and found the following injuries on the body of the deceased.(i)A transverse cut incised wound of 15cm x 5cm x 8 cm in front of neck,starting from the left side of neck and passes in front of neck, above thethyroid cartilage and ends close to right ear.O/D. under lying muscular vesselsare cut Larynx cut.(ii)A transverse cut incised wound of 14cm x 6 cm x 7cm over back of cheekstarting from the left ear passes over the back of neck, over cervical vertebraand ends below right metoid process.C/D underlying muscles, cervical vertebraand vessels are cut."Ex.P-4 is the postmortem certificate issued by him.P.W.3 was of the opinionthat the deceased would appear to have died of shock and haemorrhage due toinjury Nos.1 and 2, 9 to 12 hours prior to postmortem.(g)After postmortem, P.W.12, the Police Constable, whoaccompanied the body to the Hospital for postmortem, recovered M.Os.8 to 11, thepersonal wearing apparels of the deceased and handed them over to theInvestigator.(h)In continuation of the investigation, P.W.16, theInvestigator, examined some witnesses on 21.02.2005 and recorded theirstatements.Accused Nos.1 and 2 surrendered before the Tenkasi Magistrate.Oncoming to know the same, P.W.16, the Investigator, filed an affidavit before theCourt seeking police custody of the accused and accordingly they were taken onpolice custody.On enquiry, accused Nos.1 and 2 voluntarily gave separateconfessional statements.P-28 and P-29 are the admissible portions of theconfessional statements given by accused Nos.1 and 2 respectively, pursuant towhich, M.O.15, bloodstained aruval produced by accused No.1 and M.O.16,blodstained aruval produced by accused No.2, were recovered under Exs.P-30 andP-31 Mahazars, respectively.(i)All the material objects recovered from the place ofoccurrence, from the body of the deceased and also from the accused weresubjected to chemical analysis.Ex.P-18 is the Chemical Examiner's Report andEx.P-19 is the Serologist's Report.On completion of the investigation,P.W.16, the Investigator, filed final report against both the accused underSections 302, 307 and 294(b) IPC.3.The final report was taken on file by the concernedMagistrate and the same was committed to the Court of Session.Necessarycharges were framed by the trial court against the accused.On completion of the evidence on the side ofthe prosecution, the accused/appellants were questioned under Section 313 of theCode of Criminal Procedure about the incriminating materials found against himin the evidence of prosecution witnesses and the accused/appellants denied allof them as false.No witness was examined on the side of the defence and alsono document was marked.The trial court heard the arguments advanced and onconsideration of the evidence adduced, found the accused/appellants guilty andimposed imprisonment as stated in the earlier part of this Judgment.Hence,this appeal at the instance of the appellants.4.Advancing his arguments on behalf of the appellant, thelearned counsel for the appellant would raise the following points.(a)In the instant case, P.W.1, who is stated to be an eye-witnessand given Ex.P-22 complaint, has turned hospital and therefore Ex.P-22 was notin any way helpful to the prosecution case and in such circumstances it is notsafe to convict the appellants based on the solitary and uncorroboratedtestimony of P.W.2, who is the wife of the deceased Madasamy.(b)Learned counsel would further add that in the instant case, P.W.2has sustained injuries in the occurrence that has taken place at 'kanmoi', asper the statement given before P.W.3, the doctor, who examined P.W.2 and gavetreatment to her, but, according to the prosecution, the occurrence has takenplace near the well in the filed of the deceased Madasamy.He would furthersubmit that the distance between the field and the kanmoi is 1 k.m.and thus itwould be quite clear, according to P.W.2, she has sustained injuries not in theplace where Madasamy was attacked and therefore she could have witnessed theoccurrence in which her husband was attacked.(c)Added further, learned counsel submitted that in the instant caseP.W.2 has given categorical admission that they took the food at 7.00 a.m. asusual and went to the field for work and the occurrence has taken place at about8.00 a.m. and now as per P.W.3, the doctor, who conducted autopsy, the stomachwas empty and hence the medical evidence was contrary to the evidence of P.W.2and hence the occurrence would not have taken place at the time projected by theprosecution.He would further add that as a matter of fact, the Doctor hasdeposed that the deceased would have taken food 3 to 6 hours prior to his deathand therefore the time of death could not be the time as alleged by theprosecution.(d)It is the further submission of the learned counsel thataccording to P.W.2, before she was taken to the hospital, they went to thepolice station and informed the police about the incident but, the saidcomplaint has been suppressed by the prosecution which is fatal to theprosecution case.(e)Adding further, learned counsel would submit that the occurrencehas taken place at 8.00 a.m. on 20.02.2005, but the first information about theoccurrence has been given to the police only at 11.00 a.m. and in turn the FIRhas reached the Court only at 6.00 p.m. and there is delay in registering thecase as well as the FIR reaching the Court, which is fatal to the prosecutioncase.(f)Learned counsel therefore contended that the lower court has notconsidered the materials and the evidence of prosecution witnesses in properperspective and thus recorded an erroneous finding and therefore the appellantsare entitled for acquittal at the hands of this Court.5.The Court heard the learned Additional Public Prosecutorappearing for the respondent/State on the above contentions and paid its anxiousconsideration to the rival submissions made and carefully scrutnized thematerials on record.Further, this fact was neverquestioned by the appellants neither before the trial court nor before thisCourt and, therefor,e without impediment, it can be safely recorded thatMadasamy died due to homicidal violence.Insofar as P.W.1 is concerned, he turned hostileand P.W.5 is concerned, though she turned hostile, her evidence is available tothe prosecution as to the place of occurrence.Now, the only eye-witnessavailable was the evidence of P.W.2 and