We are constrained to observe that criminal justice system is not working in our country as it should. The police reforms have not taken place despite directions of this Court in the case of Prakash Singh & Ors. vs. Union of India & Ors. W..

We are constrained to observe that criminal justice system is not working in our country as it should. The police reforms have not taken place despite directions of this Court in the case of Prakash Singh & Ors. vs. Union of India & Ors. We do not intend to say anything more in this regard since matter is being dealt with separately by a 3-Judge Bench. The investigators hardly have professional orientation; they do not have modern tools. On many occasions impartial investigation suffers because of political interference. The criminal trials are protracted because of non-appearance of official witnesses on time and the non-availability of the facilities for recording evidence by video conferencing. The public prosecutors have their limitations; the defence lawyers do not make themselves available and the court would be routinely informed about their pre-occupation with other matters; the courts remain over burdened with the briefs listed on the day and they do not have adequate infrastructure. The adjournments thus become routine; the casualty is justice. It is imperative that the criminal cases relating to offences against the State, corruption, dowry death, domestic violence, sexual assault, financial fraud and cyber crimes are fast tracked and decided in a fixed time frame, preferably, of three years including the appeal provisions. It is high time that immediate and urgent steps are taken in amending the procedural and other laws to achieve the above objectives. We must remember that a strong and efficient criminal justice system is a guarantee to the rule of law and vibrant civil society.

Indian Penal Code, 1860

Coming back to the facts of the present case, we are of the opinion that the High Court and the learned Family Court Judge erred in law in 1holding that the appellant was not married to Lakshmi without even issuing notice to Lakshmi. Hence this fi..

Coming back to the facts of the present case, we are of the opinion that the High Court and the learned Family Court Judge erred in law in 1holding that the appellant was not married to Lakshmi without even issuing notice to Lakshmi. Hence this finding has to be set aside and the matter remanded to the Family Court which may issue notice to Lakshmi and after hearing her give a fresh finding in accordance with law. The question whether the appellant was married to the respondent or not can, of course, be decided only after the aforesaid finding. There is also no finding in the judgment of the learned Family Court Judge on the question whether the appellant and respondent had lived together for a reasonably long period of time in a relationship which was in the nature of marriage. In our opinion such findings were essential to decide this case. Hence we set aside the impugned judgment of the High Court and Family Court Judge, Coimbatore and remand the matter to the Family Court Judge to decide the matter afresh in accordance with law and in the light of the observations made above. Appeals allowed. 

Protection of Women from Domestic Violence Act, 2005

It is true that the expression “female” has not been used in the proviso to Show

It is true that the expression “female” has not been used in the proviso to Section 2(q) also, but, on the other hand, if the Legislature intended to exclude females from the ambit of the complaint, which can be filed by an aggrieved wife, females would have been specifically excluded, instead of it being provided in the proviso that a complaint could also be filed against a relative of the husband or the male partner. No restrictive meaning has been given to the expression 12“relative”, nor has the said expression been specifically defined in the Domestic Violence Act, 2005, to make it specific to males only.  In such circumstances, it is clear that the legislature never intended to exclude female relatives of the husband or male partner from the ambit of a complaint that can be made under the provisions of the Domestic Violence Act, 2005. In our view, both the Sessions Judge and the High Court went wrong in holding otherwise, possibly being influenced by the definition of the expression “respondent” in the main body of Section 2(q) of the aforesaid Act. The Appeal, therefore, succeeds. The judgments and orders, both of the learned Sessions Judge, Amravati, dated 15th July, 2009 and the Nagpur Bench of the Bombay High Court dated 5th March, 2010, in Crl. Writ Petition No.588 of 2009 are set 13aside. Consequently, the trial Court shall also proceed against the said Respondent Nos.2 and 3 on the complaint filed by the Appellant.

We have examined the aforesaid discrepancies pointed out by the learned counsel. It may be stated herein that some of the issues have been explained by the prosecution, however, no attempt was ever made by the defence to put most of these issues t..

We have examined the aforesaid discrepancies pointed out by the learned counsel. It may be stated herein that some of the issues have been explained by the prosecution, however, no attempt was ever made by the defence to put most of these issues to SI Vinod Kumar (PW.20), the Investigating Officer in his cross-examination. It is evident from his deposition that he had, in fact, answered all the questions that were put to him in the cross-examination. However, it is pertinent to clarify that most of these questions that are being currently raised before us were not put to him. For example, he has explained that nobody from the said market had been ready to become the Panch witness for recovery of the mobile phone from Sonu’s shop at Itarsi, and that even Sonu was not ready to do so. Further, no question had been put to him in the cross-examination regarding the different EMEI number of the said mobile phone. The mobile phone that was recovered, bore the EMEI No. 3534000004033852 (Ex.P-19), though the EMEI number of mobile phone that belonged to Sonia was 3534000004033853. Furthermore, no question had been put as to why the mobile phone, after the recovery, had not been deposited in the Malkhana. In light of such a fact situation, it is not permissible for us to consider such discrepancies. 

In this case, we are satisfied that in the interests of justice and to prevent abuse of the process of court, the trial court ought to have considered whether it was necessary to re-open the evidence and if so, in what manner and to what extent fu..

In this case, we are satisfied that in the interests of justice and to prevent abuse of the process of court, the trial court ought to have considered whether it was necessary to re-open the evidence and if so, in what manner and to what extent further evidence should be permitted in exercise of its power under Section 151 of the Code. The court ought to have also considered whether it should straightway recall PW1 and PW2 and permit the Appellant to confront the said recorded evidence to the said witnesses or whether it should first receive such evidence by requiring its proof of its authenticity and only then permit it to be confronted to the witnesses (PW1 and PW2). In view of the above, these appeals are allowed in part. The orders of the High Court and Trial Court dismissing IA No. 216/2009 under Section 151of the Code are set aside. The orders are affirmed in regard to the dismissal of IA No. 217/2009 under Order 18 Rule 17 of the Code. The trial court shall now consider IA No. 216/2009 afresh in accordance with law.

Information Technology Act, 2000 &  Indian Evidence Act, 1872

On the question of sentence we are satisfied that the extreme depravity with which the offences were committed and the merciless manner in which death was inflicted on the victim, brings it within the category of rarest of rare cases which merits ..

On the question of sentence we are satisfied that the extreme depravity with which the offences were committed and the merciless manner in which death was inflicted on the victim, brings it within the category of rarest of rare cases which merits the death penalty, as awarded by the Trial Court and confirmed by the High Court. None of the mitigating factors as were indicated by this Court in Bachan Singh’s case (supra) or in Machhi Singh’s case (supra) are present in the facts of the instant case. The appellant even made up a story as to his presence in the house on seeing P.W.2 Suresh, who had come there in the meantime. Apart from the above, it is clear from the recoveries made from his house that this was not the first time that he had committed crimes in other premises 66also, before he was finally caught by the public two days after the present incident, while trying to escape from the house of one Seeba where he made a similar attempt to rob and assault her and in the process causing injuries to her. As has been indicated by the Courts below, the antecedents of the appellant and his subsequent conduct indicates that he is a menace to society and is incapable of rehabilitation. The offences committed by the appellant were neither under duress nor on provocation and an innocent life was snuffed out by him after committing violent rape on the victim. He did not feel any remorse in regard to his actions, inasmuch as, within two days of the incident he was caught by the local public while committing an offence of a similar type in the house of one Seeba.

Indian Penal Code, 1860

The facts are that Rathnamma herself stated in her evidence that she had sex with the appellant on several occasions. It is also an admitted fact that the FIR against the appellant was lodged just a few days before the birth of Rathnamma’s c..

The facts are that Rathnamma herself stated in her evidence that she had sex with the appellant on several occasions. It is also an admitted fact that the FIR against the appellant was lodged just a few days before the birth of Rathnamma’s child, which means there is delay of over 8 months in lodging the FIR. The finding of the trial court, which has not been disturbed by the High Court, is that Rathnamma was about 18 years of age at the relevant time. On these facts a view is reasonably possible that Rathnamma had sex with the appellant with her consent and hence there was 4no offence under Section 376 IPC because sex with a woman above 16 years of age with her consent is not rape.  For the reasons given above, the appeal is allowed. The impugned judgment and order of the High court is set aside Apart from the above, the appellant has stated in an affidavit filed in this Court that he has agreed to transfer two acres of land situated in Palavanahalli due to breach of promise to marry Rathnamma and she has given her consent to accept the same. The appellant is directed to give/transfer two acres of land as stated in the affidavit filed before Court to Rathnamma within three months from the date of this judgment.  

The trial court as well as the High Court should have appreciated the evidence on record with regard to delay and not giving proper explanation regarding delay of 11 days in filing FIR by the prosecutrix and non-examination of complainant witnesse..

The trial court as well as the High Court should have appreciated the evidence on record with regard to delay and not giving proper explanation regarding delay of 11 days in filing FIR by the prosecutrix and non-examination of complainant witnesses, viz. the Doctor and the I.O. which has not only caused prejudice to the case of the appellant but also the case of prosecution has created reasonable doubt in the mind of this Court. Therefore, the benefit of doubt must enure to the appellant. As we have stated above the testimony of the prosecutrix is most unnatural and improbable to believe and therefore it does not inspire confidence for acceptance of the same for sustaining the conviction and sentence. Therefore, we are of the view that the impugned judgment requires to be interfered with by this Court in exercise of its jurisdiction. Accordingly, we Page 25 allow the appeal and set aside the impugned judgment.  If the appellant has executed the bail bonds, the same may be discharged.

Indian Penal Code, 1860

It is to be borne in mind that suspicion pertaining to fidelity has immense potentiality to commit irreversible wrongs as it corrupts the mind and corrodes the sense of rational thinking and further allows liberty to the mind to pave the path of e..

It is to be borne in mind that suspicion pertaining to fidelity has immense potentiality to commit irreversible wrongs as it corrupts the mind and corrodes the sense of rational thinking and further allows liberty to the mind to pave the path of evil. In fact, it brings in baseness. It quite often impures mind, takes it to the devil’s den and leads one to do unjust acts than just deeds. In any case, it does not give licence to commit murder. Thus, the submission pertaining to the absence of motive has no substance.  In view of the aforesaid analysis, we conclude and hold that all the links in the chain of evidence are established beyond reasonable doubt and the established circumstances are consistent with the singular hypothesis that the accused is guilty of the crime and it is totally inconsistent with his innocence. We have said so on the basis of the pronouncements 19Page 20 in Sharad Birdhichand Sarda v. State of Maharashtra , Padala Veera Reddy v. State of Andhra Pradesh and ors., Balwinder Singh v. State of Punjab, Harischandra Ladaku Thange v. State of Maharashtra  and Jagroop Singh v. State of Punjab. Consequently, the appeal, being sans substratum, stands dismissed. 

Indian Penal Code, 1860

When we Criminal Appeal No.2260 of 2009 7 of 9Page 8 consider the submission of the learned counsel about the abnormal delay in proceeding against the appellant up to the alleged date of occurrence, the trial Court has also held that the witn..

When we Criminal Appeal No.2260 of 2009 7 of 9Page 8 consider the submission of the learned counsel about the abnormal delay in proceeding against the appellant up to the alleged date of occurrence, the trial Court has also held that the witnesses were all of rural background and illiterate persons and, therefore, some allowance will have to be given for their laxity in bringing the factum of the rape alleged to have been committed by the appellant on the deceased Radha Bai. When we consider the evidence of PW-5, who was a child witness, who was stated to be between 13 to 14 years at the time of occurrence, we find that his evidence was found to be natural and he withstood the lengthy cross-examination, which did not bring out any contradiction in his version apart from the fact that he had no axe to grind against the appellant. Further when based on the evidence of PW 5 and the medical reports, the incriminating circumstances that existed against the appellant were put in 313 questioning, he had no explanation to offer. The medical evidence also fully supported the crime alleged against the appellant. Moreover, the evidence of PW-7, also corroborated the version of PW-5 to considerable extent regarding the Criminal Appeal No.2260 of 2009 8 of 9Page 9involvement of the appellant in the commission of the crime on the deceased Radha Bai. Therefore, the ultimate conclusion of guilt found proved against the appellant as held by the trial Court as well as the High Court cannot be faulted. Having regard to our above conclusion, we do not find any merit in the appeal. The appeal fails and the same is dismissed. The appellant is on bail. The bail bond stands cancelled and he shall be taken into custody forthwith to serve out the remaining part of sentence, if any.

Indian Penal Code, 1860

In view of International Covenant on Economic, Social, and Cultural Rights 1966; United Nations Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power 1985, rape survivors are entitled to legal recourse that does not re..

In view of International Covenant on Economic, Social, and Cultural Rights 1966; United Nations Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power 1985, rape survivors are entitled to legal recourse that does not retraumatize them or violate their physical or mental integrity and dignity. They are also entitled to medical procedures conducted in a manner that respects their right to consent. Medical procedures should not be carried out in a manner that constitutes cruel, inhuman, or degrading treatment and health should be of paramount consideration while dealing with gender-based violence. The State is under an obligation to make such services available to survivors of sexual violence. Proper measures Page 10 should be taken to ensure their safety and there should be no arbitrary or unlawful interference with his privacy. Thus, in view of the above, undoubtedly, the two finger test and its interpretation violates the right of rape survivors to privacy, physical and mental integrity and dignity. Thus, this test, even if the report is affirmative, cannot ipso facto, be given rise to presumption of consent. In view of the above, the facts and circumstances of the case do not present special features warranting any interference by this Court. The appeal lacks merit and is accordingly dismissed.

Indian Penal Code, 1860 and Indian Evidence Act, 1872

Court stated that we must take into consideration that Ramesh who was convicted and awarded the death sentence by the learned Sessions Judge in 2004 is languishing in death cell for more than six years. This also would be one of the mitigating cir..

Court stated that we must take into consideration that Ramesh who was convicted and awarded the death sentence by the learned Sessions Judge in 2004 is languishing in death cell for more than six years. This also would be one of the mitigating circumstances.  In short, we are of the opinion that the death sentence awarded to Ramesh would not be justified and instead we would modify the same to life imprisonment. However, convictions for the other offences as also sentences awarded are confirmed. All the three appeals are accordingly dismissed with the modifications of sentence in Criminal Appeal No.1236 of 2006 filed by Ramesh.

Indian Penal Code, 1860

The learned Single Judge has also rightly supported the decision of the Sessions Judge in holding that the material on record was insufficient to even prima facie indicate the complicity of Sangeeta in the alleged offences of cruelty and abetment ..

The learned Single Judge has also rightly supported the decision of the Sessions Judge in holding that the material on record was insufficient to even prima facie indicate the complicity of Sangeeta in the alleged offences of cruelty and abetment of suicide. We entirely agree with the conclusion arrived in the impugned Order to the effect that a prima facie case justifying the trial of the Lajja Shankar, Meera and Sherish have been established and that the Sessions Judge erred in discharging these three persons. Accordingly, the appeals fail and are dismissed being devoid of merits. We would have imposed exemplary costs on the Appellants in these proceedings but for the fact that the impugned Order reverses the order passed by the Sessions Court. In other words if we had been confronted with concurrent findings punitive costs would have followed

It has come out in evidence that the deceased was suffering from Epilepsy for the last three years i.e. before 15.3.1993, the date of incident. This fact is fortified by the evidence of Dr. Kuldeep, who was examined as DW1. He deposed that the dec..

It has come out in evidence that the deceased was suffering from Epilepsy for the last three years i.e. before 15.3.1993, the date of incident. This fact is fortified by the evidence of Dr. Kuldeep, who was examined as DW1. He deposed that the deceased was suffering from Epilepsy and was under his treatment from 23.12.1992 to 2.4.1993 at Kuldeep Hospital, Ambala City. His evidence was brushed aside by the trial Court on the ground that Dr. Kuldeep was not a Psychiatrist. It may be noted that Epilepsy is not a Psychiatrist problem. It is a disease of nerves system and a MD (Medicine) could treat the patient of Epilepsy. The reasoning given by the trial Court for brushing aside the evidence of DW1 cannot be sustained. Therefore, the possibility of an accidental death, since she was suffering from Epilepsy, cannot Page 2626be ruled out. Evidently, she was in the kitchen and, might be, during cooking she might have suffered Epileptic symptoms and fell down on the gas stove and might have caught fire, resulting her ultimate death. - DW2, ASI Ram Mohan, the Investigating Officer of the case, deposed that he had recorded the statements of the deceased wherein she had stated that she was suffering from Epilepsy for the last three years before the incident and that on 15.9.1993 while she was preparing meals on stove, she had an attack of fits and fell on the stove and caught fire. She had also deposed at that time that her husband was away at duty at Madhuban, Karnal. In our view, the evidence of DW2 has to be appreciated in the light of overall facts and circumstances of the case. 

Code of Criminal Prcedure, 1973

Indian Penal Code, 1860

From the evidence of record available before us, we find that the prosecution witnesses have in their testimonies stated that the deceased was tortured both physically and mentally by the appellant for the first time after his marriage with the de..

From the evidence of record available before us, we find that the prosecution witnesses have in their testimonies stated that the deceased was tortured both physically and mentally by the appellant for the first time after his marriage with the deceased when he was refused permission for marriage with said Anita by the deceased. On having been refused the permission for his second marriage with Anita, the appellant 14again, after a few days requested the deceased to accede to his request for marriage with Anita, which request was again refused by the deceased. Consequent to the said position and due to the adamant position taken by the deceased, cruelty was meted out to her by the accused which fact is sufficiently proved from the evidence on record. Therefore, we find no reason to take a different view than what has been taken by the trial Court and the High Court as far as Section 498A IPC is concerned. Accordingly, the present appeal is hereby partly allowed. We hereby set aside the conviction of the appellant under Section 306 but uphold the conviction of the appellant under section 498A. As the appellant is on bail, his bail bonds stand cancelled. The appellant is directed to surrender himself before the jail authorities within 15 days from today to serve out the remaining sentence under Section 498A, failing which the concerned authority shall proceed against the appellant in accordance with law.

The High Court has recorded a firm finding that the harassment was not for or in connection with any de AND s for dowry. But, at the same time, the High Court has concluded that the wife committed suicide due to the harassment of the app..

The High Court has recorded a firm finding that the harassment was not for or in connection with any de AND s for dowry. But, at the same time, the High Court has concluded that the wife committed suicide due to the harassment of the appellant, in particular. The deceased had committed suicide by drinking Organo Phosphorus poison. In such circumstances, the High Court was, therefore, fully justified in convicting the appellant u/s 306 IPC. [para 9-10] [118-E-H; 119-A-D] 2.1. It cannot be said that the appellant could not have been convicted u/s 306 IPC in the absence of a charge being framed against him under the said section. Both the trial court AND the High Court have held that the deceased had committed suicide. Therefore, the nature of the offence u/s 304-B AND 306 IPC are not distinct AND different categories. Mere omission or defect in framing charge would not disable the court from convicting the accused for the offence which has been found to be proved on the basis of the evidence on record. In such circumstances, the matter would fall within the purview of ss. 221 (1) AND (2) Cr.P.C. The High Court upon meticulous scrutiny of the entire evidence on record rightly concluded that there was no evidence to indicate the commission of the offence punishable u/s 304-B IPC. It was also observed that the deceased had committed suicide due to harassment meted out to her by the appellant but there was no evidence on record to suggest that such harassment or cruelty was made in connection to any dowry de AND s. Thus, cruelty or harassment sans any dowry de AND s which drives the wife to commit suicide attracts the offence of `abetment of suicide' u/s 306 IPC AND not s. 304-B IPC which defines the offence AND punishment for `dowry death'. 

Court found that the wilful conduct referred to above should be of such a nature as would provoke a person of common prudence to commit suicide and a difference of opinion within a family on everyday mundane matters would not fall within that cate..

Court found that the wilful conduct referred to above should be of such a nature as would provoke a person of common prudence to commit suicide and a difference of opinion within a family on everyday mundane matters would not fall within that category. We find that merely because the appellants were of the opinion that the deceased, as a good daughter-in-law, should look after them in old age could not be said to an abetment of suicide. The presumption against the appellants raised under Section 113A of the Evidence Act, 1872 cannot thus be drawn. We are, therefore, of the opinion that the High Court's judgment suffers from serious contradictions. We, accordingly, allow this appeal and set aside the conviction of the appellants before us. Their bail bonds be discharged.

