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The prosecution's case may be briefly summarised as under :-One Lakhpat Singh vide his statement made on 29th July, 1995 Ex.PW2/A informed that the appellant accused Harnam Singh had taken his child Vinod on 28th June, 1995, after he returned home from School.Complainant Lakhpat Singh stated that when he returned home at 7.00 p.m., lie was informed by his wife that Vinod had been taken by Harnam Singh, a cousin of the complainant.Lakhpat Singh searched for Vinod but could not trace him.Lakhpat Singh received letters firstly demanding ransom of Rs. 4 lacs and, thereafter, a sum of Rs. 2 lacs.Prosecution claims that on 15th September, 1995, child Vinod was recovered from the possession of appellants Harnam Singh, Pappu and Vijender and Parvati.The fourth accused Parvati is stated to have died during the proceedings.A ransom note was found to be in the hand-1 writing of Jagbir Singh who is stated to have pointed out the place where the dead body was buried in house and on the basis of his information certain recoveries were also-; made.State in the appeal before the Supreme Court urged that the High Court had erroneously discarded the "ransom note" especially when Jagbir Singh accepted the handwriting to be his handwriting.Sample of his handwriting had been voluntarily given for comparison by the handwriting experts.Opinion was also available.JUDGMENT Manmohan Sarin, J.I have had the benefit of perusing the judgment of my learned brother R. S. Sodhi, J., by which the appeals filed against the judgment and order dated 31st August, 2000 and 21st September, 2000 of the Additional Sessions Judge, New Delhi in Sessions Case No. 102/ 97, arising out of FIR No. 480/95, Police Station, Ambedkar Nagar, are sought to be dismissed.The learned Additional Sessions Judge held the appellants guilty under Sections 364-A and 368, IPC and sentenced appellants Harnam Singh, Pappu and Vijender to life imprisonment with a fine of Rs. 10,000/- each and in default further rigorous imprisonment for three months each.On the minor child being recovered from the possession of the accused persons, he was handed over to the complainant by the U.P. Police.The statement of the child was recorded under Section 164, Cr.P.C. by the Metropolitan Magistrate.Minor Vinod named the accused persons as the persons responsible for kidnapping and keeping him in illegal confinement.On the above allegations, appellants were charged and prosecuted for the offences under Section 364-A read with Section 34 and Section 368, IPC.Prosecution had examined PW-2 Lakhpat Singh i.e., the father of child, PW-3 Vinod the kidnapped boy, PW-4 Ravinder Dudeja, Metropolitan Magistrate, before whom the statement under Section 164, Cr.P.C. was recorded.The minor child deposed that Harnam Singh had taken him away on the pretext of getting him Jalebis and brought him to Vijender.He was thereafter shifted from one place to another.He had described frequent beatings by Vijender and frugal feeding by Vijender, Harnam Singh, Pappu and Parvati.The witness had duly identified the appellants in Court.The child had also deposed regarding Ram Prakash, a relation of the complainant, who had also been accused.He declined to identify Ram Prakash as also the suggestion that Ram Prakash also used to beat him or had shown him the pistol.The child also stated that police had recovered him from the possession of Harnam Singh, Pappu, Vijender and Parvati, since deceased.Vijender tried to run away hiding between the goats but was caught.The minor child had withstood cross-examination and the trial Court found his statement trustworthy.I) That the accused kidnapped or abducted the person;II) Kept him under detention after such kidnapping and abduction;iii) The kidnapping or abduction was for ransom.In the present case the question being considered is whether the last ingredient has been proved by the prosecution? For succeeding, the prosecution was required to prove that the letters demanding payment of ransom emanated from the accused or were sent at the behest of the accused.6. Let us consider the evidence as led by the prosecution in respect of proving the ransom note and the demand of ransom.The deposition of Lakhpat Singh in this regard is as follows :-"On three occasions, the police went to Aligarh District to look for my sen but he was not traceable anywhere at that time.Thereafter, I' received four ransom letters from Harnam Singh, demanding a ransom of Rs. 2 lacs in the first instance thereafter he demanded ransom of Rs. 4 lacs.Ex. PW2/B, Ex.PW2/C and Ex.PW2/D are the said four ransom letters received by me from Harnam Singh.The original envelopes in which the above letters were received by me are Ex.PI to Ex.P4."The Public Prosecutor sought to cross-examine him.This part of the statement is as under :-"It is correct that I had stated in my statement under Section 161, Cr.P.C. dated 29th September, 1995 that the accused demanded Rs. 1 lakh as ransom.It is also correct that on 15th September, 1995, I had handed over 5 ransom letters to the police officials of Patiali District Etah (UP), where I informed him regarding kidnapping of my son Vinod.It is correct that the police recovered my son Vinod from the above four accused persons, namely, Pappu, Vijender and Parvati.Accused Ram Prakash was also present with them."In cross-examination also no particulars of demand of ransom of Rs. 1 lac being oral, telephonic through someone or which accused demanded and from or through whom.Here also reference appears to be in context of ransom notes.Thereafter, he was cross-examined by counsel for the accused-Harnam Singh and during the cross-examination he denied the suggestion that he owed a sum of Rs. 10,000/- to Harnam Singh.He stated that Ram Prakash had been implicated in this case on the fact that his name was mentioned demanding ransom.He deposed that the ransom letters are in the hands of appellant accused-Pappu, Pappu is the son of the sister of Chachi (Paternal aunt of accused-Harnam Singh).In his cross-examination, he further stated, "the ransom let-ters were received by me through registered post and not by hand.The case set up is that demand for ransom was through ransom letters and not an oral or telephonic demand by any of the accused made either to the complainant or to the kidnapped child.8A. Ransom letters which were tendered in evidence by Lakhpat Singh are Ex. PW-2/B, PW-2/C and PW-2/D i.e. three in number, Lakhpat Singh in his examination-in-chief stated that he received the letters from Harnam Singh, but in cross-examination he stated that he received the letters through registered post.Harnam Singh is not the sender in any of the letters.The original have been carefully seen by me.The first envelope Ex.Pl is addressed to one Ram Prasad Nagar Tailor.The sender's name as given on the envelope is Rakesh Babu Badora.There is, however, no ransom letter, which is stated to have been exhibited or received through this envelope proved on record.The first exhibit out of the ransom document is Ex. PW2, which is not mentioned in the statement of Lakhpat Singh, as recorded.This is a photocopy of an Inland letter and appears to have been sent by some detenu in prison and does not disclose any bearing to the present case.The envelope Ex.P2 is addressed to Lakhpat Singh and purported to have been sent by Ram Prakash Tailor.PW2/B are four pages of hand written letters.Ex. PW2/C are two pages of hand written letter on lined pages of copy book.PW2/D is another hand written letter on lined pages of copy book.On a mere visual examination of these three exhibits, namely, PW2/B, PW2/C and PW2/D, it is obvious to the naked eye that these are not written by one person.These aspects appear to have been totally overlooked by the learned Additional Sessions Judge, who contrary to the deposition of complainant that these were in the hands, of Pappu, concluded that these were writ-, ten by Harnam Singh.Additionally, there is another page, which is again in a different hand writing, which is tagged on to these without being given any identification.The question to be considered in these circumstances is whether on the mere bald averment of the complainant that the ransom letters are in the hands of Pappu, the same ought to be accepted as proved.The witness did not even state that he was familiar with the hand writing of Pappu or that he had ever seen him writing or had received any other communication from Pappu.No sample hand writing of Pappu was taken, so as to have its comparison by handwriting expert.It was not even put to Pappu in his statement recorded under Section 313, Cr.P.C, that ransom notes were in his handwriting.It was only put to the accused under Section 313, Cr.P.C. that ransom notes were received by complainant, which was stated to be incorrect.It may also be noted that on the date when statement of Lakhpat Singh was recorded, it was only the counsel of Harnam Singh, who was present.In fact, accused Pappu, Vijender and Paravati were not represented through counsel and it was only subsequently on 15th September, 1997 that Mr. Ranjit Singh was appointed as the Am-icus Curiae on their behalf.Subsequently, on the next date, amices Curiae, so appointed, was not available.The amices Curiae continued to be not available and the matter was adjourned and on 20th March, 1998, Mr. A. U. Khan was appointed as amices Curiae.In short, on 12th August, 1997, when the above cross-examination took place, where Lakhpat Singh is stated to have said that ransom letters were in the hand writing of Pappu, the latter was not represented by any counsel.In the cited case the accused persons, who had hired a taxi and gone to a hotel and stayed for night along with the driver, left in the morning asking the waiter to take care of the driver.The driver was found dead.The waiter who was a solitary witness was not examined.The owner of the hotel deposed and stated that he had learnt of the stay of the accused from the waiter.It was held that (Para 7 of Cri LJ) :-"The accused persons are said to have made a entry in the register duly maintained by the hotel, in their own pen, and signed the same showing their stay on the fateful night in the hotel in question.Sofar as this entry is concerned, the same has been exhibited on the basis of statement of PW-6 (owner) though, he has nowhere stated that lie knew either the writings or signatures of any of the accused persons.Indisputably the accused never made the entry in the presence of PW-6, but the same is claimed to have been made in the presence of the waiter alone.Thus the entry in the register having not been legally proved is not admissible in evidence.There is no other evidence in relation to stay of the accused persons in the hotel on the night of occurrence and there being no substantive evidence in relation to this very circumstance, the same cannot be proved by the, statement of PW-6/owner, which could have been used only by way of corroborative evidence and thus the prosecution has failed to prove this circumstance which was the most important one to hold the accused persons guilty.Pappu's handwriting was not even taken for comparison.Rather there ; was total confusion as to whether the letters were even sent by Harnam Singh or by registered post as claimed, or where in the hand of Harnam Singh as held by the Court.Reference may also be usefully made to the State of Haryana v. Jagbir Sigh, reported at .: In the cited case an innocent child of about four years was a victim of unnatural death.As per the prosecution, the respondents murdered the child after kidnapping him.The intended demand for ransom for his release was stated to be the motive for the crime.Accused Jagbir Singh was found to be guilty by the Sessions Judge who convicted him under Sections 302/362/201/ 384, IPC.An appeal was filed and the High Court by its judgment found them not.Jagbir Singh had been produced before the Addl.The Addl.CJM had also deposed that the accused had admitted the signatures to be his.The Supreme Court held (Paras 19 and 20 of Cri LJ) :-"In order to enable the exercise of power under Section 73, the pendency of a proceeding before the Court is the sine qua non.Therefore, the comparison of the signature on the alleged ransom note in no way helps the prosecution.Great emphasis was laid by the learned counsel for the State on the evidence of PW-4, the Additional CJM that the accused had admitted that the signature was his.It may also be noted that while the deposition by the complainant was that the ransom letters were handed over by Harnam Singh, subsequently changed to, "received through registered post" and in the deposition, these were stated to be in the hands of Pappu, the trial Court in para 34 of the judgment concluded these were in the hands of Harnam Singh.In view of the foregoing discussion, I am of the view that the prosecution has failed to satisfy the essential ingredients of kidnapping being for payment of ransom in the absence of proving ransom notes.Prosecution has failed to prove demand of ransom by any of the accused for kidnapping, Prosecution has failed to prove the ransom notes as originating from or at behest of accused.The prosecution has, however, been successful in proving that the minor had been taken out of custody by the appellants.The prosecution has also successfully proved the confinement of the minor by the accused persons.The minor has been recovered from their possession and custody.Accordingly, the prosecution has proved the offence under Sections 365 and 368, IPC, read with Section 34, IPC.Accordingly, the order passed by the trial Court is modified to sentencing all the accused/appellants to rigorous imprisonment of 7 years instead of life imprisonment along with a fine of Rs. 10,000/- each and in default of fine, appellants shall further undergo rigorous imprisonment for three months each.The benefit under Section 428, Cr.P.C. would also be available to appellants.The appeals are partly allowed as aforesaid.

['Section 313 in The Indian Penal Code', 'Section 164 in The Indian Penal Code', 'Section 34 in The Indian Penal Code', 'Section 201 in The Indian Penal Code', 'Section 365 in The Indian Penal Code', 'Section 302 in The Indian Penal Code', 'Section 161 in The Indian Penal Code', 'Section 384 in The Indian Penal Code']

J U D G M E N TCRIMINAL APPEAL NO. 728 OF 2007ARISING OUT OFSpecial Leave Petition (Criminal) No. 4570 of 2006Hon.C.K. Thakker, J.1. Leave granted.It is not necessary to set out facts in detail since we have stated all the facts in Criminal Appeal No. 867 of 2006 (Suman Sood @ Kamal Jeet Kaur v. State of Rajasthan) and a cognate matter which we have decided today.Suffice it to state that a complaint being First Information Report (FIR) No. 84 of 1995 was registered at Malviya Nagar Police Station, Jaipur on February 26, 1995 against Daya Singh, appellant herein, Suman Sood @ Kamal Jeet Kaur (accused No.2) and one Harnek Singh @ Surender Verma (absconding) for offences punishable under Sections 353, 420, 468, 471, 472, 473, 474 read with Section 120B Indian Penal Code ('IPC' for short), for offences punishable under Sections 4 and 5 of the Explosive Substances Act, 1908, Sections 7 and 25 of Arms Act, 1959 and Section 18 of TADA etc.The case of the prosecution was that the appellant herein along with his wife Suman Sood @ Kamal Jeet Kaur fabricated Registration Certificate for purchasing several vehicles in order to carry out conspiracy of kidnapping and abducting one Rajender Mirdha, son of Shri Ram Niwas Mirdha to exert pressure on the Government of India to release one Devendra Singh Bhullar, an alleged Khalistani terrorist who was being held in custody by the police.It was also alleged that the appellant was found to be in possession of prohibited arms and ammunition allegedly recovered from House No. B-117, Model Town, Ashok Nagar during police raid where the appellant was staying.Initially, prosecution was launched in the Designated Court at Ajmer since the provisions of TADA were also invoked.The appellant herein, however, challenged his prosecution under TADA.In Daya Singh Lahoria v. Union of India & Ors., (2001) 4 SCC 516, this Court upheld the challenge since the prosecution of the accused could only be maintained in accordance with the Extradition Treaty and the Decree of Extradition under which the accused were extradited by the United States of America to India.The trial Court, after considering the evidence on record, convicted accused No.1 (appellant herein) as under:Under Section 420 IPC : to 7 years R.I. and a fine of Rs.500/-, in default of payment of fine, to further undergo 6 months S.I.Under Section 468 IPC : to 7 years R.I. and a fine of Rs.500/-, in default of payment of fine, to further undergo 6 months S.I.Under Section 471 IPC : to 2 years R.I.Likewise, the State of Rajasthan, being aggrieved by an order of acquittal passed by the trial Court against Suman Sood instituted an application for leave to appeal against acquittal.A Single Judge of the High Court refused to grant leave against accused No.2 (Suman Sood) holding that the trial Court was right in recording an order of acquittal against her and no case had been made out to grant leave.Leave was accordingly refused.He, therefore, did not press the appeal.The High Court disposed of the appeal and observed;"At the very outset, the learned counsel Mr. G.S. Fauzdar for the accused appellant Daya Singh contended that maximum sentence in the present case was seven years and all the sentences were ordered to run concurrently and appellant has already completed his sentence of imprisonment of seven years, therefore, in these circumstances, he does not press the appeal filed on behalf of Daya Singh, challenging his order of conviction and sentence passed by the trial Court as mentioned above.In view of the above statement of the learned counsel for the appellant Daya Singh @ Vinay Kumar, the SB Cr.Appeal No. 332/05 filed by Daya Singh is hereby dismissed as not pressed".Ms. Kamini Jaiswal, appearing for the appellant, challenged the order of conviction and sentence.When her attention was invited by the Court to the above paragraph, she submitted that she did not dispute that such a statement was made on behalf of the accused in the High Court, but submitted that, she be permitted to argue the appeal, particularly when in other Special Leave Petitions, leave was granted and appeals were heard on merits.On merits also, no case had been made out by the prosecution.The other accused (Suman Sood) was acquitted on the same evidence and leave to appeal against an order of acquittal was refused by the High Court.The conviction recorded by the trial Court against the appellant on the same evidence is also vitiated and deserves to be set aside.In the light of the finding recorded by us in the cognate matter, this appeal is, more or less, academic and has become infructuous in view of the following circumstances;(i) the appellant has been convicted for an offence punishable under Section 364A, IPC and has been ordered to undergo sentence of imprisonment for life and we have upheld the said order; and

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

Due to the law and order problem, a Peace Committee Meeting was conducted at the Taluk Office, Kudavasal in thehttp://www.judis.nic.in 2/10 Crl.RC.No.381 of 2017 presence of the Tahsildar.The agitating public/villagers had requested that the petitioner firm should not draw water through bore well till there was continuous rain or there was water in the river.The petitioner company had offered to bring water through tankers from outside source and do the bottling in their factory and the agitating villagers did not agree for that and there was no consensus between the parties.This revision petition has been filed seeking to call for the entire records pertaining to the impugned order dated 13.02.2017 in Na.No.1930 of 2016 on the file of the respondent and revise the same.The petitioner firm is a company engaged in the business of mineral water after obtaining necessary license in the year 2008 and the license was in existence.The petitioner company had been running the business of bottling mineral water by drawing ground water through bore well in No.53 Simili Revenue Village, Thalayalangadu Village in Guttural Taluk.Since the villagers objected for drawing of under ground water in Thalayalangadu Village, Guttural Taluk, petitioner firm has sent a representation to the respondent, stating that due to failure of North-East monsoon in the year 2016, the ground water level has gone down and thereby, the villagers finding it difficult to draw water from their bore well, objected the petitioner company from drawing the underground ater through bore well.Pursuant to the same, on 02.01.2017 the villagers conducted a road blockade and the Deputy Superintendent of Police, Nannilam, Kudavasal Taluk and Inspector of Police, Kudavasal Police Station conducted a meeting with the villagers, due to which, the road block was withdrawn.Thereby, the Tahsildar had requested the Executive Magistrate to direct the petitioner's company to stop drawing of water from the bore well.A report was also given by the Deputy Superintendent of Police that in respect of the road block, a case has been registered in Crime No.2 of 2017 for offences under Section 143, 341 and 188 IPC and it was also stated that if the operation of the petitioner company was not stopped, there was possibility of the villagers conducting agitation against drawing of water.Based on the above report, the respondent passed the impugned order on 13.02.2017 directing the petitioner company under Section 133 (1) B of Cr.P.C to stop the operations of the company temporarily till the next rainy season or till the drought gets over.The revision has been filed challenging the above order.Only if any of these two ingredients are available the respondents may pass the prohibition order.The road roko was conducted on the instigation of a political goon who had attempted to extort money from the Petitioner Company.This court heard the learned counsel on either side and considered their submissions and perused the impugned order, along with the other materials.P.C absolute.In other words, the order under Section 133 Cr.P.C., can only be a preliminary order since Section 138 empowers the Magistrate to hear the objections of the concerned party for the purpose of either making the order under Section 133 Cr.P.C., absolute or for modifying it.”http://www.judis.nic.in 8/10 Crl.RC.No.381 of 2017In the opinion of this Court, the Magistrate ought to have given an opportunity to the petitioner after fixing specified period and thereafter, after following the procedure under Section 138 Cr.P.C. should have passed the order.Though this order is stated to be passed under Section 133 (1)(b) of Cr.P.C, which ought to be temporary preliminary in nature the Respondent had directed the Petitioner Company to stop operation till the next rainy season or till the drought gets over which amounts to closing operations in perputuity.The impugned order has been passed without following the procedure contemplated under Section 138 Cr.P.C. and without application of mind.Further, if the order is passed under Section 133 of Cr.PC the magistrate has to fix the time and place in the order for appearance of the petitioner either before himself or some other Executive Magistrate subordinate to him to show cause as to why the order should not be made absolute and such an observation is missing in the order.In view of the above, the impugned order is vitiated.http://www.judis.nic.in 9/10 Crl.RC.No.381 of 2017 A.D.JAGADISH CHANDIRA., J.In the result, this revision is allowed.The impugned order dated 13.02.2017 passed by the respondent is set aside.However, it is made clear that the respondent is directed to initiate fresh proceedings in accordance with law, if circumstances warrants so.19.11.2019 bri Index: Yes/No Speaking Order/Non Speaking Order To1.The Executive Magistrate Cum Revenue Divisional Officer, Office of Revenue Divisional Officer, Thiruvarur.2.The Public Prosecutor, High Court, Madras.Crl.RC.No.381 of 2017http://www.judis.nic.in 10/10

['Section 188 in The Indian Penal Code', 'Section 143 in The Indian Penal Code', 'Section 341 in The Indian Penal Code']

They are assessees.JUDGMENT Pratap Singh, J.1. Accused No. 3 in E.O.C.C. Nos. 659 to 662 of 1988 on the file of the Additional Chief Metropolitan Magistrate (Economic Offences No. I), Egmore, Madras, has filed these petitions under section 482, Criminal Procedure Code, praying to call for the records in the aforesaid cases quash the same.The allegations in it are briefly as follows :The complainant is a public servant and he is authorised to file the complaint.It is also filed at the instance of the Commissioner of Income-tax, within the meaning of section 279 of the Income-tax Act, 1961 (which I shall hereafter refer to as "the Act").The first accused is a partnership firm carrying on business in surgical goods.Accused Nos. 2 to 5 are partners of the first accused firm who were in charge of, and were responsible to, the first accused firm for the conduct of the business of the first accused during the relevant time.Along with the return, the connected statements were also delivered.Search were conducted at the premises of the first accused firm and its allied firms and the residences of the partners and connected places in June, 1980, under the provisions of section 132 of the Act. During the course of the search, a large number of accounts books and documents were seized and they were examined and detailed investigation was made which disclosed large scale suppression of income by deliberate inflation of purchases and falsification of accounts by introduction of fictitious credits.During the course of assessment proceedings subsequent to the search, unable to explain the deliberate inflation of purchases, etc., the accused came forward with a proposal for settlement.They agreed to the suppression of the income of the first accused firm and allied firms being considered in the hands of the first accused firm and the concealed income for the assessment years 1975-76 to 1979-80 being fixed at about Rs. 41 lakhs.The first accused filed a return of income in response to a notice issued under section 148, dated October 16, 1980, and the income-tax return for the assessment year 1976-77 on February 6, 1982, admitting an income of Rs. 12,13,640 as against an income of Rs. 1,02,470 admitted in the original return.The petition of the accused for waiver under section 273A was rejected.With a view to wilfully evade tax and to defraud the exchequer and to deceive the Income-tax Officer, acting in concert and furtherance of common intention, all the accused conspired to fabricate false evidence in the shape of books of accounts with a view to using them as genuine evidence in the income-tax assessment proceedings, to deliver a false return of income of the first accused for 1976-77 with false supporting statements based on fabricated books of accounts to dishonestly induce the Income-tax Officer to deliver an assessment order, on such false return and statements determining the total income of the first accused at an amount lower than the real amount and thus have committed offences punishable under section 120B of the Indian Penal Code read with section 34, 193, 196 and 420 thereof and section 276C, 277 and 278B of the Income-tax Act, 1961, in one series of acts which are connected and form the same transaction.On similar allegations for assessment years 1977-78, 1978-79 and 1979-80, the respondent has filed complaints in E.O.C.C. Nos. 660 of 1988, 661 of 1988 and 662 of 1988 before the same court under section 120B, 34, 193, 196 and 420 of the Indian Penal Code and section 276C, 277 and 278B of the Income-tax Act, 1961, for the aforesaid assessment years also.In these complaints, it is alleged that original returns were filed on August 5, 1977, August 28, 1978, and August 9, 1979 and in respect of them, assessment were completed on September 26, 1977, October 19, 1978 and September 12, 1979, respectively, and the search was conducted on June 7, 1980, and the revised returns for assessment years 1977-78, 1978-79 and 1979-80 were filed on October 16, 1980, and the total concealed income for all the four assessment years was Rs. 41 lakhs.Then again it is alleged that, in pursuance of the aforesaid conspiracy and for the aforesaid purpose and in the course of the same transactions, all the accused have done the acts which constitute the various offences.I have referred to them in the summarisation of the complaint in E.O.C.C. No. 659 of 1988 supra.Original returns for 1976-77 to 1979-80 were filed on August 4, 1976, August 5, 1977, August 28, 1978 and August 9, 1979, respectively.Assessments in respect of those original returns were completed on November 18, 1976, September 26, 1977, October 19, 1978 and September 12, 1979, respectively.

['Section 120B in The Indian Penal Code', 'Section 34 in The Indian Penal Code', 'Section 193 in The Indian Penal Code', 'Section 420 in The Indian Penal Code']

2.State Rep by The Inspector of Police, District Crime Branch, Villupuram District. ... Respondents in Crl.O.P.17885/2018 1/11http://www.judis.nic.in Crl.For Petitioners : Mr.Thomas T.Jacob in Crl.O.P.15054 of 2010 Mr.A.Muniraj in Crl.O.P.17885 of 2018 For Respondents : Ms.Saradha Devi Government Advocate (Crl.Side) for R1 in Crl.O.P.15054 of 2010 & for R2 in Crl.O.P.17885 of 2018 Mr.O.P.No.17885 of 2018 are the accused 1, 2/11http://www.judis.nic.in Crl.O.P.Nos.15054 of 2010 and 17885 of 2018 2 and 5 and the private respondent in these criminal original petitions is the defacto complainant.For the sake of convenience, the parties will be hereinafter referred to as 'accused' and 'complainant'.3.The accused are alleged to have hatched out a criminal conspiracy for wrongful gain by selling the property of unwary landlords without their consent and knowledge by creating bogus power of attorneys concerned with immovable cultivable lands situated in Survey Nos.164/1, 164/2, 164/3, 164/4, 165/1, 165/2, 165/3, 165/4, 166/1, 166/2, 166/3 and 166/4 with an extent of 29.5 acres at Aurvadai Village, Villupuram Revenue District as if it were executed by landlords for the disposal of property and got the properties transferred and thereafter disposed of the same to the detriment of real owners and the defacto complainant.Hence, these petitions.4.The learned counsel for the petitioners submitted that during 3/11http://www.judis.nic.in Crl.O.P.Nos.15054 of 2010 and 17885 of 2018 the pendancy of these criminal original petitions, the petitioners and the private respondent arrived at a compromise and the petitioners have paid the entire sale consideration to the private respondent.The private respondent/ complainant accepted and received the payment and has consented for compounding the offence.O.P.Nos.15054 of 2010 and 17885 of 20183.I submit that as I have received the entire sale consideration I am willing to withdraw the case by compounding the case against these Petitioners/ Accused 3 and 4 namely Mr.V.Prabakar and Mr.Mahmood Siddique and seek this Hon'ble Courts indulgence to permit me to withdraw and compound the case against these Petitioners/ Accused 3 and 4 namely Mr.V.Prabakar and Mr.Mahmood Siddique and thus render justice.Crl.O.P.No.17885 of 2018:O.P.Nos.15054 of 2010 and 17885 of 2018 Common Prayer:Petitions filed under Section 482 of Cr.P.C., seeking to call for the records in C.C.No.329 of 2009 on the file of the District Munsiff cum Judicial Magistrate Court, Vanur, Villupuram District and quash the same.N.Kumararajan for R2 in Crl.O.P.15054 of 2010 & for R1 in Crl.O.P.17885 of 2018 COMMON ORDER These criminal original petitions have been filed seeking to call for the records in C.C.No.329 of 2009 on the file of the District Munsiff cum Judicial Magistrate Court, Vanur, Villupuram District and to quash the same.2.The petitioners in Crl.O.P.No.15054 of 2010 are the accused 3 and 4; the petitioners in Crl.5.To that extent, the private respondent has filed affidavits dated 23.08.2019 and the relevant portion of the same reads as follows :“Crl.O.P.No.15054 of 2010:http://www.judis.nic.in Crl.Therefore, the complainant's interest lies primarily in recovering the money rather than sending the accused in jail.10.In view of the ratio laid down by the Honourable Supreme Court of India and also considering the affidavits filed by the complainant, this Court is of the view that the charge sheet in C.C.No.329 of 2009 on the file of the learned District Munsif cum Judicial Magistrate Court, Vanur, Villupuram District, is liable to be set aside.11.Accordingly, the charge sheet in C.C.No.329 of 2009 on the file of the learned District Munsif cum Judicial Magistrate Court, Vanur, Villupuram District, is hereby quashed and these criminal original 9/11http://www.judis.nic.in Crl.O.P.Nos.15054 of 2010 and 17885 of 2018 petitions are disposed of.The petitioners/ accused are acquitted from all the charges levelled against them.12.With the above directions, these criminal original petitions are disposed of.1.The District Munsiff cum Judicial Magistrate Court, Vanur, Villupuram District.http://www.judis.nic.in Crl.O.P.Nos.15054 of 2010 and 17885 of 2018 M.DHANDAPANI,J.pri Crl.15054 of 2010 and 17885 of 2018 06.12.2019

['Section 467 in The Indian Penal Code', 'Section 471 in The Indian Penal Code', 'Section 465 in The Indian Penal Code', 'Section 468 in The Indian Penal Code']

Brief facts, just necessary for disposal of this appeal, are that the deceased Smt. Farida Bi was the daughter of Usman (PW-01).About 3 years ago Farida Bi was married to accused Rafiq.Accused Ramjan and Rehmat Bi, are the father-in-law and mother-in-law 2 respectively of the deceased Farida Bi and the accused Hurmat Bi is the real sister of the accused Rafiq.About 2 years prior to the date of the alleged incident Usman (PW-01) left for Bhusawal to earn his livelihood.Till then he was living at Khandwa, the deceased Farida Bi was living happily.When Usman (PW-01) left for Bhusawal, the deceased was being subjected to cruelty and harassment by the accused persons, for or in connection with demand of dowry.On the date of the alleged incident, i.e., 14-02-1991 she had gone to house of her uncle Sattar (PW-06) and narrated him that her `Nanad' - Smt. Hurmat Bi was quarrelling with her.Thereafter, Sattar (PW-06) sent his wife - Smt. Maina Bi (PW-03) to the house of the accused persons.When she asked about the quarrel from the accused Smt. Hurmat Bi, she got infuriated and started abusing.She was saying that Farida Bu is a cunning woman and often used to quarrel, she would be taken back or else she would be killed.Thereafter, Smt. Maina Bi (PW-03) returned to her home.The accused Rafiq and his elder brother went to the house of Smt. Maina Bee (PW-03) and allegedly asked them that who had gone to his house, he would break their legs.At that time, Sattar (PW-06) told accused Rafiq that as per their capability they had given dowry.Why they are harassing the girl (Farida Bi).He also added, let her mother come in the evening, on her arrival they will discuss the matter.But, accused Rafiq was adamant and said that he will finish the dispute once for all.At about 03:30-04:00 P.M. father-in-law of the deceased accused- Ramjan called Sattar (PW-06).When Sattar reached there after 15 minutes, he found that Smt. Farida Bi was burnt to death.Someone informed the Police on telephone.On the basis of which `Rojnamcha Sanha' (Ex.P/3) was prepared and `Merg' (Ex.P/4) 3 was registered.Whenever, parents of the deceased used to come at her matrimonial home she told them that her sister-in-law, accused Smt. Hurmat Bi used to quarrel with her and used to taunt her for not bringing enough dowry.When Usman (PW-01) father of the deceased used to visit Khandwa she used to tell him about the harassment.Rs.500/- was given by Usman to Farida Bi, so that her in-laws should stop harassing her.Smt. Farida Bi gave this amount to the accused Rafiq.In-laws of the deceased were also threatening her and to leave the matrimonial home.After the death of Smt. Farida Bi, spot map (Ex.P/5) was prepared.The container of kerosene, match box, burnt clothes and soil with and without keresone, one `Sansi' made of iron were seized, vide Ex.P/6) from the spot.After drawing `Safina Form' (Ex.P/7) and `Panchnama' (Ex.P/8), the dead-body was sent for postmortem examination by Dr. Kaushal Kumar Lohani (PW-07) to District Hospital Khandwa.Autopsy of the dead-body of the deceased was conducted by Medical Officer Dr. Mahesh Kumar Patni (PW-04), who found the deceased 81% burnt and it was a third degree burn.( 18.01.2016) Per : Sushil Kumar Palo, J.:This appeal preferred under Section 378(1) of the Code of Criminal Procedure [for brevity `CrPC'] is directed against the judgement, dated 20-08-1993, passed in S.T. No.196/1992 (State of M.P. vs. Rafiq and others) by learned II Additional Sessions Judge, East Nimad (Khandwa), District Khandwa, whereby the accused-respondents have been acquitted of the charges for the offence punishable under sections 304-B, 498-A and 306 of the Indian Penal Code [for short `the IPC'].The death of the deceased was caused due to shock because of severe burn injuries.Postmortem report (Ex.P/2) was prepared.Seized articles were sent to the Forensic Science Laboratory, vide Ex.P/10 for examination.The accused persons were arrested.After due investigation charge-sheet was filed before the Court of competent jurisdiction, which in turn, committed the matter to the Court of Sessions.10. Charges in respect of offence punishable under sections 304- B and 498-A, and in the alternative, 306 of IPC were framed against the accused persons.The accused persons abjured their guilt and pleaded for trial.The learned trial Court after appreciating the evidence recorded the finding of acquittal of the accused- respondents by the impugned judgment.Shri Akshay Namdeo, learned Panel Lawyer for the appellant/State endeavoured to convince that the learned trial Court has erred in pronouncing the judgement of acquittal, on the ground that the death of the deceased has occurred within a span of 7 years from the date of solemnisation of her marriage.Father of the deceased has clearly stated about the demand of dowry.The postmortem report (Ex.P/2) reveals that the death was not natural.Thus, the learned Panel Lawyer contended that learned trial Court has committed grave error in not appreciating the evidence brought on record, especially the medical report.We have gone through the record and the contentions raised by the learned Panel Lawyer for the appellant/State.It is not disputed that the deceased - Smt. Farida Bi died due to severe burn injuries and her marriage was solemnised with accused Rafiq 3-4 years prior to the date of the incident.Necessary ingredients to prove commission of the offence are lacking in the present case.The Medical Officer (PW-4) has denied the suggestion that the deceased died before she was burnt.He also opined that the hands of the deceased were severely burnt.This indicates that when a persons is caught with fire accidentally, he/she endeavours hard to save himself/herself.In the present case the deceased might have made best possible efforts when her hands came in contact with fire and got severely burnt.These witnesses are also close to Usman (PW-01) and, therefore, the learned trial Court has inferred them as interested witnesses.Delay in recording the statements and apparent inconsistencies therein, create a reasonable doubt in the prosecution story.Therefore, the learned trial Judge did not find the statements of these prosecution witnesses creditworthy.Besides, Rabia Bi, an immediate neighbour of the accused persons, who was examined as a defence witness, in her statement has stated that the deceased narrated that no quarrel occurred at the place of her in-laws.The deceased - Smt. Farida Bi used to visit this witness repeatedly, but she never expressed about any quarrel for or in connection with demand of dowry.Rabia Bi did not say anything incriminating against the accused-respondents.Another neighbour Suleman (DW-01) has also deposed that the deceased - Smt. Farida Bi frequently used to visit his place, but she never expressed anything about demand of dowry, causing any cruelty or ill-treatment to her by her in-laws.He specifically stated that no cruelty was meted out to Farida Bi one day prior to the incident.He further stated that Smt. Farida was suffering from some unknown disease, for which she was being treated by a local 'Sailani Baba' by practicing 'Jhadphoonk' (witchcraft).She used to roam around spreading her hair without consciousness.

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

JUDGMENT R.C. Chavan, J.By this application under Section 482 of the Code of Criminal Procedure, the applicant challenges the order passed by learned Additional Sessions Judge, Bhandara in Criminal Revision No. 49/1997, directing the applicant to pay maintenance allowance at the rate of Rs. 400 per month to the non-applicant.The facts, which gave rise to the present proceeding are as under:Non-applicant Shobha Nandeshwar claims to have been married to applicant Jagdish after she had carried the applicant's child in her womb.Since, the applicant neglected and failed to maintain her, in spite of the fact that he owns four acres land and also earns Rs. 50 per day from agricultural labour, the said Shobha filed an application under Section 125 of the Code of Criminal Procedure before the learned Judicial Magistrate, First Class, Sakoli.She claimed maintenance allowance at the rate of Rs. 500 per month from applicant Jagdish.Jagdish filed reply, denying that Shobha was married to him as per the customs or the prevalent rites applicable to the Buddhists.He denied having consented to any such marriage, though he admitted that Shobha was carrying pregnancy of nine months and also that she had given report to Police Station Arjuni Morgaon against Jagdish.He also admitted that Shobha had delivered a child in a hospital at Nawegaon Bandh and that the child died.He claimed that he was a teenage student of Junior College and, therefore, neither possessed any means nor any income, to be able to pay any maintenance to Shobha.When Shobha took the matter in revision before the learned Additional Sessions Judge, the learned Additional Sessions Judge reversed the order passed by the learned Magistrate, holding that the marriage was proved and that Jagdish was liable to pay maintenance at the rate of Rs. 400 per month to Shobha.Aggrieved thereby, Jagdish has preferred this application.I have heard the learned Counsel for applicant Jagdish and also learned Counsel for non-applicant Shobha.

['Section 494 in The Indian Penal Code']

The petitioner had questioned the maintainability of the said proceedings by pointing out that it is the admitted case of the second Crl.M.C. No.4709/2016 Page 1 of 8 respondent that they are not married to each other, the case having been founded on allegations of "live-in relationship", his submission being that such relationship was not "in the nature of marriage", he to the knowledge of the second respondent being married to another woman (named Anjali) at the relevant point of time.The Metropolitan Magistrate, by her order dated 17.11.2015, rejected the said contention to put an end to the proceedings observing that the submission raised mixed questions of law and fact.M.C. No.4709/2016 Page 1 of 8He has come up to this Court invoking the inherent power and jurisdiction under Section 482 of the Code of Criminal Procedure, 1973 (Cr.P.C.) and Article 227 of the Constitution of India, to pray that the aforesaid orders of the courts below be set aside and the proceedings under the Domestic Violence Act taken out by the respondent be quashed.M.C. No.4709/2016 Page 2 of 8It is her admitted case that she was aware that the petitioner had a child (a daughter) from his first marriage, narrating their initial interaction since they having come to be acquainted with each other since 2006, upon being introduced by common friends in Mumbai.She would claim that the petitioner had told her in December, 2008 that his wife had sent him a notice for divorce.The second respondent has narrated that the parties were living together and moving around in manner "akin to married life", even going out to various stations and Crl.M.C. No.4709/2016 Page 3 of 8 staying together.M.C. No.4709/2016 Page 3 of 8According to her allegations, on 05.04.2011 the second respondent incidentally came across a copy of petition dated 25.03.2011 of first motion for divorce by mutual consent to be submitted by the petitioner and his wife and this discovery revealed to her that the information about he having taken divorce in March, 2010 was factually incorrect.As per the case set out in the Domestic Violence Act petition, the relationship between the parties soured, for some time, the petitioner having tendered profuse apologies to her and she eventually having calmed down and accepted the position agreeing to be patient till the divorce came through.The petition under the Domestic Violence Act was presented in February, 2013 by the second respondent.A little prior to that she had lodged a complaint with the local police in District Gurgaon, Haryana, no action having been taken thereupon.She approached the court of Additional Chief Judicial Magistrate (ACJM), Gurgaon, which court, after pre-summoning inquiry, had issued process against the petitioner for offences under Sections 376/403/417 of Indian Penal Code, 1860 (IPC).The matter arising out of the said proceedings eventually came up as sessions case no. 66/2014 before the Additional Sessions Judge, Gurgaon, the gravamen of charges laid against the petitioner therein Crl.M.C. No.4709/2016 Page 2 of 8 being that he had subjected the second respondent to sexual intercourse on the false promise of marriage and had thereby not only raped but cheated her.It is not disputed that the said sessions trial ended in judgment dated 12.07.2016 whereby the petitioner was acquitted with findings to the effect that the sexual relationship between the parties in a house in Gurgaon where they had lived together was consensual.

['Section 417 in The Indian Penal Code', 'Section 376 in The Indian Penal Code']

From the affidavit filed before us today the following facts have been revealed: -On November 15, 2010 the aforesaid Jaladhar Singh Sardar fled away from Jabla More, P.S. 2 Manbazar, District Purulia while he was on the way back to Purulia Correctional Home along with his two surities, namely, Sri Deban Singh Sardar and Smt. Mamata Singh Sardar.Though it is revealed from the above report that Radiogram under Serial no. 144/AB/2010 dated November 15, 2010 was sent to(i) ADGP and I.G of Correctional Service, West Bengal and (ii) Officer-in-Charge, Manbazar Police Station, District Purulia, no satisfactory information has been furnished before us today in the aforesaid affidavit with regard to the necessary steps which might be taken in the aforesaid matter.At this stage, we are of the opinion, that filing of affidavits furnishing information to the Court is not enough for the officers concerned to discharge their functions for which they have been paid fat salaries from the public exchequer.Usually, it is not the practice of this Court to direct the responsible officers of the State Government to be present personally before us leaving aside of their important assignments 3 in connection with their respective services.But in this case, we think fit and proper to direct the following officers to be present before us to explain their conduct which amounts to gross violation of the provisions of the Code of Criminal Procedure which should have been taken in this case long back: -i) The Director General and Inspector General of Correctional Service, West Bengal;1 2017 CRA No. 137 of 2007 In Re : Amrit Singh Sardar & Ors.ii) The Deputy Inspector General of Police of the concerned range relating to the District of Purulia;iii) The Superintendent, District Correctional Home, Purulia;iv) The Superintendent of Police, District Purulia;v) The Officer-in-Charge, Manbazar Police Station, District Purulia;The aforesaid officers are directed to appear before this Court on the next date of hearing of this matter, i.e. on July 28, 2017 at the first sitting of this Court with relevant records to satisfy this Court with regard to the steps taken in the above matter for the period from November 15, 2010 till date in accordance with the provision of Code of Criminal Procedure.Heard in part.Further hearing of this appeal stands adjourned.