admittedly she is the wife of thedeceased.It is pertinent to point out that P.W.2 is an injured witness.In acase like this, when the witness happened to be an injured witness, unless anduntil strong circumstances or reasons are brought forth or noticed by the Court,it is settled position of law that the evidence of such witness need not bediscarded.In the instant case, according to P.W.2, in the course of sametransaction, immediately the deceased was attacked by accused Nos.1 and 2, wasattacked by both the accused and she sustained multiple injuries.She was takento the hospital by P.W.5 and P.W.7 to the Hospital and she was given treatmentby P.W.3, the doctor and the case came to be registered for the offencespunishable under Section 302 along with other provisions of Indian Penal Codeand the investigation was proceeded with and witnesses have been examined inthat regard.8.The first question would be whether there was any delay inthe registration of the case or in the FIR reaching the Court.The occurrencehad taken place at about 8.00 a.m. in the field of the deceased and leaving thebody of the deceased Madasamy in the field, P.W.2 was initially taken to P.W.3,the Government Doctor and thereafter on the advice of P.W.3, she was taken toTirunelveli Medical College Hospital, following which P.W.1 has proceeded to thepolice station and gave Ex.P-22 complaint before P.W.15, the Sub-Inspector ofPolice, who recorded the same at about 11.00 a.m. In the instant case, P.W.1has turned hostile.Though P.W.1 has turned hostile, merely because theinformant himself has turned hostile and did not support the prosecution case,it cannot be a reason to reject the evidence of P.W.2 who is an inured witness.(a)P.W.2 was actually present at the time of occurrence along withher husband, the deceased Madasamy and working in the field.The transaction has taken place nearthe well of the deceased Madasamy when he was working with his wife, P.W.2 andfrom the place of occurrence, bloodstained earth and sample earth have also beentaken and subjected to chemical analysis and found contained the same bloodgroup of the deceased.Apart from this, P.W.5, though turned hostile, in herevidence has stated that she saw the body of the deceased lying near the wellsituate in the field of Madasamy.10.In so far as the second contention that according to P.W.2,they went to the police station before she was taken to the hospital and theyinformed the police and therefore the first information given to the police hasbeen suppressed, the same has got to be rejected for two reasons.When P.W.2was taken to the hospital from the place of occurrence with injuries, she wasactually struggling for her life and she was under fear after seeing the deathof her husband.Under such circumstances, she would not have given anycomplaint to the police.Apart from this, there was no suggestion to the policethat P.W.2 gave another complaint and that has been suppressed.In suchcircumstances, there could not have been any other complaint except Ex.P-22 andhence there is no question of suppression of any other complaint.11.The other contention is that as per P.W.2 they took thefood at 7.00 a.m. and went to the field for work, but the opinion of thepostmortem doctor, P.W.3, was that the stomach was found empty at the time ofpostmortem and therefore the occurrence must have taken place prior to the timeprojected by the prosecution.P.W.2 is a rustic lady and she has added that to work in the field theyleave home at 7.00 a.m. itself.Now merely because such an answer was givenby P.W.2, that by itself would not, in the opinion of the court, shake thefabric of the prosecution case.From the evidence of P.W.5, though turnedhostile, it wold be available to the prosecution to the extent of place ofoccurrence and thus the prosecution has proved that the occurrence has takenplace in the field of Madasamy and P.W.2 was present and she has also beenattacked and she happened to be an injured witness and her evidence has inspiredthe confidence of the Court.12.Therefore, in the above circumstances, the prosecution hasproved its case beyond reasonable doubt that when P.W.2 and her husband, thedeceased Madasamy, were working in their field, the appellants/accused, armedwith weapons, have gone to the filed and attacked the deceased on his neck andcaused his instantaneous death and when it was questioned by P.W.2, accusedNo.1/appellant No.1 cut on her left cheek along with left ear and accusedNo.2/appellant No.2 cut on her left palm, in which P.W.2 lost her left thumb.Hence the Lower Court is perfectly correct in recording its findings as per thecharges and imposing punishments as detailed above.This Court is unable to seeany error factually or legally in the judgment of the trial court, which doesnot require any interference.13.Accordingly, the criminal appeal fails and the same isdismissed.1.The Principal Sessions Judge, Tirunelveli.2.I-Additional Sessions Judge, Tirunelveli.3.The Inspector of Police Sankarankovil Taluk Police Station Tirunelveli District.The Additional Public Prosecutor Madurai Bench of Madras High Court Madurai.

['Section 302 in The Indian Penal Code', 'Section 307 in The Indian Penal Code', 'Section 294(b) in The Indian Penal Code', 'Section 326 in The Indian Penal Code']

Shri K.S. Jha, counsel for the applicant.The earlier application was dismissed vide order dated 29.8.2016 in M.Cr.C. No. 14650 of 2016 with a direction that the applicant may surrender before the trial court and apply for regular bail.Learned counsel for the applicant submits that subsequently another co- accused has been granted bail, vide order dated 14.9.2016 passed in M.Cr.This is repeat application which was earlier dismissed with a direction to surrender before the trial court.In this view of the matter, this application is disposed of with a direction that the applicant shall surrender before the trial court and his regular bail application shall be considered by the trial court on the same day.The applicant can very well plead before the court that another co - accused has been granted bail by this court.The application is disposed of.(S.K. GANGELE) JUDGE bks

['Section 468 in The Indian Penal Code', 'Section 471 in The Indian Penal Code', 'Section 420 in The Indian Penal Code', 'Section 120B in The Indian Penal Code', 'Section 467 in The Indian Penal Code']