In the instant case, it is not the case of the prosecution that the appellant had subjected the deceased to cruelty of the nature described in clause (b) of Explanation to s.Show

In the instant case, it is not the case of the prosecution that the appellant had subjected the deceased to cruelty of the nature described in clause (b) of Explanation to s.498A, IPC, as there is no allegation that the appellant had harassed her with a view to coerce her or any person related to her to meet any unlawful demand for any property or valuable security or that he subjected her to harassment on account of failure by her or any person related to her to meet such demand. [para 8] 1.3 As regards Clause (a) of the Explanation to s. 498A, the High Court has relied on Ext. 47 i.e. a written undertaking dated 13.4.1988 given by appellant to give equal treatment to both his wives. Exts. 47 is an evidence of some misbehaviour of the appellant towards the deceased but the nature of the misbehaviour has not been stated in it. Besides, the drowning of the deceased took place three months after Ext. 47 had been execuited. For holding the appellant guilty of the offences u/s 306 and 498A, IPC, there must be evidence of wilful conduct of the appellant towards the deceased soon before her death which could have driven her to commit suicide. The post mortem examination report of deceased described her as `well nourished' and the last meal was taken by her within six hours. Moreover, the post mortem examination report does not show that the deceased was subjected to any severe beating before her death. [para 11and 13] 1.4 Thus, the prosecution has not been able to prove beyond reasonable doubt that the appellant was guilty of any wilful conduct which was of such a nature as was likely to drive the deceased to commit suicide. Rather, there appears to be some evidence in the depositions of PW-1 and PW-4 (father and sister of the deceased) that the deceased was sad due to a daughter being born to her and a son being born to the first wife of the appellant. These circumstances may have driven her to commit suicide by jumping into the well along with her daughter. Such a consequence from the mental state of the deceased cannot be a ground for holding the appellant guilty of cruelty within the meaning of clause (a) of the Explanation to s.498A, IPC. Therefore, the presumption u/s 113A is not attracted and the appellant cannot also be held guilty of abetting the suicide of the deceased.

It must be remembered that the first duty of the Court is to do justice. Courts must endeavour to find the truth and that there would be failure of justice not only by an unjust conviction but also by acquittal of the guilty for unjustified failur..

It must be remembered that the first duty of the Court is to do justice. Courts must endeavour to find the truth and that there would be failure of justice not only by an unjust conviction but also by acquittal of the guilty for unjustified failure to produce available evidence. Of course the rights of the accused have to be kept in mind and safeguarded, but they should not be over emphasized to the extent of forgetting that the victims also have rights. [255-A, B] Sri Krishna Gobe v. Stale of Maharashtra, [1973] 4 SCC 23, relied on. 1.4. It must also be remembered that the Criminal Procedure Code is an ongoing statute. The principles of interpreting an ongoing statute have been very succinctly set out by the jurists and referred by Courts in number of cases. The apex Court has approved the principle of updating construction as enunciated by Francis Bennion, in a number of decisions. However, it is well settled law that the doctrine "Contemporanea exposition est optima et fortissimm" has no application when interpreting a provision of an ongoing statute. [255-C; 256-E; 257-D] National Textile Workers' Union v. P.R. Ramakrishnan, [1983] 1 SCC 228; Commissioner of Income Tax, Bombay v. M/s. Podar Cement Pvt. Ltd., [1997] 5 SCC 482; State v. S.J. Chowdhury, [1996] 2 SCC 428; SIL Import USA v. Exim Aides Silk Exporters, [1999] 4 SCC 567 and Basavaraj R. Patil v. State of Karnataka, [2000] 8 SCC 740, relied on. Statutory Interpretation by Francis Bennion 2nd Edition, Page 617 -referred to. 1.5. Virtual reality is a state where one is made to feel, hear or imagine what does not really exist. Video conferencing has nothing to do with virtual reality. Video conferencing is an advancement in science and technology which permits one to see. hear and talk with someone far away, with the same facility and ease as if he is personally present. In fact he/ she is present on a screen. Except for touching one can see, hear and observe as if the party is in the same room. Thus, so long as the accused and/or his pleader are present when evidence is recorded by video conferencing that evidence is being recorded in the "presence" of the accused and would thus fully meet the requirements of Section 273 Cr.P.C. Recording of such evidence would be as per "procedure established by law". [257-E; 258-A, B, C] 1.6. Recording of evidence by video conferencing also satisfies the object of providing, in Section 273, that evidence be recorded in the presence of the Accused. The Accused and his pleader can see the witness as clearly as if the witness was actually sitting before them. In fact the accused may be able to see the witness better than he may have been able to if he was sitting in the dock in a crowded Court room. They can observe his or her demeanour. In fact the facility to play back would enable better observation of demeanour. They can hear and rehear the deposition of the witness. The accused would be able to instruct his pleader immediately and thus cross-examination of the witness is as effective, if not better. The facility of play back would give an added advantage whilst cross-examining the witness. The witness can be confronted with documents or other material or statement in the same manner as if he/she was in Court. All these objects would be fully met when evidence is recorded by video conferencing. Thus no predspace, of whatsoever nature, is caused to the accused. It is also possible to set up video conferencing equipment in the Court itself. In that case evidence would be recorded by the Magistrate or under his dictation in open Court. [258-D, E, F; 259-A] 1.7. To this method there may arise some difficulties if the witness commits Contempt of Court or perjures himself and it is immediately noticed that he has perjured himself. Therefore, as a matter of prudence evidence by video-conferencing in open Court should be only if the witness is in a country which has an extradition treaty with India and under whose laws Contempt of Court and perjury are also punishable. [259-B] 2.1. In cases where the witness is necessary for the ends of justice and the attendance of such witness cannot be procured without an amount of delay, expense or inconvenience which, under the circumstances of the case would be unreasonable, the Court may dispense with such attendance and issue a commission for examination of the witness. In the instant case, the concerned doctor had refused to come to India to give evidence. His evidence appears to be necessary for the ends of Justice. Courts in India cannot procure his attendance. In such case commission could be issued for recording evidence. Normally a commission would involve recording evidence at the place where the witness is. However, advancement in science and technology has now made it possible to record evidence of witness by way of video conferencing in the town/city where the Court is. Thus in such matters, the Court could consider issuing a commission to record the evidence by way of video-conferencing. However, commission cannot be issued if there is no arrangement between the Government of India and the country where the commission is proposed to be issued because the services of an official of the country (mostly a Judicial Officer) would be required to record such evidence and to ensure attendance. When a witness is willing to give evidence an official of the Court can be deputed to record evidence on commission by way of video-conferencing. The evidence will be recorded in the studio/hall where the video-conferencing takes place. It must be clarified that adopting such a procedure may not be possible if the witness is out of India and not willing to give evidence. [260-D-F; 262-B, C] Ratilal Bhanji Mithani v. State of Maharashtra, [1972] 3 SCC 793, followed. 2.2. Time for recording evidence on commission is always fixed by the officer who has been deputed to so record evidence. The officer would have the discretion to fix up the time in consultation with VSNL, who are experts in the field. Respondent and his counsel will have to make it convenient to attend at the time fixed by the concerned officer. If they do not remain present the Magistrate will take action, as provided in law, to compel attendance. However, the officer deputed would be one who has authority to administer oaths and he will administer the oath. Undoubtedly an officer would have to be deputed, either from India or from the Consulate/Embassy in the country where the evidence is being recorded who would remain present when the evidence is being recorded and who will ensure that there is no other person in the room where the witness is sitting whilst the evidence is being recorded. That officer will ensure that the witness is not coached/tutored/prompted. It would be advisable, though not necessary, that the witness be asked to give evidence in a room in the Consulate/Embassy. As the evidence is being recorded on commission that evidence will subsequently be read into Court. Thus no question arises of the witness insulting the Court. If on reading the evidence the Court finds that the witness has perjured himself, just like in any other evidence on commission, the Court will ignore or disbelieve such evidence. [263-F, G; 264-A-C] 2.3. In the instant case, the concerned officer will ensure that once video conferencing commences, as far as possible, it is proceeded with, without any adjournments. Further it if is found that the doctor in USA is not attending at the time/s fixed, without any sufficient cause, then it would be open for the Magistrate to disallow recording of evidence by video conferencing.

It must be remembered that the first duty of the Court is to do justice. Courts must endeavour to find the truth and that there would be failure of justice not only by an unjust conviction but also by acquittal of the guilty for unjustified failur..

It must be remembered that the first duty of the Court is to do justice. Courts must endeavour to find the truth and that there would be failure of justice not only by an unjust conviction but also by acquittal of the guilty for unjustified failure to produce available evidence. Of course the rights of the accused have to be kept in mind and safeguarded, but they should not be over emphasized to the extent of forgetting that the victims also have rights. [255-A, B] Sri Krishna Gobe v. Stale of Maharashtra, [1973] 4 SCC 23, relied on. 1.4. It must also be remembered that the Criminal Procedure Code is an ongoing statute. The principles of interpreting an ongoing statute have been very succinctly set out by the jurists and referred by Courts in number of cases. The apex Court has approved the principle of updating construction as enunciated by Francis Bennion, in a number of decisions. However, it is well settled law that the doctrine "Contemporanea exposition est optima et fortissimm" has no application when interpreting a provision of an ongoing statute. [255-C; 256-E; 257-D] National Textile Workers' Union v. P.R. Ramakrishnan, [1983] 1 SCC 228; Commissioner of Income Tax, Bombay v. M/s. Podar Cement Pvt. Ltd., [1997] 5 SCC 482; State v. S.J. Chowdhury, [1996] 2 SCC 428; SIL Import USA v. Exim Aides Silk Exporters, [1999] 4 SCC 567 and Basavaraj R. Patil v. State of Karnataka, [2000] 8 SCC 740, relied on. Statutory Interpretation by Francis Bennion 2nd Edition, Page 617 -referred to. 1.5. Virtual reality is a state where one is made to feel, hear or imagine what does not really exist. Video conferencing has nothing to do with virtual reality. Video conferencing is an advancement in science and technology which permits one to see. hear and talk with someone far away, with the same facility and ease as if he is personally present. In fact he/ she is present on a screen. Except for touching one can see, hear and observe as if the party is in the same room. Thus, so long as the accused and/or his pleader are present when evidence is recorded by video conferencing that evidence is being recorded in the "presence" of the accused and would thus fully meet the requirements of Section 273 Cr.P.C. Recording of such evidence would be as per "procedure established by law". [257-E; 258-A, B, C] 1.6. Recording of evidence by video conferencing also satisfies the object of providing, in Section 273, that evidence be recorded in the presence of the Accused. The Accused and his pleader can see the witness as clearly as if the witness was actually sitting before them. In fact the accused may be able to see the witness better than he may have been able to if he was sitting in the dock in a crowded Court room. They can observe his or her demeanour. In fact the facility to play back would enable better observation of demeanour. They can hear and rehear the deposition of the witness. The accused would be able to instruct his pleader immediately and thus cross-examination of the witness is as effective, if not better. The facility of play back would give an added advantage whilst cross-examining the witness. The witness can be confronted with documents or other material or statement in the same manner as if he/she was in Court. All these objects would be fully met when evidence is recorded by video conferencing. Thus no predspace, of whatsoever nature, is caused to the accused. It is also possible to set up video conferencing equipment in the Court itself. In that case evidence would be recorded by the Magistrate or under his dictation in open Court. [258-D, E, F; 259-A] 1.7. To this method there may arise some difficulties if the witness commits Contempt of Court or perjures himself and it is immediately noticed that he has perjured himself. Therefore, as a matter of prudence evidence by video-conferencing in open Court should be only if the witness is in a country which has an extradition treaty with India and under whose laws Contempt of Court and perjury are also punishable. [259-B] 2.1. In cases where the witness is necessary for the ends of justice and the attendance of such witness cannot be procured without an amount of delay, expense or inconvenience which, under the circumstances of the case would be unreasonable, the Court may dispense with such attendance and issue a commission for examination of the witness. In the instant case, the concerned doctor had refused to come to India to give evidence. His evidence appears to be necessary for the ends of Justice. Courts in India cannot procure his attendance. In such case commission could be issued for recording evidence. Normally a commission would involve recording evidence at the place where the witness is. However, advancement in science and technology has now made it possible to record evidence of witness by way of video conferencing in the town/city where the Court is. Thus in such matters, the Court could consider issuing a commission to record the evidence by way of video-conferencing. However, commission cannot be issued if there is no arrangement between the Government of India and the country where the commission is proposed to be issued because the services of an official of the country (mostly a Judicial Officer) would be required to record such evidence and to ensure attendance. When a witness is willing to give evidence an official of the Court can be deputed to record evidence on commission by way of video-conferencing. The evidence will be recorded in the studio/hall where the video-conferencing takes place. It must be clarified that adopting such a procedure may not be possible if the witness is out of India and not willing to give evidence. [260-D-F; 262-B, C] Ratilal Bhanji Mithani v. State of Maharashtra, [1972] 3 SCC 793, followed. 2.2. Time for recording evidence on commission is always fixed by the officer who has been deputed to so record evidence. The officer would have the discretion to fix up the time in consultation with VSNL, who are experts in the field. Respondent and his counsel will have to make it convenient to attend at the time fixed by the concerned officer. If they do not remain present the Magistrate will take action, as provided in law, to compel attendance. However, the officer deputed would be one who has authority to administer oaths and he will administer the oath. Undoubtedly an officer would have to be deputed, either from India or from the Consulate/Embassy in the country where the evidence is being recorded who would remain present when the evidence is being recorded and who will ensure that there is no other person in the room where the witness is sitting whilst the evidence is being recorded. That officer will ensure that the witness is not coached/tutored/prompted. It would be advisable, though not necessary, that the witness be asked to give evidence in a room in the Consulate/Embassy. As the evidence is being recorded on commission that evidence will subsequently be read into Court. Thus no question arises of the witness insulting the Court. If on reading the evidence the Court finds that the witness has perjured himself, just like in any other evidence on commission, the Court will ignore or disbelieve such evidence. [263-F, G; 264-A-C] 2.3. In the instant case, the concerned officer will ensure that once video conferencing commences, as far as possible, it is proceeded with, without any adjournments. Further it if is found that the doctor in USA is not attending at the time/s fixed, without any sufficient cause, then it would be open for the Magistrate to disallow recording of evidence by video conferencing.

Constitution - Sections 6, 16 and 34B of Show

Constitution - Sections 6, 16 and 34B of Extradition Act, 1962 - Appellant challenged the validity of warrant .Appellant must be held to be in lawful custody of his daughter unless any other or further order is passed by a court of competent jurisdiction.  Lastly, it is imperative to note that the State does not seek for enforcement of the custody and/ or restrain order passed by the Probate and Family Court, Massachusetts in view of the rigours contained in Sections 13 and 44A of the Code of Civil Procedure. Even the Family Court does not appear to have dealt with this aspect of the matter. In any event, as the matter is pending before the High Court, it alone will have a final say therein. For the aforementioned reasons, the impugned judgment cannot be sustained. It is set aside accordingly. The appeal is allowed. However, in the facts and circumstances of the case, there shall be no order as to costs.

Charges framed against the Appellant not only for the offences for which the Appellant has been extradited but also for some additional offences - Challenge against thereto - Whether the criminal courts in the country have no jurisdiction to try i..

Charges framed against the Appellant not only for the offences for which the Appellant has been extradited but also for some additional offences - Challenge against thereto - Whether the criminal courts in the country have no jurisdiction to try in respect of offences which do not form part of the extradition judgment, and the Appellant/accused can be tried only for the offences mentioned in the extradition decree - Held, when a person is extradited for a particular crime, he can be tried for only that crime - Section 21 of the Act, 1962 makes a specific provision to that effect - As per 1993 amendment, a fugitive could be tried for a lesser offence, without restoring him to the State from which he was extradited or for any other offence, if the State concerned gives its consent - Contention that Appellant had been extradited under International Convention for the Suppression of Terrorist Bombings (the Convention) and therefore, he can be tried only for the offences which are related to the said Convention cannot be sustained - Court at Portugal has not granted extradition merely on the basis of Extradition Treaty but also on the basis of reciprocity - Extradition request was made to the Government of Portugal by the Government of India under the provisions of the Extradition Act applicable to Non Treaty States i.e. Section 19 of the Act, 1962 - Appellant can also be tried for lesser offence/offences in view of Section 21 of the Act as disclosed by the facts - Designated Judge has correctly concluded that the Appellant can be tried for lesser offences, even if, the same are not covered by the Extradition Decree since the same is permitted under Section 21(b) of the Act, 1962 - Appeal dismissedCriminal - Extradition of Fugitive - Extradition ensures a mode of formal surrender of an accused by the one country to another based on Reciprocal arrangements - Held, Fair balance needs to be struck between Human Rights norms and the need to tackle Transnational crime - Extradition allowed on the specific undertaking of the Government of India that the extradited criminal will not be subjected to death penalty or imprisonment beyond 25 years - Amendment to the Extradition Act, enables the requesting State to try the fugitive for a lesser offence without restoring him to the requested State - Doctrine of double criminality and Specialty are both safeguards of the individual rights of the extradited accused who should not be tried on unexpected counts, as well as the rights of the requested State to have its laws and processes given adequate deference by the requesting State - Appeal Dismissed

Respondent accused was sentenced for the offence of Rape with the victim known to him by the Trial court - on appeal High court reduced the sentence to the period undergone taking the accused age into consideration - Hence the appeal - Held, '..

Respondent accused was sentenced for the offence of Rape with the victim known to him by the Trial court - on appeal High court reduced the sentence to the period undergone taking the accused age into consideration - Hence the appeal - Held, ' rape is the carnal knowledge of any woman, above the age of particular years, against her will; or of a woman child, under that age, with or against her will' - Sub-sections (1) and (2) of Section 376 minimum sentences are prescribed - Both in cases of Sub-sections (1) and (2) the Court has the discretion to impose a sentence of imprisonment less than the prescribed minimum for `adequate and special reasons'. 18. In order to exercise the discretion of reducing the sentence the statutory requirement is that the Court has to record "adequate and special reasons" in the judgment and not fanciful reasons which would permit the Court to impose a sentence less than the prescribed minimum. The reason has not only to be adequate but also special. What is adequate and special would depend upon several factors and no strait- jacket formula can be indicated. What is applicable to trial Courts regarding recording reasons for a departure from minimum sentence is equally applicable to the High Court. The only reason indicated by the High Court is that the accused belonged to rural areas. The same can by no stretch of imagination be considered either adequate or special. The requirement in law is cumulative - undisputedly, the victim was less than 16 years of age at the time of occurrence. Evidence also shows that the victim and accused were in love and the victim admitted that she had sexual intercourse with the accused. That of course has no relevance because of her age being less than sixteen years - appeal allowed

Case Note: Indian Penal Code, 1860 - Sections 364A, 325, 323, 384, 342 and 506Show

Case Note: Indian Penal Code, 1860 - Sections 364A, 325, 323, 384, 342 and 506http://olisindia.in/files/cases/IPC.pdf all r/w Section 120B--Abduction for ransom, etc.--Conviction and sentence--Whether justified? -- Held, yes--Accused persons in daring day light bid kidnapped child right in presence of his mother--And caused grievous hurt to her--Demanded ransom of Rs. 5 lakhs in writing for life of child--Demand note clearly brings out threat to life of child if ransom not paid--Offence under Section 364A clearly made out--No merit in appeal.

Noise of victim was heard by witnesses--Presence of witnesses was natural--Witness are reliable and corroborative--Involvement of accused in the incident proved--Voice as recorded matched with original voice of victim--Finger prints on recovered c..

Noise of victim was heard by witnesses--Presence of witnesses was natural--Witness are reliable and corroborative--Involvement of accused in the incident proved--Voice as recorded matched with original voice of victim--Finger prints on recovered car matched--Plea of alibi not proved--Circumstantial evidence inspire confidence--Consideration of--Held--conviction entirely based on proper appreciation of evidence on record--No need for any interference--Appeal dismissed. [Para--7] Criminal Law--Kidnapping-Status of witness--Held--Where presence of witness is natural then it can not be dubbed as chance witness. [Para--7]

While acquitting all the accused persons from the charge of offence under Section Show

While acquitting all the accused persons from the charge of offence under Section 366A and 372 read with Section 511 IPC, we acquit the appellant Nos. 1 and 2 from all charges. Whereas, we hold that the appellant No. 3 is guilty of the offence under Section 363 IPC and accordingly we proceed to convict him accordingly. 59. Having held thus, we have to pass an order of sentence against the said accused-appellant No. 3. The incident is that of the year 1992 and 15 years have gone by, therefore, interest of justice would be sub-served if appellant No. 3 is sentenced to undergo rigorous imprisonment for a period of three years. 60.Bail bond submitted by Appellant Nos. 1 and 2 stand discharged whereas the bail bond of accused No. 3 stands cancelled and he shall immediately surrender so as to undergo the remaining punishment.  

The punishment to be awarded for a crime must not be irrelevant but it should conform to and be consistent with the atrocity and brutality with which the crime has been perpetrated, the enormity of the crime warranting public abhorrence and it sho..