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

The appeal is directed against the judgment and order dated 3rd February, 2009 passed by the learned Additional Sessions Judge, Mumbai in Sessions Case No.943 of 2007, convicting the appellants for in furtherence of their common intention committing murder of one Anwar Ahmed Hussain, husband of appellant no.1 on 21st August, 2007, in the house of deceased and appellant no.1, at mezzanine floor of Room No.156, Maharashtra Nagar, Compound No.1 [West] and sentencing each of them to suffer imprisonment for life.According to prosecution, deceased Anwar along with his wife, appellant no.1 and two children were residing at the said mezzanine floor of room no.156 Maharashtra Nagar, Compound No.1, Bandra (W), in which offence in question was committed.He was earning livelihood by hawking and selling spectacles near Bandra Railway Station.The appellant no.2 was assisting in said business and was also visiting the house of the deceased.The said visit turned in love affair in between the appellants.The deceased warned the appellant no.2 not to come to his house.However, the appellants went on meeting each other.::: Downloaded on - 27/08/2013 21:07:42 :::"Doctor's Chemist" run by PW5 Izaz Abdul Gaffur, purchased sleeping pills, "Restil" and administered it to the deceased.She then called appellant no.2 at her house on the pretendance of deceased being sick.2.2 At about 7 to 8 p.m. after occuring noise in the house of the deceased, blood mixed with the water drip on the husband of landlady PW 2 Smt. Anwari Begum Isla Uddin, residing beneath the house of deceased on the mezzanine floor.PW2, having not received any response to call given to appellant no.1 from the staircase, asked her neighbour Shamim to find out the happenings.2.3 On the next day i.e. on 22nd August, 2007 at about 9 to 9.30 a.m. both the appellants along with the children of deceased and the appellant no.1 came down the mezzanine floor after locking the room and left the house with appellant no.2 carrying a big bag and thereafter did not return.::: Downloaded on - 27/08/2013 21:07:42 :::reported matter to Bandra Police Station.PW14 PSI Kudapkar on PSO duty along with Police Constable PW1 Brid and other police staff went to the said place.PW2 informed them that deceased, appellant no.1 and their children, were residing on the mezzanine floor and odour was emitting from the said room.::: Downloaded on - 27/08/2013 21:07:42 :::PW1, after going upstairs found that room was locked.As the neighours and the landlady were not having key of the said lock, they broke open the lock and entered the room and found that decomposed corpse of deceased was lying on a bed-sheet spread on the floor with one black ribbon strangulated tightly round his neck giving an impression that deceased was murdered by strangulating with said ribbon.PW14 registered Crime No.349/2007 thereon for offence under Section 302 of the Indian Penal Code against unknown person.He drew inquest and scene of offence panchanama Exh.20 and 21 in presence of panch PW7 Mohd. Hassain and another.He seized blood stained knife Article 21, chopper Article 22 and steel hammer Article 24 kept below suit case and so also blood stained salwar Article 20 found in the said room.PW14 also seized a quilt Article 14 and sando baniyan Article 15 stained with the blood and dropped from the loft, produced by landlord of the deceased at the Police Station, by drawing panchanama Exh.18 in presence of panch PW6 Vasim and another.On 25th August, 2007 PW14 seized clothes of the deceased Article 16 and Article 18 and a navy colour underwear brought by Police Constable Salve at the Police Station from the Cooper Hospital, by drawing panchanama Exh.40 in presence of panchas PW7 and one another.2.6 PW15 PI Sawant investigating the said crime received the clue of commission of the offence by the appellants and sent PW9 API Badgujar and the staff to Mirath (U.P.) for nabbing appellant no.2 hailing from the said place.PW15 on 6.9.2007 sent them to the medical examination.::: Downloaded on - 27/08/2013 21:07:42 :::According to the prosecution, the appellant no.2 gave the confession to PW11 Dr. Shinde on 6.9.2007 while examining him 5 of 33 ::: Downloaded on - 27/08/2013 21:07:42 ::: 6 apeal 234.09.bom.doc by giving history that he had killed one Anwar Husain Sibiti Hasan (deceased) on 21.8.2007 at about 8 p.m. and at that time during the incident he sustained injury.According to the prosecution, the appellant no.1 also gave the confession to PW11 Dr. Shinde on 6.9.2007 while examining her by giving history that she killed her husband Anwar Husain with the help of appellant no.2 Mohd. Imran Najir Ansari on 21.8.2007 at about 8 p.m. and at that time during the incident she sustained injuries.::: Downloaded on - 27/08/2013 21:07:42 :::According to the prosecution PW15 on 7.9.2007 as a sequel to the statement made by appellant no.1 leading to the discovery of the medical shop at which she had purchased sleeping pills, went to the medical shop of PW5 Izaj Gafoor to which appellant no.1 had led panchas and Police and Exh.42 is the memorandum and discovery panchanama of the said events drawn by him.PW15 after bringing the said articles to the Police Station, kept them for drying and thereafter again sealed said clothes by drawing panchanama Exh.26 in presence of same panchas i.e. PW3 Rashid Mujawar and another.PW15 vide forwarding letter Exh.43 sent muddemal articles ig seized to Chemical Analyser for examination.::: Downloaded on - 27/08/2013 21:07:42 :::At the conclusion of the investigation, PW15 submitted charge-sheet against the appellants for in further of their common intention having murdered deceased , in the court of 9th court of Additional Chief Metropolitan Magistrate, Bombay.The appellant pleaded not guilty to the charge (Exh.3) framed against them for such offence by the Court of Sessions, after the case was committed to the said Court.The prosecution examined in all '15' witnesses at the trial i.e. above referred witnesses and additionally PW4 Haji Mohammaed Sharif regarding appellant no.2 assisting deceased and appellant no.1 in their business, PW8 P.C. Suresh Salve regarding handing over navy blue colour underwear Article 16 and the ribbon Article 18 7 of 33 ::: Downloaded on - 27/08/2013 21:07:42 ::: 8 apeal 234.09.bom.doc on the corpse to PW14, PW12 Abida M. Qureshi regarding room in question was locked when Police had been at the said room and PW13 Mohammad A. Mansuri regarding the appellant no.2 visiting shop on 21.8.2007 and taking Rs.500/- from him on the pretext of his mother being sick and then he was frightened and collecting his articles and leaving with the bag.The prosecution also placed reliance upon the other documentary evidence, which was prepared during the course of investigation.::: Downloaded on - 27/08/2013 21:07:42 :::The defence of both the appellants was that of total denial and of false implication by Police.The appellant no.1 though admitted that deceased was her husband and they were residing on mezzanine floor and appellant no.2 was visiting place of business claimed that he was not visiting her house and was her brother.The appellants did not examine any witness in support of their defence.The trial court after appreciation of the prosecution evidence came to the conclusion that by the said evidence the prosecution has established the various circumstances discussed in the judgment and the said circumstances considered in light of non- explanation on the part of the appellant leading to the conclusion of sole inference of the guilt of the appellants for in furtherance of their common intention having committed murder of husband of 8 of 33 ::: Downloaded on - 27/08/2013 21:07:42 ::: 9 apeal 234.09.bom.doc appellant no.1 by cutting his throat.In consonance with said conclusion arrived, the trial Court convicted and sentenced the appellants as narrated hereinabove.::: Downloaded on - 27/08/2013 21:07:42 :::Mr. Priytosh Tiwari, the learned counsel for the appellant by taking us through the evidence of each of the prosecution witnesses strenuously contended that the prosecution evidence by and large pertains to establish certain circumstances relied by the trial Court.It was urged that though the appellants are not disputing of deceased having met homicidal death, or that his body was found in the room in question, still evidence miserably fails to establish that room in question was locked as claimed by the witnesses, as the prosecution has failed to produce the broken lock before the Court corroborating their evidence and hence the said circumstance cannot be said to be firmly established .It was urged that the further circumstance of the appellants having made the confession to PW11 Dr. Shinde being inadmissible in law cannot be taken into consideration against the appellants.It was urged many of the remaining circumstances relied as pointed out by him are either not firmly established or the said circumstance within themselves failed to establish a complete chain of circumstances leading to the sole inference of the guilt of the appellants.It was thus contended the order of conviction and sentence cannot be legally sustained and is liable to be quashed and set aside and the 9 of 33 ::: Downloaded on - 27/08/2013 21:07:42 ::: 10 apeal 234.09.bom.doc appellants deserve to be acquitted or at least deserve to be given benefit of doubt as suspicion even of grave nature cannot be made basis for conviction.::: Downloaded on - 27/08/2013 21:07:42 :::Gambhir .vs.Shivappa .vs.Bheemal .vs.Sanjay .vs.Koki Prabhakara Reddy .vs.Ranjit Singh .vs.Kavinder .vs.Joyram Ingty .vs.Naval Singh 10 of 33 ::: Downloaded on - 27/08/2013 21:07:42 ::: 11 apeal 234.09.bom.doc .vs.State of Rajasthan .vs.Asraf Sk.State of Maharashtra .vs.Surender Singh .vs.State of Delhi: LAWS (DHL)-1989-12-13 regarding effect of non-attestation of dying declaration.::: Downloaded on - 27/08/2013 21:07:42 :::::: Downloaded on - 27/08/2013 21:07:42 :::Thoughtful considerations were given to the submissions advanced by both the sides and record of the case was carefully examined in order to ascertain the merit from the submissions canvassed.At the first blush, it can be said that since there is no eye- witnesses for the crime in-question and the case has been rested upon the circumstantial evidence as per the settled legal position regarding such type of cases, we find it necessary to assess the prosecution evidence to ascertain whether the circumstances relied by the trial Court were duly established by the evidence adduced 12 of 33 ::: Downloaded on - 27/08/2013 21:07:42 ::: 13 apeal 234.09.bom.doc and thereafter to ascertain whether the said circumstances within themselves form a formidable chain leading to sole inference of the guilt of the appellant.::: Downloaded on - 27/08/2013 21:07:42 :::The evidence of Dr. Kachare and particularly the injuries noted by him on the corpse i.e. amongst other cut throat injury on the neck and cause of death given by him "as death due to cut throat injury"itself establishes the deceased having met with homicidal death.The same is apparent as pointed out in the further part of the judgment regarding the other evidence by which the prosecution has established that corpse of the deceased was found in a room on the mezzanine floor of room no.156 in Maharashtra Nagar.The perusal of the evidence of panch PW7 of spot panchanama and that of PW14 PSI who had drawn the said spot panchanama clearly excludes any possibility of deceased having received the said injury for any other reason other than himself being assaulted, as after careful scrutiny of the evidence of above referred witnesses, we do not find any embellishment therein for coming to the conclusion 13 of 33 ::: Downloaded on - 27/08/2013 21:07:42 ::: 14 apeal 234.09.bom.doc that the said facts were not established by their evidence, will lead to a conclusion of the prosecution by the said evidence has established the deceased having met with homicidal death.::: Downloaded on - 27/08/2013 21:07:42 :::With regard to the second circumstance of the blood stained water having dripped from the mezzanine floor in the house of PW2 landlady on 21st August, 2007 at 8 a.m. and the third circumstance of corpse of the deceased was found in a room which was locked and the fourth circumstance of both the appellants along with the children of appellant no.1 and deceased having left the room on the next day i.e. on 22.08.2007 at about 9 a.m. The reference to the evidence of PW2 landlady, PW1 Brid, PW12 Abida M. Qureshi, evidence of panch witness PW7 for spot and inquest panchanama and the evidence of PW13 Mohammad A. Mansuri reveals that by their evidence prosecution duly establishes the said circumstances.Without detailing every facets of the evidence of the aforesaid witnesses, it can be said that the evidence of PW2 in terms reveals that on the day in question at about 8 a.m. she heard noise from the mezzanine room rented to appellant no.1 and on her inquiry, the appellant no.1 replied that it was due to falling of water pot.It reveals that thereafter as the blood dripped on the cloth of her husband lying on the bed was noticed, she called appellant 14 of 33 ::: Downloaded on - 27/08/2013 21:07:42 ::: 15 apeal 234.09.bom.doc no.1 from the staircase as the room was closed.It reveals that due to non-response on part of the appellant no.1, she called Shamim and asked him to see the happenings in the room of the appellant no.1 and thereon Shamim gave call to the appellant no.1 and thereon appellant no.1 opened the door and replied that while cutting mutton, she sustained injury and the blood might have dripped down.PW2 further deposed about the appellant no.1 coming to her house and showing her finger tied with cloth.Her deposition reveals that on next day, both the appellants along with the children of the appellant no.1, left the room by telling that they were going to Millat Nagar and inform accordingly to anyone who comes for inquiry and appellant no.2 was carrying big bag.It reveals that thereafter they did not return and on third day, i.e. on 23.08.2007 aggressive odour emitted from the room and her husband told that it might be due to decomposition of rat and they were not able to sleep in the room.It reveals that thereafter PW2 find drop of liquid of decomposed body falling in the room and she informed the neighbours about it and one of the neighbours Hasan informed to Police.It reveals that the Police came on the spot and broke open the lock of the room.::: Downloaded on - 27/08/2013 21:07:42 :::After careful scrutiny of the cross-examination of the PW2, we do not find anything brought on the record except that she 15 of 33 ::: Downloaded on - 27/08/2013 21:07:42 ::: 16 apeal 234.09.bom.doc was not present when the Police broke the lock of the door of the mezzanine room.Even accepting the said admission as it is, it does not shatter her evidence regarding the room being locked, as the said facet relates to herself being not present at the time of the Police breaking the lock and does not relate to the fact of herself having seen the lock on the said room.Thus her evidence considered in proper perspective establishes of the above referred circumstances.We further add that hardly there is any challenge to her evidence on the part of the appellants of the room being locked after the appellant and the children left the room or for the fact of themselves having left with the bag as deposed by her.::: Downloaded on - 27/08/2013 21:07:42 :::The due corroboration to the relevant part of evidence of PW2 for the aforesaid circumstance is found from the evidence of Police personnel PW1 and PW14 who had been to the spot after receiving the information of emission of odour from the neighbours.The evidence of PW1 in terms reveals that door was locked from the outside and they had broken the lock of the room.The evidence of PW1 is well corroborated by complaint Exh.10 to such effect lodged by him.Even the evidence of PW14 regarding the same is not different.It also reveals the room being locked and they had opened it by breaking the lock.Evidence of both the witnesses further reveals that after entry, the decomposed body of the deceased was found in the room.They have deposed in 16 of 33 ::: Downloaded on - 27/08/2013 21:07:42 ::: 17 apeal 234.09.bom.doc consonance with the prosecution case narrated earlier regarding the situation in which the body was found.The perusal of their depositions do not reveal that such aspect of their evidence were shattered during the cross-examination.In addition to the aforesaid evidence, the reference to the evidence of PW12 reveals that the appellant no.2 was visiting the house of the appellant no.1 during the absence of the deceased.It reveals that she had sent Shamim and Hasan to the Bandra Police Station after the neighbours have told that odour was coming.She specifically deposed that when the Police came, the room of deceased and the appellant no.1 was locked and the lock was opened by the Police and the body of deceased was found in the said room.We find that her evidence has remained totally unshattered during the cross-examination.Though suggested that she had deposed falsely, hardly anything was brought during the cross-examination for giving any credence to the suggestion given.The evidence of PW12 as well as of the earlier referred evidence of PW2, do not reveal any reason for them for entertaining any animus against the appellant for staking such a claim.::: Downloaded on - 27/08/2013 21:07:42 :::In the same context, the reference to the evidence of PW13 reveals that he was serving as a Tailor at Bandra and the appellant no.2 was working with him as well as residing at his work place for a period of two months and as such he was well 17 of 33 ::: Downloaded on - 27/08/2013 21:07:42 ::: 18 apeal 234.09.bom.doc acquainted with him.The further part of his deposition reveals that appellant no.2 absented for work on 21.8.2007 and 22.08.2007 at about 7 to 8 p.m. , the appellant came to his workshop and asked for Rs.500/- on the count that his mother was sick and he was then in frightened.He gave him Rs.500/- and thereafter appellant no.2 collected his articles from his shop and left with a bag.We find that the said evidence of PW13 has remained unshattered in spite of the cross-examination.As a matter of fact, we find that except giving suggestion to PW13 that he deposed falsely and denied by him, no other effort was made on the part of the defence to challenge his said evidence.Needless to add that the said evidence duly corroborates prosecution case of the appellants trying to flee away from the place probably due to the commission of the crime as claimed by the prosecution.::: Downloaded on - 27/08/2013 21:07:42 :::The reference to the evidence of PW7 also reveals some what identical story.The evidence of PW7 reveals that on the relevant day he has acted as a panch along with another when he 18 of 33 ::: Downloaded on - 27/08/2013 21:07:42 ::: 19 apeal 234.09.bom.doc was called at the mezzanine room by the Police.His evidence reveals in detail that the body of the deceased wasfound in the said room and the condition of the said body, as well as the articles seized by the Police i.e. blood stained salwar, chopper, knife and hammer from the said room.His evidence is also found corroborating the evidence of the Police personnel PW1 and PW14 referred hereinabove, who had entered in the said room.::: Downloaded on - 27/08/2013 21:07:42 :::The learned counsel for the appellants by harping upon the evidence of PW7 submitted that his evidence only reveals that the Police had opened the door.It was urged that his evidence fails to reveal that Police had broken lock on the room.It was contended that PW7 being independent panch, his evidence run contrary to the evidence of earlier referred witnesses as the same fails to depict that the room was locked.It was thus contended that prosecution has failed to establish the circumstance of, room in question being locked.After carefully considering the evidence of the aforesaid witnesses and the sequence in which the events had occurred, we are unable to give any significance to said submissions canvassed.The aforesaid evidence duly reveals that the Police had been to the said spot as odour was emitting out of the room in question.The evidence of PW2 reveals that her husband has felt that it might 19 of 33 ::: Downloaded on - 27/08/2013 21:07:42 ::: 20 apeal 234.09.bom.doc have been due to decomposition of rat.It reveals that till then nobody had suspected of any foul play.The evidence denotes that the Police opened the lock for ascertaining the reason behind the said foul smell.It reveals that thereafter the body of the deceased was found in the said room.Thus considering from the said angle, PW7 would have been called only after noticing the dead body for recording the further events and situation prevailing at the spot and for drawing inquest panchanama.Hence in all probability PW7 being called lateron after the lock was opened, it would be unreasonable to accept himself deposing about the said events occurred prior to his arrival.::: Downloaded on - 27/08/2013 21:07:42 :::Similarly looking the matter from another angle and even assuming that PW7 was accompanying the Police since the beginning or after noticing the lock on the room, then also carefully considering his evidence, we do not find that his evidence reveals that the said room was not locked.Such a conclusion is inevitable as PW7 has deposed of the door being open.The perusal of the cross-examination does not reveal any position brought on the record that it was not locked.Thus even from the said angle, the criticism or the circumstances pointed out from the evidence of PW7 cannot be given any undue significance.We are of such a view as in the event of the door being not locked, PW2 and her husband would have well entered in said room for ascertaining as 20 of 33 ::: Downloaded on - 27/08/2013 21:07:42 ::: 21 apeal 234.09.bom.doc to what was the reason behind smell.Such an inference is obvious as appellant no.1 and deceased were tenants and not strangers.However, instead of occurring of any such event of themselves entering the room, giving a call to the Police clearly denotes that the room then must have been locked.Furthermore the evidence of PW2 considered in proper perspective also denotes that she was told by the appellant no.1 while leaving the room that they were going away to Millat Nagar and informing accordingly to anybody who comes for inquiry.The said facet of her evidence considered in a proper perspective also denotes in all probability room being locked.Needless to add that it would be insensible to imagine in Bombay persons leaving the room by keeping it open.::: Downloaded on - 27/08/2013 21:07:42 :::The learned counsel for the appellants further contended that the prosecution having not produced the lock at the trial, also denotes that the said room was not locked.We are unable to accept the said submission as in reality the same relates to nature of evidence required to be adduced for establishing a fact.In the event of, fact of room being locked being established by the prosecution, through the cogent evidence of PW2 , PW1, PW14 and PW13, it cannot be gainsaid that it was incumbent for prosecution to produce the said lock for establishing the relevant facet.At least the inference as suggested by learned counsel for the appellants, cannot be drawn on the said isolated circumstance ignoring 21 of 33 ::: Downloaded on - 27/08/2013 21:07:42 ::: 22 apeal 234.09.bom.doc otherwise convincing cogent and evidence of the above referred witnesses.In the light of the aforesaid discussion, we find that the prosecution has duly established the circumstances under consideration.::: Downloaded on - 27/08/2013 21:07:42 :::Now with regard to the fifth circumstance of the appellants being found in one room at Shajah Nagar Mirath, the evidence of PW9 API Badgujar reveals that PW15 P.I. Sawant had sent him along with the Police Party at Mirath, Uttar Pradesh for nabbing the appellants.It reveals that at the address of the appellants given to them, nobody was found and hence they had halted for 3-4 days.It reveals that after receipt of information that appellants were residing at Shajah Nagar, Mirath, on 2.9.2007 along with Nisarigate Police, he had been to the said Police Station and found both the appellants in one room.It reveals that on the basis of the photograph of the appellants given to him, he identified and arrested them by drawing panchanama Exh.28 in presence of panchas.It reveals that thereafter he had obtained transit remand and brought them to Bombay.After perusal of the cross- examination, we do not find that except giving the witness suggestion that he has deposed falsely, any significant material was brought on the record for not accepting his evidence.Though there is substance in the submission of prosecution having not examined panch witnesses, still we find it difficult to accept the submission that on the said count the evidence of PW9 is liable to be rejected.We are of such a view a it is fairly settled legal position that the presumption of truth available for the evidence of any witness recorded on oath is equally available for the evidence of the honest Police Officer and their evidence is not liable alone on the count of themselves being from the Police Department.::: Downloaded on - 27/08/2013 21:07:42 :::ig Having regard to the same and after carefully considering the evidence of PW9, we find that the same is free from doubt, embellishment or any interestedness.Now considering the sixth circumstance relied by the prosecution of appellant no.1 having purchased sleeping pills on the day in question and administered the same, the trial Court had held that initial part of the said circumstance was duly established by the prosecution i.e. purchase of sleeping pills on the basis of the evidence of PW5, but not the latter aspect, as no evidence has surfaced regarding the same and even the medical evidence 23 of 33 ::: Downloaded on - 27/08/2013 21:07:42 ::: 24 apeal 234.09.bom.doc adduced having not established such a tablet was administered by PW1 to the deceased for making them easy to commit crime in question due to thereby there would have been least resistance on part of the deceased.In the said context, the prosecution has also adduced the evidence of PW15 Investigating Officer for establishing that statement made by appellant no.1 of showing the place at which she had purchased the said pills for the purpose as stated by him and having led the panchas and Police to the shop of PW5 and the panchanama Exh.42 regarding the same.Since we find there is a failure of the prosecution to establish discovery of the shop in pursuance to the statement made can be said to be an incriminating fact or even otherwise giving all latitudes to the prosecution with certainty having established, the nexus of the tablets purchased with the crime in question, we find it difficult to place much reliance upon the said evidence for any significant purpose.However, thereby we do not intend to convey that the entire evidence of PW5 would be liable to be discarded as the fact of appellants having purchased such pills from his shop has been duly established from his evidence.::: Downloaded on - 27/08/2013 21:07:42 :::With regard to seventh circumstance of the appellant 24 of 33 ::: Downloaded on - 27/08/2013 21:07:42 ::: 25 apeal 234.09.bom.doc no.2 possessing the knowledge regarding the place at which the blood stained clothes and gunny bag used by appellant no.1 for cleaning the room were kept concealed and thereby nexus of appellant no.2 with the crime.The prosecution has also adduced the evidence of PW3 and PW15 regarding the statements made by appellant no.2 leading to the discovery and seizure of a bag containing the clothes which were used by appellant no.1 for cleaning the room and the same being seized from the place shown by the appellant no.2 at Bandra creek.However, reference to the evidence of PW3 reveals that he had not supported the prosecution and the learned APP had cross-examined him by obtaining permission of the Court.Hence prosecution as well as the trial Court had relied only upon the evidence of PW15 and C.A. report received regarding the said clothes indicating that human blood was found on the said clothes seized from the bag which was taken out from the sea water and sent to C.A. Thus considering limited significance of the said circumstance, we do not propose to indulge in detail dilation about it except stating that considering the place at which the said recovery was made i.e. clothes kept in a bag and thrown in a creek water , the said evidence would not be liable to be discarded as tried to canvass by the learned counsel for the appellants on the count of the recovery being from an open place accessible to all.It is indeed true that the recoveries of such a nature are found to be insignificant in view of knowledge regarding 25 of 33 ::: Downloaded on - 27/08/2013 21:07:42 ::: 26 apeal 234.09.bom.doc the same can be possible to any particular person for the said reason other than himself being a culprit and thus for the said reason significance of such a recovery from the open place being reduced.However, in the instant case, considering the evidence of PW15 in proper perspective and the manner in which the said clothes used for cleaning the human blood in the room, were thrown at a place in a sea which though open, still considering the peculiarity attached with it, we find it difficult to accept submission canvassed for the simple reason that the said facets denote that knowledge of such articles being at such place could not have been gathered by anybody else other than the person linked with the said recovery.Similarly we also do not find substance in the criticism canvassed that panch witness PW3 having not supported the prosecution, the entire evidence pertaining to the said recovery is liable to be discarded.We reject the said submission for the same reasons for which we have earlier not found in favour of the submission canvassed qua the evidence of PW9 API Badgujar on the count of non-examination of panch witnesses.Needless to add by establishing human blood on the said clothes, gunny bag vide C.A. report Exh.44, the prosecution has established nexus of the said clothes with the crime in question and particularly due to non- explanation about all the said aspects on part of any of the appellant.Similarly in absence of any suggestion of tampering of the seals of the said articles sent to C.A. , we are unable to give any 26 of 33 ::: Downloaded on - 27/08/2013 21:07:42 ::: 27 apeal 234.09.bom.doc credence to the submission canvassed that on the said count the said evidence is worthless.Resultantly we find that though for limited purpose the said evidence deserves to be taken into consideration for adding assurance to the conclusions arising out of the other established circumstances.::: Downloaded on - 27/08/2013 21:07:42 :::::: Downloaded on - 27/08/2013 21:07:42 :::::: Downloaded on - 27/08/2013 21:07:42 :::Now considering to the last eighth circumstance relied by the trial Court regarding the extra judicial confession made by the appellants to PW11 Dr. Shinde i.e. statements made by both the appellants while giving history about the injuries sustained by them when they were sent for medical examination by PW15 to the said Doctor on 6.9.2007 i.e. the matter contained in Exhs.35 and 36, we are unable to place any reliance upon the said apparently inadmissible evidence.We are of such a view as after considering the evidence of PW15, it is apparently clear that both the appellants were then in Police custody.The evidence of PW15 that he sent both the appellants for such an examination itself denotes that both the appellants were then in his custody.In the said context the reference to the provisions of Section 26 of the Evidence Act which runs as under:-::: Downloaded on - 27/08/2013 21:07:42 :::whilst he is in the custody of a police officer, unless it be made in the immediate presence of a Magistrate, shall be proved as against such person."Admittedly the appellants being in custody when they had given the said history, in the event of same being of any confessional nature as canvassed, same would be wholly inadmissible in law and the prosecution would be debarred to prove the purported confessions against the appellants, all such evidence thereto adduced by the prosecution will be required to be left out of consideration and as such the circumstances under consideration and erroneously held to be established by the trial Court will be required to be held as not established and will be 28 of 33 ::: Downloaded on - 27/08/2013 21:07:42 ::: 29 apeal 234.09.bom.doc required to be left out of the consideration.Resultantly we find that out of above charted circumstances, excepting the last eighth circumstance, the prosecution has established all the circumstances or part thereof as indicated in the discussion made hereinabove.::: Downloaded on - 27/08/2013 21:07:42 :::The learned counsel for the appellants vehemently contended that after excluding the vital circumstances of the purported confessions allegedly made by the appellants to PW11, the remaining circumstances being incapable of leading to the sole inference of the guilt of the appellants or at least of appellant no.2, both the appellants and/or at least the appellant no.1 would be entitled to be acquitted or at least given benefit of doubt.It was canvassed that there being no cogent evidence of room being locked or even assuming it to be locked, there was every possibility of somebody else entering said room and committing the murder and thereafter going away by locking the room for implicating the appellants.We are unable to accept the said criticism as we find that there is a close proximity within the events of the appellants along with the children leaving the spot of offence on 22.08.2007 at about 9 a.m. after locking the same and about the fact of since then room being locked and decomposed corpse of the deceased found in the 29 of 33 ::: Downloaded on - 27/08/2013 21:07:42 ::: 30 apeal 234.09.bom.doc said room on the next day; as duly established by the prosecution.::: Downloaded on - 27/08/2013 21:07:42 :::Hardly any evidence is surfaced on the record that anybody else had thereafter opened the said room.At any rate the room being locked, the same excludes any such possibility as canvassed.Thus the said circumstance of corpse of deceased being found in the said room which was locked when appellants had left room, has significant serious potential of the said circumstance alone leading to the sole inference about their guilt in causing homicidal death of deceased even not disputed by the appellants and otherwise also established by the prosecution.Such a conclusion is inevitable has none of the appellants has advanced any explanation during their examination under Section 313 of the Cr.P.C. Hence even if the other circumstances i.e. circumstance nos. 2,5,6 and 7 are not taken into consideration, the other established circumstance nos. 1,3 and 4 alone are capable of leading to the inference of their guilt.Additionally the said other circumstances established by the prosecution also strengthens such a conclusion, as the said circumstances considered along with the earlier two referred circumstances forms a formidable chain leading to the sole inference of the guilt of the appellants.The same is apparent from the circumstances of blood stained water percolating in the room of PW2, though appellant no.1 tried to explain of the same being on count of injury sustained by her, her conduct of non-opening the door at the relevant time and the time at which the said event had 30 of 33 ::: Downloaded on - 27/08/2013 21:07:42 ::: 31 apeal 234.09.bom.doc occurred i.e. about 8 p.m. on the relevant day also fortifies the conclusions arrived earlier.::: Downloaded on - 27/08/2013 21:07:42 :::Same is the case regarding fifth circumstance of both the appellants being found in one room at Mirath.It is indeed true that as pointed out by the learned counsel for the appellants, the prosecution has not given the evidence as to who was the owner of the said room and additionally the appellants acquainted with each other, being found in one room by itself would be innocuous circumstance as canvassed.Similarly with regard to the part of circumstance no.6 of trial Court having held that there is no evidence of appellant no.1 having administered sleeping pills purchased by her to the deceased, it can be said that even for the said circumstance no explanation had been given by the appellant no.1 i.e. regarding the reason for purchasing the said pills.Thus the said circumstance 31 of 33 ::: Downloaded on - 27/08/2013 21:07:42 ::: 32 apeal 234.09.bom.doc considered along with the other circumstances also fortifies the inference arising out of the same.Since it is well known that the evidence of medicine consumed may not be retained in the body after passage of certain times, we find total rejection of the said part of circumstance by the trial Court was not proper.::: Downloaded on - 27/08/2013 21:07:42 :::The learned counsel for the appellants also tried to canvass that ultimately the appellant no.1 was a lady and it is unlikely that she would have caused the throat injury to her husband and at the most, the evidence denotes that she had accompanied the appellant no.2 and as such her conviction under Section 34 of the Indian Penal Code was improper.We do not find any force in the said submission as bare glance of the said section 32 of 33 ::: Downloaded on - 27/08/2013 21:07:42 ::: 33 apeal 234.09.bom.doc 34 of the I.P.C. makes it clear that act includes the series of an act and under Section 34 of the I.P.C. if such an act is done by several persons in furtherance of common intention of all, then each of such person is liable for that act in the same manner as if it was done by him alone.::: Downloaded on - 27/08/2013 21:07:42 :::Resultantly we find no merit in the appeal and dismiss the same.::: Downloaded on - 27/08/2013 21:07:42 :::

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

Counsel for the parties have chosen not to appear at the call by High Court Bar Association to boycott the Court.Let record of the trial Court be called for.Perused the judgment.Considered I.A. No.23926/2015, an application for suspension of sentence and grant of bail to the appellants.In view of the fact that appellants though were prosecuted for the offence under Sections 294, 325/34, 323/34, 395 and 506B of IPC; however, the prosecution has failed to establish the charges under Sections 294, 323/34, 395 and 506B IPC and that co-accused Suresh, Deeprani and Haribai are being exonerated of all the charges and the fact that the appellants were on bail during trial and they have not misused the liberty so granted, but without expressing any opinion of the merits of the case, the Court is of the view that the jail sentence awarded to the appellants for the offence under Section 325/34 IPC deserves to be suspended.The I.A. is, accordingly, allowed and it is directed that on appellants, viz. Kannai and Mukesh Kurmi, depositing entire fine amount as also furnishing a personal bond in the sum of `20,000/- (Rupees Twenty Thousand) each, with a solvent surety Criminal Appeal No.3281/2015 in the like amount, to the satisfaction of Chief Judicial Magistrate, Damoh for their appearance before the Registry of this Court on 10.3.2016 and on all such subsequent dates as may be fixed in this regard, sentence of imprisonment awarded to the appellants shall remain suspended till further orders and they shall be released on bail.Let this appeal be listed for final hearing in due course under appropriate category.C.C. as per rules.

['Section 34 in The Indian Penal Code', 'Section 325 in The Indian Penal Code', 'Section 395 in The Indian Penal Code', 'Section 323 in The Indian Penal Code', 'Section 294 in The Indian Penal Code']

Heard on this first application for bail under Section 439 of the Code of Criminal Procedure filed on behalf of the petitioner Rustam Singh Barela in Crime No.07/2018 registered by Police Station Rajpura, District Damoh under Sections 376D, 450 and 506 of the I.P.C.As per the prosecution case, the prosecutrix is a 28 years old mature, married woman with two children.At about 12:30 p.m. on 27.2.2018, the prosecutrix was sleeping at her home with her two children.She had not bolted the door from inside.Her husband had gone to visit his relatives.At that time, petitioner Rustam came and lay with her on the same cot.The prosecutrix thought that it was her husband, who was sleeping.However, when she realized that petitioner Rustam was sleeping on the cot, she raised an alarm; whereon, Rustam threatened to kill and clamped her mouth shut.Rustam informed her that petitioner Prem Singh is also standing outside the door; thereafter, Rustam raped the prosecutrix.When Rustam was leaving, prosecutrix threw a brick on him.Both Rustam and Prem Singh were threatening to kill the prosecutrix and her husband.when her husband arrived at 4:00 a.m. in the morning, report was lodged.Learned counsel for the petitioner submits that the statement of the prosecutrix, her husband and her brother-in-law have been recorded by the trial Court on 29.6.2018 and they have all turned hostile and have not supported the prosecution case at all.In support of his contention, he has filed copies of the statements of the THE HIGH COURT OF MADHYA PRADESH AT JABALPUR Misc.Criminal Case No.11936/2018 Rustam Singh Barela Vs.State of M.P.prosecution witnesses.The petitioner has been in custody since 1.3.2018; therefore, it has been prayed that the petitioner be released on bail.Learned Government Advocate for the respondent/State on the other hand has opposed the application mainly on the ground that the statement of the prosecution witnesses cannot be evaluated or appreciated for the purpose of grant of bail to an accused person.Consequently, this first application for bail under section 439 of the Code of Criminal Procedure filed on behalf of petitioner Rustam Singh Barela, is allowed.It is directed that the petitioner shall be released on bail on furnishing a personal bond in the sum of Rs.40,000/- with one solvent surety in the same amount to the satisfaction of the trial Court for his appearance before that Court on all dates fixed in the case and for complying with the conditions enumerated under Section 437 (3) of the Code of Criminal Procedure.Certified copy as per rules.(C. V. Sirpurkar) Judge ahd Digitally signed by MOHD AHMAD Date: 2018.07.11 23:15:59 -07'00'

['Section 450 in The Indian Penal Code', 'Section 506 in The Indian Penal Code', 'Section 437 in The Indian Penal Code']