The punishment to be awarded for a crime must not be irrelevant but it should conform to and be consistent with the atrocity and brutality with which the crime has been perpetrated, the enormity of the crime warranting public abhorrence and it should "respond to the society's cry for justice against the criminal". [Para 25] [414-D] 2.1 Section 304-A IPC applies to cases where there is no intention to cause death and no knowledge that the act done in all probability will cause death. The provision is directed at offences outside the range of Sections 299 and 300 IPC. The provision applies only to such acts which are rash and negligent and are directly cause of death of another person. Negligence and rashness are essential elements u/s. 304-A. Culpable negligence lies in the failure to exercise reasonable and proper care and the extent of its reasonableness will always depend upon the circumstances of each case. Rashness means doing an act with the consciousness of a risk that evil consequences will follow but with the hope that it will not. [Para 7] [406- F-H] 2.2 A negligent act is an act done without doing something which a reasonable man guided upon those considerations which ordinarily regulate the conduct of human affairs would do or act which a prudent or reasonable man would not do in the circumstances attending it. A rash act is a negligent act done precipitately. Negligence is the genus, of which rashness is the species. [Para 6] [405-G-H; 406-A-B] Andrews v. Director of Public Prosecutions (1937) AC 576 - referred to. 2.3 Negligence is a breach of duty imposed by law. In criminal cases, the amount and degree of negligence are determining factOTHERS A question whether the accused's conduct amounted to culpable rashness or negligence depends directly on the question as to what is the amount of care and circumspection which a prudent and reasonable man would consider to be sufficient consi-dering all the circumstances of the case.

After giving due consideration to the facts and circumstances of each case, for deciding just and appropriate sentence to be awarded for an offence, the aggravating and mitigating factOTHERS and circumstances in which a crime has been committed ar..

After giving due consideration to the facts and circumstances of each case, for deciding just and appropriate sentence to be awarded for an offence, the aggravating and mitigating factOTHERS and circumstances in which a crime has been committed are to be delicately balanced on the basis of really relevant circumstances in a dispassionate manner by the Court. [Para 8] [888-F-G] 2.3. In the absence of any foolproof formula which may provide any basis for reasonable criteria to correctly assess various circumstances germane to the consideration of gravity of crime, the discretionary judgment in the facts of each case, is the only way in which such judgment may be equitably distinguished. [Para 8] [888-H; 889-A-B] 2.4. The object should be to protect the society and to deter the criminal in achieving the avowed object of law by imposing appropriate sentence. It is expected that the Courts would operate the sentencing system so as to impose such sentence which reflects the conscience of the society and the sentencing process has to be stern where it should be. [Para 9] [889-C] 2.5. Imposition of sentence without considering its effect on the social order in many cases may be in reality a futile exercise. The social impact of the crime, e.g. where it relates to offences against women, dacoity, kidnapping, misappropriation of public money, treason and other offences involving moral turpitude or moral delinquency which have great impact on social order, and public interest, cannot be lost sight of and per se require exemplary treatment. Any liberal attitude by imposing meager sentences or taking too sympathetic view merely on account of lapse of time in respect of such offences will be result-wise counter productive in the long run and against societal interest which needs to be cared for and strengthened by string of deterrence inbuilt in the sentencing system. [Para 10] [889-D-F] 2.6. Court will be failing in its duty if appropriate punishment is not awarded for a crime which has been committed not only against the individual victim but also against the society to which the criminal and victim belong. The punishment to be awarded for a crime must not be irrelevant but it should conform to and be consistent with the atrocity and brutality with which the crime has been perpetrated, the enormity of the crime warranting public abhorrence and it should "respond to the society's cry for justice against the criminal.

Indian Penal Code, 1860

 Undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law and society could not long endure under such serious threats. It is, therefore, the duty of every..

 Undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law and society could not long endure under such serious threats. It is, therefore, the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed etc. [Para 8] [1173-G-H; 1174-A] 2.3. The criminal law adheres in general to the principle of proportionality in prescribing liability according to the culpability of each kind of criminal conduct. It ordinarily allows some significant discretion to the Judge in arriving at a sentence in each case, presumably to permit sentences that reflect more subtle considerations of culpability that are raised by the special facts of each case. Judges in essence affirm that punishment, ought always to fit the crime; yet in practice sentences are determined largely by other considerations. Sometimes it is the correctional needs of the perpetrator that are offered to justify a sentence. Sometimes the desirability of keeping him out of circulation, and sometimes even the tragic results of his crime. Inevitably these considerations cause a departure from just desert as the basis of punishment and create cases of apparent injustice that are serious and widespread. [Para 9] [1174-B-E] 2.4. After giving due consideration to the facts and circumstances of each case, for deciding just and appropriate sentence to be awarded for an offence, the aggravating and mitigating factOTHERS and circumstances in which a crime has been committed are to be delicately balanced on the basis of really relevant circumstances in a dispassionate manner by the Court. [Para 11] [1174-H; 1175-A-B] 2.5. No formula of a foolproof nature is possible that would provide a reasonable criterion in determining a just and appropriate punishment in the infinite variety of circumstances that may affect the gravity of the crime. In the absence of any foolproof formula which may provide any basis for reasonable crieteria to correctly assess various circumstances germane to the consideration of gravity of crime, the discretionary judgment in the facts of each case, is the only way in which such judgment may be equitably distinguished. [Para 11] [1175-C-D] 2.6. Imposition of sentence without considering its effect on the social order in many cases may be in reality a futile exercise. The social impact of the crime, e.g. where it relates to offences against women, dacoity, kidnapping, misappropriation of public money, treason and other offences involving moral turpitude or moral delinquency which have great impact on social order, and public interest, cannot be lost sight of and per se require exemplary treatment. Any liberal attitude by imposing meager sentences or taking too sympathetic view merely on account of lapse of time in respect of such offences will be result-wise counter productive in the long run and against societal interest which needs to be cared for and strengthened by string of deterrence inbuilt in the sentencing system. [Para 13] [1175-G-H; 1176-A-B] 2.7. Justice demands that Courts should impose punishment befitting the crime so that the Courts reflect public abhorrence of the crime. The Court must not only keep in view the rights of the criminal but also the rights of the victim of the crime and the society at large while considering the imposition of appropriate punishment. 

Indian Penal Code, 1860

The object of examination under this Section is to give the accused an opportunity to explain the case made against him. This statement can be taken into consideration in judging his innocence or guilt. Where there is an onus on the accused to dis..

The object of examination under this Section is to give the accused an opportunity to explain the case made against him. This statement can be taken into consideration in judging his innocence or guilt. Where there is an onus on the accused to discharge, it depends on the facts and circumstances of the case if such statement discharges the onus. The word `generally' in sub-section (1) (b) does not limit the nature of the questioning to one or more questions of a general nature relating to the case, but it means that the question should relate to the whole case generally and should also be limited to any particular part or parts of it. The question must be framed in such a way as to enable the accused to know what he is to explain, what are the circumstances which are against him and for which an explanation is needed. The whole object of the section is to afford the accused a fair and proper opportunity of explaining circumstances which appear against him and that the questions must be fair and must be couched in a form which an ignorant or illiterate person will be able to appreciate and understand. A conviction based on the accused's failure to explain what he was never asked to explain is bad in law. The whole object of enacting Section 313 Cr. P.C. was that the attention of the accused should be drawn to the specific points in the charge and in the evidence on which the prosecution claims that the case is made out against the accused so that he may be able to give such explanation as he desires to give. It is not sufficient compliance to string together a long series of facts and ask the accused what he has to say about them. He must be questioned separately about each material substance which is intended to be used against him. The questionings must be fair and couched in a form which an ignorant or illiterate person will be able to appreciate and understand. Even when an accused is not illiterate, his mind is apt to be perturbed when he is facing a serious charge. Fairness, therefore, requires that each material circumstance should be put simply and separately in a way that an illiterate mind, or one which is perturbed or confused, can readily appreciate and understand. [Paras 5-7] [658-F-H; 659-A-F] 2. It is true as contented for the appellant that no incriminating materials were put to the accused under Section 313 Cr. P.C. There is no accusation specifically put in question during examination. It only refers to kidnapping.

In a matter of rape, though statement of prosecutrix must be given primary consideration, but at the same time the broad principle that the prosecution has to prove its case beyond reasonable doubt applies equally to a case of rape and there can b..

In a matter of rape, though statement of prosecutrix must be given primary consideration, but at the same time the broad principle that the prosecution has to prove its case beyond reasonable doubt applies equally to a case of rape and there can be no presumption that a prosecutrix would always tell the entire story truthfully - Prosecutrix in her earlier statement has not attributed the offences of rape and kidnapping to one of the appellants - Therefore, in the light of contradictions, some doubt is created with regard to his involvement - He is accordingly acquitted - As regards the other appellant, statements of the prosecutrix and other witnesses are categoric - Prosecutrix clearly stated that she had been kidnapped and raped by this accused and the absconding accused - His appeal is, therefore, dismissed.

Indian Penal Code, 1860

This was clearly conveyed to the victim PW-2. He was even conveyed the amount to be paid. There is no infirmity in the judgment of the courts below to warrant any interference. [447-D; 448-A] 2.1.

The factum of kidnapping of the deceased by the accused-appellant, therefore, stands duly established. [Para 24] 1.2. Having proved the factum of kidnapping, the inference of the consequential murder of the kidnapped person, is liable to be presum..

The factum of kidnapping of the deceased by the accused-appellant, therefore, stands duly established. [Para 24] 1.2. Having proved the factum of kidnapping, the inference of the consequential murder of the kidnapped person, is liable to be presumed. Once the person concerned has been shown as having been kidnapped, the onus would shift on the kidnapper to establish how and when the kidnapped individual came to be released from his custody. In the absence of any such proof produced by the kidnapper, it would be natural to infer/presume, that the kidnapped person continued in the kidnapper's custody, till he was eliminated. The instant conclusion would also emerge from Section 106 of the Evidence Act, 1872. [Para 26] 1.3. In the facts and circumstances of the present case, there is sufficient evidence on the record on the basis whereof even the factum of murder of the deceased at the hands of the accused-appellant stands established. In the facts and circumstances of this case, it has been duly established, that the deceased was kidnapped by the accused- appellant
the accused-appellant was not able to produce any material on the record to show the release of the deceased from his custody. Section 106 of the Evidence Act, 1872 places the onus on him. In the absence of any such material produced by the accused-appellant, it has to be accepted, that the custody of the deceased had remained with the accused-appellant, till he was murdered. The motive/reason for the accused-appellant, for taking the extreme step was, that ransom as demanded by him, had not been paid. [Para 27] 1.4. The accused-appellant had made a confessional statement in the presence of PW13 stating that he had strangulated the deceased to death, whereupon his body was put into a gunny bag and thrown into a particular tank. It was thereafter, on the pointing out of the accused-appellant, that the body of the deceased was recovered from that tank. It was found in a gunny bag, as stated by the accused-appellant. PW12, the doctor concluded after holding the post-mortem examination of the dead body of the deceased, that he had died on account of suffocation, prior to his having been drowned.

Indian Penal Code, 1860

Indian Evidence Act, 1872

Court have been informed that the appellant is a senior citizen. He is suffering from ‘Endstage Renal Disease’. It appears that he is required to undergo dialysis twice a week. This information is supplied to this Court by D.I.G., Alla..

Court have been informed that the appellant is a senior citizen. He is suffering from ‘Endstage Renal Disease’. It appears that he is required to undergo dialysis twice a week. This information is supplied to this Court by D.I.G., Allahabad range. The appellant’s health condition is, therefore, precarious. While we sympathise with the appellant on this aspect, law must be allowed to take its own course. The appellant, however, will be at liberty to approach the State Government for commutation of his sentence or the Jail Superintendent for premature release under the provisions of the U.P. Jail Manual, a deemed appropriate. 

Indian Penal Code, 1860

The extra-judicial confession was made by accused to the prosecution witness in a different background inasmuch as the accused suspected that he had been identified by the witness and he returned to warn her not to divulge any information to anyon..

The extra-judicial confession was made by accused to the prosecution witness in a different background inasmuch as the accused suspected that he had been identified by the witness and he returned to warn her not to divulge any information to anyone - Statement of the prosecution witness recorded u/s. 164 Cr.P.C is almost in identical terms - The very proximity of the murder and the extra- judicial confession made to the prosecution witness shows that the confession is reliable - Also, the alleged murderweapon, had been recovered at the instance of the accused - Though, independent witnesses of the recovery did not support the prosecution, but no reason to doubt the evidence of the Investigating Officer - Thus, prosecution case proved beyond reasonable doubt - Evidence - Extra-judicial confession. CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 131 of 2006. From the JudgmentAND Order dated 24.8.2001 of the High Court of Gauhati at Gauhati in Criminal Appeal No. 170 of 2000. Praneet Ranjan (A.C.) Rranay Ranjan, Hemant Kr. Yadav, Rajesh Mishra for the Appellant. Avijit Roy Corporate Law Group for the Respondent.

It is true, as contended, that the relations between the two parties were extremely strained on account of the murder of Prem. While this fact could, undoubtedly, be a reason for false implication of the accused, but on the contrary, it could also..

It is true, as contended, that the relations between the two parties were extremely strained on account of the murder of Prem. While this fact could, undoubtedly, be a reason for false implication of the accused, but on the contrary, it could also be a motive for the commission of 6Crl. Appeal No.115 of 2007 the crime. However, in the light of the fact that the FIR had been recorded within a reasonable time of the incident and the medical evidence fully supports the ocular version, and additionally, the trial court has given the benefit of doubt to some of the accused, as they had no active role to play, the possibility of false implication has also been examined and dealt with. The courts below have, in our opinion, rightly assessed the evidence and being cognizant of the strained relations between the parties and the possibility of false implication, have accordingly given the benefit of doubt to two of the accused. No interference is thus called for by us in this appeal. It is accordingly dismissed.

Indian Penal Code, 1860

Murder of six members of a family including helpless women and children having been committed in a brutal, diabolic and bristly manner and the crime being one which is enormous in proportion which shocks the conscious of law, the death sentence as..

Murder of six members of a family including helpless women and children having been committed in a brutal, diabolic and bristly manner and the crime being one which is enormous in proportion which shocks the conscious of law, the death sentence as awarded in respect of accused Sattan and Guddu was the appropriate sentence and the High Court ought not to have altered it. So far as the acquittal of the Hari Pal son of Kiran Singh and Hari Pal son of Ram Charan are concerned, the High Court has noted that the evidence so far as their involvement is concerned was not totally free from doubt. The High Court have analysed the factual scenario in detail to direct the acquittal. We find no reason to differ from the conclusions of the High Court. The acquittal as directed stands affirmed. So far as other four respondents i.e. appellants in Criminal Appeal No.2237 of 1999 is concerned they were charged under Section 120 B. It has been recorded by the High Court that except the suspicion which the informantwas having in her mind about the involvement of these four accused persons there was neither any direct or circumstantial evidence to fasten the charge of criminal conspiracy. That being so the High Court was justified in 28directing their acquittal. Criminal Appeal No. 314 is allowed. The State’s appeal so far as Sattan and Upendra are concerned is allowed to the extent that the death sentence as was awarded by the trial court is restored so far as they are concerned. The appeal fails so far as respondents Hari Pal son of Kiran Singh and Hari Pal son of Ram Charan are concerned

An overall global view of all the circumstances in the light of the aforesaid propositions and taking into account the answers to the questions posed by way of the test for the rarest of rare cases, the circumstances 38of the case are such that de..

An overall global view of all the circumstances in the light of the aforesaid propositions and taking into account the answers to the questions posed by way of the test for the rarest of rare cases, the circumstances 38of the case are such that death sentence is warranted, the court would proceed to do so. What is culled out from the decisions noted above is that while deciding the question as to whether the extreme penalty of death sentence is to be awarded, a balance sheet of aggravating and mitigating circumstances has to be drawn up.  This position is highlighted in Union of India & Ors. v. Devendra Nath Rai [ 2006 (2) SCC 243].  The case at hand falls in the rarest of rare category. The past instances highlighted above, the depraved acts of the accused call for only one sentence that is death sentence. Looked at from any angle the judgment of the High Court, confirming the conviction and sentence imposed by the trial court, do not warrant any interference. 

It is worth mentioning that in the present case the High Court had aquitted both Accused 5, M Zuber Kasam Shaikh and Accused 6, Fazal Mohd Shaikh. It is from that acquittal that appeals for their conviction and sentencing come before us. While imp..

It is worth mentioning that in the present case the High Court had aquitted both Accused 5, M Zuber Kasam Shaikh and Accused 6, Fazal Mohd Shaikh. It is from that acquittal that appeals for their conviction and sentencing come before us. While imposing the sentence of life on the accussed the Court must have the judgment of acquittal of the High Court in the back of its mind. In our considered opinion if at least one of the courts below had acquitted the accused person in respect of the crimes for which they are to be sentenced, the burden on the prosecution would be even more heavier, which the State in our opinion has not been able to discharge.  If a person is sentenced to imprisonment, even if it be for life, and subsequently it is found that he was innocent and was wrongly convicted, he can be set free. Of course, the imprisonment that he has suffered till then cannot be undone and the time he has spent in the prison cannot be given back. Such a reversal is not possible where a person has been wrongly convicted and sentenced to death. The execution of the sentence of death in such cases makes miscarriage of justice irrevocable. It is a finality which cannot be corrected. And once Accused 5, M Zuber Kasam Shaikh and Accused 6 Fazal Mohd Shaikh have been sentenced to life there remains no question of awarding a death sentence to Accused 7,Azzizuddin Zahiruddin Shaikh who had played no greater a role in the said incident as Accused 5, M Zuber Kasam Shaikh and Accused 6 Fazal Mohd Shaikh. All the three accused stand on an equal footing and therefore the sentences to be imposed upon them must not differ. It is for the aforementioned reasons that the appeals filed by the State as regard the imposition of a death Sentence deserves to be dismissed.

The evidence of PW-2 was in line with F.I.R. and his statement given to the police. Apart from minor discrepancies which are bound to appear in a natural course of conduct of a normal human being, there were no serious material discrepancies in th..

The evidence of PW-2 was in line with F.I.R. and his statement given to the police. Apart from minor discrepancies which are bound to appear in a natural course of conduct of a normal human being, there were no serious material discrepancies in the evidence in order to completely discard their evidence. There is no reason to doubt the credibility of all these witnesses. There is no reason why they would falsely try to implicate the appellant. Nothing was shown on record that these witnesses were having strained relations with the appellant. On the other hand, it was clearly made out from the evidence that they were having cordial relations and were visiting each other quite often. [Paras 27 and 29] [1094-B-E] 2. It is manifest from the evidence that the appellant had got himself admitted in Civil Hospital on 4.3.2005 and was under treatment. According to the doctor PW-10, the appellant was admitted on 4.2.2005 at about 6.30 a.m. and was discharged on 7.3.2005. The doctor was not able to conclusively say that any Sulphas tablet was taken by the appellant or not. He deposed that after taking tablets, it is difficult to survive for a long period. Appellant did not offer any explanation as to where was he before his admission in the hospital on the fateful day. Plea of alibi taken by him was not found to be truthful as the same stood falsified from the evidence of PW-4 who had sIndian Penal Code, 1860een him coming out of his own house at 5.00 a.m. This was only indicative of the fact that after commission of the alleged crime, he got himself admitted in the Civil Hospital. It is certain that he had committed the crime sometime in night and then got himself admitted in the hospital at 6.30 a.m. Looking to the totality of the facts and features of the case and keeping in view the evidence available on record, there is no doubt that the offence was committed by the appellant only. 

Indian Penal Code, 1860

Having regard to the facts and circumstances of the present case, we make it clear that in the event of State invoking its powers under Show

Having regard to the facts and circumstances of the present case, we make it clear that in the event of State invoking its powers under Section 432 or 433 of Cr.PC, the sentence under Section 376 of IPC shall not be remitted or commuted before seven years of imprisonment. In other words, in that eventuality, it shall be ensured that the respondent will first serve the term of life imprisonment under Section 302 of IPC. In case there is any remission after fourteen years, then imprisonment for a minimum period of seven years under Section 376 of IPC shall follow and thereafter three years of rigorous imprisonment under Section 201 of IPC. The sentence on fine and default as awarded by the Sessions Court are maintained as such. 

Dismissing the appeals, the Court HELD: 1. The following principles have to be kept in mind by the Appellate Court while dealing with appeals, particularly, against the order of acquittal: (i) There is no limitation on the part of the Appellate Co..

Dismissing the appeals, the Court HELD: 1. The following principles have to be kept in mind by the Appellate Court while dealing with appeals, particularly, against the order of acquittal: (i) There is no limitation on the part of the Appellate Court to review the evidence upon which the order of acquittal is found. (ii) The Appellate Court in an appeal against acquittal can review the entire evidence and come to its own conclusions. (iii) The Appellate Court can also review the Trial Court's conclusion with respect to both facts and law. (iv) While dealing with the appeal preferred by the State, it is the duty of the Appellate Court to marshal the entire evidence on record and by giving cogent and adequate reasons set aside the judgment of acquittal. (v) An order of acquittal is to be interfered only when there are "compelling and substantial reasons" for doing so. If the order is "clearly unreasonable", it is a compelling reason for interference. (vi) While sitting in judgment over an acquittal the Appellate Court is first required to seek an answer to the question whether finding of the Trial Court are palpably wrong, manifestly, erroneous or demonstrably unsustainable. If the Appellate Court answers the above question in the negative the order of acquittal is not to be disturbed. Conversely, if the Appellate Court holds, for reasons to be recorded, that the order of acquittal cannot at all be sustained in view of any of the above infirmities, it can reappraise the evidence to arrive at its own conclusion. (vii) When the Trial Court has ignored the evidence or misread the material evidence or has ignored material documents like dying declaration/report of Ballistic Experts etc., the Appellate Court is competent to reverse the decision of the Trial Court depending on the materials placed.