The prosecution story, briefly stated, was as under :-All the appellants as well as Hira Singh, deceased and his brother Ganesh Singh (PW-1) were residents of village Shivpur Diyar, P.S. Kotwali, district Ballia.About 5 days before the occurrence of this case, appellants Radha Mohan Singh and Kaushal Kishore and others had assaulted one Udai Narain and a case was registered in this regard .Ganesh Singh (PW-1) was witness of prosecution in the said case.Radha Mohan Singh and others were pressurizing Ganesh Singh (PW-1) not to give evidence against them in said case , but he was not agreeable to it.Hira Singh deceased, elder brother of Ganesh Singh (PW-1) was residing at Calcutta in connection with his business.Two days before the occurrence of this case, Hira Singh had come to his native village.On 14-3-1979 it was a day of Holt festival.People of the village of the parties were busy in singing Holi songs and meeting with each other.In the evening.Hira Singh deceased had gone to meet Udai Narain.While he was returning from the house of Udai Narain, appellants Radha Mohan Singh and Kaushal Kishore met him in the way and asked him to ask his brother (Ganesh Singh) not to give evidence against them.Hira Singh told that his brother had seen the occurrence and he would give evidence.The above appellants then threatened him that they would teach him a lesson.Ganesh Singh (PW-1) had also gone -in the village to meet some people and when he returned to his house, Hira Singh told about the threat given by the appellants Radha Mohan Singh and Kaushal Kishore.Thereafter, Hira Singh deceased and Ganesh Singh (PW-1) went to the house of Nand Kishore (PW-5).Mohan (PW-3) and Ram Pyari (PW-6) were also present there.All the four persons then proceeded towards north.After meeting people they were returning to their house.Duration fresh.Ganesh Singh (PW-1) thereafter got prepared report from Madan Yadav and lodged the same at P.S. Kotwali at 10.30 p.m. On the basis of written report (Ext. Ka-1), Head Constable Shamsher Singh (PW-9) prepared chick, F.I.R. (Ext. Ka-17) made an endorsement of the same at G.D. report and registered a case against the appellant under Sections 147, 148, 149, 324, 323, 323 and 307, IPC.The investigation of the case was taken up by Sri Shiv Kumar Singh, I.O. (PW-8).who interrogated Ganesh Singh (PW1) at the police station,Hira Singh deceased died in the hospital at 10.40 p.m. The information regarding his death was sent to P.S. Kotwali, which was received there at 12.10 a.m. the endorsement of which was made at G,D. report (Ext. Ka-20) .On the basis of above information, the case was altered under Section 302, IPC.The I.O. Sri Shiv Kumar Singh (PW-8) reached the spot, where he interrogated Mohan Yadav (PW-3) and Ram Pyari (PW-6) and sent them for medical examination.Thereafter the I.O. interrogated Ram Jee Singh (PW-4) and Nand Kishore (PW-5).The I.O. inspected place of occurrence and prepared site plan (Ext. Ka-12).The occurrence had taken place in the open place and assuming that darkness had started, there was sufficient light of twilight as well as moon light in which the known persons could be easily identified as the parties are residents of village and used to live in the midst of nature and accustomed to live without light.JUDGMENT U.S. Tripathi, J.This appeal has been nominated by the order of Hon'ble the Chief Justice dated 29-3-2004 to this Bench under Section 392 , Cr.P.C. for opinion, as there was difference of opinion between the Hon'ble Judge (Hon'ble S.K. Agarwal, J. and Hon'ble K.K. Misra, J.) of the Bench which heard and decided it.The appeal was directed against the judgment and order dated 16-6-1980 passed by the Sessions Judge, Ballia in Sessions Trial No. 50 of 1980 convicting the appellants Radha Mohan, Devendra Singh alias Mutuk Singh, Kaushal Kishore, Tej Bahadur Singh and Kapil Deo Singh under Sections 302 read with 149, IPC and sentencing each of them to imprisonment for life, further convicting appellants Tej Bahadur Singh and Kapil Deo Singh under Section 147, IPC and sentencing each of them to undergo R.I. for a period of one year, further, convicting Radha Mohan, Devendara Singh and Kaushal Kishore under Section 148, IPC and sentencing each of them to undergo R.I. for a period of two years.Appellant Kaushal Kishore was further convicted under Section 324, IPC and Kapil Deo Singh and Tej Bahadur Singh under Section 323, IPC and remaining appellants were convicted under Section 324 read with 149 IPC and 323 read with 149, IPC, but no separate sentence was awarded under these sections.At about sun set when they reached near the house of Nand Kishore (PW -5), the appellants Radha Mohan Singh armed with spear (Bhala), Devendara Singh armed with Lathi and Kaushal Kishore armed with knife met them there.Radha Mohan Singh appellant inflicted spear below on Hira Singh deceased and when Ganesh Singh (PW-1) tried to save him, appellants Tej Bahadur Singh and Kapil Deo Singh inflicted Lathi blows on him.Mohan Yadav (PW-3) and Ram Pyari (PW-6) tried to save them and Kaushal inflicted knife blow on Mohan and Kapil Deo Singh assaulted Ram Pyari (PW-6) with Lathi.On the alarm raised by the injured Ram Jee Singh (PW- 4), Nand Kishore (PW-5), Jagdish Singh and others came to the spot and witnessed the occurrence.Thereafter, the appellants ran away towards east.Hira Singh had sustained spear and Pharsa injuries.A charpai was arranged on which Hira Singh was taken to Bandh and from there to District Hospital, Ballia, where he was medically examined by Dr. M.A.R. Siddlqui (PW-2) at 9 p.m. who found following injuries on his person :-(1) Incised wound 0.5 cm x 0.2 cm x skin deep on left side chest 19 cm below nipple.(2) Incised wound 3 cm x 2 cm x bone deep on left side of chest (as far as probed easily 10 cm above left nipple), margins sharp cut, tailing downwards, fresh blood coming out of wound.The injuries were kept under observation and patient was admitted in the hospital.The injuries were caused by sharp edged weapon and were fresh in duration.Ganesh Singh (PW-1) was also medically examined by Dr. Siddiqui at 9,50 p.m. and following injuries were found on his person :-(1) Lacerated wound 3 cm x .5 cm scalp deep on right parietal region of head, 12 cm above right ear.(2) Contusion with swelling 3 cm x 3 cm on right parietal region 6 cm from right ear louble (above) red in colour.(3) Abrasion 1 cm x 0.5 cm on left side face just lateral to left eye.(4) Contusion 3 cm x 2 cm on right shoulder outer most.(5) Contused swelling , 3 cm x 3 cm on front of left knee joint.The injuries were simple caused by blunt object, except No. 3 caused by friction against hard surface.He also recovered blood from the spot and prepared recovery memo.The inquest of dead body of Hira oSingh was conducted on 15-3-1979 by Sub Inspector Ram Sabad Singh (PW-7) in the mortuary of District Hospital.He sealed the dead body and sent the same for postmortem along with other relevant papers.Ram Pyari (PW-6) was medically examined on 15-3-1979 at 11.30 a.m. by Dr. S.P. Singh (PW-11) who found following injuries on his person ;:-Painful swelling 2.5 x 1.5 cm on the back of left hand's thumb at its root.Abrasion 3x2 cm on the right side Of head 4 cm above and in front of tragus.Complain ofpain on mid front of chest.Mohan (PW-3) was medically examined by Dr. S.P. Singh (PW 11) on 15-3-1979 at 12.10 p.m. and there were following injuries on his person :-Lacerated wound 1.5 x 0.2 cm x skin deep on the palmer aspect of left middle finger at its middle phalanx.Lacerated wound 0.3 x 0.2 cm x skin dep on the palmer aspect of left ring finger just above the middle phalanx.Both injuries were simple caused by blunt object and 3/4 day old.Autopsy on the dead body of deceased was conducted on 15-3-1979 at 4 p.m. by Dr. Prem Prakash (PW-10), who found following ante mortem injuries on his person :-(1) Stitched wound 3 cm long on the left side of chest, 1 cm below the clavicle and 5 cm left to the mid-line.On the removal of stitches, it was found that there was a stab wound 3 cm x chest cavity deep on the left side front of chest, 1 cm below the clavicle and 5 cm left to the mid-line.Margins of wound were well defined.Wound was directed inwards downwards and towards right side.cm x 0.2 cm skin deep on the left side of chest in mid axillary line, 16 cm behind the axilla and 24 cm left to the mid-line.Internal examination showed that both the pleuras were punctured.Right pleural cavity contained one pint of blood, Left pleural cavity contained 1 pint of blood, In the right lung punctured wound 1.5 cm x large tissues deep at their middle lobe was present.In the left lung punctured wound 2 cm x 1 cm x through and through at the upper lobe was present.Stomach contained semi digested food .Small intestine contained semi digested food materials and large intestine contained faccal matter.The remaining investigation was completed by Sri S.N. Singh, Inspector, who submitted charge-sheet against the appellants.Cognizance of the case was taken by the Magistrate, who committed the case to the Court of Sessions.Appellants Kapil Deo Singh and Tej Bahadur Singh were charged with the offences punishable under Sections 147, 302/ 149, 324/149 and 323, IPC while appellants Radha Mohan and Devendra Singh were charged with the offences punishable under Sections 148, 302/149, 324/149 and 323/149, IPC.Kaushal Kishore was charged with the offences punishable under Sections 148, 302/149, 323/149 and 324, IPC.The appellants pleaded not guilty and contended their false implication due to enmity.The prosecution in support of its case examined Ganesh Singh (PW 1), Dr. M. A. R. Siddiqui (PW 2), Mohan Yadav (PW 3), Ram Jee Singh (PW 4), Nand Kishore (PW- 5), Ram Pyari (PW 6), Ram Sabad Singh, Sub-Inspector (PW 7), Shiv Kumar Singh, I.O. (PW8), Shamsher Singh Head Constable (PW 9), Dr. Prem Prakash (PW 10) and Dr. S. P. Singh (PW 11).Ganesh Singh (PW 1), Mohan Yadav (PW 3), Ram Jee Singh (PW- 4), Nand Kishore (PW 5) and Ram Pyari (PW- 6) were witnesses of fact, while evidence of remaining witnesses was formal in nature.The appellants led no evidence.The learned Sessions Judge on considering evidence of the prosecution held that the appellants were members of unlawful assembly, the common object of which was to commit murder of Hira Singh and to inflict injuries on the persons, who came to his rescue and therefore, the prosecution established the guilt of appellants.With these findings, he convicted and sentenced.the appellants as mentioned above.Aggrieved with their above conviction and sentence, the appellants preferred this appeal.The appeal was once dismissed by the Bench consisting of Hon'ble R.R.K. Trivedi and Hon'ble Ikram-ul-Bari, JJ.The appellants went in appeal before Hon'ble Supreme Court against the above judgment and order.Hon'ble Supreme Court, vide order dated 14-3-2002 allowed the appeal and remanded back the appeal to this Court for fresh decision on merits in accordance with law after giving an opportunity of being heard, as the appeal was decided in the absence of learned counsel for the appellants.After remand of the appeal, the learned counsel for the appellants were heard by Bench consisting of Hon'ble S. K. Agarwal and Hon'ble K. K. Misra, JJ.By the judgment, and order dated 22-3-2004 Hon'ble S. K. Agarwal, J. allowed the appeal and set aside the conviction and sentence of appellants.By separate judgment and order of the same date Hon'ble K. K. Misra, J. dismissed the appeal and confirmed the conviction and sentence of the appellants.In view of difference of opinion between the two Hon'ble Judges of the Bench, the record was placed before Hon'ble the Chief Justice under Section 392, Cr.P.C. who nominated the appeal to this Bench for opinion.This is how the appeal is before this Bench.I have heard Sri A. K. Singh, Advocate holding brief of Sri G. S. Chaturvedi, learned counsel for the appellants and the learned A.G.A. for the respondent and have perused the entire evidence on record.The learned counsel for the appellants contended that the appellants had no motive with the deceased; the occurrence had taken place in the darkness and nobody had seen the occurrence; there was delay in the lodging of F.I.R.; the report was ante-timed the evidence of the ocular witnesses is not reliable and therefore, the appellants could not.be convicted.Before adverting to the contentions raised by the learned counsel for the apepllants, I would like to refer the gist of evidence of ocular witnesses.Ganesh Singh (PW 1), the younger brother of deceased Hira Singh, stated that about 5 days before the occurrence of this case, appellants Radha Mohan, Kaushal Kishore and others had assaulted one Udai Narain of which he was witness of the prosecution.Radha Mohan and others were pressurizing him not to give evidence in the said case.On the date of occurrence it was Holi festival and people of the village were busy in singing and enjoying Holi songs.Hira Singh deceased had gone to meet village people and while he was returning to his house Radha Mohan and Kaushal Kishore appellants met him in the way and asked him to persuade his brother (witness) not to give evidence against them.On it Hira Singh replied that his brother had seen the occurrence and he would give evidence.The above appellants then threatened him that they would teach him a lesson.Thereafter, the witness along with the deceased went to the house of Nand Kishore, Mohan (PW 3) and Ram Pyari (PW 6) were also present there.All the four persons proceeded towards north.While returning to their house at about sun set when they reached at Rasta near the hosue of Nand Kishore, appellants Radha Mohan armed with spear, Devendra Singh armed with Pharsa, Tej Bahadur and Kapil Deo armed with Lathi and Kaushal Kishore armed with knife came there.Radha Mohan inflicted spear blow on the deceased.When the witnesses tried to save him, appellants Tej Bahadur and Kapil Deo Singh inflicted Lathi blows on him.When Mohan and Ram Pyari tried to save them, Kausal Kishore inflicted knife blow on Mohan (PW 3) and Kapil Deo inflicted Lathi blow on Ram Pyari, Pharsa injury was also caused to Hira Singh.On the alarm raised by them, Ram Jee Singh (PW 4) Nand Kishore (PW 5) Jagdish Singh and others came to the spot and saw the occurrence.Thereafter, the deceased, who was in injured condition was taken on Charpai up to Bandh and from there he was taken to District Hospital, Ballia in a tempo.Alter medical examination he got prepared report from Madan Yadav and lodged the same at P.S. Kotwali.Mohan Yadav (PW 3) stated that on the date of occurrence, in the evening he along with Hira Singh deceased, Ganesh (PW- 1) and Ram Pyari (PW 6) was sitting at the house of Nand Kishore.From there they went to meet the people of the village.While returning from north when they reached in the Gali near the house of Nand Kishore, appellants Radha Mohan, Devendra, Tej Bahadur, Kapil Deo and Kaushal Kishore came there from southern side.Radha Mohan was having spear, Devendra was having Pharsa, Kapil Deo and Tej Bahadur were having Lathis and Kaushal Kishore was having knife.Raising exhortation, itadha Mohan inflicted spear blow on Hira Singh, Devendra Singh inflicted Pharsa blow on him.When Ganesh (PW 1) rushed to save his brother Kapil Deo and Tej Bahadur assaulted him with Lathi.When the witnesses tried to intervene, Kaushal Kishore appellant inflicted knife blow on him, which hit on his hand.Kapil Deo and Tej Bahadur inflicted Lathi blows on Ram Pyari, who sustained injuries.Nand Kishore (PW 5) Ram Jee (PW 4) and Jagdish Singh also came to the spot and then the appellants ran towards east.Ganesh Singh (PW 1) and Hira Singh were taken to hospital.He and Ram Jee went to hospital on next day, where they were medically examined.Ram Jee Singh (PW 4) stated that on the date of occurrence at about sun set, he reached at the house of Nand Kishore to meet him.He heard alarm from the Gali towards east of the house of Nand Kishore and went there.There he saw that Radha Mohan, Mutuk Singh, (Devendra Singh) Tej Bahadur, Kapil Deo Singh and Kaushal Kishore Singh appellants were assaulting Hira Singh.Radha Mohan was having spear, Mutuk Singh was having Pharsa, Kapil Deo and Tej Bahadur Singh were having Lathis and Kaushal Kishore Singh was having knife.Radha Mohan and Mutuk Singh had assaulted Hira Singh.Ganesh Singh (PW 1) was assaulted by Kapil Deo and Tej Bahadur.Kaushal Singh had inflicted knife blow on Mohan (PW 3) and Kapil Deo Singh had inflicted Lathi blow on Ram Pyari (PW 6).Besides him Nand Kishore (PW 5) and Jagdish Singh had also reached the spot and seeing them, the appellants ran away.Nand Kishore (PW 5) stated that on the date of occurrence, Hira Singh was murdered and Ganesh Singh was assaulted.But he did not know whether Mohan and Ram Pyari were also assaulted.He came to know about the occurrence when he returned to his house and had not seen the actual assault.The witness was declared hostile by the prosecution.Ram Pyari (PW 6) stated that he had not seen the occurrence.He was also declared hostile.The motive alleged in the F.I'.R. was that the appellants had old enmity with Ganesh Singh (PW 1) and the deceased, regarding litigations and village party Bandi.The appellants were always tiying to suppress Ganesh Singh (PW 1) and the deceased.In his evidence Ganesh Singh (PW 1) stated that prior to 5 days of the occurrence Radha Mohan, Kaushal Kishore appellants and others had assaulted one Udai Narain of his village and he was witness of the prosecution of the said assault.Radha Mohan and others were pressurizing him not to become witness in the said case.But he was not acceding to their pressure.On the date of occurrence, the appellants Radha Mohan and Kaushal Kishore again asked Hira Singh deceased to persuade his brother not to give evidence against them.Hira Singh refused and on it, they threatened him to teach a lesson.Enmity beween the parties is not disputed.It is also clear from the cross-examination of Ganesh Singh (PW 1) that Sudama Singh and his wife had initiated a criminal case of Marpit against Ganesh Singh (PW 1) and his brothers, in which father of appellant Mutuk Singh was witness.There was also a civil litigation between Sudama Singh and Ram Jee Singh, in which Sachchida Singh, father of Mutuk Singh was witness.Another criminal case was initiated against Mutuk Singh and his father, in which Ganesh Singh (PW 1) was cited as a witness.It was also suggested on behalf of the appellants to Ganesh Singh (PW 1) that besides him, Ram Jee Singh and Mahabir were also witnesses in the case of assault on Udai Narain.The appellants had also admitted in their statement under Section 313, Cr.P.C. that they were falsely implicated on account of enmity.Therefore, enmity between the parties is not disputed.However, the fact that Ganesh Singh (PW 1) was witness in the case of assault on Udai Narain against appellants Radha Mohan and others is not mentioned in the F.I.R. but it is admitted to appellants that Ganesh Singh (PW 1) was witness in the case of assault on Udai Narain, but they had not assaulted.Therefore, it cannot be said that the factum of assault by appellant.Radha Mohan and others on Udai Narain and Ganesh Singh (PW 1) being witness of the prosecution in the said case was introduced for the first time.Ganesh Singh (PW 1) was interrogated in the said case by the I.O. prior to the date of occurrence.Though there was no date of evidence in the Court in near future, but there is no evidence on record to show that charge-sheet was not submitted in the case.There is also no evidence on record to show that a final report was submitted in the said case.In case the police had interrogated Ganesh Singh (PW 1) in the said case of assault on Udai Narain, it had given apprehension to the appellants that he would appear as witness against them in the Court also and in these circumstances they had to take every steps to win him over, so that they could not be punished in the said case.It was further contended that in case Ganesh Singh (PW 1) was witness against the appellants, the appellants had no occasion to pressurize his brother Hira Singh, who was residing at Calcutta and had come to his village for a short period and as such there was no motive against Hira Singh.There appears no force in the above contention.Admittedly Hira Singh was elder brother of Ganesh Singh (PW 1).If Ganesh Singh (PW 1) was not conceding to the pressure of appellants, the appellants in all probabilities had thought it proper to ask his elder brother, who had come to village, to pressurize him in this regard and when Hira Singh also did not agree to their proposal, it was but natural for the appellants to teach him a lesson.There is also evidence on record that the appellants were influential persons of the village and persistence of Ganesh Singh (PW 1) and his brother Hira Singh deceased to give evidence against them would have badly hurt their ego and they would have decided to teach a lesson to them.Even that apart, in this case ample materials are on record to show that the family of the appellants and the deceased were not in good terms and had strained relationship over civil and criminal litigations which itself is more than sufficient to constitute the motive as well.Moreover, in this case there is direct witness and therefore the motive element does not play such an important role as to cast any doubt on the credibility of the prosecution witness even if there be any doubt in this regard.Therefore, the motive alleged by the prosecution was probable and immediate.The omission regarding above motive in the F.I.R. is not very much material firstly; because the facturn of Ganesh Singh (PW 1) being a witness in the case of assault on Udai Naraln is admitted and the facts and circumstances in which the report was lodged there was every possibility that informant would have not.thought it necessary to mention this motive in detail in the F.I.R and therefore, the omission of this motive Is not very much material and it cannot be said that this motive was subsequently introduced.The occurrence in this case allegedly took place at about sun set and the F.I.R. was lodged at 10.30 p.m., while the distance of police station was only 6 miles (10 Km.).The learned counsel for the appellants contended that there was delay in lodging the report.It is clear from the evidence of Ganesh Singh (PW 1) and other ocular witnesses that occurrence took place at about sun set.Hira Singh deceased had sustained spear and pharsa injuries in the incident and after the occurrence a Charpai was arranged on which the deceased was brought up to Bandh and from there he was taken to District Hospital, Ballia in a tempo.The deceased as well as Ganesh Singh (PW 1) were medically examined in the District Hospital at 9 p.m. and 9.50 p.m. respectively and thereafter Ganesh Singh (PW 1) came to police station, where he got prepared the report and lodged the same.It was clarified by Ganesh Singh (PW 1) in his evidence that though buses for Ballia were available at the Bandh, but on the date of occurrence it was Holi festival and therefore, no bus or rickshaw was plying.It was also clarified that there were many rickshaws and tempos in his village, but on account of Holi festival,.no rickshaw or tempo was available.That he had to wait for tempo at the Bandh for about 2 hours.He further clarified that he along with his brother reached District Hospital, Ballia near about 9 p.m. Thus, the non availability of rickshaw and tempo in the village of occurrence has been fully explained.is a matter of common experience that on.Holi festival rickshaw pullers and tempo drivers are busy in celebrating festival and they do not ply their rickshaw and tempo on said day.Thus, the circumstances in which informant Ganesh Singh (PW 1) and deceased Hira Singh were brought to District Hospital and thereafter,' report was lodged, the delay, if any, has been fully explained.The learned counsel for the appellants pointed out that the explanation offered by Ganesh Singh (PW 1) does not appear correct, as according to the witness, the distance of Bandh from the place of occurrence is only about 500 yards and the informant must have reached there at about 6.30 p.m. and it is also admitted to him that distance of police station was only 7 miles and therefore, this distance could have been covered within half an hour.But no inference can be drawn simply by picking up certain sentence from the evidence of a witness.The witnesses are villagers.They stated timing on their speculation and there could be some difference in the timing given by such type of witnesses.Method of mathematical calculation cannot be applied on these witnesses and therefore, by applying mathematical formula the testimony of above witnesses on the point of explanation of delay in lodging the report cannot be disbelieved.As mentioned above, it has also been fully explained by Ganesh Singh (PW 1) as to why he had to wait for about 2 hours for conveyance at the Bandh.Therefore, there is no force in the above contention.The next contention of the learned counsel for the appellants was that the occurrence had taken place in the darkness and nobody had seen the assault.In the F.I.R. the time of occurrence is given at about sun set.Ganesh Singh (PW 1) has stated in his evidence that the occurrence took place at about sun set, while he along with his brother Hira Singh and Mohan (PW 3) and Ram Pyari (PW 6) were proceeding towards the house of Nand Kishore (PW 5).Mohan Yadav (PW 3) also stated in his examination -in-chief that the occurrence took place in the evening.In his cross-examination, he stated that Hira Singh and Ganesh Singh (PW 1) came to the house of Nand Kishore (PW 5) prior to one hour of the sun set.However, his cross-examination was deferred for next day and in his next day's cross-examination he stated that sun had set pior to one and half hour, of the occurrence.However, the witness was declared hostile by the prosecution and was cross- examined.Ram Jee Singh (PW 4) also stated in his examination in-chief that occurrence took place at about sun set, Nand Kishore (PW 5) and Ram Pyari (PW 6) have not supported prosecution case and were declared hostile.Ram Pyari (PW 6) stated that occurrence took place in the night and three Gharis night had passed when the occurrence took place.On the basis of above evidence it was contended that occurrence took place in the darkness.It is relevant to mention at this stage that Mohan (PW 3) changed his previous version about time of occurrence in his cross-examination of next day, and therefore, the possibility that by next day, he was won over and pressurized by the appellants cannot be easily ruled out.Ram Pyari (PW 6) though injured witness had not supported the prosecution case and he was declared hostile.But the Court has at least to be aware that prima facie, a witness who makes different statements at different times has no regard for truth.His evidence has to be read and considered as a whole with a view to find out whether any weight should be attached to the same.The Court should be slow to act on the testimony of such a witness and, normally, it should look for corroboration to his evidence.The High Court has accepted the testimony of the hostile witnesses as gospel truth for throwing overboard the prosecution case which had been fully established by the testimony of several eye-witnesses, which was of unimpeachable character.The approach of the High Court, in dealing with the case, to say the least, is wholly fallacious."If the evidence of Mohan (P. W. 3) is considered as a whole, it would appear that he is an injured witness and sustained injuries in the same transaction and had also supported the case of the prosecution in his earlier statement.As held above, the possibility that after first day's cross-examination, witness was pressurized and was won over can also not.be ruled out.The perusal of entire evidence of the witness shows that he had corroborated the testimony of Ganesh Singh (P.W. 1).The learned counsel for the appellants further contended that Ganesh Singh (P.W. 1) has admitted In his cross-examination that he started from his house for meeting people on Holi festival at 4.30-5 p.m. That he visited about 10 houses.That he spent about 1 or 2 minutes at each house and it took about 2 hours and therefore, he could not reach the place of occurrence prior to 6.30 or 7 p.m. Having considered the evidence of Ganesh Singh (P.W. 1) I find that above contention is not correct.The witness stated that he started from the house of Nand Kishore (P.W. 5) at about 4.30-5 p.m. He denied the suggestion of appellants that it took about 2 hours to complete the visit.Further, he stated that he returned within 1 1/2 hours.He also stated that there was no singing at the houses which he visited and thus in all probabilities he returned and reached the place of occurrence at about 6.15 p.m. In the months of March when the occurrence took place sun sets at about 6 p.m. and there is twilight for about 30 minutes after sun sets and therefore at the time of occurrence there was sufficient light.It is not disputed that the appellants and the witnesses are of the same village and the appellants were well known to the witnesses.It is also not disputed that occurrence had taken place on the day of Holi festival.Holi occurs on succeeding day of Purnima (full moon night) and on that day, the moon rises just after the sun set.The occurrence had taken place at about sun set and the report was lodged at 10.30 p.m. Informant Ganesh Singh (P.W. 1) has explained that after the occurrence arrangement for a Charpai was made and deceased Hira Singh, who was in injured condition was brought up to Bandh on the said Charpai.There they waited for conveyance for about 2 hours and then got tempo and reached the hospital.After medical examination of the deceased and the informant he went to polfs.e station, got prepared the report and lodged the same.The evidence of Shamsher Singh, Head Constable (P.W. 9) shows that the informant Ganesh Singh (P.W. 1) handed overwritten report (Ext. Ka 1) at the police station at 10.30 p.m. on the basis of which he prepared a chik, FIR and made an endorsement of the same at the G.D. report.The evidence of Dr. M.A.R. Siddiqui (P.W. 2) shows that Hira Singh was examined at 9 p.m. and Ganesh Singh (P.W. 1) was examined at 9.50 p.m. Informant Ganesh Singh (P.W. 1) went to police station after his medical examination.Ganesh Singh (P.W. 1) stated that it took about 30 minutes to get the FIR prepared.Thus, in all probabilities, the report would have been lodged at 10.30 p.m. It is also established from the evidence of Shamsher Singh, Head Constable (P.W. 9) that after lodging of the report, a memo was received from the hospital at 10.35 p.m. regarding admission of Hira Singh in hospital and another memo was received at 12.10 p.m. regarding death of Hira Singh deceased, on the basis of which the case was altered under Section 302, IPC, vide G. D. report (Ext. Ka-21).He further stated in his cross-examination that special report of the case was sent at 3.10 a.m. through Constable Nagina Ram, who returned back at the police station at 7.15 a.m. The special report was probably sent after altering the case under Section 302, IPC.The case was altered under Section 302, IPC at 00.10 a.m. and some time must have been taken in preparing special report, deploying constable and sending the same.Sending special report at 3.10 a.m. suggests that FIR was lodged at the time alleged by the prosecution.The learned counsel for the appellants contended that informant Ganesh Singh (P.W. 1) was medically examined at 9.50 p.m. and thereafter he came to police station Kotwali; that Police Station Kotwali is at a considerable distance from the hospital and therefore, no report could be registered at 10.30 p.m. at the instance of Ganesh Singh (P.W. 1), who admitted that it took about 30 minutes in preparation of the report.There is no evidence on record to show that P.S. Kotwali, Ballia is at a considerable distance from District Hospital, Ballia.The distance between hospital and police station has not been elicited from any of the witness.Judicial notice be taken of the fact that Ballia is a small city and without any evidence regarding above distance, it cannot be inferred that police station Kotwali is at a considerable distance from the hospital.In small cities like Ballia the distance of Kotwali could be covered within 10 or 15 minutes.Therefore, there is no force in the above contention that Ganesh Singh (P.W. 1) could not reach the police station prior to 10.30 p.m.It was further contended that the inquest report was not prepared in the night as crime number and sections of the offences were noted down in the inquest report with different ink and it shows that FIR was not in existence till inquest memo was prepared.Perusal of inquest report and the evidence of Sub-Inspector Ram Sabad Singh (P.W. 7) shows that inquest was prepared on 15-3- 1979 in the morning.Sub-Inspector Ram Sabad Singh (P.W. 7) stated that he departed from police station at 6.30 a.m. and reached there at 7 a.m. It is however mentioned in the inquest report that inquest report could not be prepared in the night for want of sufficient light and Ram Sabad Singh came to mortuary in the morning and prepared inquest report.However, he further stated that sending of G. D. report and chik, FIR along with inquest report is not necessary, but the post-mortem report shows that 8 enclosures were also sent along with the dead body.It has not been clarified from Dr. Prem Prakash (P.W. 10) who conducted autopsy that copy of report and G.D. were not received along with the dead body.Assuming that these papers were not sent, the lodging of the report at 10.30 p.m. cannot be doubted, as the special report was sent in the same night at 3.10 a.m. No clarification was sought from Sub-Inspector Ram Sabad Singh (P.W. 7) as to how and under what circumstances interpolations were made in Sections of the crime in the inquest report.Unless clarification is sought, it cannot be said that Sub- Inspector Ram Sahad Singh (P.W. 7) himself had made interpolation.Therefore, on this basis, it cannot be said that FIR was not lodged at the time alleged by the prosecution and it was not in existence till the preparation of inquest report.Thus, from the above evidence and discussions it is clear that the FIR was lodged at the time alleged by the prosecution and there was no ante timing.To substantiate the manner of occurrence and complicity of appellants, the prosecution has relied on ocular testimony of Ganesh Singh (P.W. 1), Mohan (P.W. 3), Ram Jee Singh (P.W. 4), Nand Kishore (P.W. 5) and Ram Pyari (P.W. 6).Ganesh Singh (P.W. 1) is the complainant and real brother of the deceased.He claimed that at the time of occurrence, he along with his elder brother Hira Singh deceased was returning to his house after meeting the people of the village on the occasion of Holi and when he and the deceased reached near the house of Nand Kishore at about sun set, the occurrence took place.In his statement the witness had given each and every detail of the occurrence, weapon possessed by each of the appellants and role played by each of them.He is also injured witness and his injuries were examined just after examination of injuries of the deceased at 9.50 p.m. in the same night.He had also taken deceased up to the hospital.He went to the police station and lodged the report.The witness has categorically stated that while appellants Radha Mohan was inflicting spear blow on the deceased, he tried to save him and then appellant Tej Bahadur Singh and Kapil Deo Singh inflicted Lathi blows on him.The injuries sustained by witness, as stated by Dr. M.A.R. Siddiqui (P.W. 2) were lacerated wounds and contusions and contused swelling.Dr. Siddiqui stated that these injuries were caused by blunt object except injury No. 3, which was caused by friction.The above medical evidence supports the evidence of Ganesh Singh (P.W. 1).The duration of injuries of the witness and that of Hira Singh are the same.Thus, it is established that witness sustained injuries in the same transaction, in which the deceased sustained injuries.The injuries on the person of the witness in the same transaction confirms his presence on the spot.As held above, there was sufficient light and opportunity for the witness to recognize the assailants, who were known to him from before.It was pointed out by the learned counsel for the appellant that the witness stated in his cross-examination that when the assailants came near him, he recognized them and it shows that he could not see the role of each accused.The word "Najdik" occurring in the statement of the witness has not been got clarified.It may be 10 paces or 2 paces.No doubt, the witness is close relative of the deceased, but this is no ground to discard his testimony.It was also contended that the witness was inimical with the appellants and therefore the accused persons were nominated on account of suspicion due to pre-existing enmity.Enmity between the parties is admitted.In this case, as held above, enmity was motive for committing the murder of the deceased and assault on the witness.As held above, there was sufficient light and witness has full opportunity to recognize the assailants and therefore, there was no question naming the appellants on account of suspicion alone.It was further contended that the witness had made certain subsequent developments in his statement, as he had not mentioned in the FIR regarding going to village along with the deceased to meet people as well as threat given by the appellants to Hira Singh.No doubt, the above facts do not find place in the FIR but this omission is not very much material.FIR is not encyclopedia of evidence of the prosecution and only gist of the occurrence is mentioned in the FIR to move the police machinery in motion.At the time of lodging of the FIR the brother of the witness was admitted in hospital in precarious condition and he had also sustained injuries and in such circumstances it was not possible for the witness to give each and every detail of the prosecution story in the FIR.The place of occurrence has been mentioned in the FIR and it is supported by the evidence of I.O. Ram Sabad Singh (P.W. 7), but found blood and trodden earth at the spot.The place of occurrence has also not been seriously disputed.It was further contended that Ganesh Singh (P.W. 1) stated that during course of Marpit appellant Kaushal Kishore inflicted knife blow on Mohan (P.W. 3) and the latter caught hold the knife, but the medical evidence of Dr. S. P. Singh (P.W. 11) and injury report of Mohan shows that he had sustained lacerated wounds and no incised wound.The witness has stated in his cross examination that Mohan had caught hold knife, but he could not snatch it.There is nothing on record to show that knife was pulled.While Mohan had caught hold and in case the knife is not pulled in such a way, it could not cause incised wound.The lacerated wounds of Mohan (P.W-3) were on left middle finger and left ring finger.Therefore, in all probabilities, these injuries were caused when he had caught hold knife.Therefore, on this ground, the testimony of Ganesh Singh (P.W. 1) cannot be discarded.The learned counsel for the appellants contended that according to evidence of Ganesh Singh (P.W. 1) deceased was assaulted with spear and Pharsa but his injury report and evidence of Dr. M.A.R. Siddiqui (P.W. 2) shows that deceaed had sustained only two incised wounds and no punctured, penetrating or stab wound and there was no spear injury.Therefore, evidence of Ganesh Singh is contradictory to medical evidence.This contention bears no force in view of evidence of Dr. Prem Prakash (P.W. 10) and postmortem report.Dr. Siddiqui (P.W. 2) described injury No. 2 as incised wound 3x2 cm x bone deep on left side chest.Dr. Prem Prakash (P.W. 10) stated that ante-mortem injury No. 21 was stitched wound 3 cm.long on left side chest.He found that on removal of stitches there was a stab wound 3x2 cm x chest cavity deep on left side of front of chest 1 cm below clavicle and 5 cm.below to mid line.Margins of wound were well defined.It is therefore clear that from outer appearance injury No. 2 of injury report corresponding to injury No. 1 of post mortem report resembled as incised wound, but in fact it was a stab wound.Ganesh Singh (P.W. 1) had stated in his cross-examination that blade of spear was about 3 Anguls (about 1xh inches) wide.It means that spear had pointed as well as sharp edge and therefore it caused incised as well as stab wound.Therefore, one injury of the deceased was caused by spear.Thus, the evidence of Ganesh Singh (P.W. 1) is in conformity with medical evidence.The evidence of Ganesh Singh (P.W. 1) also finds corroboration from medical evidence, FIR and other circumstances of the case referred to above.Therefore, his evidence is clear, cogent and trust worthy.As mentioned above, the witness had given each and every detail of the occurrence in his examination-in-chief as well as in the cross-examination of first day.However, when he was cross-examined on next day, he stated that due to darkness he could not see whether Ganesh Singh (P.W. 1) had fallen down or not.He also stated that there was complete darkness at the time of occurrence and he could not recognize the assailants.But as mentioned above, the evidence of witness cannot be discarded in toto simply because he was declared hostile.A perusal of entire evidence of the witness shows that on the next day, he was made to say something in favour of appellants, as he appears to have been won over.The subsequent evidence of the witness that there was complete darkness on the spot is totally belied by the fact that the night of occurrence was moon lit night and occurrence had taken in the open place and therefore, there was no question of pitch dark.The assailants were also known persons to the witness.He had also sustained injuries and presence of the witness on the spot cannot be doubted and his subsequent statement was due to influence of appellants and therefore, entire testimony of the witness cannot be discarded on this ground.It was further contended by the learned counsel for the appellants that the injuries of the witness do not support that he was assaulted with knife.As mentioned above the witness stated that he had caught hold edged portion of the knife, but he clarified that Kaushal Kishore suddenly snatched the knife and in these circumstances, lacerated injuries were caused on his left middle and ring fingers.The learned counsel for the appellants contended that injuries of Mohan (P.W. 3) were examined on next day i.e. 15- 3-1979 and it indicates that his injuries were subsequently prepared to make him an eyewitness.The I. O. Sheo Shankar Singh (P.W. 8) clarified that he interrogated Mohan (P.W. 3) on next day and since he had sustained injuries he sent him for medical examination.The injuries of the witness were not serious and being Holi festival if the witness did not go to hospital in the night of occurrence, no adverse inference can be drawn and considering duration of his injuries it cannot be said that his injuries were prepared subsequently.Therefore, the evidence of Mohan (P.W. 3) to the extent he corroborated prosecution story is believable.The next witness is Ram Jee Singh (P.W. 4).The trial Court had not relied on the testimony of this witness on the ground that he had enmity with the appellants, his house was at some distance and therefore he was a chance witness and that there were discrepancies between his statement under Section 161, Cr.P.C. and given in the Court.It is true that the witness had some enmity with the appellants and he had also his house at some distance.But the witness has given plausible explanation for his presence on the spot.The discrepancies between his statement under Section 161, Cr.P.C. and in the Court are not very much material.Though he had not sustained any injury, but he cannot be termed a chance witness.The name of the witness finds place in the FIR.Even that apart the prosecution story is established from other eye-witnesses referred to above.The other two witnesses of the occurrence namely Nand Kishore (P.W. 5) and Ram Pyari (P.W. 6) have not supported the prosecution story and therefore their evidence is of no avail.It was further contended by the learned counsel for the apellants that on the date of occurrence some children of Hindu community had thrown colour on Sageer and Meer Hasan, members of Muslim community and on account of it, some altercation had taken place and it appears that Hira Singh deceased and other injured had sustained injuries in the above altercation.Having considered the evidence on record I find no force in the above contention.The appellants had nowhere stated in their statements under Section 313, Cr.P.C. that Hira Singh deceased and other injured witness sustained injuries in the Marpit between Hindu and Muslim communities.A half hearted suggestion was given to Mohan (P.W. 3) that children of the family of Ganesh Singh (P.W. 1) had thrown coloured water on Sageer and Meer Hasan in which some altercation (Jhanjhat) had taken place.But there is no suggestion that either Hira Singh or any other injured sustained injuries in the said altercation.There is also no evidence to prove this fact.It has also not been clarified that the above altercation took place at the time of occurrence or prior to it.Therefore, above alleged altercation cannot be linked with the occurrence of this case and it cannot be said that Hira Singh and other injured sustained injuries in the said altercation.Had it been so, Ganesh Singh (P.W. 1) informant, the real brother of the deceased, would have not spared the real assailants.It is true that the fatal injuries on the deceased was caused by Radha Mohan and Devendra alias Mutuk Singh by spear and Pharsa respectively and deceased had not sustained any other injuries, but the evidence on record shows that all the appellants had simultaneously come to the spot armed with various weapons and had caused injuries from their respective weapons to the deceased and other injured.Therefore, there was active participation by all the appellants and they had shared common object to unlawful assembly, to which they were members.Therefore, the appellants were rightly convicted and sentenced under various Sections with the aid of Section 149, IPC.Thus, the guilt of all the appellants have been established and they were rightly convicted and sentenced by the Trial Court.

['Section 149 in The Indian Penal Code', 'Section 302 in The Indian Penal Code', 'Section 324 in The Indian Penal Code', 'Section 323 in The Indian Penal Code', 'Section 148 in The Indian Penal Code', 'Section 161 in The Indian Penal Code', 'Section 147 in The Indian Penal Code', 'Section 313 in The Indian Penal Code', 'Section 307 in The Indian Penal Code', 'Section 392 in The Indian Penal Code']

1. Admit.Heard forthwith with the consent of the learned counsel for respective parties.The applicants pray for to quash and set aside the order dated 29/07/2011 passed by the learned J. M F C Court no 2, Chandur Bazaar under section 437(5) of the Criminal Procedure Code, 1973, in Crime No. 35 of 2011 whereby the bail granted earlier in favour of the applicants was cancelled.The court considered the application for cancellation on the ground that there was complaint as to violation of the bail order as they were not to enter village Kharpi till the filing of the charge-sheet by the Shirasgaon Police in the case.The court found the ground pleaded by the complainant as doubtful and without merits.But on the ground that the offence appeared serious punishable with imprisonment for life, the court decided to cancel the bail.The applicants prayed, in the alternative, for the order of anticipatory bail.3. Heard submissions at the Bar.The facts appear as under :-::: Downloaded on - 09/06/2013 17:58:12 :::FIR No. 35 of 2011 was lodged on 02/07/2011 at Shirasgaon Police Station in District Amravati by first informant Sheikh Sattar Sheikh Karim under section 324,147,148,149 of the IPC against applicants on the ground that they had raised quarrel over the boundary of the agricultural field and the access road and assaulted first informant, and family members by means of axe, iron pipe,and sticks.Learned JMFC, Chandur Bazaar was pleased to grant conditional bail in favour of the applicants upon execution of bond in the sum of Rs 15000/- and furnishing a solvent surety by each of them and a conditions were added that they will not enter Kharpi village till the filing of the charge-sheet in the case and shall not tamper with evidence.Warning was given that if they enter in the Kharpi village till the charge sheet is filed, their bail shall be cancelled.After recording supplementary statement and perusal of the C.T. Scan, medical document and certificate as to the nature of the injury caused to head of the first informant, on 19/07 2011 section 307 IPC was introduced in the accusations made earlier.Police sought to arrest the accused again for investigation and prayed for to cancel the bail granted earlier.The first informant applied for cancellation of the bail on the ground that the offence is serious, punishable with life imprisonment and alleged that the accused have managed the police to register simple offence under ::: Downloaded on - 09/06/2013 17:58:12 ::: 4 section 324 of the IPC instead of under section 307 of IPC and further on the ground that the accused gave threat to kill complainant and his relatives.However the first informant failed to substantiate the grounds pleaded by him.Heavy reliance is placed for the applicants upon the ruling of the Supreme Court in Dolat Ram v. State of Haryana: (1995) 1 SCC 349 in which it is held as under:-::: Downloaded on - 09/06/2013 17:58:12 :::Rejection of bail in a non-bailable case at the initial stage and the cancellation of bail so granted, have to be considered and dealt with on different basis.Very cogent and overwhelming circumstances are necessary for an order directing the cancellation of the bail, already granted.Generally speaking, the grounds for cancellation of bail, broadly (illustrative and not exhaustive) are:interference or attempt to interfere with the due course of administration of justice or evasion or attempt to evade the due course of justice or abuse of the concession granted to the accused in any manner.The satisfaction of the court, on the basis of material placed on the record of the possibility of the accused absconding is yet another reason justifying the cancellation of bail.However, bail once granted should not be cancelled in a mechanical manner without considering whether any supervening circumstances have rendered it no longer conducive to a fair trial to allow the accused to retain his freedom by enjoying the concession of bail during the trial."::: Downloaded on - 09/06/2013 17:58:12 :::However, bail granted illegally or improperly by a wrong, arbitrary exercise of judicial discretion can be cancelled even if there is absence of supervening circumstances.If there is no material to prove that the accused abused his freedom court may not cancel the bail.::: Downloaded on - 09/06/2013 17:58:12 :::In the present case, it would be pertinent to note that there was alteration in the penal provision as section 307 was invoked later instead of Section 324 of the I.P. C. but no city scan report was produced of alleged injury.The police did not ask for P.C.R. but had asked for M.C. R. Of the applicants which was granted, weapon of offence was already seized on the date of arrest of the applicants.At the same time, it is equally well settled that inherent power of the High Court can ordinarily be exercised when there is no express provision in the Code for redressal of grievance, but if there is equally effective and alternate remedy available and there is an express provision barring a particular remedy, the High Court should not resort to exercise of inherent power.::: Downloaded on - 09/06/2013 17:58:12 :::In my opinion in the present case mere alteration/addition of the aggravated penal provision was not by itself a sufficient, overwhelming ground to cancel the bail already granted particularly when the investigating officer did not specifically pressed for the police custody remand of the applicants for further investigation even after adding aggravated penal provision under Section 307 of the IPC.The impugned order of cancellation of the bail granted earlier to the applicants is therefore unsustainable and indefensible.No one shall be deprived of his personal liberty, which is most sacrosanct, on the bald ::: Downloaded on - 09/06/2013 17:58:12 ::: 8 premise.This is a proper case to interfere by exercising inherent power to secure the ends of justice.::: Downloaded on - 09/06/2013 17:58:12 :::The impugned orders of cancellation of the bail are therefore quashed and set aside.Upon surrender to the custody of the trial court and upon application for grant of bail, let the applicants be released on bail upon furnishing the personal bond in the sum of Rs 25,000/- with two or more solvent sureties to the satisfaction of the trial Court, to be provided in the equal sum by each of them.i) They shall attend the trial on each date of hearing and shall not tamper with the evidence in any manner.ii) They shall not commit any crime while on Bail.Application disposed of accordingly.JUDGE Sahare ::: Downloaded on - 09/06/2013 17:58:12 :::::: Downloaded on - 09/06/2013 17:58:12 :::

['Section 307 in The Indian Penal Code', 'Section 324 in The Indian Penal Code', 'Section 148 in The Indian Penal Code', 'Section 397 in The Indian Penal Code', 'Section 149 in The Indian Penal Code', 'Section 147 in The Indian Penal Code']

Heard on this first application for bail under Section 439 of the Code of Criminal Procedure filed on behalf of the petitioner Ram Singh in crime no. 4/2017 registered by P.S.-Hinouta, District-Chhatarpur (M.P.) under Sections 307, 353, 186, 212, 216/34 of I.P.C. and 25/27 of Arms Act.As per the prosecution case, on an information received from an informer on 4/03/17, the police party of P.S. Chandla reached the field of petitioner Ram Singh Pal to arrest Ramavtar Kewat, who carried an award on his head.When the police party conducted a raid, co-accused Ramavtar fired two shots from a .315 bore country-made pistol.Both the shots sailed over the head of the police personnel.The police force also fired in defence.However, Ramavtar managed to escape from the spot but Ram Singh was caught.A .315 bore loaded country-made pistol and a live cartridge was seized from his possession.He has been falsely implicated in the case.No policemen suffered a gun-shot injury in the incident.In fact, the police had woken up the petitioner who was sleeping in his field and had beaten him.He had sustained an injury to his head in the incident.Learned Panel Lawyer for the respondents on the other hand has opposed the bail application on the ground that four policemen have suffered simple injuries in the incident.the police failed to arrest the main accused Ramavtar in the case;the petitioner Ram Singh has no criminal antecedents; andthe petitioner has been in custody since 5/03/17;-in the opinion of this Court, petitioner deserves to be released on bail.Consequently, this first application under Section 439 of the Code of Criminal Procedure filed on behalf of the petitioner Ram Singh is allowed.It is directed that the petitioner shall be released on bail on furnishing a personal bond in the sum of Rs. 60,000/- with one solvent surety in the same amount to the satisfaction of the trial Court for his appearance before that Court on all dates fixed in the case and for complying with the conditions enumerated under Section 437 (3) of the Code of Criminal Procedure.C.C. as per rules.(C. V. Sirpurkar) Judge Vy/

['Section 307 in The Indian Penal Code', 'Section 34 in The Indian Penal Code', 'Section 353 in The Indian Penal Code', 'Section 186 in The Indian Penal Code']

The applicant is law abiding person.If he is released on bail, he will never misuse his liberty, terms and conditions of bail and will co-operate in the trial.(iv) The applicant shall remain present before the trial court on each date fixed, either personally or through his counsel.(v) The applicant shall remain present, in person, before the trial court on the dates fixed for (i) opening of the case, (ii) framing of charge and (iii) recording of statement under Section 313 Cr.P.C (iv) argument/judgement.If in the opinion of the trial court, absence of the applicant is deliberate or without sufficient cause, then it shall be open for the trial court to treat such default as abuse of liberty of bail and proceed against him in accordance with law.Order Date :- 11.9.2019 Saurabh

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

http://www.judis.nic.in W.P.No.28512 of 2019 The present Writ Petition is filed to call for the records of the proceedings of the second respondent bearing Na.No.2961/ 2017/ H1, dated 26.07.2018 and quash the same.Thereafter, the second respondent had passed a suspension order on 13.11.2017, suspending her from service based on the allegation that an F.I.R. was registered against her on 13.11.2017 in Crime No.492/2017 under Sections 294(b), 406, 420 and 506(1) of IPC and hence, she was placed under suspension.Though she was suspended in the year 2017, however, till date the suspension order was not revoked, for which, the petitioner has come out with the present Writ Petition and prayed for appropriate orders.3.The learned counsel for the respondents would submit that the petitioner conducted an unregistered chit and collected huge money from the general public, for which the general public affected and she cheated the general public by collecting huge money without obtaining any approval from the Competent Authority.For which the police registered an F.I.R. against her in F.I.R. No.492/2017 under Sections 2/4http://www.judis.nic.in W.P.No.28512 of 2019 294(b), 406, 420 and 506(1) of IPC.Hence, the suspension order issued against the petitioner is valid and prayed for dismissal of the Writ Petition.4.Considering the facts and circumstances of the case and the limited request made by the learned counsel for the petitioner, this Court permits the petitioner to make a representation for revocation of suspension order and for payment of subsistence allowance, for which, the respondents may pass appropriate orders on merits.5.In the result, the Writ Petition is dismissed.No costs.Consequently, connected Miscellaneous Petitions are closed.2.The Commissioner, 3/4http://www.judis.nic.in W.P.No.28512 of 2019 Ranipettai Municipality, Ranipettai, Vellore District.

['Section 4 in The Indian Penal Code', 'Section 506 in The Indian Penal Code', 'Section 420 in The Indian Penal Code', 'Section 294(b) in The Indian Penal Code', 'Section 406 in The Indian Penal Code', 'Section 2 in The Indian Penal Code']

These two appeals are directed against impugned judgment dated 08.04.2009 and subsequent order on sentence date 20.04.2009 delivered by Additional Sessions Judge, North East District, Delhi in case No. 50/2006, FIR No. 191/2002, P.S. Vivek Vihar, whereby the appellants Sapna Talwar and Satyajeet were convicted under Section 302 IPC and were sentenced to rigorous imprisonment for life, they were also convicted under Section 365 IPC and were sentenced to undergo simple imprisonment for five years and pay a fine of Rs. 1000/- in default of which to undergo simple imprisonment for three months.Further, appellants Sapna Talwar and Satyajeet were also convicted under Section 201 IPC and were to undergo simple imprisonment for two years and pay a fine of Rs. 500/- in default of which to undergo simple imprisonment for one and a half months.Appellant Yunus was only convicted for an offence under Section 120 B IPC.In addition, Sapna Talwar and Satyajeet have also been sentenced under Section 120 B IPC and all three of them were to undergo rigorous imprisonment for life for offence under the abovementioned provision.A. 357/2009 & 421/2009 Page 2 of 51A. 357/2009 & 421/2009 Page 2 of 51The facts as per the prosecutions case are that on 13.07.2002 one Laxman Dass informed the police that his younger brother Vijay Kumar (hereinafter referred to as the deceased) was missing, he said that 12.07.2002 at about 1:00 pm, his brother was to meet one person from Haridwar in the Meridian Hotel, Delhi but that meeting was not held and since then his brother was missing.During the investigation police interrogated Yunus the appellant herein, who stated that appellants Sapna and Satya Jeet had departed to Lucknow.The police contacted the Lucknow Railway police and both the accused persons were arrested at the Lucknow Police Station by the local Railway police at Lucknow.Thereafter, on 22.07.2002, both the accused persons were brought to Delhi by the Delhi Police officials.They made disclosure statements.Thereafter, it was discovered that the appellant Sapna was an employee of the deceased and had got the job on the recommendation of Satyajeet.It is alleged that the deceased used to sexually exploit appellant Sapna.Therefore, to take revenge, Sapna married Satyajeet with an under taking that both of them would kill the deceased Vijay kumar, therefore, both of appellants hatched a conspiracy and were joined by their co-accused Yunus, a friend of Satyajeet in their plan.It is alleged that appellant Yunus gave the CRL.A. 357/2009 & 421/2009 Page 3 of 51 other appellants his mobile phone to be used with other SIM card and also provided them with a country made pistol (katta) which was used by them to kill the deceased.A. 357/2009 & 421/2009 Page 3 of 51As per the prosecution story, on 12.07.2002 accused Sapna enticed the deceased to come to meet her near the C.B.S.E. building at about 6:30 pm where they kept having fun for some time.Thereafter, both the accused persons, Satyajeet and Sapna accompanied the deceased in his car to Ghaziabad border where they purchased liquor and all of them started having it.Then Sapna administered sleeping pills in the liquor of the deceased and when he became unconscious they went to Dadri through Bulandshahar highway and on reaching a small canal, they tied him, then took him out and repeatedly hit him on his head with their country made pistol and then strangulated him to death with a string.They threw his body in that same canal with the help of one unknown passerby and left for Haridwar.For the next few days the accused persons kept fleeing from one place to another and during this time they were duly assisted and supported by the accused Yunus who at last after giving a sum of Rs. 1000/- made them board the train to Lucknow.On being arrested by the police, the accused Sapna and Satyajeet made their disclosure statements, Ex.PW 20/A and Ex.Pw CRL.(c) There is no legal evidence on record to hold that the appellant Yunus is responsible for the offence punishable under Section 120B IPC.(d) The appellant Yunus had denied the suggestion for providing the country-made pistol to the other two accused, as there was no reason to do so.Admittedly, as per the CRL.A. 357/2009 & 421/2009 Page 7 of 51 report of the ballistics expert, the said pistol was not in a working condition.A. 357/2009 & 421/2009 Page 7 of 51(e) The disclosure statements of accused Sapna Talwar, Satyajeet @ Lovely being inadmissible in law cannot be considered, unless independent corroboration is provided by the prosecution.(f) The mobile phone alleged to have been provided by the present appellant also has no concern with the crime, as the same has not been proved to have been used by the co- accused.PW -4 Vishal Rajpal : Deceased was his uncle.PW -5 Momim : He is allegedly known to the accused Satyajeet and on 16.07.02 latter requests him that his family members had ousted him and his wife Sapna.PW -6 Ashok Rana : He is the friend of Vijay Bajaj and on 12.07.02 in the afternoon he allegedly saw a girl (Sapna) who sat in the car of Vijay Bajaj at petrol pump, Dilshad Garden.PW -7 Sushil Sharma : Deceased was his class fellow.PW -8 Ms. Vineeta Bajaj : She is the wife of deceased Vijay Bajaj.PW -10 Gyan Singh : On 17.07.02 accused Satyajeet and Sapna allegedly stayed in his lodge.PW -11 Anil Kumar (Manager) : On 14.07.02 Accused Satyajeet and Sapna allegedly stayed in his hotel Pelican, D-1, Patel Nagar-II, Ghaziabad.PW -12 Manoj Kumar : In his presence Vishal and Ramesh allegedly identified the clothes of the deceased in PS Jarcha.A. 357/2009 & 421/2009 Page 9 of 51A. 357/2009 & 421/2009 Page 9 of 51PW -14 Ramesh Kumar : He is an employee in the company of the deceased .PW -16 Sanjeev Kumar : Deceased was his maternal uncle.PW -17 R.K. Singh, Nodal Officer, Bharti Airtel.PW -18 Ct. Satpal Tyagi : He handed over zero FIR, statement of complainant and copy of DD No.29 A to the duty officer of PS Vivek Vihar.PW-19 Shiv Ram Giri : He is the owner of Shiv Chhaya Guest House, Haridwar where accused Satyajeet and Sapna allegedly stayed in the name of Surender Singh and Paramjeet Kaur on 13.07.02 and left the same on 14.07.02 at 7.00 am.PW-20 HC Yogender Singh : On 21.07.02 he alongwith IO SI Yasbeer Singh, SI Anand Swaroop, Lady HC Chammo Khan went to Lucknow Jail for investigatin of this case.PW-21 Ct.Preetam Singh : On 21.07.02 he joined the investigation and went to Hindon Mortuary, Ghaziabad alongwith IO SI Yasbeer Tyagi.PW -22 HC Satyaver Singh : In the intervening night of 13 and 14, July 2002 he was posted as duty officer in PS Vivek Vihar and received the copy of zero FIR registered in PS Mansarowar Park through SI Anwar.A. 357/2009 & 421/2009 Page 10 of 51 PW -23 Ct.Pushpa Singh : On 19.07.02 She was posted in PS GRP Char Bagh, Lucknow where she along with SI R.B. Singh and Ct.Neeru Shukla searched the accused persons at Charbagh railway station.PW -24 Ct.Neeru Shukla ...Do...A. 357/2009 & 421/2009 Page 10 of 51PW -25 Ct.Krishan Bihari Chaubey ...do... PW -26 SI Ranjeet Prasad Diwakar ...do... PW -27 SI Brijpal Singh PS Khanpur, District Bullandshahar, UP : On 16.07.02 he was posted in PS Jharcha and complainant Raj Kumar came to his PS and gave a written information about dead body of an unknown person lying near a drain at Veerpura.He prepared a panchnama Ex.PW-27/A and seized the shirt and shoes of the deceased and also seized the dead body in a cloth pullanda and got the dead body photographed.PW -28 SI Yashbir Singh : On 14.07.02 he took up the investigation of this case and on 23.07.02 the investigation of this case was transferred from him.PW -29 Kallu (hostile): He is the father of accused Yunus.PW -30 Sri Bhagwan Singh : He is the owner of parking slot at Har ki Paudi, Haridwar where the accused allegedly parked their vehicle i.e. Maruti Zen against a slip.PW -31 SI Mahesh Kumar : Draftsman PW -32 Mohd Islam : He was the compounder in Haq Medical Centre from where accused Sapna Talwar allegedly got the tablets of Diazepam.PW -33 Tara Singh (hostile): He is the owner of medical store situated at S-2, Anupam Apartment, Shop No.4, Vrindavan Garden, Sahibabad.On 25.07.02 CRL.A. 357/2009 & 421/2009 Page 11 of 51 accused Sapna allegedly purchased 10 tablets of Diazepam and one injection (calmpose) and one syringe.PW -34 SI Dharampal Singh : On 19.07.02 he was posted in PS GRP, Charbagh, Lucknow and searched for the accused persons there.A. 357/2009 & 421/2009 Page 11 of 51PW -35 Raj Kumar : On 16.07.02 he intimated in PS Jharcha about the dead body lying in the drain near an exhaust water pipe.PW -36 Ashok : On 16.07.02 on the direction of police he brought out the dead body from the drain and signed the panchnama Ex.PW26/A.PW-37 HC Gurnam Singh : On 24.09.02 he deposited the six sealed pullandas to MHCm.PW -38 Akhtar : On 16.07.02 he signed the panchnama of dead body Ex.PW-26/A.PW -39 SI Rishi Ram : On 19.07.02 he was posted as Head Moharrir in PS Kotwali, Haridwar.On that day SI N.P. Singh deposited one Maruti Zen car with him.On 24.07.02 IO came to him with the accused persons and seized the said car vide seizure memo Ex.PW28/C. PW-40 SI R.B. Singh : He was the (thana prabhari) PS GRP, Char Bagh, Lucknow.He arrested the accused Sapna and Satyajeet there and seized one wrist watch, one sim card and cash Rs.6200/-.PW-41 Ct.Jai Prakash : On 16.07.02 he was posted in PS Jharcha and at about 1-1.30 pm one Raj Kumar came to him and informed about one dead body lying in a culvert near village Veerpura.PW -42 HC Chammo Khan : On 21.07.02 he alongwith SI Yashbir Singh, HC Yogender, SI Anand Swaroop went to GRP railway station, Lucknow and arrested both accused persons who were already in the Lucknow Jail.A. 357/2009 & 421/2009 Page 12 of 51 PW-43 HC Hira Lal MHC(M), who deposed that on 21.07.2002 he made several entries with regard to depositing of pullandahs and the Maruti Car in the Malkhana.A. 357/2009 & 421/2009 Page 12 of 51PW-48 Ct.Om Pal Singh : On 16.07.02 he was posted in PS Jharcha and an information was received in said PS that one dead body was lying in a drain.Thereafter, he along with HC Brijpal, Ct.Jai Prakash went to that place.The dead body was taken out and got photographed.Satpal Tyagi who was posted in Police Station MS Park, registered the Zero FIR and also recorded the statement of the complainant, i.e. PW-3 the elder brother of the deceased.DD No.29A was also registered.(b) In his statement recorded before the Court, PW-3 deposed that on 12.07.2002 his younger brother Vijay Bajaj had gone to market for business.He was also supposed to accompany him, but he could not accompany him as he had to attend the Kirya of the mother of his friend.His brother had gone to collect money from 5-6 persons.The last person was Manoj Jain of Shivalik Pharmaceuticals, Haridwar who was to meet his brother at Hotel Maridian, Delhi.At about 5.15 p.m. his brother rang up and informed that Manoj had not come to the hotel.During the night, the other brothers came to know that the deceased Vijay Bajaj had not returned.He lodged the report Ex.His apprehension was that his brother had been kidnapped.PW-6Ashok Rana deposed that he is running the business under the name and style of Rana Tours and Travels at Balbir Nagar, Shahdara.He knew Sushil Sharma who is residing near to his house.He was on friendly terms with Vijay Bajaj.He knew Vijay Bajaj for the last about 7-8 years prior to his death.On 12.07.2002 in the afternoon, while he was going to UP Border and on the way at the petrol pump, Dilshad Garden, he saw Vijay Bajaj had made one girl to sit in his car and then he left.Sushil Sharma PW-7 made a statement that he knew Vijay Bajaj being his class-fellow.On 12.07.2002 at about 1.30/2.00 p.m. he and Ashok were on the motor-cycle and following the car of Vijay Bajaj who gave lift in his car to a girl at Dilshad Garden near Petrol Pump and then they left.PW-15 Vikrant Arora who is the friend of the deceased Vijay Bajaj since college days, deposed that on 12.07.2002 at about 7.00 p.m. he received a telephone call from the mobile phone of the deceased Vijay Bajaj who requested him for his car stating that his (Vijay Bajaj) car had broken up being heated up and he was present at Vivek Vihar itself.At this, he told Vijay Bajaj to go to his house and pick up his car.However, on his return, he found that the deceased did not come to his house to pick up his car.PW-14 CRL.A. 357/2009 & 421/2009 Page 14 of 51 Ramesh Kumar Sharma who is the last seen witness before the death of the deceased as per the case of the prosecution has deposed that he has been working as an Accountant for the last about 8-9 years with Sheetal Bottle Glass Company.On 12.07.2002 at about 8.00/8.15 p.m. when the bus by which he was travelling, was stopped at the red light of Surya Nagar, he was standing on the footrest of the bus, he noticed that vehicle of the deceased Vijay Bajaj was also standing on the red light of Surya Nagar.Vijay Bajaj was having his Zen Maruti Car bearing No.In that car, Vijay was sitting on the driver seat and on the back seat, one lady was sitting and near the driver seat one boy was also sitting in that car.He asked from Vijay as to whether he was going to his house, then he replied that he was going to somewhere else.A. 357/2009 & 421/2009 Page 14 of 51(c) PW-30 Sri Bhagwan Singh who was managing Pantdeep Parking Slot situated at Har ki Paudi at Haridwar, has deposed that on 13.07.2002 at about 7.00 a.m., a Maruti Zen blue colour Car came to in that parking slot and it was parked there against a slip issued by him.However, nobody came there to claim the said vehicle back for 5-6 days.One man and a lady had parked the said car there.After about 15 days, the police came to him for investigation and both the above said persons who had parked that vehicle were also with the police.The police recorded his statement after interrogation.PW-11 Anil Kumar deposed that he was the Manager of Hotel Pelican.On 14.07.2002 one Rahul along with one lady had come to his hotel and stayed there.They disclosed their address as D-603, Ashok Nagar, Delhi.They left the hotel on 15.07.2002 at about 8.00 a.m. PW-5 Momim deposed that on 16.07.2002 at about 10 p.m. accused Satyajeet disclosed to me that his family members had ousted him and his wife after beating them and they be allowed to stay at his house.Although, initially he refused him, but, at their persistent request, both were CRL.They left in the morning.PW.10 Gyan Singh who is running a lodge situated at Railway Road, Choti Bajaria, Ghaziabad, has deposed that on 17.07.2002 at about 11.00 p.m. one boy and one girl came to his lodge.The boy had disclosed his name as Surender Singh.(d) PW-27 SI Brijpal Singh deposed that on 16.07.2002 he was posted at P.S. Jarchar, District Gautam Budh Nagar.The complainant Raj Kumar came to the police station and gave a written information about the dead body of an unknown person lying near a drain (nala) at Veerpura.He along with the other police officials reached the spot.He prepared a Panchnama Ex.PW27/A. He seized the shirt and shoes of the deceased vide seizure memo Ex.PW27/B signed by him at point A. Photographs of the dead body were taken which are Ex.PW27/C and Ex.PW27/D. The dead body was sent to dead house for postmortem through Const.Jai Parkash.(e) The postmortem was conducted on 17.07.2002 and the cremation of the deceased was done on 19.07.2002 by the police.(f) PW-28 SI Yashbir Singh deposed that after having received the details of mobile phones contacted through the mobile phone of the deceased, the details are Ex.PW17/A to Ex.PW17/D, he came to know about accused Yunus.The said accused Yunus was interrogated by him on 19.07.2002 at his house.Accused Satyajeet and Sapna were known to have left Delhi on that very night.He informed all these facts to DCP East Sh.Arvind Deep who contacted DCP GRP Railways.The latter gave information about arrest of both the accused, Sapna and Satyajeet.(g) PW-23 Const.Pushpa Singh, PW-24 Const.Neeru Shukla, PW-25 Const.PW39/A.(i) PW-44 HC Chhamo Khan posted at LG House, Delhi deposed that on 21.07.2002 he was posted in P.S. Vivek Vihar.On that day, he along with other police officials took the custody of the accused Sapna and Satyajeet from Lucknow jail after taking permission from the Court.The disclosure statement was made by the accused Satyajeet @ Lovely and Sapna before PW-20 HC Yogender Singh being Ex.PW20/A (of accused Satyajeet) and Ex.PW20/B (of accused Sapna).They were arrested through arrest memos prepared by the I.O. being Ex.PW20/C (of accused Satyajeet) and Ex.According to him, they led the police to a place near Dadri, UP and pointing out memo in this regard is Ex.PW4/A signed by him at point C. He prepared the site plan Ex.PW4/C.(k) The accused again took the investigator and his team to another place near a canal which was at a distance of about 2-2 km from that place.Pointing out memo in this respect is Ex.PW4/B. He prepared the site plan of that spot which is Ex.PW4/D. Thereafter, they went to police station Jharcha.He inspected the record of the Malkhana Moharrar.One Vishal and another Kishan met them there in the police station.They identified the deceased from his photo, shoes and wearing clothes.The clothes of the deceased were sealed and were opened before them for the CRL.A. 357/2009 & 421/2009 Page 17 of 51 purpose of identification and later on those were sealed again.A. 357/2009 & 421/2009 Page 17 of 51(l) On 24.07.2002, both the accused Sapna Talwar and Satyajeet @ Lovely led them to Haridwar at Har Ki Paudi.PW-45 received the Car Maruri Zen on superdari from the concerned SHO and thereafter, accused took them to a parking lot near Har Ki Paudi and pointed out a place.Pointing out memo Ex.PW28/B was prepared.The said accused then led them to a hotel Shivchhaya at Haridwar and pointed out the same.The Owner/Manager of the said hotel identified both the accused and handed over the photocopy of relevant entry in his guest register which is Ex.PW28/C.(m) On the way to Delhi, he received the information about co-accused Yunus about his presence in his house in Delhi.He made the disclosure statement Ex.PW21/A and brought out one country-made pistol .315 Bore and five cartridges two of which were live, after bringing the same from an almirah in his house.He seized the same.Sketech of these weapons were prepared by him which are Ex.PW4/J (of the country-made pistol) and Ex.PW4/K (cartridges).He filled up the CFSL form and the case property was deposited in the Malkhana.All the three accused were lodged in lockup.(n) Thereafter, the accused Sapna Talwar and Satyajeet @ Lovely took them to Anupam Apartment, Vranda Garden and point out a chemists shop.S4, BS Complex, GT Road, Ghaziabad.Accused Satyajeet pointed out that shop.PW4/M. His statement was also recorded in this regard.(q) Thereafter, both the accused led the police party to shop No.1 in the name of R.K.Batteries where one Shahid met them.He identified both the accused and his statement was recorded.(r) On 28.07.2002 accused Sapna had handed over her wearing top (shirt) which was seized vide seizure memo Ex.PW4/O signed by PW-45 at point C.(s) On the same day, he picked up blood from the back door of the car from its inside by scrapping the same with blade.The seizure memo in this regard is Ex.It showed the extent of robust association between all these three accused persons.(x) Subsequently also the accused persons Sapna and Satyajeet were arrested as per the information provided by the third accused Yunus.At that point of time Vijay Bajaj was in his Zen Maruti Car bearing No.He was sitting on the driver seat.One lady was sitting near the driver seat.One boy was also sitting in that car.He asked Vijay as to whether he was going to his house, and then he replied that he was going somewhere else.Thereafter, he caught the bus and left the place.He correctly identified the boy and girl, who were seen by him in the car with Vijay, in Court as Sapna and CRL.A. 357/2009 & 421/2009 Page 27 of 51Prior to this, PW-6 Ashok Rana had also seen deceased Vijay with the accused Sapna on 12.07.2002 at the Petrol Pump, Dilshad Garden as he was on his motorcycle.Another witness PW-7 Sushil Sharma, friend of deceased, in his testimony deposed that at about 1:30/2:00 p.m. when he and one Ashok Rana were on the motorcycle, they saw the deceased along with one girl at Dilshad Garden near Petrol Pump.Similarly, PW-15 deposed that on 12.07.2002 at about 7:00 p.m., he received a telephone call from the mobile phone of the deceased who asked him to give his car as his car had broken.PW-8 Vineeta Bajaj, the wife of the deceased, also deposed that on 12.07.2002, she was in touch with her husband whole day on his mobile phone and at about 8:30 p.m. she contacted her husband on his mobile phone No. 9810015012 and he told her that he is coming back in 15 minutes.PW-17 R.K. Singh, Nodal Officer, Bharti Airtell, produced the prints out/call details of mobile phone of the deceased and others.The said details show that the last call received by the deceased was at 20:59:23 on 12.07.2002 and CRL.A. 357/2009 & 421/2009 Page 28 of 51 there was no response on that number of the deceased on 13.07.2002 onward.A. 357/2009 & 421/2009 Page 28 of 51In view of above, it is clear that PW-14 Ramesh Kumar Sharma had seen the deceased alive at about 8:15 p.m. and the prosecution was able to prove the same in evidence.PW-32 Mohd. Islam deposed in court that accused Sapna took a delivery of five Diazepam tablets from his shop and the said medicine was procured by her without a valid prescription of Doctor.PW-34 SI Dharampal Singh, posted in Police Station GRP Shajahanpur, U.P., deposed that Sapna and Satyajeet were taken into custody on the basis of interrogation and on being searched one SIM card was recovered.PW-30 Sri Bhagwan Singh who was managing Pantdeep Parking Slot situated at Har ki Paudi at Haridwar, has deposed that on 13.07.2002 at about 7.00 a.m., a Maruti Zen blue colour Car came into that parking slot and it was parked there against a slip issued by him.However, nobody came there to claim the said vehicle for 5-6 days.One man and a lady had parked the said car there.After about 15 days, the police came to him for investigation and both the above said persons who had parked that vehicle were also with the police.The police recorded his statement after interrogation.A. 357/2009 & 421/2009 Page 29 of 5113.07.2002 - PW-19 Shivram Giri PW-19 Shivram Giri deposed that he along with his son was running a guest house in the name of Shive Chhaya Guest House situated at Upper Road, Haridwar, Uttranchal and on 13.07.2002 one Surender Singh, s/o Amarjeet Singh, along with his wife Paramjeet Kaur came to their guest house.An entry in this regard was made in the register at serial No.4045 and they stayed in their guest house upto 14.07.2002 and they left the same at 7:00 a.m. He also deposed that some officials of U.P. police came to him on 24.07.2002 and he identified and pointed out towards Sapna and Satyajeet, who were present in court, as having accompanied the said police officials.14.07.2002 - PW-11 Anil Kumar PW-11 Anil Kumar deposed that on 14.07.2002 one Rahul along with one lady came to their hotel and stayed there.During that period, he was working as Manager in Hotel Pelican, D-1, Patel Nagar-II, Ghaziabad.They made an entry in guest register at about CRL.A. 357/2009 & 421/2009 Page 30 of 51 11:50 p.m. and room No.106 was allotted to them.They disclosed their address as D-603, Ashok Nagar, Delhi, and left the hotel on 15.07.2002 at about 8:00 a.m. He further deposed that when the police had brought boy and girl in the hotel on 28.07.2002, he came to know about their names as Satyajeet and Sapna.In cross- examination, he admitted that there was no initial/signatures on the cutting/overwriting.15.07.2002 - PW-9 Shahid PW-9 Shahid was declared as hostile who gave the testimony that he does not know anything about this case.He also denied the suggestion of the prosecution and denied the fact that before the police on 15.07.2002 he offered to keep Satyajeet and Sapna in a room behind his shop.As per the prosecution case, Yunus, who was running a shop near his shop, came to his shop with one boy and lady and asked him to provide the accommodation.His statement was also recorded by the police as Mark PW-9/A wherein he confirmed that on 15.07.2002 at about 9:00 p.m. Yunus, who was running a shop near his shop, brought one boy and girl with a request to allow them to stay with him for night only.On their persistent CRL.A. 357/2009 & 421/2009 Page 31 of 51 requests, he allowed them to stay for the night and they left on 16.07.2002 at 7:00 a.m. 16.07.2002 - PW-5 Momin PW-5 Momin deposed that he has a shop of Raju Electronics.He knew Satyajeet @ Lovely for the last 4-5 years.On 16.07.2002 at about 10:00 p.m., accused Satyajeet along with Sapna came to his house at 387, Ashok Vatika, Loni Road Pasonda, U.P. Satyajeet disclosed to him that his family members and ousted him and they be allowed to stay in his house.At the first instance, he was reluctant.However, on their persistent requests, he allowed them to stay in the house of Iddu, his maternal uncles son at Morta village.They stayed there only for one night and left in the morning.He also correctly identified Satyajeet and Sapna who were present in the court.17.07.2002 - PW-10 Gyan Singh PW-10 Gyan Singh deposed that he is running a lodge situated at Railway Road, Choti Bajaria, Ghaziabad.On 17.07.2002 at about 11:00 p.m., one boy and one girl came to his lodge.The boy had disclosed his name in the register as Surender Singh, resident of CRL.A. 357/2009 & 421/2009 Page 32 of 51 B-44, Ajanta Apartment, Lucknow.He identified both of them in court.18.07.2002 - PW-9 Shahid As per the case of the prosecution, till 14.07.2002 the family members/relatives of the deceased had not expressed their doubt upon anyone as culprit.As per the family members, there was one telephone bearing No.9810695421 which was known to be belonging to accused Sapna from which calls were made on that phone of Airtel.On verification from Airtel about the ownership of phone of Sapna, PW-28 came to know about the address of Sapna.It was of Nand Nagri.The mother of the accused, namely, Geeta Talwar, met PW-28 on that day.Sister of the accused, namely, Jyoti and brother, namely, Ahsok @ Sonu, were also present in the house at that time.He had visited the house on 14.07.2002 at about 5:00/5:30 p.m. He also made an entry about his departure in the Police Station.Through these call details, he came to know about accused Yunus.He was interrogated by him 19.07.2002 at his house.On interrogation, he came to know that accused Satyajeet and Sapna already left Delhi on that very night.He informed all these facts to DCP East Sh.Arvind Deep who contacted DCP GRP Railways, CRL.A. 357/2009 & 421/2009 Page 33 of 51 Lucknow and latter gave information about the arrest of the said accused Sapna and Satyajeet.A. 357/2009 & 421/2009 Page 33 of 51PW-26 SI Ranjeet Prasad Diwakar deposed that on 19.07.2002, he was posted in GRP Charbagh.At about 8:00-8:30 a.m. SI R.B. Singh met him in the Police Station and told about an information from Delhi about two accused, one boy and one girl, who had absconded from Delhi.He had also disclosed their names as Satyajeet @ Lovely and Sapna Talwar.He along with other team members went to Railway Station Charbagh in search of said accused.At Platform No.1 near parcel godown, they say one boy and one girl sitting behind bags of parcels.When they inquired from them about their whereabouts, accused Satyajeet told his name as Vinod and Sapna told her name as Shalu.They asked them to show their railway tickets.As the boy was bringing out his railway ticket from his pocket, some documents fell down on the ground.One of these was a driving licence in the name of Satyajeet.This raised doubt about his identity.On further interrogation, both admitted their names as Satyajeet and Sapna Talwar.On being searched, accused Sapna was found having one grey coloured bag containing Rs.6200/-, one SIM card Airtel, one wrist watch Titan, one vial of some injection and one train ticket.The boy was found having one CRL.A. 357/2009 & 421/2009 Page 34 of 51 wrist watch Titan and driving licence in the name of Satyajeet.All these documents were seized vide document Ex.PW23/A. On the vial a chit was affixed which bore the inscription "Calmpose" on it and the train ticket was dated 18.07.2002 from Ghaziabad Junction to Lucknow.The identity card contained photo of Satyajeet.PW- 23/A arrest memo-cum-disclosure statement was prepared at the time of arrest.The police also recorded the statements of PW-23 Constable Pushpa Singh as Ex.PW23/DA, PW-24 Constable Neeru Shukla as Ex.PW24/DA, PW-25 Constable Krishan Bihari Choubey as Ex.PW25/DA and PW-26 Ranjeet Prasad Diwakar as Ex.PW- 26/DA.Pointing out memo in this respect is Ex.PW4/B and site plan was also prepared at the spot which is Ex.PW-4/D.A. 357/2009 & 421/2009 Page 37 of 51Thereafter, they went to Police Station Jarcha and inspected the record of Malkhana Moharrir.One Vishal and another Kishan met them there in the Police Station and they identified the deceased from his photo, shoes and wearing clothes.The clothes of the deceased were sealed and were opened before them for the purpose of identification and they were again sealed.On 24.07.2002, both the accused led them to Haridwar at Har Ki Podi and from local Police Station a car Maruti Zen was received from the SHO and both pointed out the place of which pointing out memo is Ex.PW-28/B was prepared.The accused thereafter led the team to Hotel Shiv Chhaya and pointed out the same.The hotel manager handed over photocopy of relevant entry in the guest register which is Ex.PW-19/A. His statement was also recorded.The seizure memo of the car Ex.PW-21/A, Yunus allegedly brought out a country-made pistol .315 bore and five cartridges, two of which were live, from an almirah and the said material was seized.The sketches of these weapons were prepared as Ex.PW-4/J (country-made pistol) and Ex.PW-4/K (cartridges).Seizure memo in this regard is Ex.PW-4/G. All these articles were kept in pullandah and sealed by seal of RNV.We concur with the view taken by the learned trial judge that PW-14 is the last seen witness who had last seen Vijay Bajaj CRL.A. 357/2009 & 421/2009 Page 40 of 51 alive in the company of the accused Sapna Talwar and Satyajeet @ Lovely.CASE AGAINST YUNUS IN CRL.The case of prosecution against Yunus was that in order to kill the deceased Vijay Kumar, the accused Sapna and Satyajeet hatched a conspiracy.They joined Satyajeets friend Yunus in their plan and received his mobile phone which could be used with other SIM card of Sapna.They also received a country-made pistol/katta and some cartridges also from Yunus.PW-18 SI Yashbir Singh CRL.A. 357/2009 & 421/2009 Page 41 of 51 from the call details came to know about accused Yunus and he was interrogated on 19.07.2002 at his house.A. 357/2009 & 421/2009 Page 41 of 51As per the case of prosecution, on 24.07.2002, both accused Satyajeet and Sapna led the police to Haridwar for the purpose of recovery of the articles.When PW-45 and his team along with accused Satyajeet and Sapna were returning from Haridwar to Delhi and they crossed Ghaziabad, PW-45 ACP Ramniwas Vashisht received secret information about co-accused Yunus that he was present in his house.Both accused Satyajeet and Sapna took the team to the house of Yunus who was present in his house and after interrogation, he made a disclosure statement Ex.PW-21/A.The accused Yunus allegedly brought out one country- made pistol .315 bore and five cartridges, two of which were live, from an almirah in his house.Thereafter, he was arrested on 24.07.2002 and he was charged with Sections 25, 54 and 59 of Arms Act and Section 120 B IPC.(i) A mobile phone was recovered from the possession of accused Yunus.Its IMEI number was 449652426331480 and it was seized vide Ex. No.PW-17 R.K. Singh appeared in the court and produced documents Ex.PW- 17/A to Ex.PW-17/B. In these documents Ex.PW-17/A and Ex.PW-17B are the specific documents to this effect.(ii) Accused Satyajeet and Sapna disclosed that Yunus was in contact with them.And that Yunus provided them money which was seized at Lucknow vide document Ex.PW23/A and he also provided them the railway ticket for Lucknow.PW-21/A before the police that he had arranged a ticket for the accused Satyajeet and Sapna and had helped them in boarding a train to Lucknow.When the police worked upon this information, the accused Sapna and Styajeet were arrested by the railway police at Lucknow.The statement of PW-29, father of the Yunus, was also recorded in the intervening night of 18.07.2002 and 19.07.2002 at about 3.00 a.m. The father of the Yunus was examined as a prosecution witness and was declared as a hostile.He deposed that in the intervening night of 18.07.2002 and 19.07.2002, when he was sleeping in his house, 12-13 persons entered his house from the side of roof.All of them took away Yunus, his son, who was sleeping at the roof of their house.He followed them.On his asking, they did not disclose their identities but stated that they were taking away Yunus to Delhi.He stated that the Police did not record his statement in the case and on 20.07.2002, when he went to the Police Station Vivek Vihar, the police took his signatures on six blank papers and he identified his signatures on documents Ex.c. In so far as evidence of PW-2 Gurpreet Singh, owner of mobile shop, is concerned, he is a hostile witness and he did not recognize him and has not supported the prosecution case against Yunus.d. PW-4 Vishal Rajpal, a relative of deceased, has not deposed anything against Yunus.He was also declared hostile witness.A. 357/2009 & 421/2009 Page 46 of 51f. PW-28 SI Yashbir Singh, who came to the house of Yunus for interrogation on 19.07.2002, had not stated anything against Yunus with regard to arrest, search, seizure or recovery of any article in his chief.At the time of interrogation on 19.07.2002, despite availability of members of public, no public witness was involved.g. As per call details between 03.07.2002 to 17.07.2002, Ex.PW-17/A to Ex.PW-17/D, there is no evidence of any call from alleged mobile phone of Yunus bearing No. 9810810882 to the mobile phone No. 9810015012 of the deceased or the alleged mobile phone No. 9810695421 of Sapna Talwar.h. Admittedly, PW-28 SI Yashbir Singh deposed to have interrogated Yunus in the night of 19.07.2002 at his house, but, there is nothing available on record in this regard about the statement of Yunus or any other witness.PW-28 SI Yashbir Singh deposed that he CRL.PW-17 R.K. Singh of Airtel deposed that the police had collected the call details Ex.PW-17/A to Ex.A. 357/2009 & 421/2009 Page 47 of 51i. PW-45 ACP Ramniwas Vashisht deposed in cross-A. 357/2009 & 421/2009 Page 4 of 51 20/B respectively, pursuant to that on 23.07.2002 the police took them to the spot and they pointed out the place vide memo Ex. PW 4/B. A site plan Ex. PW 4/C was also prepared of the place where they had thrown the body of the deceased.A. 357/2009 & 421/2009 Page 4 of 51As per the postmortem report of PW-1 Dr. P.C. Aggarwal, death was due to coma as a result of ante mortem injuries 3-4 days prior to the date of postmortem examination.Thereafter, a chargesheet under sections 365/364/302/201/ 120-B/34 IPC read with section 25 of the Arms Act against all the three accused persons was filed.The details of the offences are mentioned in para No.1 of this judgment.A. 357/2009 & 421/2009 Page 5 of 51A. 357/2009 & 421/2009 Page 5 of 51Being aggrieved by the said judgment of conviction and order on sentence, the appellants filed the present appeal, inter-alia, on the grounds which can be summarized as follows:In Criminal Appeal No.357/2009 filed by the appellants, namely, Sapna Talwar, Satyajeet @ Lovely, the following are the main grounds for appeal which have been raised:-(ii) The trial Court has considered the alleged disclosure statements of the appellants as their legal confessions, which is against the basic concept of criminal jurisprudence.(iii) Admittedly, there was nothing to recover in pursuance of the disclosure statements of the appellants, therefore, the so-called disclosure statements of the appellants became inadmissible in law.(iv) Since the dead body of the deceased Vijay Kumar was not seen by any of his relatives and was cremated in their absence and the identity of the dead body was established by clothes found on the dead body, therefore, the possibility of Vijay Kumars clothes being planted cannot be ruled out.A. 357/2009 & 421/2009 Page 6 of 51A. 357/2009 & 421/2009 Page 6 of 51(v) The medical evidence like post-mortem etc. pertaining to the deceased has not been fully proved.(vi) There is no clear evidence on record to prove the motive on the part of any of the appellants for committing the said crime and there is also no evidence to show as to how the appellant Yunus is connected with the other two appellants and as to why he helped them in running away from justice.In Criminal Appeal No.421 of 2009 filed by the appellant Yunus, the following are the main grounds:-(a) No public witness was joined at any point of time, like at the time of recovery or at the time of the arrest of the appellants or subsequent thereof, though the members of the public were, admittedly, present at that time.(b) The impugned order is totally based on inadmissible evidence.The statements of all the three accused persons were recorded under Section 313 Cr.P.C. All of them stated that they were innocent.Two defence witnesses were examined, namely, DW-1 Mohd. Mehmood son of Salim Mohd., and DW-2 Rashid son of Abdul Wahid, on behalf of the accused Yunus in support of his defence.The prosecution in order to prove the charges against the appellant examined following 48 witnesses :A. 357/2009 & 421/2009 Page 8 of 51 PW -2 Gurpreet (hostile): Mobile shop owner to whom the accused allegedly sold the mobile phone of the deceased.A. 357/2009 & 421/2009 Page 8 of 51PW -3 Laxman Dass Bajaj : He is the complainant, brother of the deceased.PW-44 SI Anwar Khan : In the intervening night of 12th and 13th July, 2002 one Mr. V.K. Bajaj gave information that his brother Vijay was missing.DD 29A was recorded in this regard and handed over to him for investigation.PW -45 ACP Ram Niwas : On 23.07.2002 investigation of this case was handed over to him.PW -46 Retired HC Chattar Singh : On 16.07.2002 he was posted in PS Jharcha and one Ram Kumar gave him information about a dead body lying in a drain near Village Veerpura.He was also witness to the identification of wearing clothes of the deceased by the relatives.PW-47 SI Raja Ram Singh Yadav : He was the Moharrir in PS GRP, Charbagh, Lucknow.Since there is no eye-witness to the murder, the case revolves around the circumstantial evidence of last seen and the recovery of the material as per the story of the prosecution.The sequence of events date-wise as per the case of the prosecution are as under:-A. 357/2009 & 421/2009 Page 13 of 51Krishan Bihari Chaubey, PW-26 SI Ranjeet Prasad Diwakar, PW-34 SI Dharampal Singh and PW-40 SI R.B.Singh deposed that both the accused Sapna Talwar and Satyajeet @ Lovely were lodged in the police lock-up after CRL.A. 357/2009 & 421/2009 Page 16 of 51 apprehending them from the Chahar Bagh Railway Station, Lucknow.A. 357/2009 & 421/2009 Page 16 of 51(h) PW-31 SI Mahesh Kumar prepared a scaled site plan Ex.PW31/A. PW-39 SI Rishi Ram deposed that on 19.07.2002 the Car was deposited and entry in register No.19 at Serial No.88 was made being copy thereof as Ex.PW20/D (of accused Sapna).Both of them were brought in Delhi on 22.07.2002 and produced in the Court of ACMM, Karkardooma Courts and were remanded by the Court in eight days police custody.45 ACP Ram Niwas Vashisht and he interrogated both the accused, namely Sapna Talwar and Satyajeet @ Lovely.(o) On 26.07.2002 both the accused were again interrogated by him.They led the police party to shop No.One Gurpreet met there who had purchased the mobile phone of the deceased and he identified both the accused.A. 357/2009 & 421/2009 Page 18 of 51A. 357/2009 & 421/2009 Page 18 of 51PW4/P. After completion of the investigation, he prepared the challan of this case.The result from the FSL was received which is Ex.PW45/B.Let us now consider the medical evidence.The dead body of the deceased, when sent for postmortem examination by the Jarcha police was examined by PW-1 Dr. P.C. Aggarwal.During the course of postmortem examination, this witness found:-(i) A lacerated wound of 4 cm x 2 cm bone deep on the back side of the head, 10 cm behind left ear.(ii) Occipital bone was found fractured.A. 357/2009 & 421/2009 Page 19 of 51A. 357/2009 & 421/2009 Page 19 of 51(iii) A defused tranatic swelling 10 cm x 6 cm in area on the right side head just above ear was also found and the bone was also fractured from this point.On internal examination this doctor found:-(iv) The brain was liquefied and a blood clot was present.(v) Death was due to coma as a result of ante mortem injuries 3-4 days prior to the date of autopsy.So, as per medical evidence, the death of Vijay Bajaj was due to coma as a result of antemortem injury.The FSL report Ex.PW45/B dated 21.02.2003 on the Parcel 5 and Parcel 6 reads as under:Parcel No.6: One 8 mm/.315" cartridge marked exhibit A1 and four improvised cartridges marked exhibits A2 to A5."Similarly, another FSL report dated 29.01.2003 was received.As far as exhibit 3 gauze cloth piece, the species of original is Human, but no reaction/remark is shown for ABO Group.The same reads as under: CRL.Exhibit 1a : One dirty shirt Exhibit 1b : One pair of shoes Parcel 2 : One sealed cloth parcel sealed with the seal of "D.A. 357/2009 & 421/2009 Page 20 of 51Singh U.P.P. containing exhibits 2a and 2b.Exhibit 2a : One dirty foul smelling pants with belt.Exhibit 2b : One dirty foul smelling underwear Parcel 3 : One sealed cloth parcel sealed with the seal of "RNV" containing exhibit 3, kept in a plastic container.Exhibit 3 : Gauze cloth piece having brown stains described as "blood lifted car""RNV" said to contain Desi Katta sent in original to Ballistics Division Parcel 6 : One sealed cloth parcel sealed with the seal of "RNV" containing exhibit 6 Exhibit 6 : Five bullets RESULT OF ANALYSISBlood was detected on exhibit 3 CRL.A. 357/2009 & 421/2009 Page 21 of 51In the morning both the accused persons parked the vehicle of the deceased with blood stains of the deceased on it in a parking lot at Haridwar and stayed in a hotel under fictitious identity.(ii) Their disclosures led to the discovery of dead body of deceased Vijay and it was found to have the same injuries as were disclosed by the accused persons to have been inflicted on his head.(iii) The dead body was found at the same place where the accused disclosed to have thrown it in the jurisdiction of PS Jarcha.(iv) With the help of the wearing apparels and other articles the dead body was a uniquely and unambiguously identified as that of the deceased Vijay Bajaj, particularly consequent to the identification by PW-4 Vishal Rajpal.A. 357/2009 & 421/2009 Page 22 of 51A. 357/2009 & 421/2009 Page 22 of 51(v) In the ensuing morning the accused Sapna and Satyajeet were found present in the town of Haridwar with the car of the deceased Vijay Bajaj in which they were seen accompanying the deceased just prior to the incident.(vi) This car was found to be having blood on its rear right door.The possession of the car of the deceased Vijay and that too with the presence of blood stains, found from the constructive possession of the accused Satyajeet and Sapna, transmit a burden on the accused persons to show the circumstances in which that car and those blood stains on the door of the car appeared.(vii) Accused persons Sapna and Satyajeet have been shown by the prosecution to be running from one place to the other after causing death of the deceased Vijay Bajaj.U/s 10 Evidence Act this is a relevant fact and the accused persons could never discharge the burden so cast upon them to show the necessity of assuming fictitious identifies and being in a state of restless running from here to there after the death of accused Vijay Bajaj was caused.A. 357/2009 & 421/2009 Page 23 of 51A. 357/2009 & 421/2009 Page 23 of 51(viii) Prior to this, the prosecution was able to prove that Sapna was making efforts of collecting Diazepam sleeping pills.It was shown that such pills were procured also.Some of such pills were found from the possession of Sapna and Satyajeet at Lucknow which were seized by that police vide document Ex.PW 23/A. Here the accused Sapna was found in possession of Calmpose pills which are used to induce sleep.Calmpose is the brand name of the same generic chemical known as Diazepam.Prosecution had shown that they were used to impair the deceased Vijay Bajaj.(ix) Both the accused persons were duly sheltered and assisted by the third accused Yunus during their hightailing from one point to the other.Right from the time when Yunus provided Katta to the accused Sapna and Satyajeet for causing death of Vijay Bajaj, Yunus remained in their contact until they both left for Lucknow.This proved the scope, extent and liability CRL.(xi) The accused persons took the phone of the deceased Vijay Bajaj and sold it for Rs.3300/- at the shop of PW 2 Gurpreet Singh.(xii) The disclosure statements of the accused persons Satyajeet and Sapna were recorded at two places.Initially at Lucknow in a document Ex.PW-23/A on 19.07.02 and thereafter in Delhi in documents Ex.The case of the prosecution against the appellants was based on circumstantial evidence.It is pertinent to mention here that despite opportunity being being granted to the appellants, there was no cross-examination on their behalf.A. 357/2009 & 421/2009 Page 31 of 51A. 357/2009 & 421/2009 Page 32 of 51A. 357/2009 & 421/2009 Page 34 of 51After the arrest of Sapna and Satyajeet on 19.07.2002 at lunch, they were lodged in jail.PW-28 SI Yashbir Singh applied for permission in the court of MM, Karkardooma Court, Delhi, to bring the said accused persons to Delhi.The copy of application is Ex.PW- 28/A. Both the accused were brought to Delhi by him and were produced before the court in Delhi and both were remanded to police custody for eight days.In the disclosure statements recorded on 21.07.2002, they informed that they could get the dead body of deceased Vijay recovered from a small canal.On the basis of the disclosure CRL.A. 357/2009 & 421/2009 Page 35 of 51 statements Ex.PW-20/A (Satyajeet) and Ex.PW-20/B (Sapna), they were arrested on the same day.The arrest memos are Ex.PW-20/C (Satyajeet) and Ex.PW-20/D (Sapna).A. 357/2009 & 421/2009 Page 35 of 51The prosecution proved that prior to their arrest on 16.07.2002, the dead body was recovered within the jurisdiction of Police Station Jarcha.The clothes of the dead body were also identified by the family members, particularly PW-4 Vishal Rajpal.Before the arrival of Delhi Police at Police Station Jarcha, a dead body had already been recovered by Jarcha police on the above mentioned place and a Panchnama Ex.PW-26/A was prepared and the dead body was sent for postmortem examination.PW-27 SI Brij Pal Singh seized the shirt and shoes of the deceased vide Ex.PW-27/B, photographs Ex.PW-27/C and Ex.PW-27/D were also taken.A. 357/2009 & 421/2009 Page 36 of 51We must mention here that no doubt while delivering the impugned judgment, the learned trial judge at various places has referred to disclosure statements as confessional statements, which is not permissible.After disclosure statements made by the accused Sapna Talwar and Satyajeet @ Lovely before Delhi Police on 21.07.2002, the accused persons thereafter led PW-45 ACP Ramniwas Vashisht and his team to a place near Dadri, U.P. on 23.07.2002 and pointed out a place where site plan was prepared and also took them to CRL.A. 357/2009 & 421/2009 Page 37 of 51 another place near a Canal which was at a distance of about 2-2 kilometers from that place.PW-28/C was also prepared and while returning to Delhi, both accused took them to the house of Yunus at 1743, Gali No.1, Islam Nagar, Ghaziabad, who was present in his house.A. 357/2009 & 421/2009 Page 38 of 51A. 357/2009 & 421/2009 Page 38 of 51On the basis of the disclosure statement Ex.On 25.07.2002, both the accused then took the team to Subzi Mandi, Chander Nagar.Accused Satyajeet pointed out one shop of Chander Bhan.Thereafter, they led the team to Haq Clinic number 7A, Dilshad Garden, Delhi, where the statement of Islam was recorded.On 26.07.2002, both the accused led the team to shop No.S4, BS Complex, GT Road, Ghaziabad.Accused Satyajeet pointed out that shop.One Gurpreet met them there who identified both the accused and statement of Gurpreet was also recorded.On 28.07.2002, they led the team to Hotel Pelican, Ghaziabad and pointed out the same.The Manager-cum- Receptionist Anil Kumar met them there.He identified both the accused as the same who stayed there in the name of Rahul and his wife.The photocopy of the guest register produced by the manager CRL.PW-4/L. The seizure memo in this regard is Ex.PW-4/M. Thereafter, both the accused led the team to Krishna lodge, Railway Road, Ghazibad, where Mr Gyan Prasad Yadav, Manager of the said lodge, met them.He identified both the accused as the same persons who stayed there in the name of Surender Singh and his wife.A. 357/2009 & 421/2009 Page 39 of 51During the course of investigation, when the vehicle parked at Haridwar was examined, it was found to have blood stains on the rear right door which was lifted vide seizure memo Ex.PW-4/P and subsequently, this was confirmed to be human blood by the FSL report.It is pertinent to mention here that for the period from 13.07.2002 to 18.07.2002, there was no explanation on behalf of the appellants Sapna Talwar and Satyajeet @ Lovely that why they were moving from one place to another.From the aforesaid incriminating material and circumstances, it is clearly established by the prosecution that the murder of Vijay Bajaj was committed by Sapna Talwar and Satyajeet @ Lovely.A. 357/2009 & 421/2009 Page 40 of 51The prosecution has also been able to establish that accused Sapna Talwar and Satyajeet @ Lovely committed the offence under Section 201 IPC because they had caused the death of the deceased and after having the knowledge of the said fact, they caused disappearance of evidence after offence of murder by throwing the dead body in the water.In view of the testimonies of the witnesses, it is clear that the prosecution has been able to establish on record beyond reasonable doubt that both the accused Sapna Talwar and Satyajeet @ Lovely have committed the offences under Section 302 r/w 120B and 201 IPC.(iii) Yunus made a disclosure statement Ex.These purported circumstances seen together, in the view of the trial court, clearly established that the accused Yunus was in contact with Sapna and Satyajeet and that he was assisting them; he was providing all the material and instrumental help to them; he provided a telephone and on its disruption a second one also.He also provided them a Katta.PW4/G and PW4/H at point C. He was cross examined by the Special Public Prosecutor for the State and he denied all the suggestions made by him before the court.A. 357/2009 & 421/2009 Page 44 of 51A. 357/2009 & 421/2009 Page 44 of 51The defence witnesses DW-1 Mohd. Mehmood and DW-2 Rashid were examined by the appellant Yunus.They deposed that they are neighbours of the family of Mohd. Yunus and in the intervening night of 18.07.2002 and 19.07.2002 at about 2:30-3:00 a.m., they saw police officials on the gate and they overpowered Yunus and took him down to the street.The neighbours also gathered there.The police officials informed that they were taking Yunus to Delhi for some inquiry.The learned trial judge in his impugned judgment acquitted him of charges under the Arms Act against him as the same stood not proved.However, he was held guilty of offence punishable under Section 120 B read with Section 34 IPC and was awarded imprisonment for life for the said offence.In nutshell, the case of prosecution against the Yunus is that he provided the katta and five cartridges to the main accused, particularly, Satyajeet, who is his friend and also alleged to have provided a mobile phone to Sapna.As per the story of prosecution, Sapna used the said mobile after putting in her own SIM card and he provided money to the accused as per Ex.PW-23/A.After having gone through the testimonies of all the witnesses and the documents on record, we do not agree with the CRL.A. 357/2009 & 421/2009 Page 45 of 51 finding of the learned trial judge that any case against the Yunus under Section 120 B IPC is made out as the prosecution has not established its case under this provision against Yunus.Our findings are as under:A. 357/2009 & 421/2009 Page 45 of 51a. Yunus denied the suggestion for providing country-made pistol to the other two accused persons.As per the FSL report, the said pistol was not in working condition.examination that he did not remember the date when SI Yashbir collected call details.He did not remember the number of telephone of which call details were taken.j. PW-28 SI Yashbir Singh in his testimony stated that one Mujib had given mobile phone to accused Yunus but said Mujib was not produced as a witness nor his statement was recorded.k. No experts opinion or doctors opinion, who conducted the postmortem, was obtained regarding the use of alleged katta to commit the said offence.l. PW-45 ACP Ramniwas Vashisht stated that they had parked their vehicle at a distance of 100 yards before the house of accused Yunus while PW-21 stated that they CRL.A. 357/2009 & 421/2009 Page 48 of 51 had parked their vehicle at a distance of 500-600 yards in north side from the house of the accused Yunus.m. PW-4 Vishal Rajpal in his cross-examination deposed that they reached there, the doors of the house of Yunus were open while PW-45 ACP Ramniwas Vashisht stated that the main gate was closed when they went there.The doors were opened by Yunus from inside.n. PW-45 ACP Ramniwas Vashisht stated that three or four persons had entered inside the house and rest of them remained outside.PW-21 Constable Pritam Singh stated that they all entered into the house of the accused.o. PW-21 Constable Pritam Singh deposed in his cross-examination that there was one almirah of wood having size 2`x5` in that room whereas PW-45 ACP Ramniwas Vashisht stated in his cross-examination that the almirah was affixed in the rear wall of the room which was made of steel being of average size.p. PW-21 Constable Pritam Singh stated in his cross-examination that seizure memos were in the handwriting of SI Yashbir Tyagi while PW-4 Vishal Rajpal stated that seizure memo, sketch of country-made pistol and CRL.A. 357/2009 & 421/2009 Page 49 of 51 cartridges, personal search memo of accused Yunus, site plan and arrest memo were made by PW-45 ACP Ramniwas Vashisht.The prosecution version in this case is doubtful as the prosecution did not join any independent witness as attesting witness to the alleged disclosure statement as well as recovery.The disclosure statement without any discovery of fact is also meaningless.Non-joining of public witness as attesting witness smacks of malafide and makes prosecution version more doubtful.The prosecution is not able to CRL.A. 357/2009 & 421/2009 Page 50 of 51 establish chain of circumstances so complete to connect the accused Yunus with the alleged offence.A. 357/2009 & 421/2009 Page 50 of 51For all these reasons, we are of the clear view that the prosecution has not been able to bring home its case against Yunus as there are many missing links and chain is far from complete.The prosecution was failed to prove any case against him under Section 120 B IPC.Therefore, we cannot hold him to be guilty merely on the basis of suspicions raised by the prosecution.The impugned judgment and order of sentence against Yunus are set aside and he is acquitted of all charges in this case.His appeal is allowed and he be set at liberty forthwith.The appeal filed by appellants Sapna Talwar and Satyajeet @ Lovely is dismissed except to the extent that they stand acquitted of the charge under Section 365 IPC.MANMOHAN SINGH, J BADAR DURREZ AHMED, J OCTOBER 12, 2011 kk/jk/sa CRL.