Arms Act, 1959                 &             Indian Penal Code, 1860

Court direct the administrative and police officials to take strong measures to prevent such atrocious acts. If any such incidents happen, apart from instituting criminal proceedings against those responsible for such atrocities, the State Governm..

Court direct the administrative and police officials to take strong measures to prevent such atrocious acts. If any such incidents happen, apart from instituting criminal proceedings against those responsible for such atrocities, the State Government is directed to immediately suspend the District Magistrate/Collector and SSP/SPs of the district as well as other officials concerned and charge sheet them and proceed against them departmentally if they do not (1) prevent the incident if it has not already occurred but they have knowledge of it in advance, or (2) if it has occurred, they do not promptly apprehend the culprits and others involved and institute criminal proceedings against them, as in our opinion they will be deemed to be directly or indirectly accountable in this connection

Schedule Case and schedules Tribes (Prevention of Atrocities) Act, 1989

Court is of the opinion that in cases such as the present, there is considerable uncertainty on the punishment to be awarded in capital offences – whether it should be life imprisonment or death sentence. In our opinion, due to this uncertai..

Court is of the opinion that in cases such as the present, there is considerable uncertainty on the punishment to be awarded in capital offences – whether it should be life imprisonment or death sentence. In our opinion, due to this uncertainty, awarding a sentence of life imprisonment, in cases such as the present is not unquestionably foreclosed. More so when, in this case, there is no evidence (contrary to the conclusion of the High Court) that  Seema’s body was burnt by Sandeep from below the waist with a view to destroy evidence of her having been subjected to sexual harassment and rape. There is also no evidence (again contrary to the conclusion of the High Court) that Narender was a professional killer. 82. Therefore, we allow these appeals to the extent that the death penalty awarded to the appellants is converted into a sentence of life imprisonment, subject to what we have said above. We place on record our appreciation for the efforts put in by both learned counsel for the assistance rendered in this case.  

Indian Penal Code, 1860                    Arms Act, 1959

So far as the court is concerned, the petitioner-appellant is a suspect/accused in the offence of murder. No special treatment can be given to the petitioner-appellant simply on the ground that he is a sitting Member of Parliament. However, keepin..

So far as the court is concerned, the petitioner-appellant is a suspect/accused in the offence of murder. No special treatment can be given to the petitioner-appellant simply on the ground that he is a sitting Member of Parliament. However, keeping in view the fact that the CBI has submitted the supplementary charge-sheet and that the trial is likely to take a long time, we deem it appropriate to enlarge the petitioner-appellant on bail, subject to the following conditions: (i) On his furnishing personal security in the sum of Rs.5 lacs with two solvent sureties, each of the like amount, to the satisfaction of the trial court. (ii) The petitioner-appellant shall appear in Court as and when directed by the court. 

Indian Penal Code, 1860              Arms Act, 1959

In the light of the entire factual scenario, particularly, the objection relating to bias which came to be raised at the fag end of the trial that is on the eve of passing orders, as observed earlier, we are not inclined to entertain such objectio..

In the light of the entire factual scenario, particularly, the objection relating to bias which came to be raised at the fag end of the trial that is on the eve of passing orders, as observed earlier, we are not inclined to entertain such objection. The Presiding Judge, in our view, will take note of the grievance expressed and eliminate the apprehension of the appellant. It goes without saying that every litigant is entitled to fair justice.13) Independence of judiciary is the basic feature of the Constitution. It demands that a Judge who presides over the trial, the Public Prosecutor who presents the case on behalf of the State and the lawyer vis-a-vis amicus curiae who represents the accused must work together in harmony in the public interest of justice uninfluenced by the personality of the accused or those managing the affairs of the State. They must ensure that their working does not lead to creation of conflict between justice and jurisprudence.

Prevention of Corruption Act, 1988

By virtue of Sub-section (3) of Section 8 of the Show

By virtue of Sub-section (3) of Section 8 of the Representation of the People Act, 1951 the appellant incurred the disqualification as he has been sentenced to 3 years R.I. Sub-section (4) of Section 8 provides that if on the date of the conviction, a person is a Member of the Parliament then notwithstanding anything in Sub-section (3), the disqualification mentioned therein shall not take effect until 3 months have elapsed from the date of order of conviction and if within that period an appeal is brought in respect of the conviction or sentence, until that appeal or application is disposed of by the Court. Since the appellant was a sitting Member of Parliament, he would not have incurred the disqualification as provided in Sub-section (3) of Section 8 of the Act, for a period of 3 months and if within that period he had filed an appeal until the decision of the appeal. Therefore, the appellant could have easily avoided the incurring of the disqualification by filing an appeal within three months from the date of his conviction by the High Court. [Para 2] [1150-A-D] K. Prabhakaran v. P. Jayarajan, [2005] 1 SCC 754, referred to. 2. Sub-section (1) of Section 389 of the Code of Criminal Procedure, 1973 says that pending any appeal by a convicted person, the appellate Court may, for reasons to be recorded by it in writing, order that the execution of the sentence or order appealed against be suspended and, also, if he is in confinement, he be released on bail, or on his own bond. This Sub-section confers power not only to suspend the execution of sentence and to grant bail but also to suspend the operation of the order appealed against which means the order of conviction. The legal position is, therefore, clear that an appellate Court can suspend or grant stay of order of conviction. But the person seeking stay of conviction should specifically draw the attention of the appellate Court to the consequences that may arise if the conviction is not stayed. Unless the attention of the Court is drawn to the specific consequences that would follow on account of the conviction, the person convicted cannot obtain an order of stay of conviction.

The considered view that materials on record do not show that Shri P. Chidambaram had abused his position as a Minister of Finance or conspired or colluded with A. Raja so as to fix low entry fee by non-visiting spectrum charges fixed in the year ..

The considered view that materials on record do not show that Shri P. Chidambaram had abused his position as a Minister of Finance or conspired or colluded with A. Raja so as to fix low entry fee by non-visiting spectrum charges fixed in the year 2001. No materials are also made available even for a prima facie conclusion that Shri P. Chidambaram had deliberately allowed dilution of equity of the two companies, i.e. Swan and Unitech. No materials is also available even prima facie to conclude that Shri P. Chidambaram had abused his official position, or used any corrupt or illegal means for obtaining any pecuniary advantage for himself or any other persons, including Shri A. Raja. 

Prevention of Corruption Act, 1988

Dismissing the petitions, the Court HELD: 1.1. The petitioner has been convicted of serious offences. Of course, his conviction and sentence have been challenged before this Court in an appeal. The petitioner is a well-known cine artist and becaus..

Dismissing the petitions, the Court HELD: 1.1. The petitioner has been convicted of serious offences. Of course, his conviction and sentence have been challenged before this Court in an appeal. The petitioner is a well-known cine artist and because of his contribution to art and cinema he has got large number of fans throughout the country and abroad. The petitioner is not a habitual criminal nor has it been brought to the notice of the Court that he was involved in any other criminal case. Despite all these favourable circumstances, this is not a fit case where conviction and sentence could be suspended so that the bar u/s 8(3) of the Representation of the People Act, 1951 will not operate against the petitioner. [Para 6] [193-C-F] 1.2. Law prohibits any person who has been convicted of any offence and sentenced to imprisonment for not less than two years from contesting the election and such person shall be disqualified for a further period of six years since his release. In the face of such a provision, the power of the Court u/s 389 Cr.P.C. shall be exercised only under exceptional circumstances. [Para 6] [193-G-H] 1.3. In view of the serious offence of which the petitioner has been convicted by the Special Judge, this Court is not inclined to suspend the conviction and sentence awarded by the Special Judge. [Para 8] [194-D] Navjot Singh Sidhu vs. State of Punjab AND ANOTHER (2007) 2 SCC 574, distinguished. Prakash Kumar vs. State of Gujarat (2005) 2 SCC 409 and Rama Narang vs. Ramesh Narang (1995) 2 SCC 513, cited. Case Law Reference: (2007) 2 SCC 574 distinguished Para 4 (2005) 2 SCC 409 cited Para 4 (1995) 2 SCC 513 cited Para 4 CRIMINAL APPELLATE JURISDICTION : Crl.M.Nos. 4087, 5229, 5230, 5237 AND 5314 of 2009 Criminal Appeal No. 1060 of 2007. IN From the Judgment AND Order dated 31.07.2007 of the Designated Court Greater Bombay, Maharashtra in Bomb Blast Case No. 1/1993. Gopal Subramanium, ASG, Harish N. Salve, Mukul Rohtagi, Soli J. Sorabjee, K.T.S. Tulsi, Ranjit Kumar, Kanak Raj, Mukul Rohtagi, Ankur Chawla, Gaurav Bhatia, Minakshi, Hari Shankar K. Harshvardhan Jha, Vikas Singh, Ashish Jha, Alok Saran, R.S. Massy Verma (for T.N. Rao), Manoj Saxena, Rahul Shukla, Sunil Fernandes, P.V. Yogeswaran, Rajat Jariwal, Prashant Bhushan, Rohit Kumar Singh, Karan Singh, Hari Shankar K. Vikas Singh, Jangra, Satya Kam, Raghenth Basant (for B.K. Prasad) for the appearing parties.

Arms Act, 1959

The appellant had neither received the bribe money nor was he present at the spot when the same was received by the co-accused, who handed over the same to `M', but the involvement of the appellant did not require his presence at the time of t..

The appellant had neither received the bribe money nor was he present at the spot when the same was received by the co-accused, who handed over the same to `M', but the involvement of the appellant did not require his presence at the time of the raid as he was connected with the offence in view of Ex.PR which was the paper on which the meter reading was jotted down allegedly by the appellant. Ex.PR was proved by the handwriting expert to be in the handwriting of the appellant. In that context, the question whether the opinion of the handwriting expert could have been relied upon without examining him was relevant. The report of the fingerprint expert who was not examined, indicated that a specimen writing was given by the appellant and on a comparison of the same with the writings in Ex.PR, the fingerprint expert came to the conclusion that they were written by the same person. The trial court skirted the issue by holding that the defence could have examined an expert to rebut the report. The High Court recorded that the report having gone unrebutted could be relied upon without any demur. The views of the trial court as well of the High Court in that regard cannot be accepted. When the trial court chose to rely on the report of the handwriting expert, it ought to have examined the handwriting expert in order to give an opportunity to the appellant and the other accused to cross-examine the said expert. There is nothing on record to show that the appellant and the other accused had admitted the report of the handwriting expert. Both the trial court and the High Court erred in denying the appellant such opportunity and shifting the onus on him to disprove Ex.PR which was not formally proved by the prosecution. It was only the report of the handwriting expert, Ex.PY, which connected the appellant with the offence on account of Ex.PR which was said to be in his handwriting. Since the appellant had neither received the money nor was he present at the spot from where the other accused were apprehended, his case has to be treated on a different footing and since his complicity was not established beyond doubt on the basis of Ex.PR and Ex.PY, he must be given the benefit of doubt. The impugned order is liable to be set aside on this ground alone.

Prevention of Corruption Act, 1988

The well known maxim `nemo delset bis vexari pro eadem causa' embodies the well established common law rule that no one should be put on peril twice for the same offence. The fundamental right guaranteed under Article 20 (2) has its roots in c..

The well known maxim `nemo delset bis vexari pro eadem causa' embodies the well established common law rule that no one should be put on peril twice for the same offence. The fundamental right guaranteed under Article 20 (2) has its roots in common law maxim nemo debet bis vexari. If a person is charged again for the same offence, he can plead, as a complete defence, his former conviction, or as it is technically expressed, take the plea of autrefois convict. The principle has been recognized in the existing law in India and is enacted in Section 26 of the General Clauses Act, 1897 and Section 300 of the Code of Criminal Procedure, 1973. [Paras 13, 14 and 15] [539-F-H; 540-A-E] 1.2 What is prohibited under Article 20 (2) is, the second prosecution and conviction must be for the same offence. If the offences are distinct, there is no question of the rule as to double jeopardy being applicable. The test to ascertain is whether two offences are the same, and not the identity of the allegations but the identity of the ingredients of the offences. Thus, it is clear that the same facts may give rise to different prosecutions and punishment and in such an event the protection afforded by Article 20 (2) is not available. A person can be prosecuted and punished more than once even on substantially same facts provided the ingredients of both the offences are totally different and they did not form the same offence. [Para 17] [541-D-E; 543-B-D] Maqbool Hussain vs. The State of Bombay (1953) SCR 730; S.A. Venkataraman vs. The Union of India & ANOTHER (1954) SCR 1150; Leo Roy Frey vs. Superintendent District Jail, Amritsar (1958) SCR 822; The State of Bombay vs. S.L. Apte (1961) 3 SCR 107; Bhagwan Swarup vs. State of Maharashtra AIR 1965 SC 682; State of Rajasthan vs. Hat Singh and Ors. (2003) 2 SCC 152- referred to. United States vs. Rabinowith (1915) 238 US 78; T.W. Morgan vs. Alfonso J. Devine @ Ollie Devine (1915) 237 U.S.1153; United States vs. Vito Lanza (1922) 260 U.S. 314 - referred to. 1.3 The submission that the facts based on which `M' was prosecuted and punished by a competent court of jurisdiction at Lisbon and the facts based on which prosecution was initiated resulting in conviction are the same and, therefore, the conviction of `M' is in the teeth of Article 20 (2) of the Constitution and Section 300 of the Code of Criminal Procedure is not well founded since the same set of facts can constitute offences under two different laws.

Allowing the appeal, the Court HELD: 1.1. The expression `with or without her consent, when she is under sixteen years of age' in s. 375, Clause `Sixthly' of the Show

Allowing the appeal, the Court HELD: 1.1. The expression `with or without her consent, when she is under sixteen years of age' in s. 375, Clause `Sixthly' of the Penal Code, 1860 assumes importance where a victim is under sixteen years of age. In the instant case, the prosecutrix had no formal education and, therefore, there is no school certificate available on record. In the FIR, the age of the prosecutrix has been stated to be 13 years. The prosecutrix in her statement u/s 164, Cr.P.C., and her elder brother (PW-1) in his deposition stated her age as 13 years at the relevant time. However, the doctor (PW-5), on the basis of the X-ray as well as physical examination of the prosecutrix, opined that she was 17 years of age. The trial court on consideration of the entire evidence recorded a categorical finding, and rightly, that the prosecutrix was about 17 + years of age at the time of occurrence and, therefore, Clause Sixthly of s.375 IPC is not applicable. [para 10] [419-H; 420-A-C] 1.2 The High Court conjectured that the age of the prosecutrix could be even 19 years. This appears to have been done by adding two years to the age opined by PW-5. There is no such rule much less an absolute one that two years have to be added to the age determined by a doctor. In the instant case, the brother of the prosecutrix has been examined as PW-1 and, therefore, it cannot be said that best evidence has been withheld. 

A defect or irregularity in investigation, however serious, has no direct bearing on the competence or procedure relating to cognizance or trial. Therefore, where the cognizance of the case has in fact been taken and the case has proceeded to term..

A defect or irregularity in investigation, however serious, has no direct bearing on the competence or procedure relating to cognizance or trial. Therefore, where the cognizance of the case has in fact been taken and the case has proceeded to termination, the invalidity of the precedent investigation does not vitiate the result unless a miscarriage of justice has been caused thereby. The defect or irregularity in investigation has no bearing on the competence of the court or procedure relating to cognizance or trial. [Para 8] [259-D-E] 2.2 In the instant case, the Investigating officer has mentioned in the FIR itself that he had orally been directed by the Superintendent of Police to investigate the case. There is nothing on record to show that the officer's statement is not factually correct. It is evident that there was a direction by the Superintendent of Police to the concerned officer to investigate the case. Thus, in the facts and circumstances of the case, the issue as to whether the oral order could meet the requirement of law remains merely a technical issue.

Prevention of Corruption Act, 1988

Held: Since s.7 as well as s.13 of the Show

Held: Since s.7 as well as s.13 of the Prevention of Corruption Act provide for a minimum sentence of six months and one year respectively in addition to the maximum sentences as well as imposition of fine, claim for grant of relief under the Probation of Offenders Act is not permissible - In cases where a specific provision prescribes a minimum sentence, the provisions of the Probation Act cannot be invoked - No valid ground to interfere with the impugned order of the High Court - Appellant to surrender and to undergo remaining period of sentence - Probation of Offenders Act, 1958 - Penal Code, 1860 - s.477A. State Through SP, New Delhi v. Ratan lal Arora 2004 (4) SCC 590: 2004 (1) Suppl. SCR 631 and State Represented by Inspector of Police, Pudukottai T.N. v. A. Parthiban 2006 (11) SCC 473: 2006 (7) Suppl. SCR 35 - relied on. Case Law Reference 2004 (1) Suppl. SCR 631 relied on Para 8 2006 (7) Suppl. SCR 35 relied on Para 8. 

Allowing the appeal, the Court HELD: 1.1 Section 19 (1) of the Show

Allowing the appeal, the Court HELD: 1.1 Section 19 (1) of the Prevention of Corruption Act, 1988 postulates that no court shall take cognizance of an offence punishable u/ss 7, 10, 11, 13 and 15 alleged to have been committed by a public servant except with the previous sanction. The said provision enumerates about the competent authorities. In the case at hand, the competence of the authority who has granted sanction is not in question. [para 5] Jaswant Singh v. State of Punjab 1958 SCR 762 =1958 AIR 124 and Basdeo Agarwala v. Emperor AIR 1945 FC 18 - referred to Gokulchand Dwarkadas Morarka v. The King AIR 1948 PC 84 - referred to 1.2 From the decision of this Court, the following principles can be culled out: a) It is incumbent on the prosecution to prove that the valid sanction has been granted by the sanctioning authority after being satisfied that a case for sanction has been made out. b) The sanction order may expressly show that the sanctioning authority has perused the material placed before him and, after consideration of the circumstances, has granted sanction for prosecution. c) The prosecution may prove by adducing the evidence that the material was placed before the sanctioning authority and his satisfaction was arrived at upon perusal of the material placed before him. d) Grant of sanction is only an administrative function and the sanctioning authority is required to prima facie reach the satisfaction that relevant facts would constitute the offence. e) The adequacy of material placed before the sanctioning authority cannot be gone into by the court as it does not sit in appeal over the sanction order. f) If the sanctioning authority has perused all the materials placed before him and some of them have not been proved, that would not vitiate the order of sanction.

A distinction, the foundation of which is classes of the establishments and classes/kind of persons, who frequent the establishments and those who own the establishments cannot be supported under the Constitutional philosophy so clearly stated in ..

A distinction, the foundation of which is classes of the establishments and classes/kind of persons, who frequent the establishments and those who own the establishments cannot be supported under the Constitutional philosophy so clearly stated in the Preamble to the Constitution of India and the individual Articles prohibiting discrimination on the basis of caste, colour, creed, religion or gender. The Preamble to the Constitution of India as also Arts. 14 to 21, as observed in I.R. Coelho* form the heart and soul of the Constitution. Taking away of these rights of equality by any legislation would require clear proof of the justification for such abridgment. [para 100] *I.R. Coelho (Dead) by LRs. Vs. State of T.N. 2007 (1) SCR 706 = 2007 (2) SCC 1- relied on. 1.2 Section 33A (1) (a) of the Bombay Police Act, 1951 prohibits holding of a performance of dance, of any kind or type, in any eating house, permit room or beer bar. This is a complete embargo on performance of dances in the establishment covered u/s 33A (1) . Section 33A contains a non-obstante clause which makes the section stand alone and absolutely independent of the Act and the rules. Contravention of s. 33A (1) makes it a criminal offence and on conviction offender is liable to punishment of 3 years. On the other hand, the establishments covered u/s 33B enjoy complete exemption from any such restrictions and dance performances are permitted provided the establishments comply with the applicable statutory provisions, Bye- Laws, Rules and Regulations. [para 98] 1.3 The classification of the establishments covered u/ss 33A and 33B would not satisfy the test of equality. The distinction is made on the grounds of "classes of establishments" or "classes of persons, who frequent the establishments" and not on the form of dance. There is no justification that a dance permitted in exempted institutions u/s 33B, if permitted in the banned establishment, would be derogatory, exploitative or corrupting of public morality. Rather it is evident that the same dancer can perform the same dance in the exempted institution u/s 33-B but is prohibited of doing so in the establishments covered u/s 33A. There is no rationale which would justify the conclusion that a dance that leads to depravity in one place would get converted to an acceptable performance by a mere change of venue. The discriminatory attitude of the State is illustrated by the fact that an infringement of s. 33A (1) by an establishment covered under the said provision would entail the owner being liable to be imprisoned for three years by virtue of s. 33A (2) . On the other hand, no such punishment is prescribed for establishments covered u/s 33B. Such an establishment would merely lose the licence. Such blatant discrimination cannot possibly be justified on the criteria of reasonable classification under Art. 14 of the Constitution. [para 100-101] State of Jammu and Kashmir Vs. Shri Triloki Nath Khosa AND OTHERS 1974 (1) SCR 771 = 1974 (1) SCC 19
E.V. Chinnaiah Vs. State of A.P. AND OTHERS 2004 (5) Suppl. SCR 972 = 2005 (1) SCC 394
Budhan Choudhry Vs. State of Bihar 1955 SCR 1045 = AIR 1955 SC 191
Laxmi Khandsari AND OTHERS Vs. State of U.P. AND OTHERS 1981 (3) SCR 92 = 1981 (2) SCC 600 - relied on. Radice Vs. People of the State of New York 264 U.S. 292 (1924) - cited. 1.4 Once the respondents had given prima facie proof of the arbitrary classification of the establishments u/ss 33A and 33B, it was duty of the State to justify the reasonableness of the classification. The appellants have failed to justify by acceptable evidence, inevitable consequences or sufficient materials that the restriction, whether partial or complete, is in public interest and contains the quality of reasonableness. There was little or no material on the basis of which the State could have concluded that dancing in the prohibited establishments was likely to deprave, corrupt or injure the public morality or morals. [para 100-101 and 104] 1.5 The so called distinction is based purely on the basis of the class of the performer and the so called superior class of audience. It cannot be presumed that the class to which an individual or the audience belongs brings with him as a necessary concomitant a particular kind of morality or decency. The presumption which runs through ss. 33A and 33B that the enjoyment of same kind of entertainment by the upper classes leads only to mere enjoyment and in the case of poor classes it would lead to immorality, decadence and depravity, cannot be accepted. Morality and depravity cannot be pigeon-holed by degrees depending upon the classes of the audience. The said presumption is also perplexing on the ground that in the banned establishments even a non-obscene dance would be treated as vulgar. On the other hand, it would be presumed that in the exempted establishments any dance is non-obscene. The underlying presumption at once puts the prohibited establishments in a precarious position, in comparison to the exempted class for the grant of a licence to hold a dance performance. The presumption is elitist, which cannot be countenanced under the egalitarian philosophy of the Constitution. Thus, ss. 33A and 33B introduce an invidious discrimination which cannot be justified under Art. 14 of the Constitution. Yet at the same time, both kinds of establishments are to be granted licenses and regulated by the same restrictions, regulations and standing provisions. [para 102-103] Charanjit Lal Chowdhury Vs. Union of India AND OTHERS 1950 SCR 869 =AIR 1951 SC 41
Ram Krishna Dalmia Vs. Justice S.R. Tendolkar 1959 SCR 279 =AIR 1958 SC 538
State of Uttar Pradesh Vs. Kaushailiya AND OTHERS 1964 SCR 1002 = AIR 1964 SC 416
and Shashikant Laxman Kale AND ANOTHER Vs. Union of India AND ANOTHER 1990 (3) SCR 441 =1990 (4) SCC 366 - referred to. 1.6 A perusal of the Objects and the Reasons would show that the impugned legislation proceeds on a hypothesis that different dance bars are being used as meeting points of criminals and pick up points of the girls. But the Objects and Reasons say nothing about any evidence having been presented to the Government that these dance bars are actively involved in trafficking of women. Isolated examples would not be sufficient to establish the connection of the dance bars covered u/s 33A with trafficking. Therefore, it cannot be said that the ban has been placed for the protection of the vulnerable women. [para 105] 1.7 The Legislature is free to recognize the degrees of harm and may confine its restrictions to those cases where the need is deemed to be clearest. Further, the State may direct its law against what it deems the evil as it actually exists without covering the whole field of possible abuses, but such conclusion have to be reached either on the basis of general consensus shared by the majority of the population or on the basis of empirical data. The State neither had the empirical data to conclude that dancing in the prohibited establishment necessarily leads to depravity and corruption of public morals nor was there general consensus that such was the situation. The three reports presented before the High Court in fact have presented divergent view points.

Demand of illegal gratification is sine qua non for constituting an offence under the Show

Demand of illegal gratification is sine qua non for constituting an offence under the Prevention of Corruption Act, 1988. Mere recovery of tainted money is not sufficient to convict the accused, unless there is evidence to prove payment of bribe or to show that the money was taken voluntarily as a bribe. While invoking the provision of statutory presumption u/s 20 of the Act, the court is required to consider the explanation offered by the accused, if any, only on the touchstone of preponderance of probability and not on the touchstone of proof beyond all reasonable doubt. However, before the accused is called upon to explain how the amount in question was found in his possession, the foundational facts must be established by the prosecution. The complainant is an interested and partisan witness, concerned with the success of the trap, and his evidence must be tested in the same way as that of any other interested witness. In a proper case, the court may look for independent corroboration before convicting the accused.

The view taken by the trial court drawn on the evidence on record is unreasonable and perverse and the High Court has rightly interfered with the order of acquittal and convicted the appellant under Sections 7 and 13(1)(d) r/w Section 13 (2) of Pr..

The view taken by the trial court drawn on the evidence on record is unreasonable and perverse and the High Court has rightly interfered with the order of acquittal and convicted the appellant under Sections 7 and 13(1)(d) r/w Section 13 (2) of Prevention of Corruption Act, 1988. [Para 11] [446-C-D] Kalyan Singh v. State of M.P. (2006) 13 SCC 303; T. Subramanian v. State of T.N. (2006) 1 SCC 401; State represented by Inspector of Police, Pudukottai, T.N. v. A. Parthiban (2006) 11 SCC 473 - referred to. 1.2 The evidence of the complainant is found to be consistent and impeachable regarding the demand of Rs.500/- by the appellant as bribe money for giving favourable report in regard to the grant of permanent lease holder rights of the land to the complainant. His evidence is supported by contemporaneous documents prepared by the Investigating Officer before the money was delivered to the appellant. The complainant emphatically denied the suggestion of the appellant that Rs.500/- was sent to the appellant by DW-1 as repayment of the loan amount. The complainant, the investigating Officer and other witnesses who were present when the appellant was caught red handed by the Anti Corruption Team have been cross-examined at length by the defence, but nothing tangible has been extracted from their evidence to create any shadow of doubt that they are not truthful witnesses. They have given reliable and consistent version of the crime and their evidence inspires confidence. [Para 9] [465-F-G-H; 466- A] 1.3 Once it is proved that the money was recovered from the possession of the appellant, the burden of presumption as contemplated u/s. 20 of the P.C. Act, 1988 shifts upon the appellant, which he could not rebut through cross-examination of the prosecution witnesses or by adducing reliable and convincing evidence to prove that DW-1 advanced Rs.500/- as loan to the appellant through the complainant. [Para 9] [464-H; 465-A] 1.4 DW-1 has not given any reason why he chose the complainant alone to deliver a sum of Rs.500/- to the appellant on the day when he was apprehended by the Anti Corruption Team

The High Court analysed in great detail the evidence to show that the alleged animosity was not established. Two witnesses PWs 2 and 3 in detail had referred to the factual scenario and nothing discrepant has been brought on record to cast any dou..

The High Court analysed in great detail the evidence to show that the alleged animosity was not established. Two witnesses PWs 2 and 3 in detail had referred to the factual scenario and nothing discrepant has been brought on record to cast any doubt on the credibility of their evidence. [Para 6] [648-B] 2. Day in and day out the gigantic problem of corruption in the public service is on the increase. Large scale corruption retards the nation- building activities and everyone has to suffer on that count.Corruption is corroding like cancerous lymph nodes, the vital veins of the body politics, social fabric of efficiency in the public service and demoralizing the honest officers. The efficiency in public service would improve only when the public servant devotes his sincere attention and does the duty diligently, truthfully, honestly and devotes himself assiduously to the performance of the duties of his post. [Para 7] [648-C-E] Swatantar Singh v. State of Haryana (1997) 4 SCC 14 and State of M.P. v. Shambhu Dayal Nagar (2002) 1 SCC 1, relied on. 3. Considering the peculiar facts of the case, the custodial sentence of one year, which is minimum prescribed, would meet the ends of justice. [Para 8] [648-F] Case Law Reference: (1997) 4 SCC 14 relied on Para 7 (2002) 1 SCC 1 relied on Para 7 CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 156 of 2009. From the Judgment and Order dated 11.9.2007 of the High Court of Punjab and Haryana at Chandigarh in Crl. Appeal No. 416-SB/1996. Manoj Prasad for the Appellant. Kuldip Singh, R.K. Pandey, T.P. Mishra and H.S. Sandhu for the Respondent.

Criminal appeal should not be dealt in this way - Thus, order of High Court set aside - Matter remitted to High Court for fresh consideration - Practice and procedure - Show

Criminal appeal should not be dealt in this way - Thus, order of High Court set aside - Matter remitted to High Court for fresh consideration - Practice and procedure - Prevention of Corruption Act, 1988. Ramesh Chandra Pandey for the Appellant. R. Sundervardan, D. Bharathi Reddy and A. Fatima for the Respondent.

The offence of rape in its simplest term is `the ravishment of a woman, without her consent, by force, fear or fraud', or as `the carnal knowledge of a woman by force against her will'. `Rape'

The confession was indeed made by the appellant and the details given in the confession and the meticulous planning that went behind committing murder of the deceased which has been reflected in the confession, not only render it voluntary, but tr..

The confession was indeed made by the appellant and the details given in the confession and the meticulous planning that went behind committing murder of the deceased which has been reflected in the confession, not only render it voluntary, but truthful also. This confession is not only a good, voluntary and truthful confession but a reliable one also and the trial court has committed no mistake whatsoever in relying upon the said confession. Once the confession made u/s. 15 of the TADA Act is accepted, there is no necessity of any other evidence being required. The way the appellant himself has worked for the success of the conspiracy, the way he has handled the guns and accompanied two other assailants to the house of the deceased and the manner in which the plan was executed convinces that the order is absolutely correct. [Paras 32 and 33] [950-D-H; 951-A-C] 2.6. The whole cross-examination does not dent the case of the prosecution and it can be inferred that the criticism against the confession that it was not recorded in the language of the accused is not justified. There is absolutely no effort made by the defence to establish that the statement was not made in the language of the accused persons. The confession also cannot be foiled on the ground that the original confessional statement was not on record as the original confession was very much available on the record. [Para 21] [940-D-F] 2.7. The failure to examine two-persons (`GS' and `GQ) as witnesses, would be of no consequence looking at the overall evidence of the witnesses, more particularly, all those who were present at the spot. It cannot be gathered that `GS' was present at the time of incident. Insofar as the evidence of `GQ' is concerned, it was pointed out by PW-17 that said person was already dead at the time of trial. [Para 22] [940-G-H; 941-A-B] 3. It is not correct to say that the confession u/s. 15 of TADA Act could have been used only against the TADA Act offences and it cannot be used for a Non-TADA offence like Section 302 of the RPC and it could not even be read in order to prove the said offence. The facts relating to Section 3(3) of the TADA Act and the facts relating to Section 302 of RPC are completely inter-mixed in this matter. They are the part of the same transaction. A plain reading of the confession clearly goes to show that the accused was guilty of conspiring or attempting to commit or advocating, abetting, advising or inciting or knowingly facilitating the commission of a terrorist act or any act preparatory to a terrorist act.

In Ashok Kumar's case, this Court noticed that if it was a case of death by burning, entries of injury report in the bed head ticket could be construed as dying declaration. [para 13-14] Ashok Kumar v. State of Rajasthan 1990 (1) Suppl. SCR 40..

In Ashok Kumar's case, this Court noticed that if it was a case of death by burning, entries of injury report in the bed head ticket could be construed as dying declaration. [para 13-14] Ashok Kumar v. State of Rajasthan 1990 (1) Suppl. SCR 401 = (1991) 1 SCC 166 Kanaksingh Raisingh Rav v. State of Gujarat (2003) 1 SCC 73 - relied on. 1.2 In the instant case, the doctor (PW-4) who conducted medico-legal examination and recorded the statement of the deceased, specifically deposed that the deceased told him that she was called inside and the door was latched from inside. Kerosene oil was sprinkled upon her and her Jethani had ignited the fire by the match stick. Her husband and mother-in- law were also involved in it. This dying declaration (Ext.PF) was also signed by appellant no.1 which indicates that he was present when statement was recorded. There is nothing on the record to suggest that any of the relation of the deceased was present to influence PW-4. [para 11 and 15] 1.3 Admittedly, the death of the deceased is caused by burns i.e. otherwise than under normal circumstances, within seven years of her marriage. In view of the evidence on record both the courts below have come to the definite conclusion that the deceased was soon before her death, subjected to cruelty and harassment by her husband and his relatives in connection with demand for dowry. Therefore, all the ingredients are present to convict the appellants u/s 304-B, IPC. The prosecution also proved beyond reasonable doubts that the appellants are guilty of the offence punishable u/s 498-A, IPC. The Sessions Judge has recorded cogent and convincing reasons for convicting the appellants for the offences u/ss 304-B and 498-A IPC. [para 17-19] 1.4 The Sessions Judge specifically held that the prosecution miserably failed to prove its case against all the four accused for the offence punishable u/ss 302 and 406 r/w s. 34 IPC and, therefore, all the four accused were acquitted of the said offence. No appeal has been preferred by the complainant or the State against the acquittal of the accused for the offences punishable u/ss 302 and 406 r/w s.34 IPC. The finding of Sessions Judge having reached finality, the question of altering the sentence u/s 304-B to s.302 does not arise. [para 22] Muthu Kutty and Another v. State by Inspector of Police, Tamil Nadu 2004 (6) Suppl. SCR 222 = (2005) 9 SCC 113 - referred to. 1.5 As regards the plea of the appellants to reduce the sentence u/s 304-B IPC, it is significant to note that the appellants were sentenced for life for the offence punishable u/s 304-B IPC, by the trial court. The High Court has already considered the facts and circumstances of the case and reduced the sentence from life imprisonment to 10 years. 

The measure of punishment in a case of rape cannot depend upon the social status of the victim or the accused. It must depend upon the conduct of the accused, the state and age of the sexually assaulted female and the gravity of the criminal act. ..

The measure of punishment in a case of rape cannot depend upon the social status of the victim or the accused. It must depend upon the conduct of the accused, the state and age of the sexually assaulted female and the gravity of the criminal act. Crimes of violence upon women need to be severely dealt with. The socio-economic status, religion, race, caste or creed of the accused or the victim are irrelevant considerations in sentencing policy. Protection of society and deterring the criminal is the avowed object of law and that is required to be achieved by imposing an appropriate sentence. The sentencing Courts are expected to consider all relevant facts and circumstances bearing on the question of sentence and proceed to impose a sentence commensurate with the gravity of the offence. Courts must hear the loud cry for justice by the society in cases of the heinous crime of rape on innocent helpless girls of tender years, and respond by imposition of proper sentence. Public abhorrence of the crime needs reflection through imposition of appropriate sentence by the Court. [Para 8] [279-B, C, D, E] 1.2 The legislative mandate to impose a sentence for the offence of rape on a girl under 12 years of age, for a term which shall not be less than 10 years, but which may extend to life and also to fine reflects the intent of stringency in sentence. The proviso to Section 376(2) IPC lays down that the court may, for adequate and special reasons to be mentioned in the judgment, impose sentence of imprisonment of either description for a term of less than 10 years. It is a fundamental rule of construction that a proviso must be considered with relation to the principal matter to which it stands as a proviso particularly in such like penal provisions. The courts are obliged to respect the legislative mandate in the matter of awarding of sentence in all such cases. Recourse to the proviso can be had only for "special and adequate reasons" and not in a casual manner. Whether there exist any "special and adequate reasons" would depend upon a variety of factOTHERS and the peculiar facts and circumstances of each case. No hard and fast rule of universal application can be laid down in that behalf. [Para 9] [279-G, H; 280-A, B, C] 2. There are no extenuating or mitigating circumstances available on the record which may justify imposition of any sentence less than the prescribed minimum on the respondent. To show mercy in the case of such a heinous crime would be a travesty of justice and the plea for leniency is wholly misplaced. In view of the aforementioned position in law the judgment of the High Court reducing the sentence to 7 years is clearly unsustainable and is set aside. [Paras 8 and 10] [279-E, F; 280-D] Milind Kumar and Aruneshwar Gupta for the Appellant.

The defense has not raised any dispute with regard to the aforesaid fact nor any suggestion was given to the aforesaid eye- witnesses as against their statements that they were present at the time of incident and they had seen the entire incident...

The defense has not raised any dispute with regard to the aforesaid fact nor any suggestion was given to the aforesaid eye- witnesses as against their statements that they were present at the time of incident and they had seen the entire incident. Their presence at the place of occurrence was quite natural. [Para 7] [1131-D-E; 1132-A] 1.2. There is no delay in the lodging of the FIR. There is also no possibility of any concoction of the incident as there was no scope of framing anybody unnecessarily and without reason within that short span of time. The motive for the murder has also been established. [Para 7] [1131- G; 1132-A] 1.3. The lathi blow was so forceful that as a consequence of which the deceased died within an hour and before he could be taken to the hospital. There is a direct nexus between the blow of lathi and death of the deceased which is immediately caused after giving the blow. [Para 11] [1134-B-C] 1.4. Although it is a case of culpable homicide not amounting to murder, but considering the nature of the injuries which was caused on a vital part of the body, there was intention on the part of the accused-appellant to cause death of the deceased. Therefore, the conviction of the appellant is altered from Section 302 IPC to Section 304 (Part I) IPC. Sentence oflife imprisonment altered to custody and sentence of 10 years. [Paras 12 and 13] [1134-C-E] State of Orissa v. Bhagaban Barik AIR 1987 SC 1265; State of U.P. v. Indrajeet (2000) 7 SCC 249; Joseph v. State of Kerala AIR 1994 SC 34 and Mohd. Shakeel v. State of A.P. (2007) 3 SCC 119, distinguished. Case Law Reference: AIR 1987 SC 1265 Distinguished. Para 10 (2000) 7 SCC 249 Distinguished. Para 10 AIR 1994 SC 34 Distinguished. Para 10 (2007) 3 SCC 119 Distinguished. Para 10 CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 996 of 2004. From the Judgment and Order dated 16.4.2003 of the High Court of Judicature at Allahabad in Criminal Appeal bearing number 1996 of 1981. Vipin Singhania and Manjula Gupta for the Appellants. T.N. Singh, S.K. Dwivedi, Vandana Mishra, Shirish Kr. Mishra and Praveen Swarup for the Respondent

Appellant was inside the house. He admittedly was not a party to the quarrel. So far as he was concerned, neither PW-2 nor the deceased caused any provocation to him. The manner in which the assault had taken place must also be noticed inasmuch as..

Appellant was inside the house. He admittedly was not a party to the quarrel. So far as he was concerned, neither PW-2 nor the deceased caused any provocation to him. The manner in which the assault had taken place must also be noticed inasmuch as he had injured the lung and heart of the deceased. [Para 9] [600-B-C] 2.1. S.300 IPC provides that culpable homicide would be murder if the act by which the death is caused is done with the intention of causing death or if it is done inter alia with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused. Once it is held that injury was caused on a vital part of the body with knowledge that it may cause death or such injury which is likely to cause death, the ingredients of provisions of s.300 must be held to have been proved in view of the decision of this Court in Virsa Singh. This case, thus, although attracts the principles of Virsa Singh in terms whereof it was possible to arrive at a conclusion that the appellant in fact is guilty of commission of an offence under s.302 IPC, in absence of any appeal having been preferred by the State from the judgment of conviction and sentence passed by the Trial Judge, this Court is not in a position to arrive at the said conclusion. [Paras 10, 13, 14] [600-C-D; 603-A-D] Virsa Singh v. State of Punjab AIR (1958) SC 465; Kesar Singh AND ANOTHER v. State of Haryana (2008) 6 SCALE 433; State of Andhra Pradesh v. Rayavarapu Punnayya and ANOTHER (1976) 4 SCC 382; Mohd. Asif v. State of Uttaranchal (2009) 3 SCALE 695 and Mavila Thamban Nambiar v. State of Kerala AIR 1997 SC 687 - referred to. 3.1. The Probation of Offenders Act, 1958 was enacted to provide for the release of offenders on probation or after due admonition and for matters connected therewith. S.4 of the said Act empowers the court to release a person on probation of good conduct, subject to the conditions that the offence is not punishable with death or imprison-ment for life. Only in the event, the provisions of the said Act are applicable, s.6 of the Act can be taken recourse to. [Paras 15, 16] [603-D-F] 3.2. Appellant was charged with commission of an offence under s.302 IPC. He has been found guilty under s.304 Part I thereof which provides for imprisonment for life or imprisonment of either description for a term which may extend to imprisonment for life. 