['Section 120 in The Indian Penal Code', 'Section 365 in The Indian Penal Code', 'Section 201 in The Indian Penal Code', 'Section 302 in The Indian Penal Code', 'Section 120B in The Indian Penal Code', 'Section 34 in The Indian Penal Code', 'Section 364 in The Indian Penal Code']

According to the 1st respondent, for the purpose of the investigation of the said offence, it became necessary to carry out searches and seize documents and other Arti- cles from the office and factory premises of the said concerns at Connaught Place, New Delhi, and at Kalkaji New Delhi respectively.He, therefore, made a record in writing at 7.30 A. M. on 1-1-1968 under Section 165(1) of the Criminal Procedure Code, which was filed as annexure 'A' by the petitioners and as Annexure R-2 by the respondents.It runs as under :--"Special Police Establishment Central Investigating Agency (1).Whereas I, B.A. Lakshminarayana Swamy, Dy.of Police, Special Police Establishment, Cia (1), Cbi, New Delhi, am investigating the case in R. C. 12/67-CIA(1) u/s 120B Ipc R/ W Section 420, Ipc and Section 5(2) of Act Ii of 1947, and Whereas, it has become necessary for purposes of my investigation in the said case to take possession of the following documents and things said to be in possession of M/s Lloyd Electric and Engineering Co. M-13 Connaught Place, New Delhi, at their office premises in Connaught Place and in their factory premises at Kalkaji, New Delhi, viz.Rate Contract file of M/s Lloyd Electric Engineering Co. in No. SE6/RC/6770/ l/Lloyd/3472 dated 15-4-65 for the period 1965 to date.All supply orders placed on the said firm in the above Rate Contract including Invoices, Bills, Vouchers, Delivery receipts, Inspection notes etc.Purchase files of the above firm for Air Compressors made from M/s Kirloskar Pneumatics, M/s. Sri Ram Refrigeration Industries, M/s. Usha Refregeration Co., and other firms for the period 1965 to date.All correspondence files of M/s Lloyd Electric and Engineering Co. Ltd., D. G. S. and D. and other Government Deptt.regarding supply of Air Conditioners for the period 1965 to date.All correspondence files of M/s Lloyd Electric and Engineering Co., M/s Punj Sons (P) Ltd., M/s. Fedders Lloyd Corporation (P) Ltd., and M/s. Fedders Lloyd Sales Corporation for the period 1965 to date in respect of manufacture and sale of Air-Conditioners, purchase of accessories in the above manufacture with other firms and between themselves also.Correspondence files of the above firms with foreign suppliers in respect of Air Compressors during 1965 to date.Correspondence files of the above four firms with Ministry of Finance for Foreign Exchange allocation for the period 1965 to date.Unit Serial No. Register of Air Conditioners manufactured by the said firms for the period 1965 to date.All documents and Registers of the said firms relating to the payment of Excise Duties on Air-Conditioners for the period 1965 to-date.Cash books and Ledgers, Bahi Katha books of the said firms for the period 1965 to date.Stock, Issue Registers of Air Conditioners manufactured in the Factory and Air Compressors purchased from other firms or imported.Premises to be searched:Office premises of M/s. Punj Sons (P.) Ltd., M/s. Kedders Lloyd Corporation (P.) Ltd., (3) M/s. Lloyd Electric Engineering Corporation at M-13, 'Punj House, Con-naught Place New Delhi.2. Factory premises of M/s. Punj Sons (P.) Ltd. and M/s. Fedders Lloyd Sales Corporation at Kalkaji, New Delhi.Dated 1st Jan. 1968 7.30 A. M.According to the 1st respondent, simultaneous searches had to be carried out in the office premises at Connaught Place and in the Factory premises at Kalkaji, and as it was physically nto possible for him to search both the premises simultaneously, he made an order (Annexure R-1) at 7-45 A. M. on 1-1-1968 under Section 165(3) of the Criminal Procedure Code deputing respondent No. 2 to search the office premises at Connuaght Place, while he himself searched the factory premises at Kalkaji on the same date.The said order runs as under :--"To Shri Jethanand Dy.of Police, S. P. E., C. I. A. (I), New Delhi.Sub: RC.12/67-CIA-Investigation of.For purposes of my investigation in the above case, it has become necessary to conduct simultaneous searches at the office premises of M/s. Lloyd Electric and Engineering Co., M-13, Punj House, Connaught Place and at the Factory premises of M/s. Punj Sons (P.) Ltd., Kalkaji, this morning.Copy of the grounds of search submitted to the Magistrate, 1st Class, Delhi, is enclosed for your information.As I will be engaged in the search of the said factory premises at Kalkaji, I am requesting you to conduct the search of the office premises of M/s. Lloyd Electric and Engineering Co., and other allied concerns located at No. M-13, Punj House, Con-naught Place, New Delhi, as detailed in the said grounds of search and to seize the documents and things referred to therein.This requisition is being made to you in accordance with Section 165(3) Cr.B. A. Lakshminarayana Swamy Deputy Supdt.Civil Writ No. 16 of 1968 was filed by M/s. Fedders Lloyd Corporation (Private) Limited, represented by Director, S. N. P. Punj, Civil Writ No. 17 of 1968 was filed by M/s Lloyd Electric and Engineering Company represented 'by Partner, V. P. Punj, Civil Writ No. 18 of 1968 was filed by Airserco represented by sole proprietor, T. V. P. Punj, Civil Writ No. 19 of 1968 was filed by M/s. Fedders Lloyd Sales Corporation represented by Partner, S. N. P. Punj, and Civil Writ No. 20 of 1968 was filed by M/s Lloyd Sales Corporation represented by Partner Mrs. I. R. Punj.The respondents in all the writ petitions are the same namely, (1) B. A. Lakshminarayana Swami, Dy.S. P. S.P.E.C.I.A. (I), C.B.I., New Delhi, and (2) Jethanand, Dy.S. P., C. I. A. (I), New Delhi.The first respondent further averred in his aforesaid affidavit that he had reliable information that the aforesaid company and its sister concerns, in conspiracy with the above mentioned S. S. Chouhan and H. C. Mehrotra, cheated the Government of India and some State Governments in supplying sub-standard air-conditioners under a Rate Contract entered into by the aforesaid company and its sister concerns with the D. G. S. and D., that the air-conditioners supplied under the said Rate Contract were fitted with indigenous compressors whereas the requirement of the Rate Contract was for fitting the said air-conditioners with imported compressors made in U. S. A., and that this was done by dishonestly removing the manufacturer's name plate, disfiguring the markings of the Indian compressors, and passing off the units as being fitted with foreign compressors.Requisition u/s. 165 (3) Cr.of Police, S. P. E., C. I. A. (I), New Delhi.7.45 A. M.They thereupon filed the present five writ petitions in this Court on 8-1-1968 praying for the issue of "a direction in the nature of a mandamus commanding the respondents to forthwith return the documents and things seized on 1st January, 1968, under Annexures 'B' and 'C'", and for certain other interim reliefs.(2) that the action of the 2nd respondent in having searched the office premises of the petitioners at Punj House, Connaught Place, New Delhi, and in having seized the documents and things mentioned in Annexure 'C' to the writ petition, was illegal and contrary to the mandatory provisions of Sub-section (3) of Section 165 Criminal Procedure Code, in that the respondent No. 1 did nto make any order in writing recording his reasons for his being unable to conduct the search himself in person, and in that the 1st respondent did nto deliver an order in writing to respondent No. 2 specifying therein the place to be searched and the things for which the search is to be made, and the second respondent did nto have any such order as is contemplated by Section 165(3), Criminal Procedure Code, nor did he show any such order to the petitioners; and (3) that the searches and seizures made by the two respondents were contrary to law and illegal for the further reason that the copies or the record, if any, made under Sub-section (1) and Sub-section (3) of Section 165, Criminal Procedure Code, were nto sent forthwith to the nearest Magistrate empowered to take cognizance of the offence, as provided for in Sub-section (5) of Section 165 of the Criminal Procedure Code.In reply to the writ petitions, an affidavit of the 1st respondent, dated 21-1-1968, which has already been referred to above, was filed.As already stated, the 1st respondent averred in the said reply that the five petitioner-concerns are the concerns of the Punj family which is carrying on business under the name and style of and is controlling the five petitioner-concerns.It was further averred that V. P. Punj was shown the requisite orders along with the grounds for search, that the search and seizure were made strictly in accordance with law, that he did make an order under Section 165(3) Criminal Procedure Code, a copy of which was filed as Annexure R-1 to the reply affidavit, that as it was nto physically possible for him to make the searches both at Con-naught Place and at Kalkaji, he searched the factory premises at Kalkaji and deputed respondent No. 2 to search the office premises at Connaught Place, that the report prepared under Section 165(3), Criminal Procedure Code, was shown to V. P. Punj who was a partner or executive and represented all the firms, along with a copy of the grounds for search, that in token of having seen them he endorsed the grounds for search with the remark "seen" and signed it, that that fact was also mentioned in the seizure list, a copy of which was given to V. P. Punj and was acknowledged by him, that a copy of the record prepared under Section 165(3), Criminal Procedure Code, and a copy of the seizure list were also sent to the Magistrate, 1st Class, Delhi, though there was some delay as the same was sent on 10-1-1968 when the deponent returned from tour which he had to undertake on Government duty immediately after the search and seizure on 1-1-1968, that the record prepared under Sec, 165 (1), Criminal Procedure Code, was sent to the Magistrate on the day of the search itself, and that, therefore the searches and the seizures were quite legal and in accordance with law.As a rejoinder to the said reply V. P. Pun] filed an affidavit, dated 23-1-1968, in which he stated that it was incorrect to say that he was shown "the requisite orders along with the grounds for search", that the only document that was shown to him was Annexure 'A' to the writ petition (i. e. the record made under Section 165(1), Criminal Procedure Code), wherein he made the endorsement "seen V. P. Punj", that excepting that document, no other document was shown to him by either of the respondents, and that no separate record under Section 165(3) or Annexure R-1 or separate record containing the grounds under Section 163(1) was shown to him at any time.Shri S. N. P. Punj also filed an affidavit, dated 23-1-1968, as a rejoinder to the reply of the respondents.In this affidavit, it was reiterated that the respondents did nto comply with the mandatory provisions of Section 165, Criminal Procedure Code, and it was stated that the First Information Report was dated 28-124967, that it contains an endorsement which shows that it was forwarded on the same day to Shri M. S. Joshi, Special fudge, Delhi, that another endorsement thereon shows that it was received by the learned Special Judge at 1-10 P. M. on 3-1-1968, that on 8-1-1968, an application for copies of the record made under Section 165 Criminal Procedure Code, was made by the petitioners in the Court 08 the Special Judge for S. P. E. cases, Delhi, as provided in the proviso to Section 165(S) of the Criminal Procedure Code, that the Special Judge directed the Senior Public Prosecutor, Cia (I) to report immediately, that the Senior Public Prosecutor, in his turn, called upon the Investigating Officer to report by 2 P. M, on 8-1-1968, that on 9-1-1968, the record under Section 165 (1), dated 1-1-1968, signed by B. A. Lakshminarayana Swamy, 1st respondent, and the requisition or order under Section 165(3), also signed by B. A. Lakshminarayana Swamy, were submitted in the Court of the Special Judge, Delhi, and copies of the said two documents were supplied to the petitioners by an order of the Special Judge, Delhi, dated 9-1-1968, that photostat copies of the application, dated 8-1-1968, for emergent copies of the record made under Section 165(1) with endorsement thereon, the order of the Special Judge, dated 9-1-1968, directing copies of the documents to be furnished, the copies of the First Information Report, the record under Section 165(1), and the requisition or order under Section 165(3) were filed as Annexures 1 to 5 to this affidavit, and that the above facts show clearly that the provisions of Sub-sections (1), (3) and (5) of Section 165 of the Criminal Procedure Code were nto complied with at all, and consequently the searches and the seizures were illegal and invalid.The first respondent, B. A. Lakshminarayana Swamy filed a further affidavit dated 27-1-1968, in reply to the aforesaid rejoinder affidavit of V. P. Punj and S. N. P. Punj.The said conclusion of the High Court that the search was defective was nto challenged in the Supreme Court.

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

JUDGMENT Somasundaram, J.Abdul Khader, the appellant herein, stands convicted and sentenced by the Sessions Judge, Dharmapuri Division, at Krishnagiri, to suffer rigorous imprisonment for two years for an offence under Section 493 of the Penal Code.Section 498 of the Penal Code punishes persons who cohabit with a woman after deceitfully making a belief in her that she was legally married to him.The prosecution case was that on 16th January 1967, the appellant by deceit, made P.W. 1 believe, that she was married to him and after creating such a belief in her mind, he made her cohabit with him.The defence of the appellant was one of denial.The learned Sessions Judge found that the appellant went through a form of marriage knowing that it was not the proper form and thereby deceived P. W. 1, and made her have sexual intercourse with him.The appellant is not a stranger to P. W. 1 because he is her cousin.He had given a new saree and ear ornaments to her.There was also an exchange of garlands in the presence of P. Ws. 3, 4 and one Lal Batcha.They lived together as husband and wife for a few days.The appellant had taken P. W. 1 to his house, and after two days, his sister, brother-in-law and father had pushed P. W. 1, out.The appellant had asked her to remain with her grand-mother stating that he would fix up a house and then take her.These circumstances establish that he never practised any deception on her.The section is not intended to punish one for contracting a marriage which turns out to be illegal.But it only punishes a man for obtaining, the body of the worn in by deceitfully assuring her that he had acquired that right by jus mariti.P. W. 1 in this case was lawfully married to the petitioner.Further, there has been no deceitful assurance or act on his part so as to attract Section 493, Penal Code.The conviction is hot correct.Both the conviction and sentence are set aside.The appeal is allowed.

['Section 498 in The Indian Penal Code']

Learned counsel for the rival parties are heard.The applicant has filed this first application under Section 439 of the Cr.P.C. for grant of bail.In the present case, the applicant is under incarceration for more than three and half years and he has completed half of the punishment prescribed for the said offence.It is further submitted by the learned counsel for the applicant that statements of material witnesses have already been recorded in crime No.83/2014 on the basis of which this Court has already enlarged the applicant on bail vide order dated 29/04/2019 passed in MCRC No.15314/2019, therefore, allegation does not survive.The applicant is in custody since 03/10/2015 and early conclusion of the trial is a bleak possibility and prolonged pretrial detention is an anathema to the concept of liberty.Under these grounds, applicant prays for grant of bail.A copy of this order be sent to the Court concerned for compliance.Certified copy as per rules.(S.A. Dharmadhikari) Judge rahul RAHUL SINGH PARIHAR 2019.06.18 17:09:40 +05'30'

['Section 506 in The Indian Penal Code', 'Section 384 in The Indian Penal Code', 'Section 302 in The Indian Penal Code', 'Section 307 in The Indian Penal Code', 'Section 34 in The Indian Penal Code', 'Section 120B in The Indian Penal Code']

By way of the impugned judgement dated 07.09.2011 and order on sentence dated 13.09.2011, Mohd. Imran (hereinafter referred to as 'Appellant No.1'); Mukesh alias Karka (hereinafter referred to as 'Appellant No.2'); and Akram (hereinafter referred to as 'Appellant No.3'), were convicted and sentenced as follows:I) Appellant No.1CRL.A.1315/2014, 829/2012 & 452/2013 Page 2 of 30ii) Imprisonment for Life and fine of Rs.2,000/- for the offence punishable under the provisions of Sections 302/34 IPC.In default of payment of fine, the Appellant No.1 has been sentenced to undergo simple imprisonment for a further period of 2 months.The sentences have been directed to run concurrently.ii) Imprisonment for Life and fine of Rs.2,000/- for the offence punishable under the provisions of Sections 302/34 IPC.CRL.A.1315/2014, 829/2012 & 452/2013 Page 3 of 30 In default of payment of fine, the Appellant No.2 has been sentenced to undergo simple imprisonment for a further period of 2 months.CRL.A.1315/2014, 829/2012 & 452/2013 Page 3 of 30The sentences have been directed to run concurrently.III) Appellant No.3The sentences have been directed to run concurrently.Furthermore, the benefit of Section 428 CrPC has been granted to the Appellant No.3 as well.CRL.A.1315/2014, 829/2012 & 452/2013 Page 4 of 30CRL.A.1315/2014, 829/2012 & 452/2013 Page 4 of 30The fulcrum of the case of the prosecution is that on 18.04.2010, the Appellant nos.1, 2 and 3 (hereinafter collectively referred to as 'Appellants'), sharing common intention, caused stab injuries on the body of Dhiraj s/o Mr. Ram Nandan (hereinafter referred to as 'the deceased') leading to his death.The injuries were caused with a knife [Ex.P9], whilst committing robbery, at Sanjay Jheel, Mayur Vihar Phase-II, Delhi (hereinafter referred to as 'Sanjay Jheel/crime spot').After committing the murder, the appellants took the mobile phone, Rs.60/-70/-, and the school ATM card of the deceased and absconded from the crime spot.The entire incident was witnessed by Ms. Sapna (PW-6), who was present with the deceased at the time of the incident.A PCR call [Ex.PW13/A] was made at the instance of PW-6 by Mr. Satish (PW-3); who was playing cricket at some distance from the crime spot, and Daily Diary No.13A was lodged at Police Station Pandav Nagar, Delhi (hereinafter referred to as 'the Police Station').Sub-Inspector Krishan Pal, PCR, North East zone (PW-15) alongwith Constable Murad Khan reached at the crime spot where they found the dead body of the deceased smeared in blood.Inspector B.R. Meena (PW-23/Investigating officer/IO) also reached at the crime spot, where PW-6 was also present.CRL.A.1315/2014, 829/2012 & 452/2013 Page 5 of 30CRL.A.1315/2014, 829/2012 & 452/2013 Page 5 of 30Crime team was called at the crime spot.PW-23 recorded the statement of PW-6 [Ex.PW6/A]; prepared the rukka [Ex.PW23/A] and gave it to Constable Bahadur Singh (PW-18) for registration of F.I.R. [F.I.R. being Ex.PW19/A]; and thereafter prepared the site plan [Ex.PW23/B].The dead body of the deceased was sent to LBS Mortuary through PW-15 and Constable Murad Khan.PW-23 took two samples each of blood soaked earth and earth controls from the crime spot [vide separate memos Ex.PW-6/B to E].A P-Cap lying near the body of the deceased was also taken into possession [vide memo Ex.PW-6/F].Thereafter, PW-23 alongwith woman Constable Krishna took PW-6 to her house and took into possession the blood stained clothes worn by her at the time of the incident [vide memo Ex.PW6/G].On 19.04.2010, PW-23 conducted inquest proceedings and the dead body of the deceased was identified by Mr. Neeraj Kumar and Mr. Ram Nandan Prasad [vide Ex.PW2/A and Ex.PW1/A, respectively].Further, PW- 23 requested the doctor for postmortem vide application Ex.PW23/D. Postmortem was conducted and the dead body of the deceased was handed over to his relatives [vide Ex.PW1/B].The clothes as well as the blood CRL.A.1315/2014, 829/2012 & 452/2013 Page 6 of 30 sample of the deceased were taken into possession [vide seizure memo Ex.PW23/E].CRL.A.1315/2014, 829/2012 & 452/2013 Page 6 of 30It is further the case of the prosecution that the mobile device of the deceased; being amongst the articles robbed by the Appellants, was placed under surveillance and it was discovered that another mobile number being 9958103551, activated in the name of one Gulshan Bano R/o Jhuggi Jawahar Mohalla, Shashi Garden, Delhi (mother of the appellant no.1) was being used on the said mobile device.On enquiry from the mother of Appellant No.1, the former pointed towards the latter stating that he was using the said mobile number.Consequent thereto, the Appellant No.1 was apprehended and made a disclosure statement [Ex.PW17/A] admitting his involvement in the incident.Appellant No.1 was arrested [vide arrest memo Ex.PW17/D] and his personal search was conducted [vide memo Ex.PW17/E].Appellant No.1 got recovered from the fridge in his jhuggi, the mobile device of the deceased in which he was using the said mobile number.The mobile device and the SIM of the said mobile number being used therein, were taken into possession CRL.A.1315/2014, 829/2012 & 452/2013 Page 7 of 30 [vide seizure memo Ex.PW17/B].Furthermore, the Apellant No.1 also got recovered from his jhuggi a bloodstained T-shirt, which he was wearing at the time of the commission of the offence [vide seizure memo Ex.PW17/C].CRL.A.1315/2014, 829/2012 & 452/2013 Page 7 of 30Appellant No.2 was apprehended and during interrogation he also made a disclosure statement admitting his involvement in the incident [Ex.PW21/C].Appellant No.2 was arrested [vide arrest memo Ex.PW21/A] and his personal search was conducted [vide memo Ex.PW21/B].Appellant No.2 got recovered from his jhuggi the knife [Ex.P9] used in the commission of the offence [vide memo Ex.PW21/E].Furthermore, the Appellant No.2 also got recovered a white coloured blood stained T-shirt, which he was wearing at the time of the commisison of the offence [Ex.PW21/F].Subsequent thereto, at the instance of Appellant Nos.1 and 2, Appellant No.3 was arrested.Pursuant to his arrest, Appellant No.3 also made a disclosure statement admitting his involvement in the incident [Ex.PW18/PX2].Appellant No.3 was arrested [vide arrest memo Ex.PW18/A] and his personal search was conducted [vide memo Ex.PW18/PX1].Appellant No.3 got recovered a shirt having bloodstains CRL.A.1315/2014, 829/2012 & 452/2013 Page 8 of 30 from his jhuggi, which he was wearing at the time of the commission of the offence [vide memo Ex.PW18/PX4].CRL.A.1315/2014, 829/2012 & 452/2013 Page 8 of 30However, the Appellants refused to participate in the TIP proceedings [Ex.PW9/E to G].Broadly, PW-6 (the eyewitness) has deposed to the incident as follows:That on 18.04.2010, at about 10 A.M., while she was on her way to her friend's house she met the deceased.The deceased was her cousin brother.They both got engaged into a conversation and whilst simulataneously conversing and walking reached Sanjay Jheel.They both sat down there on a bench when the Appellants approached the deceased and asked him for the time.Thereafter, the Appellants asked the deceased to stand up and both of them stood up.On their standing up, the Appellants asked the deceased to hand over everything in his possession, however, PW- 6 and the deceased told the Appellants that they do not have anything and CRL.A.1315/2014, 829/2012 & 452/2013 Page 22 of 30 asked for them to be left alone.Appellant No.2 took out a knife and asked for the deceased to hand over everything in his possession or otherwise he will be killed.On the other hand, Appellant No.3 threatened PW-6 to leave from there or otherwise she too will be killed.PW-6 started walking away from the crime spot and after walking a few steps again requested to the Appellants to leave them alone.The deceased also requested the Appellants to leave them.CRL.A.1315/2014, 829/2012 & 452/2013 Page 22 of 30The Appellant Nos.1 and 3 caught hold of the deceased and the Appellant No.2 stabbed the deceased on his chest.On being stabbed, the deceased started crying and after taking a few steps fell down on the ground.Thereafter, the Appellants took away the money and mobile phone of the deceased and absconded from the crime spot.PW-6 went up to the deceased while he was bleeding from his chest and asked him to get up.However, the deceased couldn't speak and was breathing heavily.PW-6 approached some boys, which included PW-3, and asked them for their help.At her request, PW-3 made the call to the police to report the incident, pursuant to which the police arrived and took the dead body of the deceased to the hospital.One of the contention which was raised by the Appellants before the Trial Court in order to discredit the testimony of the sole eye-witness, PW-6 CRL.A.1315/2014, 829/2012 & 452/2013 Page 23 of 30 was that she has only deposed of one stab wound viz. Injury No.1, whereas the postmortem records two stab wounds on the body of the deceased.The Trial Court whilst rejecting this contention and holding the testimony of PW- 6 to be consistent, credible and truthful, observed as follows:CRL.A.1315/2014, 829/2012 & 452/2013 Page 23 of 30i) Rigorous Imprisonment for 7 years and fine of Rs.1,000/- for the offence punishable under the provisions of Sections CRL.A.1315/2014, 829/2012 & 452/2013 Page 2 of 30 392/34 Indian Penal Code, 1860 (hereinafter referred to as 'IPC').In default of payment of fine, the Appellant No.1 has been sentenced to undergo simple imprisonment for a further period of 1 month.Rs.1,000/- for the offence punishable under the provision of Section 397 IPC.In default of payment of fine, the Appellant No.2 has been sentenced to undergo simple imprisonment for a further period of 1 month.i) Rigorous Imprisonment for 7 years and fine of Rs.1,000/- for the offence punishable under the provisions of Sections 392/34 IPC.In default of payment of fine, the Appellant No.3 has been sentenced to undergo simple imprisonment for a further period of 1 month.ii) Imprisonment for Life and fine of Rs.2,000/- for the offence punishable under the provisions of Sections 302/34 IPC.In default of payment of fine, the Appellant No.3 has been sentenced to undergo simple imprisonment for a further period of 2 months.On 04.05.2010, PW-23 recorded supplementary statement of PW-6 qua the identity of the Appellants, and on 05.05.2010 statement of PW-6 was recorded under the provisions of Section 164 of CrPC [Ex.PW6/H].The Exhibits were sent to the Forensic Science Laboratory (hereinafter referred to as 'the FSL').In the FSL examination [Ex.PX2] it was discovered that human blood was present on the clothes recovered at the instance of the Appellants as well as on the knife, however, the blood group could not be detected.Insofar as the post-mortem report is concerned [Ex.PW5/A], it has been stated therein that the following injuries were present on the body of the deceased:i) Incised stab wound 3.3 x 1.9 cms obliquely present over left side at chest 112 cms above heel and 8 cms from midline, chest cavity deep, margins sharp and regular, lower end acute, CRL.A.1315/2014, 829/2012 & 452/2013 Page 9 of 30 directed downwards, inwards and medially (hereinafter referred to as 'Injury No.1');CRL.A.1315/2014, 829/2012 & 452/2013 Page 9 of 30ii) Incised wound .5 x .1 cms oblique, present over dorsum of left hand, skin deep, margin sharp and regular (hereinafter referred to as 'Injury No.2');iii) Abrasion 0.5 x .03 cms present 1 cm above medial end of right eyebrow on forehead (hereinafter referred to as 'Injury No.3').It has been opined by Dr. Vinay Kumar Singh (PW-5) that the cause of death was haemorragic shock consequent upon stab injury to the chest; all injuries were antemortem in nature.Injury No.1 was sufficient to cause death in the ordinary course of nature and Injury Nos.1 and 2 were caused by a single edge and sharp weapon/knife.Furthermore, on internal examination the following injuries were discovered:"In continuation of Injury No.1, skin, subcutaneous tissue, muscle, in between 6th and 7th ribs, upper body at 7th rib, pleurae left side, pericardium and left ventricular of heart above apex, 2.8 x 1.5 cms were incised, about 2.5 litres of blood in cavity, all layers of muscle at left vertical were incised, cavity deep, chambers empty."As per the sketch drawn by PW-5 of the knife, the length and width of the blade thereof is 20.3 cms and 3.7 cms (at most), respectively.It has also been deposed by PW-5 that Injury Nos.1 and 2 have been caused from the same weapon of offence.CRL.A.1315/2014, 829/2012 & 452/2013 Page 10 of 30Furthermore, PW-5 has also tendered subsequent opinion with respect to Injury No.3 [Ex.PW5/B].It has been stated therein that the Injury No.3 could have been caused due to surface friction against a rough surface.At the trial, the prosecution has examined 23 witnesses in support of its case.The Appellant No.1 in his defence has chosen not to lead any evidence.However, it has been stated by him in his statement under the provision of Section 313 CrPC that he found the mobile phone from the bushes of the park at Sanjay Jheel; where he was playing football.The Appellant No.2 in his defence has produced Mr. Nasir Ahmed (DW-1), his employer, CRL.A.1315/2014, 829/2012 & 452/2013 Page 11 of 30 who asserted that at the time of the incident Appellant No.2 was present with him in Rewari, Haryana.CRL.A.1315/2014, 829/2012 & 452/2013 Page 11 of 30The Appellant No.3 in his statement, under the provision of Section 313 CrPC, whilst disputing the recovery made at his instance, has also stated that he has been falsely implicated in the present case.The Appellant No.3 in his defence has produced Md. Yasin (DW-2), his employer.It has been deposed by DW-2 that Appellant No.3 was working with him at the time of the incident.i) The testimony of PW-6, the sole eyewitness, being consistent, credible and truthful;ii) PW-6 has identified the Appellants in Court.Furthermore, PW-iii) The recovery of the mobile phone of the deceased from the Appellant No.1;CRL.A.1315/2014, 829/2012 & 452/2013 Page 12 of 30"25. ...It is stated that as per PW6, only one stab wound was caused but as per P/M report Ex.PW5/A, deceased sufferred two stab wounds.PW6 has talked about only one stab injury inflicted by accused Mukesh on the chest of deceased.As per P/M report Ex.PW5/A, there is another stab injury present over dorsum of left hand and doctor opined that both injury No.1 and 2 are caused by single edged sharp weapon/knife.PW6 has stated that he pleaded with accused persons to leave them as they are not having any thing.On this, accused Akram threatened her to go away from there otherwise she will be killed.She started leaving from the spot, after taking few steps she again requested accused persons to leave them.As per PW6, she saw accused Imran and Mukesh caught hold deceased Dhiraj and accusecd Mukesh stabbed Dhiraj on his chest.Injury on the dorsum of left hand of the deceased shows that while being assaulted with knife as natural reaction to defend, deceased must have brought his hand in-between, as result of which he sustained this injury.Since PW6 was leaving from the spot and from some distance she saw accused stabbing deceased, it looks probable that she did not see accused inflicting injury No.2 i.e. on left hand of the deceased.She was cross-examined by both the Ld.The Trial Court rightly concluded that the possible reason for PW-6 not having testified to the injury on the dorsem of the left hand (Injury No.2) could be that it was caused when she started walking away from the crime spot.As rightly observed by the Trial Court, Injury No.2 could have been caused as a consequence of the deceased exercising his right of defending himself by a natural reflex action against assault by Appellant No.2 with a knife.Even otherwise, it seems only logical to conclude that Appellant No.2 was not aiming for the dorsum of his left hand.CRL.A.1315/2014, 829/2012 & 452/2013 Page 25 of 30CRL.A.1315/2014, 829/2012 & 452/2013 Page 25 of 30However, insofar as the fatal injury is concerned i.e. Injury No.1, the same was caused by the Appellant No.2 using the knife [Ex.P9] recovered at his instance, whilst Appellant Nos.1 and 3 had caught hold of the deceased.The Injury No.1 was on a vital part of the body viz. left side of the chest, with a force so great that it resulted into an incise wound as large as 3.3 x 1.9 cms, and as a consequence thereof, several grave and internal injuries also resulted.The Injury No.1 so caused cannot be said to be accidental, unlike Injury No.2, as with two persons holding the deceased and a stab wound already present on the dorsum of his left hand (Injury No.2), there was not much scope of movement for a young boy of an average physique.

['Section 300 in The Indian Penal Code', 'Section 299 in The Indian Penal Code', 'Section 34 in The Indian Penal Code', 'Section 302 in The Indian Penal Code', 'Section 304 in The Indian Penal Code', 'Section 482 in The Indian Penal Code', 'Section 397 in The Indian Penal Code', 'Section 392 in The Indian Penal Code']

Supplementary affidavit filed on behalf of the applicants in Court today is taken on record.This application u/s 482 Cr.P.C. has been filed to quash the charge sheet dated 07.02.2019 as well as the entire proceedings of Case No. 1352 of 2019 arising out of Case Crime No. 197 of 2018 (State vs. Sunil Pandey and another), under Sections 420, 467, 468, 471 I.P.C., Police Station-Purani Basti, District-Basti pending in the Court of Chief Judicial Magistrate, Basti.Heard Mr. Ram Mani Upadhyay, learned counsel for the applicants, Mr. Kripa Shanker Pandey, learned counsel for opposite party no.2 and learned A.G.A. for the State.After death of mother of opposite party no.2, namely, Pavitra Devi, the name of opposite party no.2 and his elder brother has been entered in the revenue records as legal heir of their mother.The application of mind has to be indicated by disclosure of mind on the satisfaction.I have heard the learned counsel for the parties and have gone through the records of the present application.

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

It is alleged that Pandian divorced her and contracted second marriage with one Revathy.This appears to be the motive for the accused to bear ill-will towards Pandian, while so, Pandian had reconciled with Podhumponnu.Heard the learned counsel on either side.2.Criminal Revision Petition.Criminal Revision Petition.No.31 of 2010 has been filed by the first accused questioning the judgment imposed by the trial Court and the first appellate Court finding him guilty.Since both the Criminal Revision Petitions are interlinked, this Court heard them together.But ignoring the same on 05.04.2005, at about 03.00 a.m., there was a murderous assault on the revision petitioner / victim.The revision petitioner had sustained serious injuries including head injury and three fractures.Crime No.56 of 2005, was registered on the file of the Inspector of Police, Mayanoor Police Station, karur District.The matter was investigated and final report was filed.The charges under Sections 341 and 307 were framed against accused Nos.1 and 2 while charge under Section 341 and 307 r/w 34 were framed against the third accused.http://www.judis.nic.in 44.In support of the charges, on the side of the prosecution P.W.1 to P.W.11 were marked and Ex.P.1 to Ex.P.12 were marked.M.O.1 and M.O.2 were also marked.On the side of the accused, three witnesses were examined and Ex.D1-Attendance Register was also marked.5.The learned trial Judge by judgment dated 25.01.2008 acquitted Accused Nos.2 and 3 of all the charges and found the first accused alone guilty of the charge under Section 324 I.P.C. The first accused was sentenced to undergo six months simple imprisonment and to pay a fine amount of Rs.500/- for the offence under Section 341 of I.P.C., and for the offence under Section 324 of I.P.C. he was sentenced to undergo two year rigorous imprisonment and a sum of Rs.1000/- was also imposed as fine.The default sentence was also imposed on him.6.The learned Sessions Judge by judgment dated 05.09.2008 while sustaining the conviction imposed on the first accused, has held that the period of sentence already undergone by him would be sufficient.However, the fine amount imposed by the learned trial Magistrate was confirmed.7.The learned counsel on either side reiterated the respectivehttp://www.judis.nic.in 5 contentions.As regards the second accused, he had pleaded alibi.In support of his stand, Ex.D.1-Attendance Register was also marked.He also examined the defence witnesses D.W.2 and D.W,.3, who are the Principal and Warden of the Institution, in support of his stand that he was elsewhere.The learned trial Judge after elaborate consideration of the evidence on record chose to accept the plea of alibi pleaded by the second accused.9.I am of the view that there is no necessity to interfere with the said findings.The occurrence had taken place at about 03.00 am.On 05.04.2005, on the same day, at about 02.30 p.m., Ex.P1 complaint was lodged and Ex.P.7-Firsthttp://www.judis.nic.in 6 Information Report was registered.In the complaint itself, the first accused has been implicated.If the revision petitioner was attacked by somebody, there was no need for the petitioner to implicate Muthusamy / first respondent herein.10.The learned counsel appearing for the first respondent would contend that except the testimony of P.W.1, there is no other corroborating evidence.P.W.1 is on injured witness.The injuries would speak for themselves.In any event, I am only exercising the revisional jurisdiction.Both the Courts below have clearly found that Muthusamy was guilty of the offence, with which he was charged.I cannot re- appreciate the evidence.Therefore, I confirm the conviction imposed on him.Now comes the question of punishment.The sentence certainly warrants interference.At this stage, the learned counsel appearing for the revision petitioner submits that the occurrence had taken place wayback in the year 2005 and since more than 15 years have elapsed, this Court would not be justified in sending Muthusamy to prison.Obviously, Muthsamy must be a senior citizen by now.Therefore, interest of justice will behttp://www.judis.nic.in 7 served by directing Muthusamy to pay a sum of Rs.40,000/- (Rupees Forty Thousand only) to the revision petitioner / Pandian directly within a period of three months from the date of receipt of a copy of this order.If the Muthusamy / Accused No.1 fails to pay this compensation amount, he will have to undergo rigorous imprisonment of one year.If the victim is not willing to accept the compensation amount directly from the accused, the accused shall deposit the same to the credit of S.C.No.17 of 2007, on the file of the learned Assistant Sessions Judge, Kulithalai, Karut District, which can be withdrawn by the victim.The judgments passed by the Courts below are accordingly modified.11.Criminal Revision Petition No.31 of 2010 stands dismissed accordingly.Criminal Revision Petition No.731 of 2008 stands disposed of accordingly.06.06.2019 Index : Yes/No Internet : Yes/No Tsghttp://www.judis.nic.in 8 G.R.SWAMINATHAN, J.1.The Inspector of Police, Mayanoor Police Station, Karur District.The Sessions Court, Karur3.The Assistant Sessions Court, Kulithalai, Karur District.4.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.Crl.R.C.[MD]Nos.731 of 2008 & 31 of 2010 06.06.2019http://www.judis.nic.in

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

ORDER G.B. Pattanaik, J.This appeal is by the informant against an order of acquittal recorded by the High Court of the charges under Sections 304B and 201, I.P.C. Six accused persons stood charge and were tried for having committed an offence under Sections 304B and 201, I.P.C. on the allegation that the deceased, Rajbala, died on account of electrocution within 7 years of her marriage and she had been subjected to cruelty and harassment by her husband as well as in -laws for demand of dowry, and that the dead body was disposed of without waiting for the parents of the deceased to arrive at the place of occurrence.PWs.1 and 2, the brother of the deceased and cousin of the deceased were two witnesses examined by the prosecution in support of the case of harassment and cruelty meted out to the deceased by her husband as well as in-laws.The learned Sessions Judge on conclusion of the trial came to the conclusion that there exists no material as against accused Nos. 5 and 6, and therefore, without examining them under Section 313 acquitted them of the charges leveled against them.So far as accused No. 3 is concerned, the learned Sessions Judge acquitted him of the charge and that order of acquittal became final not being assailed by the State by preferring an appeal in the High Court.The convicted accused persons, namely, accused Nos. 1,2 and 4 who are the mother-in-law, husband and father-in-law respectively, of the deceased preferred appeal against their conviction and sentence.The High Court by the impugned judgment came to a positive finding that the evidence on record is sufficient to establish that Rajbala during her lifetime used to be harassed by her husband and in-laws on account of insufficient dowry, and further demands used to be made.Notwithstanding the aforesaid finding being arrived at, since the prosecution evidence did not establish any unnatural circumstance for the death of the deceased, the High Court acquitted accused Nos. 1,2 and 4 of the charge under Sections 304B and 201, I.P.C. The High Court, however, convicted the accused persons under Section 498A in view of the conclusion referred to earlier and sentenced them for the period already undergone.It is this order of acquittal of accused Nos. 1,2 and 4 for the offence under Sections 304B and 201, I.P.C. which is the subject matter of appeal.2. Learned Counsel for the appellant contends that the death of the deceased undoubtedly having taken place within 7 years of marriage and that the death being on account of electrocution which is a burnt injury, and the finding of the High Court being that the husband and in-laws had harassed deceased, Rajbala, on account of insufficient dowry, and further demands used to be made, the ultimate conclusion of the High Court that the ingredients of offence under Section 304B has not been established, is unsustainable in law, therefore, the order of acquittal is wholly unjustified.In the circumstances, we set aside the order of acquittal passed by the High Court of the offence under Section 304B, I.P.C. and hold that the accused Nos. 1, 2 and 4 committed offence under Section 304B, and therefore, they are convicted thereunder and sentenced to 7 years rigorous imprisonment.They must now surrender to undergo balance period of sentence.This appeal is allowed.