As regards the sentence, motive for the appellant to commit the murder of three persons has not been established. There is also no eyewitness to the manner in which the appellant committed the murder of three persons and the culpability of the app..

As regards the sentence, motive for the appellant to commit the murder of three persons has not been established. There is also no eyewitness to the manner in which the appellant committed the murder of three persons and the culpability of the appellant has been established only by a chain of three circumstances established by the prosecution. The finding of the High Court, therefore, that either ?R? or ?S? had to undergo the trauma of watching the father or the son being killed first in front of the other is a pure surmise. What exactly happened leading to the murder of three persons by the appellant is not known, but what appears from the post mortem reports is that the three deceased persons were brutally killed by the appellant. Brutality would be a relevant factor, but how the same did take place is also a relevant and necessary material to be considered while deciding whether to award life imprisonment or death for the offence of murder. As has been held in Bachan Singh's case, the extreme penalty of death can be inflicted only in gravest cases of extreme culpability and in making choice of the sentence, in addition to the circumstances of the offence, due regard must be paid to the circumstances of the offender also. In the instant case, there is no evidence to establish the gravest case of extreme culpability of the appellant and there is also no evidence to establish the circumstances of the appellant. [Para 22-23] Panchhi AND OTHERS v. State of U. P. 1998 (1) Suppl. SCR 40 = AIR 1998 SC 2726

 It provides that such imprisonment orimprisonment for life shall commence at the expiration of the imprisonment to which he has been previ..

 It provides that such imprisonment orimprisonment for life shall commence at the expiration of the imprisonment to which he has been previously sentenced unless the court directs that the subsequent sentence shall run concurrently with such previous sentence. Section 427 (1) of the Code, stipulates a general rule to be followed except in three situations, one falling under the proviso to sub-s (1) to s. 427 i.e. where the person concerned is sentenced to imprisonment by an order u/s. 122 in default of furnishing security which is not the position in the case at hand
the second falling under sub-s (2) where a person already undergoing a sentence of imprisonment for life is sentenced on a subsequent conviction to imprisonmentfor a term or imprisonment for life
it provides that the subsequent sentence shall in such a case run concurrently with such previous sentence
and the third where the court directs that the sentences shall run concurrently. It is manifest from s. 427 (1) that the court has the power and the discretion to issue a direction but in the very nature of the power so conferred upon the court the discretionary power shall have to be exercised along judicial lines and not in a mechanical, wooden or pedantic manner. It is difficult to lay down any strait jacket approach in the matter of exercise of such discretion by the courts. Whether or not a direction ought to be issued in a given case would depend upon the nature of the offence (s) committed, and the fact situation in which the question of concurrent running of the sentences arises. High Courts in this country have, therefore, invoked and exercised their discretion to issue directions for concurrent running of sentence* as much as they have declined such benefit to the prisoners**. [Para 8-10] *State of Punjab v. Madan Lal 2009 (3) SCR 1175 = (2009) 5 SCC 238
Mohd. Akhtar Hussain v. Assistant Collector of Customs 1988 (2) Suppl. SCR 747 = (1988) 4 SCC 183 and Mulaim Singh v. State 1974 Crl. L.J. 1397 - referred to. **Sumlo ALIAS Sumla Himla Bhuriya and OTHERS v. State of Gujarat and OTHERS 2007 Crl.L.J. 612 and State of Gujarat v. Zaverbhai Kababhai 1996 Crl.L.J. 1296 - referred to. 1.2 The legal position favours exercise of discretion to the benefit of the prisoner in cases where the prosecution is based on a single transaction no matter different complaints in relation thereto may have been filed as is the position in cases involving dishonour of cheques issued by the borrower towards repayment of a loan to the creditor. [Para 15] 1.3 The 15 cases at hand against the appellant fall in three distinct categories. The transactions forming the basis of the prosecution relate to three different corporate entities who had either entered into loan transactions with the State Financial Corporation or taken some other financial benefit like purchase of a cheque from the appellant that was on presentation dishonoured. Applying the principle of single transaction each one of the loan transactions/financial arrangements was a separate and distinct transaction between the complainant on the one hand and the borrowing company/appellant on the other. If different cheques which are subsequently dishonoured on presentation, are issued by the borrowing company acting through the appellant, the same could be said to be arising out of a single loan transaction so as to justify a direction for concurrent running of the sentences awarded in relation to dishonour of cheques relevant to each such transaction. That being so, the substantive sentence awarded to the appellant in each case relevant to the transaction with each company ought to run concurrently. However, there is no reason to extend that concession to transactions in which the borrowing company is different no matter the appellant before the Court is the promoter/Director of the said other companies also. Similarly, there is no reason to direct running of the sentence concurrently in the case filed by the State Bank of Patiala which transaction is also independent of any loan or financial assistance between the State Financial Corporation and the borrowing companies. Ordered accordingly. [Para 16 - 17] 1.4 It is made clear that the direction regarding concurrent running of sentence shall be limited to the substantive sentence only. The sentence which the appellant has been directed to undergo in default of payment of fine/compensation shall not be affected by this direction, because the provisions of s. 427 of the Cr.P.C. do not, permit a direction for the concurrent running of the substantive sentences with sentences awarded in default of payment of fine/compensation. [Para 17] Case Law Reference 2009 (3) SCR 1175 referred to para 7 2007 Crl.L.J. 612 referred to para 10 1996 Crl.L.J. 1296 referred to para 11 1974 Crl. L.J. 1397 referred to para 12 1988 (2) Suppl. SCR 747 referred to para 13. 

Dismissing the appeals, the court HELD : High Court considered the question of Sentence in detail. On going through the evidence and having considered the facts of the case, there is no reason to enhance the punishment of life

It is true that either in the complaint or in the first information report, no one was specifically named for the commission of offence. Though a suggestion was made to prosecution witnesses that the accused persons are from the nearby villages, t..

It is true that either in the complaint or in the first information report, no one was specifically named for the commission of offence. Though a suggestion was made to prosecution witnesses that the accused persons are from the nearby villages, the same was stoutly denied and in such circumstance, miscreants being outsiders, it would not be possible to name those persons in the complaint itself without further verification. On the other hand, the prosecution through their witnesses particularly, PWs 1 to 4, established that it was the appellants, who along with few more persons committed the offence by killing five persons mercilessly for non-payment of ransom amount which they demanded for the release of five persons caught hold by them. In view of the same, though none was named in the FIR, subsequently, the name of the appellants came into light during investigation. [Para 8] [649-E-H; 650-A] 1.2. PW 1 had asserted that he had seen the faces of all the accused persons in the light of the torch. However, he admitted that he could not go and attend the identification parade due to his illness. In cross- examination also, he asserted that he had seen the guns in the hands of the accused and three of the victims were assaulted by the accused persons by the butt of the gun. He informed that he had witnessed the incident from the distance of 10 mts. He also informed the court that one of the deceesed who came from the western side had lantern and torch and when he focused his torch on criminals they assaulted him and snatched away his torch and extinguished the lantern. [Para 9] [651-C-E] 1.3. PW 2 corroborated the evidence of PW 1. It is further seen from his evidence that he also sustained injuries by one of the miscreants and this is also clear from his assertion and statement as well as the evidence of PW 7. There is no reason to disbelieve the version of PW-2 that he did not see these persons on any other occasion except on the date of occurrence and at the time of identification parade. He being an injured eye-witness as well as identified the appellants in the identification parade, the trial Judge as well as the High Court rightly accepted his version. He deposed about his visit to District Jail, for test identification parade of miscreants. He informed the court that he had identified three miscreants. These persons had also been identified in the jail. He further explained that these accused had been seen for the first time by him at the time of incident and thereafter, he saw them in the test identification parade. He also reiterated that before the incident, these miscreants were neither known nor seen by him. In his cross-examination, he reiterated that in the test identification parade which was conducted in District Jail, he identified the three accused. [Paras 10 and 11] [653-C-D; G-H; 654-A; 652- F-H; 653-A] 1.4. PW 3 asserted that on the date and time of the incident, he witnessed the occurrence along with PW 2. He explained to the court that when the miscreants detained him and others for about half an hour, he noticed the faces of the miscreants in the light of their torches. Like PW 2, he also explained that in view of their inability to pay the ransom as demanded by the miscreants, initially they killed one of the deceased and thereafter killed other four. PW 3 also asserted before the court that none of the accused was known to him earlier. He also explained that he had gone to jail for identification of the accused. Before the court, he identified, by putting his hand on the accused persons and said that these miscreants were involved in the incident and for the first time he had seen these persons at the time of occurrence and second time in jail at the time of test identification parade. In his cross-examination, his evidence about the incident, the involvement of the accused, threat to kill the persons in custody, recovery of dead bodies, identifying the accused in the test identification parade, could not be shattered in any way. He being an injured eye-witness, corroborated the evidence of PW 2 and identified the accused persons in the properly constituted test identification parade, his evidence was fully relied on by the prosecution and rightly accepted by the trial Court as well as by the High Court. [Paras 12 and 15] [654-B-E; 655- A-D] 1.5. It is not correct to say that PW-4, who claimed to be a victim of the accused person, is not competent to narrate the present incident and implicate the very same accused as in her earlier case she had deposed that the appellant-accused had nothing to do with the incident. Just prior to the incident the very same accused, that is, appellant-accused set fire to her house and took her to the forest. She was in the custody of miscreants for 10-12 days. It is true that at one stage she complained that they attempted to rape her. However, in the said case, before the court she failed to mention their names and implicate them in the said crime. In the present case, when she was examined, she explained that due to threat and fear she made a statement in the earlier case disowning these accused. Considering her explanation, particularly, because of the threat and fear she was forced to make such statement and in view of the categorical statement about the present occurrence implicating the miscreants including the present appellants, explaining all the details about keeping three youngsters in their hands and five villagers demanding ransom for their release, identifying the five dead bodies at different places, there is no reason to disbelieve her version. [Paras 16 and 17] [655-E-F; 656-G-H; 657- A-C] 1.6. The trial Judge has accepted her conduct in making a statement about the earlier case and relied on her present statement with reference to abduction and killing of five persons. The statement of PW-4 also corroborates with the evidence of injured eye-witnesses PWs 2 and 3. Further she was in the clutches of these miscreants for a period of 10-12 days and because of her familiarity of their faces, in categorical terms, she informed the Court that it was appellant-accused `M', who killed three persons and appellant-acused `G', who killed two persons by slitting their neck. Her explanation about her own case and detailed narration in respect of the present case are acceptable and rightly relied on by the trial court and accepted by the High Court. [Para 18] [657-D-F] 1.7. Medical evidence also supports the case of prosecution. Medical Officer, who conducted autopsy on the five dead bodies was examined as PW 5. In all the reports, he mentioned cut in the nerves and muscles of neck and blood vessels apart from other injuries. He also opined that death was caused due to shock and hemorrhage and approximately one day before the post mortem. Though the police could not produce the knife used for killing the five persons, one of the accused had admitted about possession of knife apart from unlicensed gun at the time of the occurrence. [Para 19] [657-G- H; 660-C-D] 1.8. It is not correct to say that in the absence of proper light at the time of occurrence it is highly improper to accept the version of prosecution witnesses particularly, PWs 2 and 3 identifying these appellants. Apart from the evidence of PWs 1 to 3, about the information that through their torch lights they were able to recognize the faces of miscreants, PW 4 who was taken away by the miscreants to the forest in respect of the first incident informed the name of the accused correctly. Inasmuch as her association with the accused was longer than others, she mentioned the name of the accused without any difficulty. In those circumstances, the trial Judge is perfectly right in holding that the prosecution witnesses were able to correctly identify these persons and rightly rejected the defence plea. [Paras 36 and 37] [668-B-G] 2.1. The question whether a witness has or has not identified the accused during the investigation is not one which is in itself relevant at the trial. The actual evidence regarding identification is that which is given by witnesses in court. There is no provision in the Cr. P.C. entitling the accused to demand that an identification parade should be held at or before the inquiry of the trial.

Dismissing the appeal filed by accused Nos. 1, 4 and 8; dismissing State's appeal against accused Nos. 1 and 7; and partly allowing State's appeal against accused Nos. 5 and 6, the Court HELD: Per Dr. Mukundakam Sharma, JJ: 1.1. Accused No..

Dismissing the appeal filed by accused Nos. 1, 4 and 8; dismissing State's appeal against accused Nos. 1 and 7; and partly allowing State's appeal against accused Nos. 5 and 6, the Court HELD: Per Dr. Mukundakam Sharma, JJ: 1.1. Accused No. 1 is guilty of all the charges which were already found to be proved and established by the trial court and affirmed by the High Court. The sentence passed by the High Court is confirmed and the punishment awarded by the trial court u/s. 212 r/w Section 52(A) r/w. Section 120-B IPC is also restored. [Para 58] [1148-B] 1.2. Conviction under Maharashtra Control of Organized Crime Act, 1999 could be based solely on the basis of the confessional statement and such conviction is also permissible on the basis of the confessional statement of the co-accused which could be used and relied upon for the purpose of conviction. [Para 59] [1148-C] State v. Nalini (1999) 5 SCC 253; Devender Pal Singh v. State of NCT of Delhi (2002) 5 SCC 234; Jameel Ahmed v. State of Rajasthan (2003) 9 SCC 673, relied on. 1.3. Though it is proved and established from the records that accused No. 1 did not himself participate in the actual shootout, it is alleged against him that he was a part of the gang and he was in touch with the gang leaders in Karachi (Pakistan) and he also acted on behalf of the said gang so much so that he had effected payment of money arranged by the leaders of the gang to accused Nos. 5, 6, and 8 for causing the shootout. The evidence placed before this court clearly establishes that accused No. 1 was responsible for procuring a pistol and handing over the same to accused No. 5 which was used in the shootout. The said fact is also established and proved by the confessional statement of accused No. 5. [Paras 47 and 48] [1142-B-F] 1.4. The confessional statement of accused No. 1 substantially complies with the requirements of Section 18 of Maharashtra Control of Organized Crime Act, 1999 (MCOCA) r/w. rule 3 (6) of Maharashtra Control of Organized Crime Rules (MCOC Rules). It was a categorical case of the prosecution that PW-51 who recorded the said confessional statement was never involved with the investigation of the case. On going through all the material available on record, the High Court came to the categorical finding that the aforesaid confessional statement was made voluntarily and while recording the same, post confessional formalities were followed. It was held by the High Court that although the confessional statement does not bear any certificate in the identical terms as specified under Rule 3(6) of the MCOC Rules, it nevertheless complies with the requirements of Section 18 MACOCA. Apart from that, there is also evidence on record indicating that accused No. 1 made several phone calls to gang leaders in Pakistan from various phone booths. The said fact is also accepted by the trial court as well as by the High Court. [Paras 51 and 52] [1145-E-H; 1146-A-C] 1.5. The confessional statement of accused No. 8 was held to be admissible by both the courts below in which he had categorically stated that he knew accused No. 1 from childhood and that accused No. 1 had brought him to act as a driver in the said shootout and also paid him Rs. 10,000/- for the job. Accused No. 8 in his confessional statement had also stated that accused No. 5 visited accused No. 1. The confessional statements of accused No. 5 and 6 are also relevant to prove and establish the involvement of accused No. 1 with the incident. 

The assertion by PW 1 that after the incident was over he had gone near his injured brother and tried to know as to who were his assailants, whereupon his injured brother had replied that the respondents had caused injuries to him, could not be ef..

The assertion by PW 1 that after the incident was over he had gone near his injured brother and tried to know as to who were his assailants, whereupon his injured brother had replied that the respondents had caused injuries to him, could not be effectively challenged during cross-examination of the witness nor could it be brought on record that because of the nature of the injuries received by `B' he would not have survived even for few minutes and must have died immediately on the receipt of the injuries. [Para 16] 7.1 The High Court acquitted the respondents who were charged for commission of six murders in a casual and slipshod manner. The approach of the High Court in appreciating the evidence is not only contrary to the well settled principles of appreciation of evidence but quite contrary to the ground realities of life. The High Court recorded reasons for acquittal of the respondents which are not borne out from the record and quite contrary to the evidences adduced by the reliable eye-witnesses. The High Court was not justified in upsetting the well reasoned conviction of the respondents recorded by the trial court which after observing demur of the eye-witnesses had placed reliance on their testimony. The High Court did not take into consideration the full text of the evidence adduced by the witnesses and picked up sentences here and there from the testimony of the witnesses. [Para 17] 7.2 There is no manner of doubt that killing six persons and wiping almost the whole family on flimsy ground of honour saving of the family would fall within the rarest of rare case and, therefore, the trial court was perfectly justified in imposing capital punishment on the respondents. However, the incident had roughly taken place before 20 years, i.e., on August 10/11, 1991. The High Court had acquitted the respondents by judgment dated April 12, 2002. After April 12, 2002 till this date, nothing adverse against any of the respondents is reported to this Court. To sentence the respondents to death after their acquittal in the year 2002 would not be justified on the facts and in the circumstances of the case. [Para 19] 7.3 The judgment passed by the High Court, acquitting the respondents of the offences punishable u/s. 302/34 IPC is set aside. The judgment of the trial court convicting each of the respondents u/s. 302/34 IPC is restored and each respondent is convicted u/s. 302/34 IPC. For the commission of offence punishable u/s. 302/34 IPC, each respondent is sentenced to RI for life and fine of Rs.25,000/- each, in default, RI for two years. Out of the amount of fine, if paid, a sum of Rs.50,000/- be paid to PW2, as compensation in view of the provisions of s. 357 Cr.P.C. [Para 20] Case Law Refence: AIR 1988 SC 1998 Referred to. Para 10 AIR 2003 SC 4140 Referred to. Para 15 CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 1180 of 2004. From the Judgment & Order dated 12.04.2002 of the High Court of Judicature at Allahabad in Criminal Appeal No. 574 of 2001. Ratnakar Dass, Shekhar Raj Sharma, Chandra Prakash Pandey for the Appellant

The prosecution thus succeeded in proving that these appellants have committed series of murders. [654-c-e] 1.2. It is true that the evidence of the approver is always to be viewed with suspicion especially when it is seriously suspected that he i..

The prosecution thus succeeded in proving that these appellants have committed series of murders. [654-c-e] 1.2. It is true that the evidence of the approver is always to be viewed with suspicion especially when it is seriously suspected that he is suppressing some material facts. Here the approver's evidence was not fully accepted by the High Court. High Court was of the view that he had suppressed some material facts. The observation made by the High Court was justified. The tenor of the evidence given by the approver is to the effect that he was only a silent spectator and all these heinous crimes were committed by the appellants and their mother. It is difficult to believe that these women alone had committed all the crimes unless there is strong support from the approver. [654-f-g] 1.3. The approver was given pardon under Section 306 of the Cr.P.C. and thereafter he was examined as a witness for prosecution under Section 308 of the Cr.P.C. The Code prescribes a procedure for prosecuting the approver who gave false evidence or wilfully suppressed anything. [655-a-d] 1.4. In the instant case, the approver was present when many of the murders had taken place and it is quite possible that he also must have been an active participant and the High Court was justified in saying that the approver had not given full details of the crimes. The approver was moving with the two appellants for a long period and despite the repeated criminal acts committed by them, the approver did not inform the police or any authorities. Some of the children kidnapped by the appellants were in the custody of the appellants and the approver, and later their bodies were found. The post mortem examination showed that the child was subjected to some unnatural offence. The approver himself had admitted that he had bribed the police many times and saved the appellants from the clutches of law. Despite all these startling revelations, the approver could not be proceeded against and the Public Prosecutor had not taken any step to proceed against him. Under such circumstances, the court itself has inherent powers to proceed against the approver in case he is wilfully suppressing material facts or is giving false evidence. [655-d-g] 2.1. The two appellants kidnapped several children and committed their murder in the most dastardly manner. In some cases, even the body could not be found. The High Court felt that the five cases of murders have been proved against these appellants. The murder committed by the appellants are proved by satisfactory evidence. The approver's evidence is fully corroborated by other items of evidence. There is no reason to interfere with the order of conviction passed by the Court of Session and confirmed by the High Court. [655-g-h; 656-a] 3. The appellants have been awarded capital punishment for committing these murders and their sentence was confirmed by the High Court. Going by the details of the case, there are no mitigating circumstances in favour of the appellants, except for the fact that they are women. Further, the nature of the crime and the systematic way in which each child was kidnapped and killed amply demonstrates the depravity of the mind of the appellants. These appellants indulged in criminal activities for a very long period and very cleverly executed their plans and continued it till they were caught by the police. The appellants had been a menace to the society and the people in the locality were completely horrified and could not send their children even to schools. The appellants had not been committing these crimes under any compulsion but they took it very casually and killed all these children, least bothering about their lives or agony of their parents. Having carefully considered the whole aspects of the case and also being alive to the new trends in the sentencing system in criminology, the Court does not think that these appellants are likely to be reformed. The conviction and the death penalty imposed on them are confirmed. [656-b-e] Prem Kishan Sharma, Nitesh Kr. Singh and Aparna Bhat for the Appellants. A.P.