['Section 304B in The Indian Penal Code', 'Section 201 in The Indian Penal Code', 'Section 313 in The Indian Penal Code', 'Section 498A in The Indian Penal Code']

P.W.1, Jharia Das deposed the victim was married to the appellant two years prior to the incident.The appellant had an illicit relation with another girl.On the date of occurrence one Rabin Saha, a neighbour from the matrimonial home of the victim informed him that the victim suffered burn injury.Rabin Saha admitted the victim at Jalpaiguir District Hospital.On getting information, P.W. 1 rushed to his daughter.His daughter was in her senses and was talking.She stated that her husband poured kerosene oil on her body and set her on fire.She died at hospital after 4/5 days.He lodged complaint at Haldibari P.S. He put his LTI on the complaint.In cross-examination, he stated that six months prior to the occurrence his daughter had given birth to a child.Unfortunately, the baby died after her birth.His daughter used to lament the loss of her baby.P.W.5, Rabindra Nath Saha & P.W.6, Gautam Dutta have been declared hostile.P.W.5 deposed that on the date of occurrence at 11 A.M./12 noon he heard a hue and cry.He came out from the house and found the victim was lying in front of a public well and her wearing apparels were being changed by local people.She had severe burn injuries on her person.She was taken to Haldibari hospital and thereafter shifted to Jalpaiguri hospital.She told him to inform her parents.Accordingly, he informed her father (P.W.1).P.W 6 claimed that the victim had suffered burn injuries at her matrimonial home.P.W. 7, Goutam Saha was a witness to seizure of burnt cloths from the house of the appellant.convicted and sentenced the appellant, as aforesaid.By the selfsame judgment and order, the co-accused persons, namely, Dinawari Biswas (mother-in-law), Smt. Sarani Biswas (sister-in-law) and Shantia Biswas (husband of the sister-in-law) were acquitted of the charges levelled against them.Prosecution case as narrated in the first information report was given a complete go by in the purported dying declaration of the victim.There is no allegation of torture for or in connection with dowry in the dying declaration.Evidence on record does not satisfy the ingredients of the offence punishable under section 498A of the IPC.Original dying declaration was not produced in court.Doctor who gave the certificate of fitness of the victim has not been examined.Hence, the dying declaration ought not to have been relied upon.Accordingly, the appellant is liable to be acquitted.Mr. Ahmed, learned counsel appearing on behalf of the State argued that the dying declaration of the victim was recorded by the Sub-divisional Officer, Jalpaiguri, Sadar.Photocopy of the dying declaration duly attested by the witness has been exhibited as secondary evidence since the original was untraceable.P.W.12 enquired with regard to the fitness of the victim from the treating doctor who endorsed his satisfaction in the dying declaration in her presence.Hence all the pre-requisites for recording dying declaration were duly satisfied.From the dying declaration it appears that the appellant had an illicit relation with one Laxmi and over such issue there was an altercation between him and the victim.He poured kerosene oil on the body of the victim and tried to set her on fire.Due to such instigation the victim set herself on fire.Other evidence on record corroborate the dying declaration in all material particulars.Hence, the appeal is liable to be dismissed.Victim was physically assaulted by the appellant when she raised protest over such issue.Appellant also demanded money from the victim.As he was unable to meet such demands, victim was assaulted by the appellant and other in-laws.P.W.8, Ramesh Roy, relation of the victim who has corroborated the evidence of the aforesaid witnesses.Both of them deposed that victim was set on fire at her matrimonial home by her husband and other accused persons.He signed on the seizure list.He deposed that the victim had suffered burn injuries at her matrimonial home.P.W 12 was the sub-divisional officer of Jalpaiguri Sadar at the time of the incident.Upon receipt of requisition she came to the hospital and recorded dying declaration of the victim (Ext. 6).Prior to recording the dying declaration, she asked the attending doctor whether the victim was physically and mentally fit and conscious to make statement.Doctor replied in the affirmative and appended a note in the dying declaration.Thereafter, she proceeded to record the dying declaration.She took the LTI of the patient on the declaration.She proved the carbon copy of the original document duly attested by her as the original was untraceable.The said document was admitted as secondary evidence in terms of section 65 of the Evidence Act.P.W 13 was the autopsy doctor.He proved the post mortem report and deposed that the victim had died due to shock and hemorrhage as a result of burn injury, ante mortem in nature.He proved the inquest report (Ext9).P.Ws 9, 10 and 11 are the investigating officers in the instant case.While P.Ws 1, 2, 3, 4 and 8 claimed that the victim had told them in the hospital that she had been set on fire by the appellant and other in- laws, in the written dying declaration (Ext. 6) recorded by P.W 12 she stated that there was an altercation between herself and the appellant over the issue of illicit relation between the appellant and one lady, namely Lakhsmi.In the course of altercation the appellant had doused her in kerosene oil and tried to set her on fire.At that time, she herself set her on fire.Such analysis of evidence on the part of the trial judge, in my considered opinion, is just and reasonable and does not call for interference.However, learned counsel for the appellant has seriously criticised the written dying declaration on a number of scores.It is argued that the original document was not produced in court and a carbon copy was illegally admitted into evidence.It is also submitted that the doctor who treated the patient and endorsed the certificate has not been examined.I have given anxious consideration to the aforesaid objections raised on behalf of the appellant.Objection with regard to admissibility of the attested photocopy of the dying declaration is of little substance.It has come on record that the original dying declaration kept in the office of the sub-divisional officer, Jalpaiguri was not traceable in the said office.I have gone through the evidence of P.W 1 in extenso.No challenge has been thrown to the presence of P.W 12 at the hospital on 22.3.1998 when she recorded the dying declaration.P.W. 12 handed over the attested photocopy of the dying declaration to.I.O. and the original was kept on record.At the time of trial (which was held in 2010, after about 12 years) the original document was untraceable and hence, the duly attested photocopy was accepted as secondary evidence.The procedure adopted by P.W 12 is neither unnatural nor opposed to normal human conduct.Finally, it has been argued that the attending doctor who gave certificate of fitness has not been examined.Failure to examine the attending doctor in the facts of the instant case does not affect its credibility.P.W 12 in her deposition categorically stated she had enquired of the attending doctor with regard to the consciousness and the mental fitness of the victim prior to recording her statement.The attending doctor gave his affirmation and duly made an endorsement in the presence of the said witness.Hence, the endorsement of the treating doctor which was made in the presence of P.W 12 has been duly proved by her.In these circumstances, I am of the opinion prosecution has been able to prove that the written dying declaration was duly recorded by the sub-divisional officer, P.W 12 after the certificate of fitness with regard to the consciousness and the capacity of the victim to make such statement was duly endorsed by the treating doctor in her presence.All the formalities and requisites for recording a valid dying declaration are satisfied.Perusal of the dying declaration also gives an impression that the victim had narrated the incident in an honest and bona fide manner.She did not make all her in laws responsible for her misfortune.She admitted that she had herself set her on fire and not her husband.The manner in which the dying declaration (Ext 6) was recorded in the instant case and its tenor inspires confidence that it is an honest and truthful rendition of the incident resulting in death of the victim.There was a quarrel between the couple over an illicit relation between the appellant and another lady.In the course of quarrel the appellant tried to set her on fire by dousing her in kerosene oil.Due to such conduct on the part of the appellant, the victim instigated to self immolate herself.Evidence has also come on record that over such issue the appellant had subjecting the victim to mental and physical torture.The aforesaid factual backdrop clearly shows the intention of the appellant to incite the victim to kill herself.I am unwilling to accept the suggestion made on the part of the appellant that the victim may have committed suicide as she was depressed due to the untimely death of her child in the light of the clear and unequivocal motive disclosed by the her in the dying declaration.I find no substance in such submission advanced by the appellant.In these circumstances, I am of the considered opinion that the appellant had subjected the victim to mental and physical torture over an illicit relationship between himself and another lady.He tried to kill her and under such extreme circumstances the victim was induced to commit suicide.Hence, I am inclined to uphold the conviction recorded against the appellant on the aforesaid counts.Urgent Photostat Certified copy of this order, if applied for, be supplied expeditiously after complying with all necessary legal formalities.

['Section 498 in The Indian Penal Code', 'Section 306 in The Indian Penal Code', 'Section 498A in The Indian Penal Code', 'Section 109 in The Indian Penal Code', 'Section 304B in The Indian Penal Code', 'Section 307 in The Indian Penal Code']

Through: Sh.Sanjay Lao, APP.HON'BLE MR.The prosecution alleges that on 13-04-2003, in the evening, at 09:00 PM, when Harsh Dua, and his brothers, Praveen and Sonu Dua, had gone to attend the engagement ceremony of their friend at Sanjay Park, Govind Pura, and were talking amongst themselves, the Appellant reached there, and Crl.A. 134/2009 Page 1 picked up a quarrel with Praveen.He reportedly told Harsh Dua, that Praveen had slapped him, and that he would not leave him.Harsh and the others tried to calm down the appellant; he went away.Harsh and his brothers went inside the park.A few minutes later, Inderjeet Chawla @ Deepak, a friend of Parveen also reached there.When all these friends were conversing, the Appellant came there.He complained to Inderjeet that Parveen had slapped him, without a cause, and that it did not bode well for him.Again, Praveen's brothers tried to diffuse the situation, and calm down the appellant; they also apologized on behalf of Parveen.At this stage, Parveen slapped the Appellant.Inderjeet tried to intervene; Jagtar then pulled out a knife, and inflicted injuries on him.He cried out for help.Parveen tried to save him; the appellant then turned on him, and gave several serious knife blows on his vital parts.Parveen fell down.The appellant fled the spot.JUSTICE S.P.GARG MR.The Appellant impugns a judgment and order of the learned Additional Sessions Judge, dated 14-08-2003, in SC 60/2007, whereby he was convicted for the offence punishable under Section 302, IPC, and sentenced to undergo life imprisonment.Parveen's brothers rushed him to the hospital.Inderjeet gave his statement; an FIR, No. 136/03 PS Preet Vihar was registered, alleging offences under Sections 307/324 IPC.Later, in the early hours of the next morning, Parveen died.The appellant was arrested for committing the crime; Section 302 IPC was also added to the charge sheet.He pleaded innocence, and claimed trial.The prosecution examined twenty witnesses in support of its case.The appellant examined his mother, in his defence.In addition, the court examined two witnesses, since a plea was taken that the Appellant was suffering from mental disorder, and was undergoing treatment in jail.After 2005, he underwent treatment Crl.A. 134/2009 Page 2 for bi-polar depression.After considering all the materials on record, the Trial Court, by the impugned judgment, convicted the Appellant for the offence mentioned in the preceding portion of the judgment, and sentenced him to undergo imprisonment in the manner described earlier.Mr. M.L. Yadav, learned counsel for the Appellant urged at the outset, that the Trial Court findings as far as they pertained to the facts go, cannot be assailed, because PW-1 Inderjeet Chawla, the injured witness, and PW-5 as well as PW-7, brothers of the deceased, supported the prosecution about the attack which took place.Counsel urged that though there were some variations in the testimonies of these witnesses, they did not undermine the basic story about how Parveen had been attacked.It was however urged that the Trial Court fell into error in not noticing that the Court witnesses' depositions had clearly shown that the Appellant was not in his senses.Court witness No.2 was the doctor who had treated the Appellant even before the incident; he deposed about his mental illness.Even after his conviction, when he was undergoing sentence, the Appellant was a psychiatric patient, who underwent regular treatment.The Court should have given these serious consideration; instead the impugned judgment does not reflect any application of mind.It was argued next that even if the prosecution is said to have proved all the facts alleged in this case, at best the Appellant could have been justifiably convicted under Section 304-II IPC, and certainly not under Section 302 IPC.Here, counsel argued that the episode took place due to a sudden quarrel; the deceased had concededly slapped the Appellant, who Crl.A. 134/2009 Page 3 retaliated later by stabbing him.There was no premeditation, and deliberation or planning.Counsel relied on the decision reported as Kandaswamy v State of Tamil Nadu 2008 (11) SCC 97, where the facts were recounted as follows:"XXXXXX XXXXXX XXXXXX PWs 1 and 2 were examined as eye witnesses to the occurrence.Gurvammal is the elder sister of PW 1 and deceased Alagarsamy is her husband.The accused was known to him.Guruvammla died leaving behind two children - a girl and a boy.This made his father (PW 2) to bring Alagarsamy to his house.At about 8.30 p.m. on the occurrence day, he was standing opposite to the house of Ramaiah with his son, after returning from the house of Visalam.PW 2 was also coming in the street from the shop and he asked as to whether he had gone to Visalam's house and come back.Alagarsamy alighted from the bus and PW 2 also asked him as to whether he had gone to Visalam's house.Palpandi (son of accused) also alighted from the bus and the accused asked him as to why he has not brought his mother with him for which he had been sent.Palpandi replied to his father (the accused) that unless the accused goes mother will not come.Finding fault that he is repeating the same answer, the accused beat his son.Alagarsamy asked him as to why he was beating the young boy for which the accused responded stating that he had no business to intervene in his family problem and saying so, removed the Aruval from his person and cut Alagarsamy which injury landed on his left hand.Threatening them with dire consequences, the accused made good his escape.Alagarsamy was lying dead.This betrayed pre- meditation.The sequence of events was that after that, the Appellant left the spot, went somewhere and Crl.Chandra Shekhar, who delivered the judgment, about this evidence.In the present case, there are three head injuries, two on the scalp and one on the left parietal region.The first two injuries are, undoubtedly, fatal injuries.As a result of those injuries, multiple fractures of the right parietal bone occurred, the membranes got severed and there was injury to the brain matter.As regards the third injury, which is an incised wound of 2? 1? on the left parietal region, it cannot be said for certain that in the ordinary course it would have caused death.The medical evidence is silent on this aspect.The doctor did not even say what impact this third injury had internally.All the three appellants inflicted injuries on the head of the deceased with the weapons in their hands according to the prosecution witnesses.There is an allegation that after the deceased fell down all the three went on giving blows on the leg and waist.Certain injuries were found on the knee joint, elbow joint and left forearm of the deceased....XXXXXX XXXXXX XXXXXX ...intention that can be safely imputed to Appellants 1 to 3 o 3 was to cause bodily injuries to Pyara Singh which were likely to cause death.It is this common intention which, in our view, had developed on the spot.Therefore, the offence committed by Appellants 1 to 3 would be culpable homicide not amounting to murder and they are liable to be convicted and punished under Section 304 (Part I).They are also liable to be convicted under Crl.A. 134/2009 Page 11 Section 148 IPC for the offence of rioting.On the basis of the evidence on record and the findings recorded by the High Court, there is no escape from the conclusion that the appellants were members of an unlawful assembly of five or more persons having the common object falling within the scope of clause (iii) of Section 141, though the common object was not to kill or hurt the deceased person.

['Section 302 in The Indian Penal Code', 'Section 304 in The Indian Penal Code', 'Section 148 in The Indian Penal Code', 'Section 299 in The Indian Penal Code', 'Section 325 in The Indian Penal Code', 'Section 149 in The Indian Penal Code', 'Section 300 in The Indian Penal Code', 'Section 324 in The Indian Penal Code', 'Section 34 in The Indian Penal Code', 'Section 326 in The Indian Penal Code', 'Section 307 in The Indian Penal Code']

The present appeal instituted under the provision of section 374(2) of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'Cr.P.C') assails the judgment dated 27.04.2018 and the order on sentence dated 14.05.2018, rendered by the learned Additional Session Judge-01, Dwarka Courts, New Delhi, in Session Case No.440846/2016, title as 'State vs. CRL.A. 1013/2018 Page 1 of 29 Mahabir Mehto', emanating from F.I.R No. 216/2013 (hereinafter referred to as the 'subject FIR') under sections 376/506 of the Indian Penal Code, 1860 (hereinafter referred to as 'IPC') and under sections 6/10 of the Protection of Children from Sexual Offence Act, 2012 (hereinafter referred to as 'POCSO'), registered at Police Station-Baba Haridas Nagar.CRL.A. 1013/2018 Page 1 of 29By the way of the impugned judgment dated 27.04.2018, Mahabir Mehto (hereinafter referred to as 'the appellant') has been convicted for the commission of offences punishable under the provisions of section 506 (Part I) IPC and sections 6/5 POCSO.CRL.A. 1013/2018 Page 2 of 29The facts, as elaborated by the trial court are extracted in extenso, as follows: -In her complaint, the complainant stated that on 02.09.2013, the accused had come to stay with her along with his family consisting of his wife, elder daughter (i.e. the prosecutrix) aged 16 years, younger daughter aged 4 years and son aged 8 years.She alleged that on 03.09.2013, when the prosecutrix was doing household chores, she noticed an unusual bulge in her belly.Upon being inquired, the prosecutrix revealed to her that the accused had been establishing physical relations with her for the last one year by threatening her and that as a result thereof, she had become pregnant.When the complainant confronted the accused about the same, he fled away from the house with his younger daughter.On the basis of the above complaint, FIR under Sections 376/506 IPC was registered against the accused.The prosecutrix was medically examined on the same day.She was found to be having pregnancy of 28 weeks.In her statement, she supported the contents of FIR and disclosed that she had told about the acts of the accused to her mother but she did not do anything as she was of unsound mind.During the course of investigation, Sections 6 and 10 POCSO Act were added.The appellant in his statement under Section 313 of Cr.P.C., whilst denying the case of the prosecution, stated that he had been falsely implicated in the case and further stated that he reprimanded the prosecutrix for having an affair with a boy, living in the neighbourhood, the police at the instigation of the complainant, PW-2, who had grudge against him for refusing to give her a share in his ancestral property, foisted the false case against him.The first issue that warranted adjudication at the trial, was the determination of the age of the prosecutrix, at the time of the commission of the offence.CRL.A. 1013/2018 Page 4 of 29PW14/A) given by the Medical Board, DDU Hospital on the examination of the prosecutrix.As per the said report, the bone age of the prosecutrix was opined about 20-30 years.In his testimony, he deposed as under:In her statement under Section 164 Cr.P.C. dated 07.09.2013, the prosecutrix stated as follows: -"Statement of Km.One day, when I was sleeping, my father came upon me.I pushed him and thereafter, I went to my mother, however, the accused also came there and again he came upon me.Thereafter, my Bua (Aunty) made inquiry from my father, who denied the same and thereafter, my father along with my younger sister went away to Bihar.The police officer called me in the Police Station Baba Haridas Nagar.I along with my Bua went to PS Baba Haridas Nagar and my Bua made a complaint to the police officer.Thereafter, the police officer took me to RTRM Hospital.After medical examination, the police official brought me back to the Police Station and from there, I was taken to Nirmal Chhaya.CRL.A. 1013/2018 Page 21 of 29It is correct that my bua used to visit my house several times.I never told her during those visits the above facts, which I deposed today before this Hon'ble Court.My grandfather used to reside with my uncle, Raju.My grandfather is having properties in village and the same is not yet divided CRL.A. 1013/2018 Page 22 of 29 between his children.I am not aware if my Bua is also having share in the said property.My brother accused Mahabir Mehto was also residing in the same vicinity along with his family.My brother accused Mahabir Mehto used to work as labour.In the month of July, 2013, on day my brother accused Mahabir Mehto come to my house and he requested me to arrange a room in the same house but initially, I did not allow my brother to stay there as a tenant as my brother accused Mahabir Mehto used to take liquor daily and my husband also used to take liquor daily.When my brother insisted me to arrange a room in our house, thereafter, I CRL.A. 1013/2018 Page 23 of 29 allowed him to stay there along with his family.Thereafter, in the month of October, 2013, accused Mahabir Mehto shifted in my house with his family.One day, I noticed the condition of my niece, child victim and on that day, I did not ask anything from her.I also used to work as labourer and I used to leave my house in the morning and return back in the evening.On that day after returning my house, in the evening, I enquired my niece, child victim about her condition, however, on that day, my niece started weeping and disclosed that her father committed rape upon her on several occasions.Thereafter, I along with my niece child victim went to PS Baba Haridas Nagar and made complaint against the accused, which is Ex.PW2/A bearing my thumb impression at pt A. From there, police official took my niece child victim to RTRM Hospital and I also accompanied her to the hospital, where she was memdically examined and the doctor declared that my niece child victim is pregnant.SIDDHARTH MRIDUL, J.By way of the impugned order on sentence dated 14.05.2018, the appellant has been sentenced to undergo imprisonment for life, along with fine Rs.15,000/-, for the offence punishable under section 6 read with section 5(n) of POSCO.In default of the payment of fine, the appellant has been sentenced to undergo simple imprisonment for three months.Further, for the offence punishable under the provision of section 506(Part I), IPC, the appellant has been sentenced to undergo rigorous imprisonment of two years, along with fine of Rs.5,000/-.In default of payment of fine, to further undergo simple imprisonment for one month.All the sentences have been directed to run concurrently.The gravamen of the charge, for which the appellant has been convicted, is for having committed penetrative sexual assault on his CRL.A. 1013/2018 Page 2 of 29 daughter, the prosecutrix, a girl aged about 15 years, at the time of commission of the offence.After completion of the investigation, the charge sheet was filed.It is a matter of record that the prosecutrix gave birth to a male child and that the said child had been given in adoption by the orphanage Sewabharti Matrichhaya.CRL.A. 1013/2018 Page 3 of 29On 08.01.2014, the charge for the commission of offence punishable under Section 6 read with Section 5(n) POCSO Act and Section 506 IPC was framed by the Ld.Predecessor against the accused to which he pleaded not guilty and claimed trial."By way of the order dated 08.01.2014, the charge for the commission of the offence punishable under Section 6 read with Section 5(n) POSCO and Section 506 (Part I) IPC was framed against the appellant, who pleaded not guilty and claimed trial.The prosecution examined 14 witnesses in all to establish their case against the appellant.CRL.A. 1013/2018 Page 4 of 29The trial court having considered the evidence on record, found as follows: -"10.1 In the absence of any document issued by any authority regarding the age of the prosecutrix, the prosecution has relied upon the bone age report dated 09.03.2018 (Ex.The detailed report is Ex.PW14/A, which bears my signature at point A...."In his cross-examination, PW14 expressed his inability to state the exact age of the prosecutrix at the time of her examination and stated that he could neither admit nor deny the suggestion that the prosecutrix was 26 years of age at the time of her examination.The highest rated option available determines the age of a minor conclusively.If the matriculation or equivalent certificates of the child is available, no other evidence can be relied upon.Only in the absence of such certificates, as entry of date of birth in the record of the school first attended by the child is to be relied upon.When no such entry is available, then the reliance can be placed on a birth certificate issued by a corporation or municipal authority or panchayat.It is only in the absence of any of the aforesaid, that Rule 12(3) postulates the determination of the age of the child on the basis of medical opinion.10.4 While considering the scope and nature of the inquiry contemplated under Rule 12 of the JJ Rules, 2007, the Hon'ble Supreme Court has observed in Ashwani Kumar Saxena v. State of M.P., (2012) 9 SCC 750, that the expressions 'prima facie', 'on the basis of physical appearance' or 'documents, if available' used in Rule 12 re- emphasize the fact that what is contemplated is only an inquiry following the procedure laid down under the said rule and not an investigation or trial under the Cr.P.C. It was held that while conducting an inquiry, a hyper-technical approach should not be adopted and if the assessment of age could not CRL.A. 1013/2018 Page 7 of 29 be done, the benefit would go to the child considering his/her age on lower side within the margin of one year.Only in the absence of any matriculation or equivalent certificates, the court need obtain the date of birth certificate from the school first attended other than a play school.Only in the absence of matriculation or equivalent certificate or the date of birth certificate from the school first attended, the court need obtain the birth certificate given by a corporation or a municipal authority or a panchayat (not an affidavit but certificates or documents).The question of obtaining medical opinion from a duly constituted Medical Board arises only if the above-mentioned documents are unavailable.In case exact assessment of the age cannot be done, then the court, for reasons to be recorded, may, if considered necessary, give the benefit to the child or juvenile by considering his or her age on lower side within the margin of one year."Since the offence is alleged to have been committed for one year prior to the lodging of complaint dated 04.09.2013, the age of the prosecutrix at the relevant time comes to about 15 years.The complainant in her complaint dated 04.09.2013 had specified the age of the prosecutrix as 16 years.In the MLC CRL.A. 1013/2018 Page 8 of 29 of the prosecutrix, which was prepared on the same day, her age was also mentioned as 16 years.The statement of the prosecutrix under Section 164 Cr.P.C. was recorded on 07.09.2013, wherein she stated her age as 15 years.The prosecutrix and the complainant have been examined by the prosecution as PW1 and PW2 respectively.In the cross- examination of none of them, the accused had disputed the age of minority of the prosecutrix.PW14/A) of the Medical Board pertaining to the bone age of the prosecutrix was filed.It was only during the cross-examination of PW14 Dr. L.R. Richhele, who was examined by the prosecution to prove the report Ex.PW14/A, that the accused for the first time disputed that the prosecutrix was a child at the relevant time by putting a suggestion to the effect that she was 26 years old at the time of her examination by the Medical Board.Being the father of the prosecutrix, her age was within the special knowledge of the accused.The very fact that the accused neither disputed the age of the prosecutrix during the course of entire trial nor produced any material to dislodge the case of the prosecution that the prosecutrix was a minor at the relevant time goes to show that the challenge to the age of the prosecutrix at the belated stage was nothing but an afterthought with a view to avoid the rigour of the POCSO Act and take advantage of the wide range of the bone age (i.e. 20-30 years) of the prosecutrix opined by the Medical Board.CRL.A. 1013/2018 Page 8 of 2910.7 Considering the above, the contention of the defence counsel that the provisions of the POCSO Act would not apply to the present case is found to be devoid of any substance."The above findings arrived at by the trial court, have not been assailed before us on behalf of the appellant.Therefore, we have no hesitation in CRL.A. 1013/2018 Page 9 of 29 finding ourselves in agreement with the trial court, when it returned finding to the effect that the prosecutrix was a minor at the time of the commission of the offence.CRL.A. 1013/2018 Page 9 of 29The trial court, thereafter, proceeded to appreciate and evaluate the testimony of the prosecutrix, which constituted the foundation of the prosecution's case.The trial court, upon careful consideration of the evidence on record and in particular the testimony of the prosecutrix, returned a finding that the prosecution has succeeded in proving the guilt of the accused beyond reasonable doubt for the commission of the offence punishable under Section 6 read with Section 5 of the POCSO, predicated on the reasoning elaborated as under:-Admittedly, the accused is the father of the prosecutrix.It is also not in dispute that at the relevant time, the prosecutrix along with her mother and younger siblings was residing with the accused.As per the MLC dated 04.09.2013 of the prosecutrix, which has been proved by PW-5 Dr. Sidhi Sainik as Ex.PW5/A, she was having the pregnancy of 28 weeks at the time of her medical examination.Now the question which requires to be adjudicated is whether the accused was responsible for the penetrative sexual assault on the prosecutrix.12.1 The prosecutrix is the sole witness of the commission of the act of penetrative sexual assault on her.In her testimony recorded on 19.02.2014, the prosecutrix (PW1) deposed that she along with her parents and two siblings used to reside in a rented accommodation; that CRL.A. 1013/2018 Page 10 of 29 the accused used to work as a mason and that her mother is not mentally sound and is deaf and dumb; that about one year ago, when she was sleeping, the accused tried to force himself upon her; and that she pushed him and went to her mother but the accused came there and after extending threat to kill her, he committed rape on her.She further deposed that after the said incident, the accused used to commit rape on her on every day and that when the landlord came to know about the same, he got the house vacated.The prosecutrix also deposed that they shifted to the house of her paternal aunt (bua) i.e. the complainant and that when her aunt saw her condition, she suspected that some wrong act had been committed with her and took her to RTRM Hospital, where the doctor told that she was having pregnancy of seven months.She further deposed that when her aunt confronted the accused with the same, he denied that he was responsible for it and went away to Bihar alongwith his younger daughter and that thereafter, her aunt made complaint to the police.CRL.A. 1013/2018 Page 10 of 2912.2 The prosecutrix was cross-examined by the accused.In her cross-examination, she admitted that she did not know the dates or months when the accused committed rape on her and that the complainant had visited her house on several occasions but she did not disclose about the acts of the accused to her during the said visits.However, she denied the suggestions that she was having friendly relations with a boy, who got her pregnant and that when the accused came to know about the same, he had scolded her and for the said reason, she had named him as the accused.In such a scenario, especially when she did not get any support from her mother, the possibility that she could not muster courage to disclose about the acts of the accused to the complainant, who is the sister of the accused, can not be ruled out.In fact, it can be seen from the deposition of the prosecutrix (PW1) that on 03.09.2013 also, she had revealed about the acts of the accused to the complainant only when the complainant had become suspicious and asked her about her physical condition.Since the prosecutrix was having a pregnancy of about seven months at that time and her pregnancy must have started showing, she had no option but to confide in the complainant.Considering the facts and circumstances, the conduct of the prosecutrix appears to be quite natural.12.5 The counsel for the accused further contended that the uncorroborated testimony of the prosecutrix can not form the basis for holding the accused guilty.He argued that during the relevant time, the mother of the prosecutrix was also residing in the same house and therefore, she would have been the best witness to throw light on the allegations against the accused.Pooja D/o Mahavir Mehto R/o House No.28, Surekpur Road, Gopal Nagar, Najafgarh, Delhi, aged 16 years:Muzaffarnagar, Bihar 6-7 _ ` CRL.A. 1013/2018 Page 20 of 29 , , ^ f @ \ ` f - @ rape @ 6-7 2/9/13 @ 4 "CRL.A. 1013/2018 Page 20 of 29In her testimony recorded on 19.02.2014, the prosecutrix deposed as under: -" 19.02.2014 (In Camera Proceedings) PW-1, Child Victim, aged 16 years (cited at serial no.1 in the list of the witnesses) On SA ....... XXX...About one year back one day an altercation had taken place between my father and my grandfather.Thereafter, we vacate the said house and shifted to another house in Najafgarh, which had three rooms.However, we ever staying in a simple room.When I objected to it, the accused extended threat saying that he would kill me and he committed rape upon me forcibly.After that, my father used to commit rape upon me every day.When our landlord came to know this fact, he instructed us to vacate the house and thereafter, we vacated the said house.Thereafter, we shifted to the house of our Bua (Aunty), who was also residing near Om Dairy at Najafgarh.On seeing my condition, my Bua (Aunty) suspected that some wrong act was committed with me and thereafter, my Bua(Aunty) took me to RTRM Hospital, Jaffarpur for my medical examination.After my medical examination, the doctor told us that CRL.A. 1013/2018 Page 21 of 29 I was having pregnancy of seven months.On 07.09.2013, the police officials took me to Dwarka Courts from Nirmal Chhaya and my statement was recorded there by the Ld.MM At this stage, one envelop with the seal of MG is taken out from judicial file.Child victim correctly identified her thumb mark on her statement at point A, B, C & D and proceeding U/s 164 Cr.PW1/A.At this stage the child victim has been asked to identify the accused, who did wrong act with her (The accused is standing behind a curtain and is unable to see the child victim and he has been further asked to close his eyes.However, child victim has been asked to identify the accused from the parting between the curtain) After seeing the accused through the parting between the curtain, child victim was correctly identified the accused present behind the curtain as her father, who had committed rape upon her and had been made her pregnant.I am also not aware whether Bua was also asking for her share in the said property.I am also not aware whether my father was against the demand of my Bua of getting share from ancestral property.It is wrong to suggest that due to above reason, my bua instigated me to implicate my father in false case of that I have deposed falsely.It is wrong to suggest that accused never pregnant me and the child does not belong to the accused."CRL.A. 1013/2018 Page 22 of 29Although the sole testimony of the prosecutrix, as aforestated, is sufficient by itself to sustain the conviction of the appellant, subject to it being reliable and having ring of truth in it, in view of the asseverations on behalf of the appellant that, contradictions arise from a conjoint reading and the appellant's statement that he was falsely implicated for denying PW-2, a share in their ancestral property; it is considered appropriate and necessary to peruse and appreciate the testimony of PW-2, the Bua of the prosecutrix, The testimony of PW-2 is as follows: -"19.02.2014 (In Camera Proceeding) PW2, Bua (Aunty) of the child victim (mentioned at serial no.2 in the list of witnesses).On SA I along with my family is staying at Gopal Nagar, Najafgarh for the last 8 years as tenant.From the hospital, we along with police official returned back to Baba Haridas Nagar Police Station and my niece child victim was shifted to Nirmal Chhaya.On the same day, when police official visited our house, in search of accused Mahabir Mehto, he had already left our house.CRL.A. 1013/2018 Page 23 of 29I am aware of the fact that my niece child victim delivered male baby in DDU Hospital.Today, accused Mahabir Mehto is present in the court(the witness has correctly identified the accused) XXXXX By Sh.L.S. Gautam, Ld. Counsel for accused.My father is having some property in his native place.Till date the said property is not divided among his children.I am not interested in my share in the property of my father.It is wrong to suggest that I demanded my share from my father and the accused strongly opposed the same.I had grudge against him.I never visited the house of the accused and since then, year back, quarrel/fight took place between me and accused and since then, I was not having visiting terms with the accused.It is wrong to suggest that child victim did not disclose anything against the accused or that the accused was not responsible for her condition or that she was having relation with one boy and accused opposed the same and scolded the child victim and this fact came in my knowledge or that I instigated the child victim to name the accused as culprit or that I implicated the accused in false case or that I am deposing falsely.I went to the locality of the accused, where he was residing to enquire about the truth and to know the real person, who was responsible for the condition of child victim.It is wrong to suggest that I have deposed falsely.CRL.A. 1013/2018 Page 24 of 29We have heard learned counsel appearing on behalf of the parties and given our anxious consideration to the entire evidence on record.Our finding, in this regard, in addition to the evidence on record, including the ossification test conducted on the prosecutrix, is strengthened by the circumstance that, the appellant did not, at any stage of trial or before us in the present appeal, dispute that the prosecutrix was not a child at the relevant time.b) The prosecutrix was 28 weeks pregnant at the time of her MLC Ex.CRL.A. 1013/2018 Page 25 of 29c) The version of the prosecutrix that, the appellant had committed penetrative sexual assault on her, has remained constant throughout.d) The defence of the accused to the effect that the prosecutrix;was having an affair with a boy living in the neighbourhood, who impregnated her, and is being falsely implicated in the present case, upon reprimanding the prosecutrix for the same; is completely untenable and vacuous, inasmuch as, neither the CRL.A. 1013/2018 Page 26 of 29 identity of the boy has been disclosed at any stage nor has any material been produced on the record to substantiate the defence.CRL.A. 1013/2018 Page 26 of 29e) The submission of the appellant that, he was falsely implicated by his sister PW-2 , since he refused to give her a share in the ancestral property, fails to impeach the latter's testimony, for the reason that, neither did the appellant examine his father, to substantiate his defence, nor did he produce any other cogent material in this behalf.A. 496/2015, decided on 23.04.2019]However, there shall be no order as to costs.The Trial Court Record be sent back forthwith.A copy of this judgment be communicated to the appellant through the Superintendent, Tihar Jail and also be sent for updation of the records. .

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

1. Vide the instant petition the petitioners have assailed the impugned order dated 21.01.2011 passed by ld.MM, South Delhi whereby ld.MM has passed the order as under :M.C. No.2992/2011 Page 1 of 8documents filed on record.Prima facie there is sufficient material on record to proceed with the case against all the accused persons namely Navdeep Soni, Rani Soni, Sandeep Soni and Dolly Soni.Accordingly, the cognizance is taken against all the accused persons u/s 498A/406/34 IPC.Summons be issued to he accused persons and notice to surety through IO for 31.03.2011."Ld. counsel for the petitioners submits that petitioners were put in column 2 in the report filed under Section 173 Cr.P.C. before the ld.Further submits that Navdeep Soni being the husband, the charge-sheet was filed against him.MM has not recorded any statement before summoning the three accused.In support of argument, ld. counsel for the petitioners has relied upon a judgment passed by this Court in Crl.M.C.924/2005 titled as Atma Ram Singhal & Ors.M.C. No.2992/2011 Page 2 of 8 State & Anr.M.C. No.2992/2011 Page 2 of 8The respondent No.2 is the complainant, who lodged complaint under Section 498-A/406 of the Indian Penal Code (for short, 'IPC') against her husband Anil Singhal as well as other relations.This complaint was made to the ACP, Crime Against Women (CAW) Cell, Pitampura.Thereafter, an FIR was registered.Police, after investigation, filed challan under Section 173 of the Code of Criminal Procedure (for short, 'Cr.P.C.').Names of the petitioners herein were put in Column No.2 in the said charge sheet.Complainant's husband, father-in- law and mother-in-law were shown as main accused.The relation of these petitioners, who were put in Column No.2, with the complainant's husband is as under :-Petitioner No.1 "Uncle (chacha) of the complainant's husband Petitioner No.2 "Son of the petitioner No.1 Petitioner No.3 "Another uncle of the complainant's husband Petitioner No.4 "Wife of the petitioner No.3 Petitioner No.5 "Daughter of the petitioner No.3 Petitioner No.6 "Son of the petitioner No.3 Petitioner No.7 "Another uncle of the complainant's husband Crl.M.C. No.2992/2011 Page 3 of 8M.C. No.2992/2011 Page 3 of 8After the filing of the charge sheet, the learned MM chose to summon all these petitioners, who were shown as accused in Column No.2, by passing the following order :-"Present: APP for the State.Accused present on bail.IO SI Bhagwan Dass present.SI Bhagwan Dass has given his explanation.M.C. No.2992/2011 Page 6 of 8 the offence and issue process.However, the question to be determined is as to when the MM decides to issue the process, notwithstanding the observations of the Investigating Officer; is he to indicate some reasons and reflect his thought process in the order as to why he is taking such a course.to consider the same afresh and pass appropriate order.Accordingly, Crl.M.C. No.2992/2011 Page 7 of 8 Crl.M.A.10554/2011 (stay) & Crl.M.A.11298/2011 (early hearing) In view of the order passed in Crl.M.C.2992/2011, these applications are dismissed as infructuous.M.C. No.2992/2011 Page 7 of 8SURESH KAIT, J SEPTEMBER 22, 2011 Vld/RS Crl.