Though no general guidelines are laid down in the Code for awarding punishment, generally the judicial discretion of the court is guided by the principle that the punishment should be commensur..

Though no general guidelines are laid down in the Code for awarding punishment, generally the judicial discretion of the court is guided by the principle that the punishment should be commensurate with the gravity of the offence having regard to the aggravating and mitigating circumstances vis--vis an accused in each case. In such situation, the obligation of the court in making the choice of death sentence for the person who is found guilty of murder becomes more onerous indeed. [Para 12] [871-E-H; 872-A] Bachan Singh v. State of Punjab (1980) 2 SCC 684; Machhi Singh v. State of Punjab (1983) 3 SCC 470, relied on. Om Prakash v. State of Haryana (1999) 3 SCC 19, referred to. 2. On the question of awarding the sentence for the offences for which life imprisonment as well as the death sentence is prescribed, sub-section (3) of Section 354 CrPC enjoins that in the case of sentence of death, special reasons for such sentence shall be stated. Whether the case is one of the rarest of the rare cases is a question which has to be determined on the facts of each case. The choice of the death sentence has to be made only in the rarest of the rare cases and that where culpability of the accused has assumed depravity or where the accused is found to be an ardent criminal and menace to the society; where the crime is committed in an organized manner and is gruesome, cold-blooded, heinous and atrocious; and where innocent and unarmed persons are attacked and murdered without any provocation. [Paras 13 and 17] [872-A-B; 873-E-G] Allauddin Mian v. State of Bihar (1989) 3 SCC 5, relied on. 3. Both the respondents behaved in a most cruel manner, killed four persons while they were asleep. Three, out of the four deceased persons, were murdered within the precincts of a Gurdwara. But, there were certain mitigating circumstances in the case which cannot be lost sight of. Both the respondents, as is disclosed from the records, had illicit relationship with the third accused, who was wife of one of the deceased and when she narrated her woes and the harassment, both the accused persons, lost their balance and acted in a cruel manner by entering into the house of deceased in the dead night and killing in the house and other three sons in the Gurdwara. Thereafter, they also gave threat to everybody outside the house by stating that they have killed those persons and, therefore, no one should dare to come near them. This behaviour on the part of the accused- respondents would show that they acted in the manner being driven more by infatuation and also being devoid of their sense on coming to know about the ill treatment meted out to 'BK'. Though the act of the accused is a gruesome one but it was a result of human mind going astray. No doubt, they acted in a ghastly manner for which, they were adequately punished.

 It is clear that the appellant had no other intention but to commit murder. A had suffered as many as six injuries referable to the sharp cutting weapon on the most vital parts of her body like neck. The other two injuries were on her thigh ..

 It is clear that the appellant had no other intention but to commit murder. A had suffered as many as six injuries referable to the sharp cutting weapon on the most vital parts of her body like neck. The other two injuries were on her thigh and left knee joint. S had suffered 10 injuries on the equally vital parts of the body like head, right eye, face, shoulders, and right arm. His wrist of the right hand was separated from the hand completely. Thus, the appellant-accused was rightly found guilty of murdering these two helpless and defenceless persons apparently for no fault on their part. [Para 7] [857-H; 858-A-C] 1.3. The submission that appellant was on inimical terms with the witnesses and, therefore, the witnesses had falsely implicated him, is unsustainable as there does not seem to be any enmity brought out on the cross- examination of these witnesses. Therefore, even if there was enmity between the parties then that would bring a clear cut evidence of the motive. [Para 8] [858-D-E] 1.4. The evidence of witnesses PW-10 and PW-12 which was corroborated by other witnesses PW-26, PW-29, PW-30, PW-17 and PW-27 clearly brings out that the appellant, immediately after murdering A and S assaulted J. The evidence of J is seen along with the medical evidence regarding the injuries and there is no doubt about the correctness of the findings reached by the Sessions Judge and the High Court. The assault on J was so severe that he lost one of his fingers, being right hand index finger. The trial court and the appellate court correctly concluded that the accused is guilty for the offence punishable u/s. 307 IPC. In fact, on that count it was not necessary for the trial court to additionally convict him for the offence u/s. 326 IPC. That part dealing with the conviction and sentence of the appellant u/s.326 IPC is set aside. [Para 9] [858-F-H; 859-A-C] 2.1. There cannot be a straightjacket formula depending on the number of murders committed or the manner in which the murder was committed or that the appellant was already undergoing the sentence of rigorous imprisonment for life. 

The present appeal - Appellant contented that he should not be convicted as he is a person of unsound mind and incapable of understanding the nature of his actions and that he should be absolved of any liability as per under Section 84 of the IPC ..

The present appeal - Appellant contented that he should not be convicted as he is a person of unsound mind and incapable of understanding the nature of his actions and that he should be absolved of any liability as per under Section 84 of the IPC - Held, to avail the benefit of this provision a person who at the time when the act was done was incapable of knowing the nature of his act or that what he was doing was wrong or contrary to law - In the present case, plea cannot be allowed as said plea with regard to the Appellant’s mental condition had been taken for the first time at the SLP stage - Plea rejected - Appeal dismissed Criminal - Murder - Conviction - Circumstantial evidence - Whether in the absence of eye witness there exists relevant circumstances which point towards the guilt of the Accused - Held, in a case of circumstantial evidence motive does have extreme significance but to say that in the absence of motive, the conviction based on circumstantial evidence cannot, in principle, be made is not correct - In the present case, there are relevant circumstance pointing towards Appellant’s involvement - Medical evidence corroborated the fact that knife recovered at the instance of the Appellant could have been used to commit the murders - After murder the fact that Appellant tried to commit suicide is well corroborated by medical evidence where doctor reported six superficial incised injuries on his person as well as by the testimony of the witness to whom Appellant told that he tried to commit suicide after the murder. 

Even if both the tests are satisfied as against the accused, even then the Court has to finally apply the Rarest of Rare Cases test which depends on the perception of the society and not `judge-centric', that is whether the society will approv..

Even if both the tests are satisfied as against the accused, even then the Court has to finally apply the Rarest of Rare Cases test which depends on the perception of the society and not `judge-centric', that is whether the society will approve the awarding of death sentence to certain types of crime or not. While applying this test, the Court has to look into variety of factOTHERS like society's abhorrence, extreme indignation and antipathy to certain types of crimes like rape and murder of minor girls, especially intellectually challenged minor girls, minor girls with physical disability, old and infirm women with those disabilities etc. Courts award death sentence, because situation demands, due to constitutional compulsion, reflected by the will of the people, and not Judge centric. [Para 13] 2. In the instant case, the appellants do not deserve death sentence. Some of the mitigating circumstances, as enunciated in *Machhi Singh case, come to the rescue of the appellants. Age definitely is a factor which cannot be ignored, though not determinative factor in all fact situations. The probability that the accused persons could be reformed and rehabilitated is also a factor to be borne in mind. Due to the fact that the appellants are instrumental for the death of four persons and nature of injuries they have inflicted, in front of PW1, whose son, daughter-in-law and two grand children were murdered, the appellants deserve no sympathy. Considering the totality of facts and circumstances of the present case, imposition of death sentence on the appellants was not warranted but while awarding life imprisonment to the appellants, it is held that they must serve a minimum of thirty years in jail without remission. The sentence awarded by the trial court and confirmed by the High Court is modified from death to life imprisonment. 

Juvenile Justice (Care and Protection of Children) Act, 2000

Indian Penal Code, 1860

Legality of - Circumstantial evidence - Section 313 of Show

Legality of - Circumstantial evidence - Section 313 of Code of Criminal Procedure, 1973 (CrPC) - Appeals were against judgment of High Court of Madhya Pradesh, confirming judgment of conviction passed by trial Court - Whether case of prosecution was to be accepted as proved beyond reasonable probability or whether defense of Appellant was to be accepted by Court - Whether instant case fell under category of 'rarest of rare' cases - Whether any other sentence, except death penalty, would be inadequate in facts and circumstances of present case - Held, statement of an Accused under Section 313 of CrPC, could be used as evidence against Accused, insofar as it supported case of prosecution - Statement under Section 313 of CrPC, simplicitor normally could not be made basis for conviction of Accused - But, where statement of Accused under Section 313 of CrPC, was in line with case of prosecution, then certainly heavy onus of proof on prosecution was, to some extent, reduced - FIR was recorded by Sub-Inspector based on statement of Appellant itself, made in Police Station - This could not be treated, in law and in fact, as a confessional statement made by Accused and it would certainly attain its admissibility in evidence as an FIR recorded by competent officer in accordance with law - It was not a case of direct evidence but, conviction of Accused was founded on circumstantial evidence - Prosecution had to satisfy certain conditions before a conviction based on circumstantial evidence could be sustained - Circumstances should be conclusive and proved by prosecution - There must be a chain of events so complete so as not to leave any substantial doubt in mind of Court - Circumstances forming chain of events should be proved and they should cumulatively point towards guilt of Accused alone - In such circumstances, inference of guilt could be justified only when all incriminating facts and circumstances were found to be incompatible with innocence of Accused or guilt of any other person. 

The offence can be proved by circumstantial evidence also. The principal fact or factum probandum may be proved indirectly by means of certain inferences drawn from factum probans, that is, the evidentiary facts. To put it differently circumstanti..

The offence can be proved by circumstantial evidence also. The principal fact or factum probandum may be proved indirectly by means of certain inferences drawn from factum probans, that is, the evidentiary facts. To put it differently circumstantial evidence is not direct to the point in issue but consists of evidence of various other facts which are so closely associated with the fact in issue that taken together they form a chain of circumstances from which the existence of the principal fact can be legally inferred or presumed. [Para 10] [195-G, 196-A,B,C] 1.2. Where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. [Para 11] [196-C,D] 1.3. The circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances. [Para 11] [196-E] 1.4 In the present case, it is obvious that Appellant wanted to camouflage the serious crime of rape committed by him over the 5 years old girl. So in a planned manner, after committing rape, he mercilessly inserted stem/stick deep inside the fragile vagina of the girl to the extent of 33 cms. to cause her death, with a view to masquerade the crime as an accident. It was his cruel innovation that he inserted a stick deep into her vagina causing death of the victim. It was just by providence that due to timely reach of the witnesses (PWs 2, 3 & others) (who were frantically searching the girl) he could be caught in naked condition while inserting stick into the vagina of the victim. He was near the lifeless body of the victim.

Code of Criminal Procedure, 1973

Indian Penal Code, 1908

The court should be satisfied that the deceased was in a fit state of mind at the time of making the statement and that it was not the result of tutoring, prompting or imagination. Where the court&n..

The court should be satisfied that the deceased was in a fit state of mind at the time of making the statement and that it was not the result of tutoring, prompting or imagination. Where the court is satisfied that the declaration is true and voluntary, it can base its conviction without any further corroboration. It cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated. The rule requiring corroboration is merely a rule of prudence. Where dying declaration is suspicious, it should not be acted upon without corroborative evidence. A dying declaration which suffers from infirmity such as the deceased was unconscious and could never make any statement, cannot form the basis of conviction. Merely because a dying declaration does not contain all the details as to the occurrence, it is not to be rejected. When the eye-witness affirms that the deceased was not in a fit and conscious state to make the dying declaration, medical opinion cannot prevail. If after careful scrutiny, thecourt is satisfied that it is true and free from any effort to induce the deceased to make a false statement and if it is coherent and consistent, there shall be no legal impediment to make it basis of conviction, even if there is no corroboration. [Para 16] 1006-H; 1007-A-H; 1008-A-B] 1.2. In the instant case, the trial court found the dying declaration credit-worthy and has held the same to have been made by the deceased `S' in a fit mental state to depose. After making the declaration, she herself signed the same and it also carried an endorsement by the doctor (PW 30) to the effect that she was in a fit mental state. After careful analysis, the trial court as well as the High Court found that there is total clarity in its contents and it is not a case where the deceased was either rambling, unsure or had contradicted herself. There is no compulsion that all dying declarations have to be made before the Magistrate. In the instant case, the Inspector who recorded the statement was cross-examined and the details and his evidence was not shattered by the defence. In fact, not even a suggestion was made to the Investigation Officer about the availability of Magistrate at the relevant point of time. Since the statement of the deceased was very brief as to the circumstances and persons involved who caused brutal injuries on her body as well as her mother and brother, in addition to the same, the doctor (PW 30) has also certified that at the relevant time she was in a fit mental state and endorsed the same by putting his signatures near the signature of the deponent i.e. deceased.

Code of Criminal Procedure, 1973

 There was plausible explanation available on record of case file which explained delay in lodging FIR - Statement of sole eye-witness did not suffer from any legal or factual infirmity and appeared to be true and correct version of what actu..

 There was plausible explanation available on record of case file which explained delay in lodging FIR - Statement of sole eye-witness did not suffer from any legal or factual infirmity and appeared to be true and correct version of what actually happened at scene of occurrence - Delay, if any, in lodging FIR, stood explained and was, in no way, fatal to case of prosecution - There had to be a very strong and compelling reason for Court to disbelieve an eye-witness - Statement of sole eye-witness did not suffer from any contradictions nor was at variance with case of prosecution - Both, external and internal injuries that deceased suffered as a consequence of rape and strangulation clearly indicated that crime could not have been committed by a single person - Therefore, involvement of two or more persons was most probable and in line with story of prosecution - Cumulative effect of oral/documentary and expert evidence was that prosecution had been able to prove its case beyond any reasonable doubt - Obligation to put material evidence to Accused under Section 313 of CrPC, was upon Court - One of main objects of recording of a statement under this provision of CrPC was to give an opportunity to Accused to explain circumstances appearing against him as well as to put forward his defence, if Accused so desired - But once he did not avail this opportunity, then consequences in law must follow - Where Accused took benefit of this opportunity, then his statement made under Section 313 of CrPC., in so far as it supported case of prosecution, could be used against him for rendering conviction - Even under latter, he faced consequences in law - In present case, Accused had denied their presence on spot, at time of occurrence - Thus, it was for them to prove that they were not present at place of occurrence and were entitled to plea of alibi - They had miserably failed to establish this fact - Behaviour explained by defence witnesses appeared to be somewhat unnatural in social set up in which Accused, deceased and even some of prosecution witnesses were living - Version put forward by Accused in their statement underhttp://olisindia.in/files/cases/CrPC%201973%20_new.pdf Section 313 of CrPC was unbelievable and unacceptable - There was no cogent evidence on record to support their plea - Prosecution had been able to prove its case beyond reasonable doubt - Accused were guilty of committing offence under Sections 499, 376(2)(g) and 302 of IPC - It was neither possible nor prudent to state any universal formula which would be applicable to all cases of criminology where capital punishment had been prescribed - It would always depend upon facts and circumstances of a given case - Law required Court to record special reasons for awarding such sentence - It was imperative for Court to examine each case on its own facts, in light of enunciated principles - It was only upon application of these principles to facts of a given case that Court could arrive at a final conclusion whether case in hand was one of 'rarest of rare' cases and imposition of death penalty alone would serve ends of justice - Court should examine all or majority of relevant considerations to spell comprehensively special reasons to be recorded in order, as contemplated under Section 354(3) of CrPC - Merely because a crime was heinous per se might not be a sufficient reason for imposition of death penalty without reference to other factors and attendant circumstances - 

Partly allowing the appeal, the Court HELD: 1. To award death sentence, the aggravating circumstances (crime test) have to be fully satisfied and there should be no mitigating circumstance (criminal test) favouring the accused. Even if both the te..

Partly allowing the appeal, the Court HELD: 1. To award death sentence, the aggravating circumstances (crime test) have to be fully satisfied and there should be no mitigating circumstance (criminal test) favouring the accused. Even if both the tests are satisfied as against the accused, even then the Court has to finally apply the Rarest of Rare Cases test which depends on the perception of the society and not `judge-centric', that is whether the society will approve the awarding of death sentence to certain types of crime or not. While applying this test, the Court has to look into variety of factOTHERS like society's abhorrence, extreme indignation and antipathy to certain types of crimes like rape and murder of minor girls, especially intellectually challenged minor girls, minor girls with physical disability, old and infirm women with those disabilities etc. Courts award death sentence, because situation demands, due to constitutional compulsion, reflected by the will of the people, and not Judge centric. [Para 13] 2. In the instant case, the appellants do not deserve death sentence. Some of the mitigating circumstances, as enunciated in *Machhi Singh case, come to the rescue of the appellants. Age definitely is a factor which cannot be ignored, though not determinative factor in all fact situations. The probability that the accused persons could be reformed and rehabilitated is also a factor to be borne in mind. Due to the fact that the appellants are instrumental for the death of four persons and nature of injuries they have inflicted, in front of PW1, whose son, daughter-in-law and two grand children were murdered, the appellants deserve no sympathy. Considering the totality of facts and circumstances of the present case, imposition of death sentence on the appellants was not warranted but while awarding life imprisonment to the appellants, it is held that they must serve a minimum of thirty years in jail without remission. 

Code of Criminal Procedure, 1973                        Indian Pebal Code, 1860

Appellant, submitted that the case on hand was not the one which falls in the category of "rarest of rare" warranting capital punishment and further there was no intention to kill - Whether the present case would fall under the category ..

Appellant, submitted that the case on hand was not the one which falls in the category of "rarest of rare" warranting capital punishment and further there was no intention to kill - Whether the present case would fall under the category of "rarest of rare", warranting the death sentence - Held, even if the crime test and criminal test have been fully satisfied, to award the death sentence, the prosecution has to satisfy the R-R Test - One of the factors which weighed with the trial court as well as the High Court to award death sentence to the accused was his criminal antecedents - One of the factors which weighed with the High Court to affirm the death sentence was that the accused was charge-sheeted for commissioning of 24 criminal cases, out of which three were under Section 302 IPC and two were under Section 307 IPC, consequently, the Court held that there was no probability that the accused would not commit the act of violence in future and his presence would be a continuing threat to the society - No materials were produced to show that the accused stood convicted in any of those cases - Accused was only charge-sheeted and not convicted, hence, that factor was not a relevant factor to be taken note of while applying the R-R test so as to award capital punishment - Accused in the present case had the full knowledge i.e., if he fires the shot on the temporal area, that is between the forehead and the ear, it would result in death of the child of one year who was in the arms of PW1 - Appellant had taken out the pistol and fired at the right temporal area of the child, as retaliation of not meeting with his demand and there was nothing to show that, at the time of the incident, he was under the influence of liquor - Consequently, while conviction was affirmed it was held that the present was not a rarest of rare case, warranting capital punishment - Death sentence as awarded by the trial Court and affirmed by the High Court was set aside and conviction was converted into imprisonment for life. 

The present appeal - Held, testimony of the two eye-witnesses was natural, convincing and well corroborated by the evidence of other relevant witnesses and the medical evidence - There was nothing on record to suggest any dispute between the two e..

The present appeal - Held, testimony of the two eye-witnesses was natural, convincing and well corroborated by the evidence of other relevant witnesses and the medical evidence - There was nothing on record to suggest any dispute between the two eye-witnesses and the Appellant or hint towards bitterness in their relationships so as to suggest their false testimony against him - Additionally, no such close alliance of the witnesses with the deceased persons has surfaced so as to prove their bias towards the Appellant - Thus, the evidence of the two eye-witnesses was credible and trustworthy - There was though no evidence to establish the genesis of the incident as it occurred within the four walls of the Appellants house - When the Appellant suspected the deceased persons illicit relationship with A2, the deceased would not have dared to enter the house of Appellant, with his wife and child and attempted to rape A2 and on her resistance threatened to assault her with the knife - Statement of Appellant that when A2 was shouting for help, the wife of the deceased and the child continued to sit outside on the terrace while the Appellant intervened to protect A2 and the deceased assaulted the Appellant and on the intervention in the scuffle the wife and the child received the fatal injuries - Plea of right to private defence and nonorchestrated nature of the offence stand vitiated by the evidence of a witness who testified that A2, immediately after the fateful incident narrated the version of the genesis of the incident absolutely contrary to the version stated by the Appellant - Prosecution case stood well supported and established by the evidence of witnesses coupled with the evidence of Doctors, the post-mortem report and medical evidence and does not leave any room for doubt as to the guilt of the Appellant - Courts below held to be right in convicting the Appellant for the murder of the three persons under Section 302 of the IPC and the conviction accordingly upheld Criminal - Award of death penalty - Appeal against sentencing - Held, as well settled awarding of life sentence is the rule, death is an exception - Number of deaths or the factum of whole family being wiped off cannot be the sole criteria for determining whether the case falls into the category of rarest of rare - Further, brutality also cannot be the only criterion for determining whether a case falls under the rarest of rare categories - In the instant case, the genesis of crime and the manner of occurrence inside the house of the Appellant remained clouded while the guilt was clearly established with the aid of available evidence - Factum of the crime being pre-ordained and the motive of the Appellant in brutally assaulting the deceased with a knife after having invited him at his house for lunch stems from his suspicion on his wifes fidelity and his abhorrence for her relationship with the deceased .