['Section 498A in The Indian Penal Code', 'Section 406 in The Indian Penal Code']

2.The short facts necessary for the disposal of these appeals can be stated as follows:(a) P.W.1 is the husband of the deceased Selvi.On 14.6.2002, P.W.1 accompanied by his wife, was returning to Titan Quarters in Hosur to Mathigiri Road in a TVS 50 after purchasing the household articles.When they were so coming, both A-1 and A-2 came in their Yamaha two wheeler and were chasing.The accused came towards them, and suddenly, A-1 snatched the chain which was worn by the deceased, and immediately A-1 drove the vehicle fast.Then, both of them escaped from the place.(b) P.W.1 and the deceased were searching for the accused, and they were going.At that time, on the way, they found both the accused.The deceased shouted pointing to A-2 that it was he who snatched the chain.Immediately, P.W.1 stopped the vehicle and intercepted the other vehicle in which the accused were travelling, and both A-1 and A-2 fell down.Immediately, A-1 stabbed Selvi on her left side chest and neck with a pitchuva knife. A-2 also stabbed her on her shoulder with a pitchuva knife.At that time, P.Ws.2, 3 and 4 went to the rescue.So causing injuries to them, they left the place immediately.(c) It was P.W.1 who took his severely injured wife to the Government Hospital, Hosur, where the Doctors examined and declared her dead.Then, further intimation was given to Hosur Police Station which was in turn forwarded to Mathigiri Police Station.P.W.12, the Doctor, has examined P.W.4 at about 8.40 P.M. On 14.6.2002, and has given a wound certificate, Ex.She also examined P.W.3 and issued a wound certificate, Ex.Equally, P.W.2 was examined by her, and Ex.P12 is the wound certificate in that regard.On the strength of Ex.P1, the report, a case came to be registered in Crime No.99 of 2002 under Sections 379, 324, 307 and 302 of IPC.The printed FIR, Ex.P27, was despatched to the Court.(e) P.W.16 took up investigation, proceeded to the spot, made an inspection of the first place where the incident of robbery has taken place and prepared an observation mahazar, Ex.P5, and a rough sketch, Ex.Then, he went to the second occurrence place where the murder has taken place, and prepared an observation mahazar, Ex.P6, and also a rough sketch, Ex.P33 is the admissible part.Pursuant to the confession, he produced M.O.2, gold ingot, and he has further produced M.O.1, motorbike, a cell phone, a country made gun and a Titan Watch.For Appellants : Mr.V.Vibhishanan for Mr.P.Subba Reddy in CA 324/2008 Mr.V.Gopinath Senior Counsel for Mr.L.Mahendran in CA 757/2008 For Respondent : Mr.They challenged the judgment of the I Additional Sessions Division, Krishnagiri, made in S.C.No.207 of 2005 whereby the appellants stood charged, tried, found guilty and awarded punishment as follows:Thereafter, he conducted inquest on the dead body of Selvi in the presence of witnesses and panchayatdars and prepared an inquest report, Ex.He examined the witnesses and recorded their statements.Then, a requisition, Ex.P15, was given to the hospital authorities for the purpose of postmortem.(f) P.W.13, the Civil Assistant Surgeon, attached to the Government Hospital, Hosur, on receipt of the said requisition, conducted autopsy on the dead body of Selvi and has noticed four external injuries.She has issued a postmortem certificate, Ex.P16, with her opinion that the deceased would appear to have died of shock and haemorrhage due to injuries to vital organs heart and lungs about 14 to 16 hours before autopsy.(g) The further investigation was taken up by P.W.17, the Inspector of Police, who caused the arrest of A-1 on 19.7.2002, and he gave a confessional statement which was recorded in the presence of witnesses.They were all recovered under a cover of mahazar.(h) A requisition was given for conduct of the test identification parade.The same was conducted by P.W.14, the Judicial Magistrate.As far as A-1 was concerned, it was conducted at Central Prison, Salem, and P.Ws.1 to 4 were taken for identifying him.The identification parade proceedings are marked as Ex.Equally, as regards A-2, the identification parade took place at Central Prison, Bangalore, where P.Ws.2, 3 and 4 have participated in the parade.The identification parade proceedings are marked as Ex.On completion of investigation, the Investigating Officer filed the final report.3.The case was committed to Court of Sessions, and necessary charges were framed.In order to substantiate the charges, the prosecution examined 17 witnesses and also relied on 34 exhibits and 14 material objects.On completion of evidence on the side of the prosecution, the accused were questioned under Sec.313 of Cr.P.C. as to the incriminating circumstances found in the evidence of the prosecution witnesses which they flatly denied as false.No defence witness was examined.The trial Court heard the arguments advanced and took the view that the prosecution has proved the case beyond reasonable doubt and hence, found them guilty and awarded the punishment as referred to above.Hence these appeals at the instance of the appellants.4.Advancing arguments on behalf of the appellant in C.A.No.324/2008, the learned Counsel Mr.V.Vibhishanan would submit that in the instant case, the prosecution came out with two parts; that firstly, there was a robbery in which A-1 and A-2 were involved, and secondly, A-1 and A-2 attacked the deceased and also in that transaction, A-1 attacked P.Ws.2 and 3, and A-2 attacked P.W.4; that the earliest document was Ex.P1, the report, given by P.W.1, the husband of the deceased; that a perusal of Ex.P1 would clearly indicate that nowhere he has pointed out any role of A-1 in Ex.P1 or Ex.P15, the requisition, given by P.W.16, the Investigating Officer, for the conduct of postmortem or the evidence before the Court; that nowhere it is found that A-1 had any role in the commission of robbery, and it was also attributed to A-2; and that under the circumstances, the lower Court was not correct in finding A-1 guilty as far as that particular charge was concerned.5.Added further the learned Counsel that the prosecution relied on the confession alleged to have been given by A-1 and also the consequent recovery of the material objects; that it is pertinent to point out that all these material objects were not connected to Crime No.99 of 2002; but, they were all connected to some other crime number, and thus, the prosecution cannot rely on the recovery of those material objects; that as far as the recovery of the gold ingot marked as M.O.2, was concerned, there was no evidence to show that the gold chain alleged to have been stolen, was actually melted into gold and made as ingot; that in the absence of the same, it cannot be taken or presumed that it was the gold chain which was the subject matter of robbery; and that under the circumstances, the prosecution has miserably failed to prove that part of the case.6.As far as the second incident was concerned, the learned Counsel would submit that the case of the prosecution was that at the time of occurrence, A-1 not only stabbed the deceased, but also attacked P.Ws.2 and 3; but, the lower Court was not prepared to accept the case of the prosecution insofar as the overt acts attributed that he attacked P.Ws.2 and 3 with knife and has acquitted him; that the same would mean that the lower Court was not ready to believe the evidence of P.Ws.2 and 3; and that the same reasons are all equally applicable to the entire episode.7.The learned Counsel would further add that in the instant case, A-1 was arrested on 19.7.2002; that as far as the identification parade in respect of A-1 was concerned, it was in no way helpful to the prosecution; that there is evidence to show that A-1 was actually in the police station and was shown to the witnesses; and that under the circumstances, it was of no consequence at all.8.Added further the learned Counsel that even from Ex.P1, the report, and also the evidence of P.W.1 it would be quite clear that the entire act of attacking the deceased was done only by A-2, and nowhere, A-1 is indicated; but, the trial Court has taken an erroneous view and found A-1 guilty of both the offences without any evidence whatsoever, and hence he is entitled for acquittal in the hands of this Court.9.Advancing arguments on behalf of A-2 in C.A.No.757/2008, the learned Senior Counsel Mr.11.The Court heard the learned Additional Public Prosecutor on all the above contentions and paid its anxious consideration on the submissions made.12.It is not in controversy that an incident has taken place on 14.6.2002 at about 8.15 P.M. at which the chain of the deceased Selvi was snatched by two persons, and they have actually escaped from the place.Following that incident, both the persons were intercepted by P.W.1, the husband of the deceased, and also the deceased, and in that process, Selvi was stabbed to death.This homicidal death was never disputed by the appellants, and hence it has got to be recorded so.As could be seen from the available materials, the incidents were two in number.The first part is as to robbery, and the second part is as to murder in which P.Ws.2 to 4 were also injured.According to P.W.1, he accompanied his wife, and he took his wife in the two wheeler, and she was sitting as a pillion rider, and when they were going, the incident has taken place, and it was the pillion rider namely wife, who has identified A-2 as person who snatched the chain.It is the further evidence of P.W.1 that it was A-1 who drove the bike, and both of them have escaped from the place.Thus, it was only P.W.1, who was actually the witness in respect of the incident of robbery.From the evidence of P.W.1, it could be seen that he has identified that it was A-1 who drove the bike, and A-2 was a pillion rider who snatched the chain.It is true that the occurrence has taken place in night hours and that too, within a minute or two.Now, the occurrence projected by the prosecution did not stop there.According to P.W.1, he and the deceased were in further search of the assailants in their vehicle, and at that time, when they found both the accused near the bus stop, P.Ws.2 to 4 were also there, and on seeing A-2, the deceased Selvi shouted pointing to A-2 that it was he who snatched the chain.The evidence would further go to show that immediately they were intercepted by P.W.1 by parking the vehicle across, and then both of them fell down; and that at that time, the incident has taken place.From the evidence of P.W.1, it could be well seen that it was the deceased who caught hold of the shirt of A-2 who snatched the chain; that at that time, it was A-1 who intervened by stabbing her; that on seeing this, P.W.1 caught hold of him; that immediately, A-2 attacked the deceased also; and that when P.Ws.2 to 4 went to the rescue, they were also attacked by the appellants.P.W.1 has not only seen them at the place of first occurrence of robbery, but also at the time when the second occurrence has taken place.It has also taken place in a public place.It is pertinent to point out that in a given case like this, when two incidents have taken place and that too, the first part is a robbery, and the second part is a murder and when they were intercepted, they attacked not only the deceased, but also some others, naturally such incidents would cause a dent in the memory of a human being.But, originally, there was snatching of chain, and thereafter, the second incident has taken place in which not only the deceased was attacked, but also P.Ws.2 to 4 were attacked by both.It is true that the lower Court has acquitted A-1 in respect of charge under Sec.324 (two counts) of IPC for attacking P.Ws.2 and 3 since there was some inconsistency in evidence.Hence the benefit was available to him.In this case, A-1 was arrested on 19.7.2002 within a month of the occurrence.Immediately after his arrest, he has given a confessional statement leading to the recovery of some of the material objects.It is true that except M.O.2, all other material objects produced by him, were not connected to this case, and hence that part of the evidence could not be relied.As far as A-2 was concerned, the prosecution came forward to state that it was the gold ingot which came into existence by melting the chain which was worn by the deceased at the time of occurrence.The accused cannot expect the prosecution to explain how the chain was melted into ingot.16.Apart from the above, much comment was made by the appellants' side on the identification parade conducted.As far as A-1 was concerned, within a short span of time, P.W.1 and the other witnesses have identified him properly.As regards A-2, the evidence would go to show that when the deceased and P.W.1 were in search of the assailants, the deceased shouted pointing to A-2 that it was he who robbed the chain, and when she caught hold of the shirt of A-2, it was A-1 who attacked her, and when P.W.1 caught hold of the shirt of A-1, A-2 attacked her.The lower Court was perfectly correct in marshaling the evidence, considering the same and finding them guilty for robbery and also for murder.1.The I Additional District Judge Krishnagiri2.The Inspector of Police Mathigiri Police Station (Crime No.99 of 2002)3.The Public Prosecutor High Court, Madras

['Section 379 in The Indian Penal Code', 'Section 302 in The Indian Penal Code', 'Section 307 in The Indian Penal Code', 'Section 324 in The Indian Penal Code']

(Atul Sreedharan) Judge a ASHISH DATTA 2017.09.14 15:49:23 +05'30'

['Section 452 in The Indian Penal Code', 'Section 354 in The Indian Penal Code', 'Section 506 in The Indian Penal Code']

The prosecution case is that the deceased Manjula Devi was the wife of Adhavan/accused No.2/second respondent herein.Both were employed as police constables at Pudukottai.Accused No.2 Adhavan lodged Ex.P.15 complaint before Ganesh Nagar police station, Pudukottai on the same date at about 15 hours.P.16 First Information Report in Crime No.512 of 2006 was registered under Section 174 of Cr.P.C. Investigation was taken up.According to the investigation officer, respondents 1 and 2 herein/accused Nos.1 and 2 had murdered the deceased.Therefore, Ex.P.20 alteration report was filed and the offences under Sections 302 r/w 34 of I.P.C.,http://www.judis.nic.in 3 were incorporated.Charges were framed against two accused.They denied the charges in toto and claimed to be tried.6. P.W.1 is the father of the deceased.He deposed that the relationship between his daughter and accused No.2 washttp://www.judis.nic.in 5 not cordial.Accused No.2 was having illicit relationships.He also spoke about the financial transaction between accused No.1 and the deceased.She deposed that a few days prior to the occurrence, both happened to meet each other and during the conversation Manjula Devi had told about her travails and the plan of accused No.2 to marry Hema.P.W.6 Selvaraj witnessed the arrest, confession and recovery of the material objects.Though he turned hostile, he admitted his signatures in Ex.P.1 to Ex.P.W.7 is a magazar witness.He also turned hostile but admitted his signature in Ex.It was marked as Ex.P.W.10 Dr.Selvaraj conducted postmortem.This Revision petition is directed against the Judgment dated 02.12.2008 in S.C.No.68 of 2007 on the file of the learned Additional District and Sessions Judge/Fast Track Court, Pudukkottai, acquitting respondents 1 and 2 herein.The prosecution examined as many as 22 witnesses and marked Ex.P.1 to Ex.P.24. M.O.1 to M.O.9 were also marked.On the side of the accused, no evidence was adduced.The learned trial Judge after a detailed consideration of the evidence on record came to the conclusion that the prosecution failed to prove the charges against the accused beyond reasonable doubt and acquitted them of all the charges.Aggrieved by the same, P.W.1 has preferred this Criminal Revision petition.4. Heard the learned counsel on either side.The deceased as well as accused No.2 worked as police constables.Accused No.1 had received a sum of Rs.1,50,000/- from the deceased.On the occurrence date, the deceased had stopped accused No.1 and demanded the money back.In response, accused No.1 was said to have threatened her with dire consequences.Later accused Nos.1 and 2 joined together and murdered Manjula Devi by strangulating her neck by using a nylon rope and to screen the crime, they made it appear as if Manjula Devi committed suicide by hanging herself.He had opined that the deceasedhttp://www.judis.nic.in 6 appeared to have died by ligature strangulation at about 12 to 18 hours prior to autopsy.P.W.11 was the police constable who worked with the deceased.He deposed that Manjula Devi left her work place at about 12.05 hours on the occurrence date.P.W.12 and P.W.13 told the police that they saw the deceased coming in her two wheeler at about 12.30 p.m., opposite to Rose Land and that they noticed a quarrel between accused No.1 and the deceased and that accused No.1 held out threats to the deceased.However, the said witnesses turned hostile during trial.P.W.15 Devaraj is a police constable who also resided in the police quarters.He deposed that he heard some suspicious sound and that he went to the house of the deceased and saw the accused No.2 sitting in front of the house while the accused No.1 was inside the house.He saw that the deceased was laid on the floor.When he queried, accused No.2 informed him that Manjula Devi had hanged herself and that he brought her down.Thereupon P.W.15 informed the police from the telephone in his house.On hishttp://www.judis.nic.in 7 return, he saw that accused Nos.1 and 2 were taking the body of Manjula Devi in an auto and that the accused No.1 followed the same.After a while, they brought the body back.They were advised by another constable by name Nagarajan, to take Manjula Devi to hospital.P.W.16 Muthukumar was working as Sub Inspector of Police in Wireless section and he was informed by accused No.2 about the suicide of Manjula Devi.P.W.16 thereupon went to the place of occurrence and saw the accused Nos.1 and 2 taking the deceased in an auto and returning after half an hour.P.W.22 is the investigation officer who recorded the statements of the witnesses and he effected the arrest and recovery and filed the final report.He also obtained opinion from Dr.Karthikeyan which was in consonance with the opinion of P.W.7 doctor.He would further contend that evenhttp://www.judis.nic.in 8 though P.W.12 and P.W.13 had turned hostile, their evidence cannot be rejected in toto. P.Ws.15 to 19 have spoken about the taking of the body in an auto by the accused and bringing it back after a while.This clearly creates suspicion over their conduct.The accused have not at all explained these incriminating circumstances in their examination under Section 313 of Cr.P.C. P.W.7 doctor has clearly opined that the deceased died due to ligature strangulation.This was confirmed by Dr.The petitioner's counsel would contend that these incriminating circumstances were not taken note of by the learned Sessions Judge.The reasons given for acquitting the accused are flimsy.The learned counsel also relied on a number of decisions.The Revision petitioner also filed written arguments.I am unable to agree with the submissions of the learned counsel appearing for the Revision petitioner.While it is true that P.W.1 to P.W.5 have spoken about the intense strain in the relationship between the accused No.2 and the deceased, their testimony by themselves is wholly insufficienthttp://www.judis.nic.in 9 to sustain the prosecution case.At best they may indicate that the accused had a motive.It must be noted that the prosecution case rests only on circumstantial evidence.But they did not support the prosecution case.Likewise P.W.14, who is another witness to sustain the last seen theory also turned hostile.In order to prove the confession and recovery, the prosecution examined P.W.6 Selvaraj.He also turned hostile.P.W.10 Dr.Selvaraj conducted autopsy.To a specific question posed in the cross examination, he answered that he could not give any definite opinion regarding the cause of death.In Ex.P.14, it was opined that the deceased would have appeared to died due to ligature strangulation at about 12 to 18 hours prior to the autopsy.It is beyond dispute that no definite opinion was offered by the postmortem doctor.Thus the prosecution miserably failed to prove that the deceased died due to homicidal violence.Of course, the learned counsel appearing for the Revision petitioner would cite the opinion given by Dr.Karthikeyan from whom the second opinion was obtained.But the said Dr.Karthikeyan was not examined.As rightly contended by the learned counsel appearing for the respondents 1 and 2, the prosecution will have to prove two things.Firstly, Manjula Devi died as a result of homicidal violence.Secondly, the accused are the authors of the said homicidal violence.In this case, the prosecution have not even established that Manjula Devi was strangulated to death.Both in the case of suicide and the death due tohttp://www.judis.nic.in 11 strangulation, there will be ligature strangulation.In this case, the prosecution was not able to rule out the possibility of suicide.In fact P.W.10 Dr.The State did not prefer any appeal against the Judgment of acquittal.It is only the father of the deceased who has filed this Criminal Revision case.The learned trial Judge had discussed the evidence adduced by the prosecution in extenso and after considering the rival contentions came to the conclusion that the accused are entitled to acquittal.The presumption ofhttp://www.judis.nic.in 12 innocence which is available to the accused during trial stands further strengthened and reinforced by the Judgment of acquittal.The learned counsel appearing for the Revision petitioner has not made out any case for dislodging the presumption in favour of the accused.The Judgment of the Court below has not been shown to be perverse or suffering from illegality or irregularity.I find no ground to interfere with this Criminal Revision case.The Criminal Revision stands dismissed.No costs.16.08.2019 Index : yes/No Internet:Yes/No pmuhttp://www.judis.nic.in 13 G.R.SWAMINATHAN,J.The Additional District and Sessions Judge, Fast Track Court, Pudukottai.The Deputy Superintendent of Police, Pudukottai.The Record Keeper, V.R. Section, Madurai Bench of Madras High Court, Madurai.CRL.R.C.(MD).No.32 of 2009 16.08.2019http://www.judis.nic.in

['Section 302 in The Indian Penal Code', 'Section 306 in The Indian Penal Code', 'Section 506 in The Indian Penal Code']

1 9.2018 b.CRM No. 7347 of 2018 In Re:- An application for anticipatory bail under section 438 of the Code of Criminal Procedure filed on 6th September, 2018 in connection with Dinhata Police Station Case No. 155 of 2018 dated 12.4.2018 under Sections 147/148/149/427/326/302 of the Indian Penal Code.And In Re:- Ajidul Haque & Ors.... Petitioners Mr. Sudip Guha .. for the petitioners Mr. Saibal Bapuli Mr. Arani Bhattacharyya ..for the State The petitioners seek anticipatory bail in connection with Dinhata Police Station Case No. 155 of 2018 dated 12.4.2018 under Sections 147/ 148/149/ 427/326/302/of the Indian Penal Code.The petitioners claim that they have been falsely implicated in the case though some of the petitioners may have been accidental by-standers.The State refers to the statements of several eye- witnesses under Section 161 of the Code where the names of several of these petitioners figure.The petition for anticipatory bail is allowed subject to the conditions as indicated above.A certified copy of this order be immediately made available to the petitioners subject to compliance with all requisite formalities.(Abhijit Gangopadhyay, J.) (Sanjib Banerjee, J. ) 2

['Section 147 in The Indian Penal Code', 'Section 302 in The Indian Penal Code', 'Section 427 in The Indian Penal Code', 'Section 148 in The Indian Penal Code', 'Section 326 in The Indian Penal Code', 'Section 149 in The Indian Penal Code', 'Section 164 in The Indian Penal Code', 'Section 161 in The Indian Penal Code', 'Section 438 in The Indian Penal Code']

Shri Shivraj Kushwaha, learned counsel for the applicant.Shri Ramesh Kushwaha, learned Panel Lawyer for the State.This is first bail application on behalf of the applicant under Section 439 of Cr.P.C. The applicant is in custody since 26.04.2017 in connection with Crime No.136/2017, registered at Police Station Hanumana, District Rewa, for the offence punishable under Sections 363, 366, 368/34 of IPC.Initially the offence against the present applicant was registered under Section 363 of IPC and later on after investigation offence under Section 366, 368 r/w 34 of IPC were added.It is also found from the material available on record that the present applicant had taken the girls from the house and handed over to one Sunita, further she had not accompanied them.Considering the aforesaid, and the fact that the applicant is in jail since 26.04.2017, the application is allowed.It is directed that applicant Seema Basor be released on bail on her furnishing a personal bond in the sum of Rs.30,000/ (Rupees Thirty Thousand Only) with one solvent surety in the like amount to the satisfaction of the trial court, securing applicant's presence before the trial court on all the dates of hearing fixed in this regard during trial.The application is allowed.Certified copy as per rules.(VIJAY KUMAR SHUKLA) V. JUDGE ss

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

Digitally signed by ASHISH KUMAR JAIN Date: 31/10/2018 14:20:58 ::2::In brief, the prosecution case is that at the relevant point of time, applicant No.1 was posted as Gram Rozgar Sahayak and applicant Nos.2 & 3 were posted as Sub-Engineer in Gram Panchayat, Junapani in District-Harda.A complaint in writing was made to Special Police Establishment/Lokayukt by one Mahesh Kumar Gurjar alleging that the applicants along with elected office bearers of Gram Panchayat had prepared false bills, vouchers and muster rolls to misappropriate the funds allotted for the construction of toilets under the government scheme.Sections 420, 409, 467 & 34 of Indian Penal Code and Sections 13(1)(c), 13 (1)Hence, this petition to quash the F.I.R.We have heard rival submissions at length and perused the material available on record.

['Section 467 in The Indian Penal Code', 'Section 409 in The Indian Penal Code', 'Section 482 in The Indian Penal Code', 'Section 34 in The Indian Penal Code', 'Section 420 in The Indian Penal Code', 'Section 13 in The Indian Penal Code']

C.R.M. 106 of 2014And In the matter of: Subrata Mondal and Ors. ...Petitioners.Mr. Ashok Das ...for the petitioners.Therefore, the petitioner no.1, namely, Subrata Mondal, the petitioner no.2, namely, Subhas Bar, the petitioner no.3, namely, Prabhat Bar, the petitioner no.4, namely, Arup Makhal, the petitioner no.5, namely, Basudeb Makhal, the petitioner no.6, namely, Srikanta Mondal, the petitioner no.7, namely, Indrajit Gayen, the petitioner no.8, namely, Biren Gayen, the petitioner no.9, namely, Ratan Makhal alias Balaram, the petitioner no.10, namely, Biswanath Makhal alias Biswajit, the petitioner no.11, namely, Srikanta Bar and the petitioner no.12, namely, Sunil Gayen, be released on bail upon furnishing a bond of Rs.5,000/- (Rupees five thousand) only each with two sureties of like amount, one of 2 whom must be local, to the satisfaction of the learned Additional Chief Judicial Magistrate at Uluberia, District: Howrah.The application for bail is, thus, disposed of.(Subhro Kamal Mukherjee, J.) (Asim Kumar Mondal, J.)

['Section 379 in The Indian Penal Code', 'Section 143 in The Indian Penal Code', 'Section 341 in The Indian Penal Code', 'Section 353 in The Indian Penal Code', 'Section 307 in The Indian Penal Code', 'Section 325 in The Indian Penal Code', 'Section 354 in The Indian Penal Code', 'Section 120B in The Indian Penal Code', 'Section 506 in The Indian Penal Code', 'Section 323 in The Indian Penal Code', 'Section 427 in The Indian Penal Code', 'Section 326 in The Indian Penal Code']

The case of the prosecution is as follows:(i) On 11.12.1996 at about 11.30 a.m., while P.W.2, the victim Manickam, a postman, was walking on the main road at Thondapadi Village, A.1 and A.2 along with other other co-accused formed themselves into an unlawful assembly carrying deadly weapons.They attacked P.W.2 with Aruvals and severed both hands.A.4 and A.6 facilitated A.1 and A.2 doing so.(ii) P.W.1, who is the sister of P.W.2, the victim, and an eye witness, had rushed to the Village Administrative Officer and narrated the occurrence.On the basis of Ex.P.1, complaint, Ex.P.15, the First Information Report was registered by P.W.7, the Sub Inspector of Police.P.W.1 is the complainant; P.W.2 is the injured and P.W.3 is the brother of P.W.2. P.W.4 is the doctor, who had treated P.W.2 after the occurrence and issued Ex.P.3, Wound Certificate.P.W.9, the Inspector of Police had conducted investigation and prepared Observation Mahazar Ex.P.5 and Ex.P.W.9 has arrested A.1 and A.2 and recorded their confession statements Exs.On the basis of the confession statements, he recovered M.O.1 and M.O.2 weapons used by A.1 and A.2 respectively in the occurrence.He has also recovered M.O.4 and M.O.5 blood stained sand and blood stained wooden logs of Munna Tree under Ex.The admissible portion of the confession statement of A.1 is Ex.P.17 and that of A.2 is Ex.A.3 and A.5 were absconding.The investigating officer had filed charge sheet.The case duly was committed for trial.When questioned, the accused pleaded innocence.On the side of the prosecution, P.W.1 to P.W.9 were examined.P.1 to P.18 were exhibited and M.Os.1 to 5 were marked.P.Ws.1 and 3, according to the prosecution, are ocular witnesses.P.W.2 is the injured witness.ajr/sjCrl.R.C.No.1073 of 201017.12.2014A case was registered against the petitioner and five others for the offences under sections 148, 302 and 342 IPC in Crime No.311 of 1996 on the file of the respondent.Pursuant to investigation, a charge sheet was filed informing the commission of offences.On questioning under section 313 Cr.P.C, A.1 took the plea of private defence and A.2 the defence of alibi.Other accused have denied their complicity.On the side of the accused, D.Ws.1 to 5 were examined.Learned trial Judge acquitted A3 and A5 and convicted other accused and passed sentence as follows:Accused No.Conviction under SectionSentenceA1148 IPCOne year SI342 IPCOne year SI307 IPCFive years RI and fine of Rs.1,000/- I/D six months R.I.A2148 IPCOne year SI342 IPCOne year SI307 IPCFive years RI and fine of Rs.1,000/- I/D six months R.I.A4147 IPCSix Months SI342 IPCOne Year SI307 r/w 114 IPCThree Years RI and fine of Rs.500/- I/D three months R.I.A6147 IPCSix Months SI342 IPCOne Year SI307 r/w 114 IPCThree Years RI and fine of Rs.500/- I/D three months R.I.Aggrieved by the findings of the learned trial Judge, all the accused preferred an appeal in C.A.No.11 of 2002 before the learned Principal Sessions Judge, Perambalur.The appellate Court while allowing the appeal of the other accused, convicted the petitioner for offence under Section 337 I.P.C., sentenced him to Five Years rigorous imprisonment and to pay a fine of Rs.1,000/- in default to undergo six months rigorous imprisonment.8. P.W.2, injured moved Criminal Revision Nos.306 and 307 of 2013 challenging the judgment of acquittal as regards the other accused and seeking enhancement of the sentence as regards this petitioner, first accused.This Court under order dated 23.10.2007 was pleased to dismiss Criminal Revision No.306 of 2013, challenging the order of acquittal of other accused.However, in Criminal Revision No.307 of 2013, this Court took the view that the offence under Section 326 IPC stood attracted and hence remitted the matter to the appellate court for fresh consideration.Thereupon the matter was reheard by the appellate court, which convicted the petitioner under section 326 IPC and sentenced him to undergo five years rigorous imprisonment and fine of Rs.1000/- in default to undergo 6 months rigorous imprisonment.The petitioner having paid the fine has filed this Revision.On general considerations, this Court would suspect the veracity of the prosecution case.The occurrence, wherein both arms of P.W.2 were cut off, in an attack by six persons, is said to have taken place at 11.30 a.m. P.Ws.1 and 3, sister and brother of P.W.2, who allegedly were witnesses to the occurrence have chosen to inform the Village Administrative Officer only at 5 p.m on such date and thereafter FIR came to be registered.The explanation offered for the delay is that the Village Administrative Officer was at a different Village and hence they could reach him only at 5 p.m. It is most unlikely that a person who had suffered the loss of two arms at 11.30 a.m. would have been lying unattended till 5 p.m, without having lost his life.Therefore, there is prima facie reason to think that in the least, the time of the occurrence has been shifted.While the other accused in the case stand acquitted, such avenue to this petitioner has been closed, owing to the fact that he has chosen to examine himself as defence witness and admitted the commission of the offence.He had stated that P.W.2, facing prosecution for the offences under sections 448 and 354 IPC, he having misbehaved with the first daughter of the petitioner, had sought to misbehave with the second daughter and towards preventing such wrong, he had exercised the right of private defence.That two arms of P.W.2 had been totally chopped off is an indication that the prosecution's original case of involvement of several persons was more likely.In the face of evidence, tendered by petitioner as D.W.1, we are constrained to confirm the finding of the lower appellate court.However, it is seen that 18 years have passed since the date of occurrence.Learned counsel for petitioner submits that the petitioner is aged 70 years and suffers from many health related problems.This Court was of the view that the victim/P.W.2 may be questioned as to whether he was willing to accept the payment of compensation.The same subsequently was closed on 24.11.2014, since he could not be traced.It is seen that the petitioner has been in custody for a period of six months.In the circumstances, substantive sentence of imprisonment shall be restricted to the period already undergone by the petitioner.The petitioner shall be now required to pay a fine of Rs.1,50,000/- (Rupees One Lakh and Fifty Thousand only), within a period of two months of receipt of this order, in default undergo two years rigorous imprisonment.The Criminal Revision Case is disposed of as above.17.12.2014Index:yes/noInternet:yes/noajr/sjToThe Inspector of PoliceKaikalathur Police StationPerambalur District C.T.SELVAM, J.

['Section 448 in The Indian Penal Code', 'Section 148 in The Indian Penal Code', 'Section 354 in The Indian Penal Code', 'Section 326 in The Indian Penal Code', 'Section 307 in The Indian Penal Code', 'Section 342 in The Indian Penal Code', 'Section 337 in The Indian Penal Code', 'Section 147 in The Indian Penal Code', 'Section 302 in The Indian Penal Code', 'Section 364 in The Indian Penal Code']

Perused the case diary.This is first bail application filed by the applicant under Section 438 of Cr.P.C. for grant of anticipatory bail.The applicant is apprehending his arrest in connection with Crime No.180/14 registered at P.S. Kelaras, District Morena, for the offences punishable under sections 307, 324, 323, 147, 148, 149, 294, 504-B of IPC and Sections 3(1)(x) and 3(2)(v) of SC/ST (Prevention of Atrocities)As per prosecution story, on account of driving the motorcycle, the quarrel took place between the complainant and Gambhir Singh.On account of it at about 7:00 PM Gambhir, Aashu, Ravindra Singh, Arvind Singh, Dhande, Bunty, Anku, Lalu, Ramendra Singh, Ranveer.Sonu and five other unknown persons armed with lathi, danda, farsa and katta came to Jatav Mohalla and gave abuses in the name of caste of the complainant, when complainant and his father and relatives came out then they started beating by means of lathi, danda causing injuries to the complainant, Ratnu, Ramavtar, Gabbar, Ramprakash, Dayaram, Rakesh Vikas Pradeep and Ramkali.(Rajendra Singh Sikarwar Vs.He has not committed any offence.Gambir Singh has been granted anticipatory bail vide order dated 17.06.2014 passed in M.Cr.C.No.4750/2014 and Arvind granted bail vide order dated 08.07.2014 passed in M.Cr.There is no likelihood of his absconsion.Hence, prayed for anticipatory bail.Prayer is opposed by learned counsel for the State.It appears that Ratnu, Ramavtar, Gabbar, Ramprakash, Dayaram, Smt. Ramkali, Rajesh, Vikas, Pradeep and Ramkatori have received injuries.Ramavtar has sustained one incised wound, one lacerated wound and bruise, Rajesh has received two abrasion and other have received injuries which are simple in nature.From perusal of the case diary of Crime No.182/2014, it appears that on the report of the applicant the case has been registered against the complainant party in which applicant has sustained two incised wounds, one lacerated wound and three bruises, Aashu has sustained five bruises, Lalu has sustained two bruises.As per x-ray report Gambhir Singh has sustained hairline fracture over fronto- parietal region.This injury has been reported to be caused by the sharp-edged weapon.C.No.6724/14 this application is allowed and it is directed that in the event of arrest, the applicant shall be enlarged on bail on his furnishing a personal bond in the sum of Rs.50,000/- (Rs. Fifty Thousand Only) with a surety bond in the like amount to the satisfaction of Arresting officer/competent Court.The applicant shall make himself available for interrogation by a police officer as and when required and he will co-operate in the investigation.He shall further abide by the other conditions enumerated in sub- section (2) of Section 438 of Cr.P.C.This order shall remain operative for a period of sixty days and during this period the applicant is free to move the regular bail application before the concerned Court.C.C. as per rules.

['Section 307 in The Indian Penal Code', 'Section 324 in The Indian Penal Code', 'Section 148 in The Indian Penal Code', 'Section 323 in The Indian Penal Code', 'Section 294 in The Indian Penal Code', 'Section 147 in The Indian Penal Code', 'Section 149 in The Indian Penal Code']

C.C. as per rules.Head the learned counsel for the parties.Looking to the physical condition, applicant prays for bail of anticipatory nature.Learned Public Prosecutor opposes the application.This order shall remain in force for a period of 60 days and in the meanwhile, if the applicant so desires, may move an application for regular bail before the competent Court.

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

This is first bail application filed on behalf of the applicant under Section 439 of the Cr.P.C. The applicant is in custody since 19.07.2019 in connection with Crime No.38/2019 registered at Police StationKishangarh, District Chhatarpur (MP), for the offence punishable under Sections 379, 34 of IPC.Prosecution story in short is that the complainant lodged a report and stated that on 18.07.2019 at about 10 O' clock he had gone for grazing 18 buffaloes in jungle however, he returned back to house at about 1 O'clock for having meal thereafter, at about 6 O'clock again he went to jungle to found buffaloes but he did not find in jungle thereafter, it is alleged that the applicant along with other persons tried to steal buffaloes from the jungle.It is alleged by the prosecution that applicant along with other persons committed theft of buffaloes.Learned counsel for the applicant submits that the applicant is innocent person and has been falsely implicated in this case.He has no criminal past against the applicant and trial will take long time to conclude.There is no probability of absconding of applicant and tampering the evidence.On these grounds he prays for grant of bail.Learned PL for the respondent/State opposes the application.Keeping in view the facts and circumstances of the case in entirety, particularly the fact as pointed out by the learned counsel for the applicant, in the opinion of this Court, he deserves to be enlarged on bail.Consequently, the first application for bail under Section 439 of the Code of Criminal Procedure filed on behalf of applicant is allowed.It is directed that the applicant-Rajendra @ Kallu be released on Digitally signed by ARVIND KUMAR MISHRA Date: 13/08/2019 11:38:26 2 MCRC-32958-2019 bail on furnishing a personal bond in the sum of Rs. 50,000/- (Rs. Fifty Thousand Only) with two local surety in the same amount to the satisfaction of the trial Court for his appearance before that Court on all dates fixed in the case and for complying with the conditions enumerated under Section 437 (3) of the Code of Criminal Procedure.C.C. as per rules.(RAJENDRA KUMAR SRIVASTAVA) JUDGE MISHRA Digitally signed by ARVIND KUMAR MISHRA Date: 13/08/2019 11:38:26

['Section 437 in The Indian Penal Code', 'Section 34 in The Indian Penal Code', 'Section 379 in The Indian Penal Code']

This appeal is directed against a judgment and order dated August 24, 1977 and August 31, 1977 passed by a Special Judge, Tis Hazari, Delhi, whereby he found the appellant guilty under Section 161 of the IPC and Section 5(2) read with Section 5(1 )(d) of the Prevention of Corruption Act, 1947 ('the Act' for short).The appellant was sentenced to undergo rigorous imprisonment for one year with a fine of Rs. 200/- under Section 161, IPC.In case of default in payment of fine he was further directed to undergo rigorous imprisonment for a period of three months.Similarly he was sentenced to undergo rigorous imprisonment for one year with a fine of Rs. 200/- under Section 5(2) read with Section 5(1)(d) of the Act. In case of his failure to clear the fine he was further sentenced to undergo rigorous imprisonment for a period of three months.Both the sentences were to run concurrently.However, the sentences imposed in default of payment of fine were to run consecutively.Brief facts which gave rise to the present appeal are as under: that one Shri Raghbir Singh resident of village Bindapur, Delhi, (hereinafter referred to as the complainant for the sake of convenience) approached the convict/appellant (hereinafter referred to as the appellant in order to facilitate the reference) for supply of a copy of the revenue record pertaining to his land situated, at village Bindapur, The appellant demanded a sum of Rs. 100/- from the complainant for the said purpose and told him that he should approach him over again on Monday i.e. 14th July, 1975 along with Rs. 100/-.The complainant lodged a written complaint with the Superintendent of Police, CBI, New Delhi, with the above said allegations.Consequently a regular case No. RC 34/75-SPE/CBI/Delhi Branch was registered.The said case after registration was entrusted to P.W. 3, Dy.S.P. Chander Bhan, for the purposes of investigation.He secured the presence of two independent witnesses i.e. Shri Prabhati Lal (P.W. 2) and Shri Baldev Raj (PW. 4) from the office Of Directorate of Sugar and Venaspati, Jarnnagar House, New Delhi.A raiding party was formed by including the said persons in the said raiding party.The complainant (PW 1) was introduced to the said witnesses who narrated the facts of the present case to them.He also produced ten currency notes of the denomination of Rs. 10)/- each to be given to the appellant by way of bribe on his demand.The currency notes were treated with phenolphthalein powder and a demonstration was given to the witnesses with regard to the working of the phenolphthalein powder.The above tainted currency notes of Rs. 10/- each were handed back to the complainant with instructions to be passed on to the appellant when demanded by him by way of bribe.Shri Prabhati Lal (P.W. 2), an independent witness was deputed to act as a shadow witness in order to see and overhear whatever transpired in between the complainant and the appellant.After the completion of necessary formalities the raiding party reached village Palam at about 2-30 p.m. Shri Raghbir Singh PW. 1 and Shri Prabhati Lal PW. 2 left to contact the appellant at his office (Patwarkhana).The appellant was found present at his office.The complainant asked the appellant as to whether he had prepared a copy of the extract from the revenue record pertaining to his land.The appellant asked for his fees.The complainant enquired of the appellant with regard to the amount to be paid whereupon the appellant told him that he would have to pay Rs. 100/- for the copy of the relevant revenue record pertaining to his land.The complainant on hearing the same took out the ten currency notes from his pocket and gave them to the appellant who accepted the same and put them into the left side front pocket of his shirt which he was wearing.The right as well as the left hand fingers of the appellant were got dipped into sodium carbonate solution which turned pink.The left side front pocket of the shirt on being washed with sodium carbonate solution also turned pink.JUDGMENT Mohd. Shamim, J.Thereafter the appellant started preparing the copy of the revenue record after looking into the same.Shri Prabhati Lal PW.2 thereupon came outside the office of the appellant and informed the raiding party that the appellant had accepted the bribe of Rupees 100/- from the complainant on demand.3 ChanderBhan, Dy.S.P. along with other members of the raiding party rushed to the office of the appellant and challenged him after disclosing his identity.The appellant was preparing copy of the revenue record pertaining to the land of the complainant at that time.After challenging, P.W. 3 Dy.S.P. Chander Bhan caught hold of the.appellant by both of his arms.The appellant got perplexed.On personal search of the appellant ten currency notes of Rs. 10/- each were recovered from the left side front pocket of his shirt.The numbers of the said currency notes tallied with the currency notes mentioned in the handing over memo prepared earlier.A copy of an extract from the Khasra Girdawri in respect of the land of the complainant prepared by the appellant was also seized.The appellant was arrested and later on released on bail.The appellant was summoned.The said admissions on the part of PW. 1 Raghbir Singh are to be read along with the statement of the appellant under Section 313, Cr.P.C. wherein he was very categorically stated that he had complained against the complainant to the SDM, Punjabi Bagh for his unauthorised colonisation.As per his report the SDM ordered that the complainant be dispossessed from the land in his possession and the same be handed over to gaon sabha.The appellant in this connection has placed on record his report with regard to the unauthorised colonisation.One of the persons complained against, as is manifest from the said report, is PW. 1 Raghbir Singh complainant (vide Ex. D/A).The orders passed by the SDM are Ex. DB and Ex. DC.To the same effect is the statement of PW. 7 Kanwar Sain, Office Kanungo, Mehrauli.He has very categorically stated that the appellant complained against PW. 1 Raghbir Singh with regard to the unauthorised colonisation in 1974 and the SDM thereupon passed orders for taking possession over the said land belonging to the complainant Raghbir Singh and to deliver the possession over the same to gaon Sabha.He has further stated that he along with the appellant went to take possession.However the same could not be taken on account of the apprehension of breach of peace.It thus can be safely concluded from above that it was the appellant who complained against the complainant, PW. 1 Raghbir Singh (vide report dated August 15, 1974).The complaint was lodged with the police on July 11, 1975 i.e. only 17 days after the possession was to be handed over to gaon sabha.Thus the complainant has got an animus against the appellant.He has got a motive to lodge a report against the appellant.Consequently the complainant by no stretch of imagination be called an independent witness.His statement is to be looked upon with suspicion and caution and it would not be safe to place reliance thereon.Furthermore, a perusal of the charge sheet reveals that as per the prosecution version the appellant was preparing a copy of the extract from the revanue record (Khasra Girdawri) in respect of the land of the complainant Raghbir Singh at the time the raid was laid against him.To the same effect is the statement of PW.3 Dy.Surprisingly enough the copy of the said extract from the revenue record was never seized from the spot.Instead an extract from the revenue record pertaining to the land of Shri Balbir Singh is placed on the file of this Court as is manifest from Ex. P5/A. This again casts suspicion on the case of the prosecution.It is in the statement of PW. 1 Raghbir Singh as well as PW. 3 Chander Bhan.Dy, S.P. that the appellant after having accepted the tainted currency notes kept the same in the left side front pocket of his shirt.The said shirt after the recovery of the tainted currency notes was removed from his person and was dipped in the solution of sodium carbonate whereupon the said solution turned pink.It implies thereby that the pocket of the shirt of the appellant which he was wearing must have pink colour.Astonishingly the shirt (Ex.P. 1) which was produced before the Court did not have any such colour on the left side front pocket.This fact has been admitted by PW., 3 Chander Bhan.This again casts suspicion with regard to the authenticity of the prosecution version particularly when the said shirt before pink marks at other places i.e. on the front side of the shirt.The learned lower Court has ignored this fact by stating that it is just possible that the faint pink colour on the pocket of the shirt of the accused might have disappeared with the passage of time.The learned lower Court, I feel, was not correct while coming to the said conclusion.Had that been true the pink marks on the other parts of the shirt would have also disappeared.The appellant in his written statement in Urdu (vide para 6) has stated that on July 14, 1975 the complainant Raghbir Singh approached him with the request to accept the impugned amount for handing over the same to Sube Singh.Sube Singh was to come to take the said money from him later on and he was required to give the said amount to Sube Singh.It was in the above circumstances that he took the said amount by one hand and kept the same on the cot with the help of another hand and told the complainant straightway that he should deliver the said amount himself to Sube Singh.It is sufficient if he comes out with a probable and plausible version.I feel that the appellant has put forward a probable and plausible version in the present case.

['Section 161 in The Indian Penal Code', 'Section 5 in The Indian Penal Code']

This petition under Section 482 of Cr.P.C. has been filed to set aside the order dated 09.09.2014 passed by the learned Sessions Judge, Karera district Shivpuri in Sessions Trial No. 90/2012 by which the learned Trial Court has refused to call - (1) Dr. R.K. Agrwal, District Hospital, Bhind; (2) Mr. Yogendra Bhadoriya, Principal, Maharani Laxmibai College of Excellence, Gwalior, and; (3) the Investigation Officer, who investigated Crime No. 86/2011 of Police Station Sehore, as defence witnesses.Brief facts just necessary for disposal of this petition are that the petitioner is one of the accused, who stand trial before the Additional Sessions Judge, Karera.The petitioner filed an application for adducing evidence of Dr. R.K. Agrawal, who on the requisition of police medically examined the petitioner and was under treatment from 01.07.2011 to 03.07.2011 at District Hospital, Bhind.He also claimed that on the date of incident, i.e., 2nd July, 2014 from 02.00 to 04.00 PM, he was present in DCA Computer class at Maharani Laxmi Bai College of Excellence, Gwalior.Therefore, in this regard he wanted to examine the Principal Mr. Yogendra Singh Bhadoriya.The petitioner also requested to call the Investigation Officer of (Rahul Vs.State of M.P.) 2 M.Cr.C No. 8896/2014 Crime No. 86/2011 registered at Police Station Sehore under Sections 177, 148, 149, 307, 323, 324, 325 and 294 of IPC, which is a cross case.The petitioner also requested to examine Mr. K.C. Chauhan, Station House Officer, who investigated the matter.The petitioner's application was partly allowed by the learned Trial Court.Regarding the other prayers, the learned Trial Court refused to call the witnesses.Learned counsel for the petitioner further relied on Manoj Kumar Swami Vs."Criminal P.C. (2 of 1974), S.233 -Summoning of documentary evidence - offence under Ss.498-A, 304-B of Penal Code - Case was listed for defence evidence - At stage of defence accused would have right to summon any evidence which may be relevant for proper appreciation of (Rahul Vs.State of M.P.) 3 M.Cr.C No. 8896/2014 prosecution evidence - allegations made by accused that deceased was an uneducated lady but she had given statement that she had passed HSC examination - Held, it is in the interest of justice that application of accused to summon relevant record to ascertain this fact should be granted by Court."Therefore, the petitioner is directed to produce the certified copies of the necessary documents which the petitioner relies before the Trial Court.After filing the same the petitioner can move an application for calling the witnesses, which may be relevant for the decision of the case.The petitioner, if files the relevant documents within two weeks and satisfy the learned Trial Court that the documents are relevant, the learned Trial Court may consider the same and if felt necessary may allow the accused to call the witnesses named above as defence witnesses.With the above direction, the M.Cr.