Dismissing the appeal, the Court HELD: Whether prayer for bail would be accepted depends on circumstances of each case and no hard and fast rule can be applied. The only requirement is that the detaining authority should be aware that the detenu i..

Dismissing the appeal, the Court HELD: Whether prayer for bail would be accepted depends on circumstances of each case and no hard and fast rule can be applied. The only requirement is that the detaining authority should be aware that the detenu is already in custody and is likely to be released on bail. The conclusion that the detenu may be released on bail cannot be ipse-dixit of the detaining authority. On the basis of materials before him, the detaining authority came to the conclusion that there is likelihood of detenu being released on bail. That is his subjective satisfaction based on materials. Normally, such satisfaction is not to be interfered with. On the facts of the case, the detaining authority has indicated as to why he was of the opinion that there is likelihood of detenu being released on bail. It has been clearly stated that in similar cases orders granting bail are passed by various courts. Appellant has not disputed correctness of this statement. The High Court was justified in rejecting the stand of the appellant. [728-g-h; 729-a-d] Rajesh Gulati v. Govt. of NCT of Delhi and Anr., [2002] 7 SCC 129, distinguished. Ibrahim Nazeer v. State of Tamil Nadu and Anr., JT (2006) 6 SC 228 and Senthamilselvi v. State of T.N. and Anr., [2006] 5 SCC 676, relied on. K.K. Mani for the Appellant. V. Krishnamurthy for the Respondents.

Dismissing the appeal, the Court: HELD: 1. The circumstances highlighted by the prosecution against the appellant were that he was acquainted with accused No. 1; that he was found near the place of incident along with Accused No.1 going to the fla..

Dismissing the appeal, the Court: HELD: 1. The circumstances highlighted by the prosecution against the appellant were that he was acquainted with accused No. 1; that he was found near the place of incident along with Accused No.1 going to the flat of the deceased on 8.8.1992 at about 8.30 pm; that Accused No.1 pointed out the appellant as his accomplice and after apprehension as per the voluntary statement made by him, M.Os. 7 and 7a (pillow and pillow cover alleged to have been used for smothering both the deceased) were recovered; that chance finger print of the appellant were found from the scene of offence. The High Court has referred to several factors including the motive aspect. It has referred to the evidence of PWs. 2 & 4, who saw the appellant and A-1 after they came out of the deceased's house. PW4 remembered that the appellant was sitting in the car with A1. The circumstances highlighted by the High Court to hold the appellant guilty cannot be said to be without relevance. The High Court has rightly observed that the trial court did not consider the relevant aspects while directing acquittal of the present appellant. [Paras 6 and 18] [581-H; 582-A-B] 2. Where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. There is no doubt that conviction can be based solely on circumstantial evidence but it should be tested by the touch-stone of law relating to circumstantial evidence. The condition precedent, before conviction could be based on circumstantial evidence, must be fully established. The circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned `must' or `should' and not `may be' established; the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty; the circumstances should be of a conclusive nature and tendency; they should exclude every possible hypothesis except the one to be proved; and there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.

Partly allowing the appeal, the Court HELD:1.1. For applicability of Exception 4 of s.300 IPC, it has to be established that the act was committed without premeditation, in a sudden fight, in the heat of passion, upon a sudden quarrel, without the..

Partly allowing the appeal, the Court HELD:1.1. For applicability of Exception 4 of s.300 IPC, it has to be established that the act was committed without premeditation, in a sudden fight, in the heat of passion, upon a sudden quarrel, without the offender having taken undue advantage and not having acted in a cruel or unusual manner. The said exception deals with a case of prosecution not covered by the first exception, after which its place would have been more appropriate. The exception is founded upon the same principle, for in both there is absence of premeditation. But, while in the case of Exception 1, there is total deprivation of self-control, in case of Exception 4, there is only that heat of passion which clouds men's sober reason and urges them to do deeds which they would not otherwise do. There is provocation in Exception 4 as in Exception 1; but the injury done is not the direct consequence of that provocation. In fact Exception 4 deals with cases in which notwithstanding that a blow may have been struck, or some provocation given in the origin of the dispute or in whatever way the quarrel may have originated, yet the subsequent conduct of both parties puts them in respect of guilt upon equal footing. [Paras 7 and 8] [1156-G-H; 1157-A-C] 1.2. A 'sudden fight' implies mutual provocation and blows on each side. The homicide committed is then clearly not traceable to unilateral provocation, nor in such cases could the whole blame be placed on one side. For if it were so, the Exception more appropriately applicable would be Exception 1. There is no previous deliberation or determination to fight. A fight suddenly takes place, for which both parties are more or less to be blamed. It may be that one of them starts it, but if the other had not aggravated it by his own conduct it would not have taken the serious turn it did. It is to be noted that the `fight' occurring in Exception 4 to Section 300 IPC is not defined in the IPC. It takes two to make a fight. Heat of passion requires that there must be no time for the passions to cool down and in this case, the parties have worked themselves into a fury on account of the verbal altercation in the beginning. It is not possible to enunciate any general rule as to what shall be deemed to be a sudden quarrel. It is a question of fact and whether a quarrel is sudden or not must necessarily depend upon the proved facts of each case. [Para 8] [1157- D, E, G, H; 1158-A] 1.3. For the application of Exception 4, it is not sufficient to show that there was a sudden quarrel and there was no premeditation. It must further be shown that the offender has not taken undue advantage or acted in cruel or unusual manner. The expression `undue advantage' as used in the provision means `unfair advantage'. [Para 8] [1158-B-C] 2. Where the offender takes undue advantage or has acted in a cruel or unusual manner, the benefit of Exception 4 cannot be given to him. If the weapon used or the manner of attack by the assailant is out of all proportion, that circumstance must be taken into consideration to decide whether undue advantage has been taken. [Para 9] [1158-C-D] 3. From the background facts as considered in the light of the evidence, the inevitable conclusion is that the occurrence took place in course of sudden quarrel. Therefore, Exception 4 to s.300 IPC applies. The appropriate conviction would be under s.304 Part-I IPC. Custodial sentence of 10 years would meet the ends of justice. [Para 11] [1158-F-G] Kikar Singh v. State of Rajasthan AIR (1993) SC 2426 and Iqbal Singh v. State of Punjab (2008) 911 SCALE 599, relied on. Case Law Reference: AIR (1993) SC 2426 relied on Para 9 (2008) 911 SCALE 599 relied on Para 10 P.V. Yogeswaran for the Appellant.

Equally without merit is the contention that Ext. P.5 which was authored by PW9 upon examination of the victim neither recorded any injuries on her person nor the fact that she was raped. It is for the reason that PW9 had not recorded any final op..

Equally without merit is the contention that Ext. P.5 which was authored by PW9 upon examination of the victim neither recorded any injuries on her person nor the fact that she was raped. It is for the reason that PW9 had not recorded any final opinion and kept the matter pending, awaiting the FSL Report. Furthermore, in Ext. P.5, she had noticed that her parts were tender to touch. The vaginal swabs and vaginal wash were taken and slides were preserved. She was also sent to the hospital for further examination. Thus, Ext. P.5 cannot be looked into in isolation and must be examined in light of other ocular and documentary evidence. In the peculiar facts and circumstances of the case, it was not even expected of PW1 or  the Investigating officer PW11 to examine the victim particularly in relation to her private parts. Absence of such recording does not cause any infirmity to the case of the prosecution much less a reason for acquitting the accused. In our considered opinion, the learned Trial Court has failed to appreciate the evidence on record cumulatively and in its correct perspective by ignoring the material piece of evidence and improper appreciation of evidence. It has recorded findings which are on the face of it unsustainable. This error was rightly corrected by the High Court, and we see no reason to interfere with the judgment of conviction recorded by the High Court.

Indian Penal Code, 1908

Partly allowing the appeal, the Court HELD: 1.1. The circumstances clearly establish that the accused was employed in the hotel and used to sleep in the hotel, and on the night of occurrence both the deceased and the accused were alone in the hote..

Partly allowing the appeal, the Court HELD: 1.1. The circumstances clearly establish that the accused was employed in the hotel and used to sleep in the hotel, and on the night of occurrence both the deceased and the accused were alone in the hotel. The evidence of PW1, PW2 and PW3 in this regard is clear, cogent and credible. Additionally, the accused and the deceased were last seen together on the previous night. The appellant was absconding and was arrested long after the incident. The circumstances are sufficient to hold the accused guilty. [Para 7] [49-E-G] 1.2. However, considering nature of the injuries, the appropriate conviction would be under Section 304 (Part II) IPC and custodial sentence of 8 years would meet the ends of justice. Conviction and sentence u/s 392 IPC need no interference. Both the sentences u/ss. 304 and 392 IPC shall run concurrently. [Para 8 and 9] [49-G-H; 50-A, B] V.N. Raghupathy for the Appellant. G. Prakash for the Respondent.

Indian Penal Code, 1860 - Section 302--Murder by appellant accused of his wife, one son and two daughters by burning--Conviction--Founded on circumstantial evidence--Motive important in cases of circumstantial evidence--But it does not mean that i..

Indian Penal Code, 1860 - Section 302--Murder by appellant accused of his wife, one son and two daughters by burning--Conviction--Founded on circumstantial evidence--Motive important in cases of circumstantial evidence--But it does not mean that if prosecution unable to satisfactorily prove motive--Its case must fail--Appellant did not have happy married life with his wife--Court cannot enter into mind of human being--And find out his motive--No reason to disbelieve P.W. 3 or P.W. 5--Accused was last seen with deceased--It is established by evidence of P.Ws. 3, 4 and 5--There was only short interval between this and incident of fire--Victims died in house of accused--No outsider or stranger could have entered house at time of incident--Another link in chain of circumstances connecting accused with crime--Is his sudden disappearance from scene after incident--Plea of alibi was totally false and bogus--All four inmates burnt to death by using petrol--Finding of 10 litre can with some petrol--Clearly showing that petrol, sufficient in quantity to burn and kill all four persons brought by accused--Red bucket found at instance of accused--Was used for pouring petrol on all four victims--168 questions put to accused relating to all circumstances in his examination under Section 313, Cr. P.C.--Prosecution able to establish entire chain of circumstances connecting accused with crime--Hence, appellant was rightly convicted.The last seen theory comes into play where the time gap between the point of time when the accused and deceased were last seen alive and when the deceased is found dead is so small that the possibility of any person other than the accused being the author of the crime becomes impossible.Code of Criminal Procedure, 1973--Section 366--Indian Penal Code, 1860--Section 302--Murder of wife and three children by appellant--Death sentence--This is rarest of rare cases--Burning living persons to death--Is horrible act causing excruciating pain to victim--And this could not have been unknown to appellant--Person like appellant who instead of doing his duty of protecting his family--Kills them in such cruel and barbaric manner--Cannot be reformed or rehabilitated--Balance sheet heavily against him--Death sentence awarded to him--Upheld.Death sentence--Cases warranting death penalty--Are honour killing, fake encounter by police, dowry death and hired killing.

Reference Petition - Whether, claim of juvenility be recognised and sent for determination when it was raised for first time in Appeal or before this Court or raised in trial and appeal but not pressed and then pressed for first time before this C..

Reference Petition - Whether, claim of juvenility be recognised and sent for determination when it was raised for first time in Appeal or before this Court or raised in trial and appeal but not pressed and then pressed for first time before this Court or even raised for first time after final disposal of case - Held, provision of Section 7A of 2000 Act cleared that claim of juvenility may be raised at any stage even after final disposal of case and delay in raising claim of juvenility cannot be ground for rejection of such claim - Claim of juvenility would be raised in Appeal even if not pressed before trial court and would be raised for first time before this Court though not pressed before trial court and in Appeal Court - For making claim with regard to juvenility after conviction, Claimant must produce some material which would prima facie satisfied Court that inquiry into claim of juvenility was necessary - Initial burden had to be discharged by person who claims juvenility - If such documents prima facie inspire confidence of Court, Court would act upon such documents for purposes of Section 7A and order enquiry for determination of age of delinquent - Court where plea of juvenility was raised for first time should always be guided by objectives of Act and be alive to position that beneficent and salutary provisions contained in Act were not defeated by hyper-technical approach and persons who were entitled to get benefits of Act - Reference Petition disposed of.T.S. Thakur, J.Criminal - Recognisation of claim of juvenility - Whether, misfortune of Accused never going to school be followed or compounded by denial of benefit that legislation provided in such emphatic terms, as to permit enquiry even after last Court had disposed of Appeal and upheld his conviction - Held, if one were to adopt wooden approach, one could say nothing short of certificate, whether from school or municipal authority would satisfy court's conscience, before directing an enquiry, then directing enquiry was not same thing as declaring Accused to be juvenile - Standard of proof required was different for both - In former, Court simply recorded prima facie conclusion - In latter Court made declaration on evidence, that it scrutinised and accepted only if it was worthy of such acceptance - Approach at stage of directing enquiry had of necessity to be more liberal, lest, there was avoidable miscarriage of justice - Suffice it to say that while affidavits would not be generally accepted as good enough basis for directing enquiry, that they were not so accepted was not rule of law but rule of prudence - Therefore Court would in each case weigh relevant factors, insist upon filing of better affidavits if need so arises, and even direct, any additional information considered relevant including information regarding age of parents, age of siblings and like, to be furnished before it decided on case to case basis - Reference Petition disposed of.Ratio Decidendi "Claim of juvenility may be raised at any stage even after final disposal of case and delay in raising claim of juvenility cannot be ground for rejection of such claim

Indian Penal Code, 1860 - Sections 302/3..

Indian Penal Code, 1860 - Sections 302/34, 120B and 201--Arms Act, 1959--Section 25--Murder--Conviction and sentence--Appellants alleged to have snatched away deceased along with cot at point of firearms--Thus, appellants convicted only for offence under Section 201--Ingredients of Section 201--No doubt that appellants had requisite knowledge about commission of offence--In view of concurrent findings of courts below, no case made out for interference--However, all appellant aged more than 70 years--In view of their age and in view of fact of their non-connection with first part of occurrence of commission of murder--They are sentenced to period already undergone in interest of justice.#The ingredients of Section 201 of the Indian Penal Code are as under (1) that an offence has been committed ;that the accused knew or had reason to believe the commission of such offence ; that with such knowledge or belief he-- (a)caused any evidence of the commission of that offence to disappear, or b) gave any information respecting that offence which he then knew or believed to be false ; that he did as aforesaid, with the intention of screening the offender from legal punishment; if the charge be of an aggravated form, as in the present case, it must be proved further that the offence in respect of which the accused did as in (3) and (4) was punishable with death, or with imprisonment for life or imprisonment extending to ten years.

Appeal against conviction - Offences committed under Section 302 of the IShow

Appeal against conviction - Offences committed under Section 302 of the Indian Penal Code, read with Section 27 of the Arms Act, 1959 - Appellant, submitted that the case on hand was not the one which falls in the category of "rarest of rare" warranting capital punishment and further there was no intention to kill - Whether the present case would fall under the category of "rarest of rare", warranting the death sentence - Held, even if the crime test and criminal test have been fully satisfied, to award the death sentence, the prosecution has to satisfy the R-R Test - One of the factors which weighed with the trial court as well as the High Court to award death sentence to the accused was his criminal antecedents - One of the factors which weighed with the High Court to affirm the death sentence was that the accused was charge-sheeted for commissioning of 24 criminal cases, out of which three were under Section 302 IPC and two were under Section 307 IPC, consequently, the Court held that there was no probability that the accused would not commit the act of violence in future and his presence would be a continuing threat to the society - No materials were produced to show that the accused stood convicted in any of those cases - Accused was only charge-sheeted and not convicted, hence, that factor was not a relevant factor to be taken note of while applying the R-R test so as to award capital punishment - Accused in the present case had the full knowledge i.e., if he fires the shot on the temporal area, that is between the forehead and the ear, it would result in death of the child of one year who was in the arms of PW1 - Appellant had taken out the pistol and fired at the right temporal area of the child, as retaliation of not meeting with his demand and there was nothing to show that, at the time of the incident, he was under the influence of liquor - Consequently, while conviction was affirmed it was held that the present was not a rarest of rare case, warranting capital punishment - Death sentence as awarded by the trial Court and affirmed by the High Court was set aside and conviction was converted into imprisonment for life

Desposition: Disposed off

Bombay High Court confirmed order of conviction and enhanced sentence of life imprisonment to death and ordered to be hanged till death - Hence, present Appeal - Held, Apex Court in a recent judgment in Rajesh Kumar v. State through Government of ..

Bombay High Court confirmed order of conviction and enhanced sentence of life imprisonment to death and ordered to be hanged till death - Hence, present Appeal - Held, Apex Court in a recent judgment in Rajesh Kumar v. State through Government of NCT of Delhi held that object of hearing under Section 235(2) of CrPC, being intrinsically and inherently connected with sentencing procedure, provisions of Section 354(3) of CrPC, which called for recording of special reason for awarding death sentence, must be read conjointly - Court held that, such special reasons could only be validly recorded, if an effective opportunity of hearing as contemplated under Section 235(2) of CrPC, was genuinely extended and was allowed to be exercised by accused who stand convicted and was awaiting sentence - High Court had only mechanically recorded what Accused had said and no attempt had been made to elicit any information or particulars from Accused or prosecution which were relevant for awarding a proper sentence - No genuine effort had been made by Court to elicit any information either from accused or prosecution as to whether any circumstance existed which might influence Court to avoid and not to award death sentence - Awarding death sentence was an exception, not rule, and only in rarest of rare cases, Court could award death sentence - State of mind of a person awaiting death sentence and state of mind of a person who had been awarded life sentence might not be same mentally and psychologically - Court had got a duty and obligation to elicit relevant facts, even if accused had kept totally silent in such situations - In instant case, High Court had not addressed the issue in correct perspective bearing in mind those relevant factors, while questioning Accused and, therefore, committed a gross error of procedure in not properly assimilating and understanding purpose and object behind Section 235(2) of CrPC - Matter remitted to High Court to follow Section 235(2) of Code of Criminal Procedure in accordance with principles laid down - Conviction awarded by High Court, however, stand confirmed - Appeal allowed

Indian Penal Code, 1860

Indian Evidence Act, 1872

Indian Penal Code, 1860 - Sections 143, ..

Indian Penal Code, 1860 - Sections 143, 147, 148, 342, 449 and 302/149--Unlawful assembly, rioting and murder--Conviction and death sentence -- Sustainability--Evidence against A-1 is clinching--But not so against other accused-- There may be delay in examination of P.Ws. 3 to 6--Such delay is normally looked down upon--But each case to be considered on its own facts--No reason to disbelieve testimonies of P.Ws. 3 to 6 against A-1--Defective investigation by itself may not lead to conclusion that accused is innocent--Conviction of A-1 upheld--But other accused persons given benefit of doubt and acquitted. Code of Criminal Procedure, 1973--Section 366--Indian Penal Code, 1860--Section 302/149--Murder--Death penalty--Whether sustainable?--Held, “no”--Case not rarest of rare case warranting extreme punishment--Hence, death penalty imposed on A-1 converted into R.I. for life. Evidence Act, 1872--Section 118--Child witness--How to be acted upon.

The duties, functions and powers vested in an authority by a Statute are relatable to the source which prescribes such functions and powers. The ambit, scope and effect of exercise of such power can be tested by two different concepts i.e. quo mod..

The duties, functions and powers vested in an authority by a Statute are relatable to the source which prescribes such functions and powers. The ambit, scope and effect of exercise of such power can be tested by two different concepts i.e. quo modo and actio quaelibet it suia via. In what manner the powers are to be exercised as per the prescribed procedure, the performance or action must follow its prescribed procedure. On applying the above stated principles and testing them with reference to the maxims stated (supra), it is not possible for the Court to hold that either the manner of functions and powers of Police Patil or method in which they are to be performed are equatable to the authority, powers and functions of a Police Officer, in law. Therefore, we are unable to contribute to the view that Police Patil is a Police Officer in law for all intent and purpose and confession before him would attract the bar contemplated under Section 25 of the Indian Evidence Act, 1872. 

In the result, we are of the opinion that for  proving   a   dying   declaration recorded   by  a person/Magistrate/Executive   Magistrate   it   is &nb..

In the result, we are of the opinion that for  proving   a   dying   declaration recorded   by  a person/Magistrate/Executive   Magistrate   it   is   not essential   requirement   of   law   that   the   recorder should   repeat,   while   deposing   before   the   Court, the   contents   of   the   declaration   in   the   words spoken   by   the   deceased   as   to   the   cause   of   his death   or   as   to   any   of   the   circumstances   of   the transaction   which   resulted   in   his   death. In other words, the recorder of a dying declaration need   not   depose   before   the   Court,   in   the   words spoken   by   the   deceased,   about   the name/description,   and   the   act   of   the   accused, which   resulted   in   his   death.     Accordingly,  the question referred to this Full Bench is answered in negative

Indian Evidence Act, 1872