['Section 325 in The Indian Penal Code', 'Section 307 in The Indian Penal Code', 'Section 324 in The Indian Penal Code', 'Section 148 in The Indian Penal Code', 'Section 323 in The Indian Penal Code', 'Section 294 in The Indian Penal Code', 'Section 149 in The Indian Penal Code']

Marriage of Reeta (since deceased) was solemnized Cr.A. No.2605/05 2 with appellant no.1 Manoj on 21/4/2000 and the remaining appellants are his family members.Prosecution case, in brief, is that appellants were involved in subjecting Reeta to cruelty and harassment due to non satisfaction of demand for dowry, and, ultimately, on 31/5/2001, under suspicious circumstances, she breathed her last and cause of death was ascertained as asphyxia in the post mortem report (Ex.P/10), wherein as many as 4 injuries were also noticed on her palms and one on chin.As per report (Ex.P/17) dated 29/11/01 of Forensic Science Lab, Organo Phosphorous pesticide was found in the viscera of the deceased.(8.10.13) Being aggrieved by the judgment dated 9.12.2005 passed by the I Additional Sessions Judge, Hoshangabad in S.T. No.322/2001, the appellants have preferred this appeal under Section 374(2) of the Criminal Procedure Code ('Code' for short) whereby they have been convicted under Sections 304-B and 498-A of the Indian Penal Code (for short, 'the IPC') and sentenced to undergo R.I. for seven years with fine stipulation and R.I. for 2 years with fine stipulation respectively.One written report dated 31/5/2001 addressed to Station House Officer, Itarsi was filed by father of the deceased Narbada Prasad.During the course of investigation, statements of witnesses were recorded and thereafter Crime No.365/01 (Ex.P/13) for the offences under Sections 304B and 498A of the IPC, was registered at Police Station, Itarsi and after completion of investigation, charge-sheet was filed against, as many as, seven accused persons.Out of them, except appellants others were acquitted of the charges.Learned Senior Counsel submitted that the trial Court had erred in appreciating the evidence on record and the impugned judgment deserves to be set aside.According to him, appellant no.3 Vijaya alias Vijaylata, sister-in-law of the deceased, is married and has been staying separately since long and there is no incriminating evidence against her and, therefore, she is entitled to be acquitted.Alternatively, he argued that, at the most, appellant no.2 Shanti Bai, mother-in-law of the deceased, can only be convicted under Section 498A of the IPC and appellant no.1 Manoj has already suffered the impugned custodial sentence, while Shantbai has suffered imprisonment for 4 years.In response, learned Government Advocate as well as learned counsel for the Objector, while making reference to the incriminating pieces of evidence on record, submitted that the impugned judgment was well merited.Cr.A. No.2605/05 3Having regard to the arguments advanced by the parties, we have gone through the impugned judgment and record of the trial Court.Santosh (PW1), brother of the deceased, deposed in para 2 of his evidence that Reeta had never told him in regard to maltreatment at the hands of her in-laws and she used to tell her mother only.Pinki alias Sunita (PW3), friend of the deceased, deposed in para 1 that Reeta had told her that her husband and mother-in-law used to harass and beat her on trifle matters.In para 3 she deposed that appellant no.3 used to instigate appellant no.2, but she did not depose the manner in which and when appellant no.3 instigated them.Rakesh Sahu (PW9) deposed in para 1 that on 29.5.01 when he met the deceased, she had started weeping and upon asking had informed her that appellant no.3 and her husband Ramesh had threatened to bring Rs.50,000/-, Fridge and VCR else they would harass her.Though some omnibus allegations were leveled against appellant no.3 in the evidence of some witnesses, yet, on that basis alone, her conviction cannot be sustained as on the same set of evidence, some other accused have already been acquitted by the trial Court and against them no appeal has been filed by the State.It is an admitted fact and also brother of the deceased Santosh (PW1) admitted in para 12 of his evidence that appellant no.3 Vijaya resided at Hoshangabad along with her husband Ramesh.From the evidence of all the witnesses, it is crystal clear that appellant nos. 1 and 2 used to subject Reeta to cruelty and harassment due to non satisfaction of demand for dowry and her death was caused within seven years of the marriage.The fact that Cr.A. No.2605/05 4 deceased was subjected to physical cruelty soon before her death, is also established from the evidence of the witnesses, as well as, from medical evidence.Therefore, in view of Section 113B of the Evidence Act, it was rightly presumed by the trial Court that appellant nos. 1 and 2 had caused the dowry death of Reeta.In the aforesaid premises, the appeal is allowed in part.Appellant no.3 Vijiya alias Vijaylata is acquitted of the offences.However, the appeal, so far as it relates to appellants nos. 1 and 2, the same stand dismissed.Their convictions and sentences are affirmed.As per record, appellant no.1 Manoj was in jail.His supersession warrant be sent to jail authorities.Appellant no.2 Shantibai is on bail.

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

Case diary perused.Learned counsel for the rival parties are heard.C.C. As per rules.

['Section 3 in The Indian Penal Code', 'Section 353 in The Indian Penal Code', 'Section 341 in The Indian Penal Code', 'Section 336 in The Indian Penal Code', 'Section 332 in The Indian Penal Code', 'Section 34 in The Indian Penal Code', 'Section 294 in The Indian Penal Code']

Respondent no.2 Smt. Deepika Shukla is also present along with her counsel.Heard learned counsel for the parties finally.This petition under Section 482 of Code of Criminal Procedure, hereinafter referred to as 'the Code' has been filed by the applicants for quashing of order dated 06.05.2015 as well as the proceeding of Criminal Case No.332/2014, pending in the Court of Judicial Magistrate First Class, Maihar, District Satna The applicant no.1 is the husband and applicant no.2 is brother- in-law of the respondent no.2-complainant.

['Section 498A in The Indian Penal Code', 'Section 482 in The Indian Penal Code', 'Section 320 in The Indian Penal Code']

The surviving accused are represented by Advocate Satyajit Bora.::: Uploaded on - 07/05/2018 ::: Downloaded on - 21/05/2018 04:31:13 :::AT the relevant time, in the Maruti temple at Tivthan Tanda in Gangakhed taluka, religious programme of 'Parayan of Pandav Pratap Pothi' was going on.Mike and loud speakers were therefore set up at the said temple.One Waman Balu Rathod was one of the organizers of the said religious function.The villagers of the adjoining villages used to attend the said function and arrangements were made for the meals of the said devotees by way of prasad.6) As per the case of the prosecution, on 30 th August, 1995, accused No. 5 - Lahu first had been to Waman Rathod and requested him to give the loud-speaker to be used in the Ganpati festival in the village of the accused persons.Waman Rathod refused the request of Lahu.It is alleged that all the accused then approached Waman after sometime and jointly requested Waman to give them the loud-speaker and the mike for Ganpati festival.::: Uploaded on - 07/05/2018 ::: Downloaded on - 21/05/2018 04:31:13 :::few others.7) Uttam Rathod, brother of the deceased Waman, lodged a complaint of the alleged incident, whereupon investigation was set in motion.DATE OF RESERVING JUDGMENT : 25th January, 2018 DATE OF PRONOUNCING JUDGMENT :9th February, 2018 JUDGMENT:-(P.R.Bora,J.)2) The respondents in Criminal appeal No.445 of 2001 and the appellants in Criminal Appeal No. 304 of 2001 were prosecuted in the aforesaid Sessions Case for the offences punishable under Sections 147, 148, 149 and 302 read with 34 of Indian Penal Code.Vide the impugned judgment, the learned Additional Sessions Judge acquitted the respondents in Criminal Appeal No.445/2001 whereas convicted the appellant in Criminal Appeal No.304/2001 for the offence punishable under Sections 304 Part-II of IPC and sentenced him to suffer rigorous imprisonment for seven years and fine of Rs.15,000/-,::: Uploaded on - 07/05/2018 ::: Downloaded on - 21/05/2018 04:31:13 ::: 3 Cri.Appeal 445/2001 & Anr.::: Uploaded on - 07/05/2018 ::: Downloaded on - 21/05/2018 04:31:13 :::in default to suffer further R.I. for one year.Aggrieved by the said judgment, the State has filed the Criminal Appeal No. 445/2001, taking exception to the order of acquittal recorded by the learned Additional Sessions Judge, Parbhani in regard to the original accused Nos. 2 to 5; whereas the original accused No. 1 has preferred the Criminal Appeal No. 304/2001, challenging the order of conviction passed against him for the offence punishable under Section 304 Part-II of IPC.3) In view of the fact that both the appeals are arising out of one judgment, the arguments in both the appeals were simultaneously heard by us and we deem it appropriate to decide both these appeals by a common reasoning.During pendency of the appeal accused No. 4 viz. Nivrutti Dagduba Bhusnar has expired and the appeal thus stood abated against him.::: Uploaded on - 07/05/2018 ::: Downloaded on - 21/05/2018 04:31:13 :::However, Waman, did not accede to the request made by the accused.According to the further case of the prosecution, the accused then though left the said place, assembled there again after some time, equipped with the weapons and made assault on Waman Balu Rathod as well as::: Uploaded on - 07/05/2018 ::: Downloaded on - 21/05/2018 04:31:13 ::: 5 Cri.Appeal 445/2001 & Anr.The accused were arrested.The statements of the witnesses were recorded.Panchanama of the spot was prepared; inquest panchanama on the dead body of the deceased Waman was carried and post mortem examination of the dead body was also got done by the police.During the course of the investigation, some recoveries were also made and after completing the investigation, charge sheet was filed against all the five accused in the court of JMFC at Gangakhed.Since the offences charged against the accused were exclusively triable by the Court of Sessions, the case was committed to the Sessions Court at Parbhani.The accused did not plead guilty and claimed to be tried.In order to substantiate the charges levelled against the accused, the prosecution examined as many as 13 witnesses.The prosecution evidence had commenced with the testimony::: Uploaded on - 07/05/2018 ::: Downloaded on - 21/05/2018 04:31:13 ::: 6 Cri.Appeal 445/2001 & Anr.::: Uploaded on - 07/05/2018 ::: Downloaded on - 21/05/2018 04:31:13 :::of Dr. Manohar Ghule, the Medical Officer from Rural hospital, at Gangakhed and was concluded with the evidence of Shivaji Kamble (PW 13) - PSI, who had made the investigation in the alleged crime.The defense of the accused was total denial.The learned Sessions Judge, after having assessed the oral and documentary evidence on record, acquitted accused Nos. 2 to 5 and convicted accused no.1 , i.e. appellant in Criminal Appeal No. 304/2001, for the offence punishable under Sections 304 Part-II of IPC and imposed the sentence as noted herein above.8) Shri S.J.Salgare, learned A.P.P. Appearing for the State, assailed the impugned judgment on various grounds.The learned APP submitted that despite there being sufficient evidence against all the accused, proving their complicity in the commission of crime, the learned Sessions Judge has wrongly acquitted accused Nos. 2 to 5 and has erred in not holding accused No.1 guilty for the offence under Section 302 of IPC.9) The learned APP, taking us through the evidence of the prosecution witnesses and more particularly the evidence of::: Uploaded on - 07/05/2018 ::: Downloaded on - 21/05/2018 04:31:13 ::: 7 Cri.Appeal 445/2001 & Anr.::: Uploaded on - 07/05/2018 ::: Downloaded on - 21/05/2018 04:31:13 :::The learned APP further submitted that the prosecution had examined the eye- witnesses to the alleged occurrence and the said eye-witnesses and more particularly, PW 3 Uttam and PW 7 - Kallubai had perfectly given the ocular account of the alleged incident proving the incriminating acts of the accused persons.The learned APP further submitted that the medical evidence brought on record by the prosecution through the evidence of Dr. Manohar Ghule (PW 1); Dr. Siddharh Bhalerao (PW 4) and Dr. A.G.Solanke (PW 6) has not been properly appreciated by the learned Sessions Judge.The learned APP submitted that PW 4 - Dr Bhalerao had examined deceased Waman and PW 6- Kallubai at Gangakhed Rural hospital immediately after the incident and in his evidence, has deposed about the injuries, as were noticed on person of deceased Waman as well as PW 6 Kallubai.The learned APP submitted that sufficient evidence was placed on record by the prosecution to prove weapon used in commission of the offences and it was also sufficiently brought on record by the prosecution that the injuries as were noticed on person of deceased Waman as well as injured::: Uploaded on - 07/05/2018 ::: Downloaded on - 21/05/2018 04:31:13 ::: 8 Cri.Appeal 445/2001 & Anr.::: Uploaded on - 07/05/2018 ::: Downloaded on - 21/05/2018 04:31:13 :::Kallubai, were possible to have been caused with the said weapons.The learned APP further submitted that the prosecution had also brought on record the incriminating acts of other accused in making assaults on the victims and the evidence so brought on record was not shattered even during the course of cross-examination.The learned APP submitted that the learned Sessions Judge has drawn some unwarranted inferences and for no good reasons, rejected the prosecution evidence.The learned APP further submitted that the evidence, which was brought on record by the prosecution was sufficient to prove beyond reasonable doubt the complicity of the accused in knowingly and intentionally causing death of deceased Waman.In the circumstance, according to learned APP, the learned Sessions Judge has manifestly erred in not holding accused No.1 guilty for the offence under Section 302 of IPC and instead holding him guilty for a lesser offence punishable under Section 304 Part-II of IPC and acquitting accused Nos. 2 to 5 from all the offences..::: Uploaded on - 07/05/2018 ::: Downloaded on - 21/05/2018 04:31:13 :::::: Uploaded on - 07/05/2018 ::: Downloaded on - 21/05/2018 04:31:13 :::The learned APP submitted that in view of the fact that the Sessions Court has held the fact to have been proved, that the assault was made by accused no.1 on the head of the deceased with a sharp and cutting weapon, the burden was shifted on the accused to bring on record sufficient evidence to rebut presumption raised against him that his intention was not to cause the death of deceased Waman.The learned APP further submitted that though accused No.1 has failed in rebutting the said presumption, the learned Sessions Judge has erroneously not held him guilty for the offence under section 302 of IPC and instead has held him guilty for the lesser offence under Section 304 Part-II of IPC.12) The learned APP, for all above reasons, prayed for setting aside the impugned judgment and order and to hold all the accused guilty for offence under Section 302 read 34 of IPC and to adequately punish them.::: Uploaded on - 07/05/2018 ::: Downloaded on - 21/05/2018 04:31:13 :::::: Uploaded on - 07/05/2018 ::: Downloaded on - 21/05/2018 04:31:13 :::the accused, supported the impugned judgment and order in so far as accused Nos. 2 to 5 (now accused Nos. 2, 3 and 5).The learned Counsel, inviting our attention to the elaborate discussion made by the learned Sessions Judge, submitted that the learned Sessions Judge has minutely scrutinized and has correctly analyzed the evidence of each and every prosecution witness and has recorded a well-reasoned finding, exonerating accused Nos. 2 to 5 from the charges levelled against them.The learned Counsel further submitted that having regard to inconsistencies in the evidence of the prosecution witnesses and failure on part of the prosecution to bring on record any unimpeachable evidence against accused Nos. 2 to 5, showing their complicity in commission of the alleged crime, the learned Additional Sessions Judge has rightly acquitted the said accused.The learned Counsel submitted that no interference is, therefore, warranted in the judgment and order passed by the learned Sessions Judge so far as acquittal of accused Nos. 2 to 5 is concerned.14) After having considered the submissions made on behalf of the learned APP and the leaned counsel for the accused and on perusal of the impugned judgment and the::: Uploaded on - 07/05/2018 ::: Downloaded on - 21/05/2018 04:31:13 ::: 11 Cri.Appeal 445/2001 & Anr.::: Uploaded on - 07/05/2018 ::: Downloaded on - 21/05/2018 04:31:13 :::evidence on record, apparently, it does not appear to us that any interference may be required in so far as the acquittal recorded by the learned Trial Judge in respect of accused Nos.2 to 5 is concerned.Accused Nos.1 to 3 are real brothers of each other.Deceased accused No.4 was father of accused Nos. 1 to3. Accused No. 5 does not seem to be in relation to other accused.However, all the accused are residents of village Underwadi.15) As revealed from the submissions made by the learned APP, the thrust of the prosecution, in order to prove the guilt of the accused, was mainly on the evidence of PW 7 - Kallubai, who is posed to be the victim of the alleged incident as well as the eye witness to the assaults made on deceased Waman.Reliance was also placed by the prosecution on the evidence of PW 5 - Telu Paithane and he was also stated to be an eye-witness to the alleged incident.PW 3 - Uttam Balaji Rathod had lodged the report of the alleged incident whereupon the investigation was set in motion.Obviously, the prosecution also relied upon the testimony of said PW 3 - Uttam.The other witnesses were the::: Uploaded on - 07/05/2018 ::: Downloaded on - 21/05/2018 04:31:13 ::: 12 Cri.Appeal 445/2001 & Anr.::: Uploaded on - 07/05/2018 ::: Downloaded on - 21/05/2018 04:31:13 :::panch witnesses on the spot and the alleged recovery of weapon.In addition to the aforesaid witnesses, the prosecution has also examined the police persons, who were part of the investigation and two medical officers, one who had issued the injury certificates and the another who had conducted the post mortem examination.16) It was vehemently argued by the learned APP that by examining the aforesaid witnesses, the prosecution has, beyond reasonable doubt, proved the complicity of all the five accused in knowingly and intentionally causing death of deceased Waman and causing severe injuries to PW 7 - Kallubai.It is not in dispute that PW 7 - Kallubai is sister of deceased Waman.According to learned APP, the learned Sessions Judge has, for some wrong reasons, declined to rely upon the evidence of the prosecution witnesses.The learned APP also submitted that some of the observations made by the learned Sessions Judge are contrary to the evidence on record.The learned APP, taking us through the evidence of PW 3 - Uttam; PW 5 - Telu; PW 7 - Kallubai and PW 10 - Dhuma, submitted that the inconsistencies and the contradictions, as are considered by the learned Sessions Judge in the testimonies of these witnesses, were, in fact, minor and immaterial and::: Uploaded on - 07/05/2018 ::: Downloaded on - 21/05/2018 04:31:13 ::: 13 Cri.Appeal 445/2001 & Anr.::: Uploaded on - 07/05/2018 ::: Downloaded on - 21/05/2018 04:31:13 :::must have been ignored by the learned Sessions Judge.In light of the submissions so made by the learned APP, when we perused the evidence on record and thereafter analysis of the said evidence made by the Sessions Judge, we did not find that any apparent error has been committed by the learned Sessions Judge in not holding accused Nos. 2 to 5 guilty for the offences with which they were charged.In so far as the finding recorded by the learned Sessions Judge while holding accused No.1 guilty for the offence punishable under Section 304 Part-II of IPC is::: Uploaded on - 07/05/2018 ::: Downloaded on - 21/05/2018 04:31:13 ::: 14 Cri.Appeal 445/2001 & Anr.::: Uploaded on - 07/05/2018 ::: Downloaded on - 21/05/2018 04:31:13 :::Though the said finding was sought to be objected by Shri Satyajit Bora, learned Counsel appearing for accused No.1, on certain points, we did not find any merit in the submissions so made.The defense of the accused that the vital injury, which ultimately resulted in causing death of Waman, was likely to be caused by beating of head of the deceased against the stony platform by an accident, has been rightly rejected by the learned Sessions Judge.Relying upon the evidence of PW 4 - Dr. Siddharth Bhalerao; PW 6 - Dr. Anand G.Solanke; the learned Sessions Judge has reached to the conclusion that the vital injury, which ultimately resulted in causing death of deceased Waman, was not likely to be caused accidentally and there was sufficient evidence on record showing that the same was caused in the assaults made on deceased Waman in the alleged incident.The finding recorded by the learned Sessions Judge that deceased Waman suffered the homicidal death, therefore, has to be sustained.::: Uploaded on - 07/05/2018 ::: Downloaded on - 21/05/2018 04:31:13 :::::: Uploaded on - 07/05/2018 ::: Downloaded on - 21/05/2018 04:31:13 :::injury to deceased Waman which ultimately resulted in causing his death.It was the contention of the learned A.P.P. that though the assaults were actually made by accused no.1 and accused no.3, what was more material was the intention of all the accused to cause death of deceased Waman and, as such, the trial Court must have held all the accused guilty for the offense under Section 302 read with Section 34 of IPC.20) After having considered the entire evidence on record, we find it difficult to agree with the argument so advanced by the learned A.P.P. The evidence on record shows that accused no.1 alone has admitted his presence on the spot::: Uploaded on - 07/05/2018 ::: Downloaded on - 21/05/2018 04:31:13 ::: 16 Cri.Appeal 445/2001 & Anr.::: Uploaded on - 07/05/2018 ::: Downloaded on - 21/05/2018 04:31:13 :::of occurrence.The others have denied their presence on the spot of occurrence and their alleged participation in commission of the alleged crime.Though PW 3 Uttam and PW 7 Kallubai, are cited as eye witnesses and their evidence has been heavily relied upon by the learned A.P.P., on perusal of the evidence of the aforesaid witnesses it is apparently revealed that both are not corroborating the facts stated by each other.PW 3 Uttam was stated to be on the spot of occurrence since beginning.His house is also situated just near to the spot of occurrence.In the circumstances, as has been observed by the learned trial Judge, serious doubts are raised about the entire occurrence when Uttam had not stated anything about first two visits of the accused persons.21) It is the matter of record that on the basis of the complaint lodged by Uttam (PW 3), the investigation was set in motion.In the circumstances, as has been observed by the learned trial Judge, inconsistency in the evidence of Uttam (PW3) and Kallubai (PW 7), on the alleged two previous visits of the::: Uploaded on - 07/05/2018 ::: Downloaded on - 21/05/2018 04:31:13 ::: 17 Cri.Appeal 445/2001 & Anr.::: Uploaded on - 07/05/2018 ::: Downloaded on - 21/05/2018 04:31:13 :::accused persons, and the alleged demand by them from deceased Waman to hand over the loud-speaker, cannot be ignored.As noted hereinabove, accused no.1 did not dispute his presence on the spot of occurrence.The question was whether the prosecution has proved presence of accused nos. 2 to 5 along with accused no.1 so as to gather whether accused nos. 2 to 5 were having common intention of causing death of deceased Waman.On this material aspect the evidence of PW 3 and PW 7 is inconsistent.Though PW 5 Paithane was also cited as the eye witness, he did not support the prosecution version.Thus, the prosecution has failed in bringing on record any unimpeachable evidence so as to prove the complicity of accused nos. 2 to 5 in commission of the alleged crime.In paragraph no.55 to 62 of the impugned judgment, the learned trial Judge has elaborately discussed the inconsistencies in the evidence of Uttam (PW 3) and Kallubai (PW 7).We need not to repeat the observations made by the learned trial Judge; suffice it to say that after having perused the evidence on record, we fully agree with the observations made by the learned Judge.22) It is further apparently revealed that the complaint at Exh.35 filed by PW 3 Uttam is not consistent on the material::: Uploaded on - 07/05/2018 ::: Downloaded on - 21/05/2018 04:31:13 ::: 18 Cri.Appeal 445/2001 & Anr.::: Uploaded on - 07/05/2018 ::: Downloaded on - 21/05/2018 04:31:13 :::In Exh.57, there are names of Dhondiram, Bandu and Laxman as witnesses but, in the complaint at Exh.35, these names are not mentioned.In Exh.35, name of accused no.5 Lahu is mentioned but, in the report at Exh.57, his name is missing.However, the explanation is unacceptable and the same has been rightly not accepted by::: Uploaded on - 07/05/2018 ::: Downloaded on - 21/05/2018 04:31:13 ::: 19 Cri.Appeal 445/2001 & Anr.::: Uploaded on - 07/05/2018 ::: Downloaded on - 21/05/2018 04:31:13 :::the learned trial Judge.The conclusion recorded by the learned trial Judge that probability of manipulation in the original complaint filed by PW 3 Uttam was difficult to be ruled out.23) After having considered the evidence as above, it does not appear to us that the learned trial Judge has committed any error in recording the finding that the prosecution has failed in bringing on record any cogent and sufficient evidence against accused nos. 2 to 5 proving their involvement in commission of the alleged crime.According to us, the trial Court has, therefore, rightly acquitted accused nos. 2 to 5 from the charges levelled against them.No case is made out by the State for causing interference in the finding so recorded by the trial Court.24) It was the further contention of the appellant State that the learned trial Judge has erred in not holding accused no.1 guilty for the offence punishable under Section 302 of IPC.After having considered the entire evidence on record and the discussion made by the learned trial Judge on the issue, we do not find much substance in the objection raised by the appellant State.We fully agree with the conclusion recorded::: Uploaded on - 07/05/2018 ::: Downloaded on - 21/05/2018 04:31:13 ::: 20 Cri.Appeal 445/2001 & Anr.::: Uploaded on - 07/05/2018 ::: Downloaded on - 21/05/2018 04:31:13 :::by the trial Court that no such evidence has been brought on record by the prosecution so as to hold that accused no.1 was having an intention to cause the death of deceased Waman.The evidence on record reveals that it was a sudden quarrel between accused no.1 and deceased Waman on account of handing over of the loud-speaker set for the purpose of Ganpati festival.As has been rightly observed by the learned trial Judge, accused no.1 had gone to the spot of occurrence only for the purpose of making demand of loud-speaker and nothing has been brought on record to draw an inference that at the relevant time there was any intention of accused no.1 to finish Waman.The quarrel between deceased Waman and accused no.1 started all of a sudden without premeditation.The prosecution has also not brought on record any such clinching evidence showing that the sickle was purposely and intentionally brought by accused no.1 with him.However, when the said sickle was used by the accused in making assault on the head of deceased Waman, as rightly held by the learned trial Judge, the knowledge has to be attributed on the part of accused no.1 that making an assault by him with a sickle on the head of deceased Waman was likely to cause his death.In the circumstances, according to us, the learned trial::: Uploaded on - 07/05/2018 ::: Downloaded on - 21/05/2018 04:31:13 ::: 21 Cri.Appeal 445/2001 & Anr.::: Uploaded on - 07/05/2018 ::: Downloaded on - 21/05/2018 04:31:13 :::Judge has rightly held accused no.1 guilty for the offense punishable under Section 304 Part II of IPC.The prosecution has failed in making out any case to hold accused no.1 guilty for the offense punishable under Section 302 of IPC.The aforesaid contention of the prosecution also, therefore, cannot be accepted and the appeal filed by the State, therefore, deserves to be dismissed in toto.25) In an appeal filed by accused No.1 (Criminal Appeal No.304/2001), the appellant has challenged his conviction for the offense punishable under Section 304 Part II of IPC.However, in view of the finding recorded by us while deciding Criminal Appeal No.445/2001, Shri Satyajit Bora, learned Counsel for the appellant, on instructions, restricted the argument only to the extent of quantum of sentence imposed upon accused no.1 by the trial Court; in other words, to reduce the period of sentence, and to release accused no.1 on the sentence already undergone by him.Learned Counsel further submitted that after pronouncement of the judgment, accused no.1 was taken in custody and was released on bail vide order::: Uploaded on - 07/05/2018 ::: Downloaded on - 21/05/2018 04:31:13 ::: 22 Cri.Appeal 445/2001 & Anr.::: Uploaded on - 07/05/2018 ::: Downloaded on - 21/05/2018 04:31:13 :::Learned Counsel submitted that though the orders were passed by the respective Courts for releasing the applicant on bail, some time was consumed in arranging for bail, etc. and if the said time is considered, accused no.1 has practically undergone the imprisonment for a period of about seven months.Learned Counsel further submitted that the alleged incident occurred prior to about 23 years.The accused, who was at the relevant time 38 years old, has now crossed his age of 61 years.Learned Counsel further submitted that there was no previous enmity between accused no.1 and the deceased and whatever happened was in a sudden fight between the both.State of Maharashtra ( 2015 All.M.R. (Cri) 1790), learned Counsel submitted that accused no.1 be released on the sentence of imprisonment already undergone by him.Learned A.P.P. submitted that the learned trial Judge has already considered the circumstances as::: Uploaded on - 07/05/2018 ::: Downloaded on - 21/05/2018 04:31:13 ::: 23 Cri.Appeal 445/2001 & Anr.::: Uploaded on - 07/05/2018 ::: Downloaded on - 21/05/2018 04:31:13 :::27) We have carefully considered the submissions made on behalf of the appellant i.e. original accused no.1 and by the State.Having regard to the facts involved in the present case, it appears to us that the request made by the appellant accused no.1 deserves to be positively considered.Admittedly, it was a sudden fight and was not a premeditated act.There is no dispute that there are no criminal antecedents to accused no.1 and present is the only criminal case against the accused.As has been submitted by the learned Counsel for the appellant, accused no.1 has now crossed the age of 61 years.It is a matter of record that he has already undergone imprisonment for a period of seven months.Aforesaid are the circumstances which make us to consider the request of the appellant to reduce the sentence imposed upon him by the trial Court and to substitute the same with the sentence of imprisonment already undergone by him.::: Uploaded on - 07/05/2018 ::: Downloaded on - 21/05/2018 04:31:13 :::circumstances of each case and the Court has to keep in mind the gravity of the crime, motive for the crime, nature of the offense and all other attendant circumstances.In the instant matter, admittedly, accused no.1 had been to the spot of occurrence for demanding the loud-speaker set from deceased Waman to be used for Ganpati festival which was to commence from the next day and not with the intention of causing injury to deceased Waman which had ultimately resulted in causing his death.From the evidence on record it is also discernible that in a fit of anger, a single assault was made by accused no.1 on the head of deceased Waman.It can be gathered that accused no.1 was deeply annoyed since his request for handing over the loud-speaker set was turned down by deceased Waman.Learned trial Judge has, therefore, rightly held him guilty for the offense punishable under Section 304 Part II of IPC.The only question now remains to be considered is whether to accept the request made by the accused to modify the sentence imposed upon him by the trial Court and to sentence him with imprisonment already undergone or to confirm the sentence imposed upon him by the trial Court::: Uploaded on - 07/05/2018 ::: Downloaded on - 21/05/2018 04:31:13 ::: 25 Cri.Appeal 445/2001 & Anr.::: Uploaded on - 07/05/2018 ::: Downloaded on - 21/05/2018 04:31:13 :::29) In the case of Narayan Aba Pawar and others Vs.State of Maharashtra (cited supra), the trial Court had convicted the accused therein for an offense punishable under Section 302 read with Section 34 of IPC and had sentenced them to suffer imprisonment for life and to pay fine of Rs.5,000/- each.In an appeal, the Division Bench set aside the conviction for the offense punishable under Section 302 read with Section 34 of IPC and held the accused guilty for the offense punishable under Section 304 Part II of IPC.While considering the adequacy of sentence to be imposed upon the appellants / accused, the Division Bench has made the following observations in para nos. 20 and 21 of the said judgment which read thus:It appears that the original accused no.1 Narayan Aba Pawar is aged 70 years now, while original accused no.2- Laxmibai Narayan Pawar is aged 65 years as of today.The date of incident is September 1997 and thus nearly 17 years have elapsed since the date of the incident.Accused Nos.1 and 2 have thus undergone three months imprisonment till date.Accused No.3 Ganesh has been in jail throughout and according to learned Counsel for the appellants, he has undergone an::: Uploaded on - 07/05/2018 ::: Downloaded on - 21/05/2018 04:31:13 ::: 26 Cri.Appeal 445/2001 & Anr.::: Uploaded on - 07/05/2018 ::: Downloaded on - 21/05/2018 04:31:13 :::imprisonment of more than 5 years.Looking to the age of the accused nos.1 and 2 and also in the light of the fact that the incident had occurred more than 17 years back, according to us the imprisonment of three months undergone by the accused nos.1 and 2 would subserve the interest of justice.We are quite conscious of the fact that the imprisonment of 3 months for an offence punishable under Section 304 (II) would be a fleabite sentence.The amount of fine imposed by the Trial Court needs to be enhanced and according to us, it would be appropriate if each of the accused should be asked to payment of fine of Rs.15,000/-, in default of which to undergo RI for 1 and ½ years."30) It appears to us that the course as was adopted by the Division Bench in the cited case can be conveniently adopted in the case in hand also.In the present matter also, the incident in question had occurred in the year 1995, and thus, 23 years have elapsed since the date of incident.He has no criminal antecedents.In the circumstances, we are inclined to accept the request of the accused to modify the sentence imposed upon him by the trial Court and to release him on the sentence of imprisonment already undergone.We reiterate that accused no.1 is not::: Uploaded on - 07/05/2018 ::: Downloaded on - 21/05/2018 04:31:13 ::: 27 Cri.Appeal 445/2001 & Anr.::: Uploaded on - 07/05/2018 ::: Downloaded on - 21/05/2018 04:31:13 :::habitual offender.The crime committed by the accused cannot be termed as heinous crime and since he was not involved in any anti social activities, prolonged confinement may not be required in the instant case.We are, however, of the opinion that the balance can be struck by adequately increasing the amount of fine which can be in turn directed to be paid to the widow of deceased Waman.The learned Trial Judge has imposed fine amount of Rs.15,000/- on the present accused.In the facts and circumstances of the case, we deem it appropriate to enhance the said amount to Rs.1,00,000/- (Rupee one lakh).The accused has already paid the fine amount of Rs.15,000/-.Thus, now he would be required to pay the balance amount of Rs.85,000/- (Rupees eighty five thousand)31) In the foregoing circumstances and for the reasons stated above, following order is passed:Criminal Appeal No.445/2001 filed by the State is dismissed.Criminal Appeal No.340/2001 is partly allowed as under:-::: Uploaded on - 07/05/2018 ::: Downloaded on - 21/05/2018 04:31:13 :::::: Uploaded on - 07/05/2018 ::: Downloaded on - 21/05/2018 04:31:13 :::Fine amount, if paid by the appellant, the same be paid to the widow of deceased Waman, and if she is not surviving, to the surviving legal heirs of deceased Waman.The trial Court shall, after deposit of the fine amount, issue notice to the widow of deceased Waman or, the legal heir(s) of deceased Waman, as the case may be, and to ensure that the amount of fine is expeditiously remitted to them.::: Uploaded on - 07/05/2018 ::: Downloaded on - 21/05/2018 04:31:13 :::

['Section 304 in The Indian Penal Code', 'Section 302 in The Indian Penal Code', 'Section 34 in The Indian Penal Code', 'Section 299 in The Indian Penal Code']

Heard learned counsel for the applicant, learned AGA for the State and perused the material on record.By means of this application, the applicant who is involved in case crime no.64 of 2019, under Sections 363, 366, 342, and 376 IPC, P.S. Lalapur, District Prayagraj is seeking enlargement on bail during the trial.Learned counsel for the applicant submitted that the applicant has enticed away the victim.Submission made by learned counsel that both the parties has jotted down the marriage agreement dated 10.04.2019 signed by both of them.She remained in the company of applicant about fortnight.Learned counsel for the applicant submitted that the victim has roamed around for 10-12 days with the applicant, which clearly shows that the applicant is a consenting party.He lastly submitted that the applicant is in jail since 27.04.2019 is entitled to be enlarged on bail during the pendency of trial.Per contra learned AGA opposed the prayer for bail but could not dispute the aforementioned facts.Considering the submissions made by learned counsel for the applicant as well as learned AGA and without expressing any opinion on the merits of the case, I find it to be a fit case for bail.In view of the above, let the applicant- Pradeep Kumar Bharatiya be released on bail on his executing a personal bond and furnishing two sureties each in the like amount to the satisfaction of the court concerned in case crime no.64 of 2019, under Sections 363, 366, 342, and 376 IPC, P.S. Lalapur, District Prayagraj with the following conditions:-(i) THE APPLICANT/APPLICANTS SHALL FILE AN UNDERTAKING TO THE EFFECT THAT THEY SHALL NOT SEEK ANY ADJOURNMENT ON THE DATE FIXED FOR EVIDENCE WHEN THE WITNESSES ARE PRESENT IN COURT.IN CASE OF DEFAULT OF THIS CONDITION, IT SHALL BE OPEN FOR THE TRIAL COURT TO TREAT IT AS ABUSE OF LIBERTY OF BAIL AND PASS ORDERS IN ACCORDANCE WITH LAW.(ii) THE APPLICANT/APPLICANTS SHALL REMAIN PRESENT BEFORE THE TRIAL COURT ON EACH DATE FIXED, EITHER PERSONALLY OR THROUGH THEIR COUNSEL.IN CASE OF THEIR ABSENCE , WITHOUT SUFFICIENT CAUSE, THE TRIAL COURT MAY PROCEED AGAINST THEM UNDER SECTION 229-A IPC.(iii) IN CASE, THE APPLICANT/APPLICANTS MISUSE THE LIBERTY OF BAIL DURING TRIAL AND IN ORDER TO SECURE THEIR PRESENCE PROCLAMATION UNDER SECTION 82 CR.P.C., MAY BE ISSUED AND IF APPLICANTS FAIL TO APPEAR BEFORE THE COURT ON THE DATE FIXED IN SUCH PROCLAMATION, THEN, THE TRIAL COURT SHALL INITIATE PROCEEDINGS AGAINST THEM, IN ACCORDANCE WITH LAW, UNDER SECTION 174-A IPC.(iv) THE APPLICANT/APPLICANTS SHALL REMAIN PRESENT, IN PERSON, BEFORE THE TRIAL COURT ON DATES FIXED FOR (1) OPENING OF THE CASE, (2) FRAMING OF CHARGE AND (3) RECORDING OF STATEMENT UNDER SECTION 313 CR.P.C. IF IN THE OPINION OF THE TRIAL COURT ABSENCE OF THE APPLICANTS ARE DELIBERATE OR WITHOUT SUFFICIENT CAUSE, THEN IT SHALL BE OPEN FOR THE TRIAL COURT TO TREAT SUCH DEFAULT AS ABUSE OF LIBERTY OF BAIL AND PROCEED AGAINST THEM IN ACCORDANCE WITH LAW.

['Section 376 in The Indian Penal Code', 'Section 342 in The Indian Penal Code', 'Section 363 in The Indian Penal Code', 'Section 366 in The Indian Penal Code']

Heard the learned counsel for the parties.The applicants are apprehending their arrest in connection with Crime No.62/2019 registered at Police Station Gohad, District Bhind for the offences punishable under Sections 147, 148, 294, 323, 326 read with 149 of the IPC.Learned counsel for the applicant submits that the main allegation is on Rishi Singh, who caused injury to the injured Surendra with a farsa and as per Citi Scan report, Surendra sustained fracture in left parital bone and left temporal bone.Present applicants have been falsely implicated.Under these circumstances they pray for anticipatory bail.Learned Public Prosecutor for the State opposes the application.Keeping in view the submissions made by learned counsel for the parties and the facts and circumstances of the case, I am of the view that this is a fit case for grant of anticipatory bail to the applicants.Consequently this application of applicant under Section 438, Cr.P.C. is hereby allowed.It is directed that in the event of arrest, the present applicants shall be released on anticipatory bail on each of them furnishing a personal bond in the sum of Rs.50,000/- (Rupees fifty thousand only) with two solvent sureties of the like amount to the satisfaction of the Arresting Authority.The applicants shall appear before the Investigating Officer on or before 18th June, 2019 and on such other dates fixed by him and shall also cooperate in the investigation.The applicants shall make themselves available for interrogation by a police officer as and when required.He shall further 2 MCRC-22455-2019 abide by the other conditions enumerated in sub-Section (2) of Section 438 of Cr.P.C.Certified copy as per rules.(VIVEK AGARWAL) V. JUDGE ALOK KUMAR 2019.06.04 11:28:49 AKS +05'30'

['Section 438 in The Indian Penal Code']

Criminal appeal No. 2199/03 has been filed by the appellant / accused Sunil Kumar Dubey, challenging his conviction for the offence punishable under Sections 302, 304-B and 498-A of IPC, by the impugned judgment, by which, learned Trial Court has sentenced him to undergo RI for life for offence punishable under Section 302 IPC; RI for 10 years for offence punishable under Section 304-B IPC and RI for 3 years for offence-2- Cri.A.2199/03 & 690/04 punishable under Section 498-A IPC.While, criminal appeal no. 690/2004 has been filed by the State, challenging acquittal of the respondents / accused namely Ram Kishan Dubey, Sushil Kumar Dubey, Smt. Rajkumari Dubey and Smt. Sunita Gautam, from the aforesaid charges.Being aggrieved by the impugned judgment, appellant Sunil Kumar Dubey has filed criminal appeal no. 2199/03, challenging his conviction on the ground that the learned Trial Court is not justified in convicting him, overlooking unreliable evidence of prosecution.There was no evidence available on record relating to demand of any dowry.Criminal appeal no. 690/04 has been filed by the State against impugned judgment challenging finding of acquittal against the remaining accused persons on the ground that there were ample evidence available for demand of dowry on record, therefore, learned trial court is not justified in acquitting them.Main point for consideration in both these appeals is as to whether the learned Trial Court is justified in passing the impugned judgment, by which, appellant Sunil Kumar Dubey has been convicted and other accused have been acquitted.-3- Cri.A.2199/03 & 690/04There is no dispute as to the fact that deceased Shobha @ Premila was married to accused / appellant Sunil Kumar on 26.4.1995 and she died on 5.10.1997, due to burn injuries, which is an unnatural death, and therefore, we have to see that whether death of Shobha @ Premila was homicidal or it was "dowry death" and that, whether the deceased was ill- treated for fulfilling the demand of dowry by her husband or in-laws.Learned Trial Court has appreciated the evidence regarding death of dowry from Paragraphs 15 to 26 in the impugned judgment and considered each evidence regarding demand of dowry alleged, out of which, demand of colour T.V. had been told by the deceased to her mother, father and sisters when she came to her maternal house third time after her marriage, but appreciating the evidence, the learned Trial Court has rightly held that there is no evidence that she had talked to her in-laws and husband regarding demand of colour T.V. after giving dowry, at the time of her Court statement, between them.In no letter, the deceased has told that she had been harassed for fulfillment of demand of colour T.V., even husband Sunil never made demand of colour T.V. from her father-in-law.Sisters of the deceased have not mentioned the fact of ill-treatment for demand of colour T.V. in their statements Ex.D/3 & D/4 and Ku.Sushma (PW-6), who is sister of the deceased, has admitted that her sister never told her when she was beaten or abused for fulfillment of demand of colour T.V. Therefore, the learned Trial Court is justified in rejecting the allegation regarding demand of colour T. V. in dowry and harassing the deceased for fulfillment of said demand.Other alleged demands are that of demand of money of Rs.20,000/- for construction of house and demand of Rs.10,000/- after Sunil, husband of the deceased, became jobless.Out of which, Rs.10,000/- was paid for construction of house and Rs.5000/- was paid to the husband after he lost his job.Although, there are contradictions regarding demand of even-4- Cri.A.2199/03 & 690/04 amount and learned counsel for the appellant / accused has submitted that the demand of money for extending help in construction of the house and monetary help for livelihood cannot be termed as demand of dowry.In support of his contention, he has cited a judgment of Hon'ble Apex court passed in the matter of Appasaheb and another vs. State of Maharashtra (2007) 9 SCC 721, in which, it has been held that the demand made by the appellant / accused from the parents of the deceased (wife) to meet domestic expenses and for purchasing manure, cannot be said to be a demand of dowry.Since, essential ingredients of Section 304-B IPC viz. demand of dowry is not established, the conviction of the appellants under Section 304-B r/w.S. 34 IPC cannot be sustained.It has been further held that demand for money on account of some financial stringency or for meeting some urgent domestic expenses or for purchasing manure, cannot be termed as a demand of dowry.Therefore, even if, demand of Rs.10,000/- or Rs.5000/- was made by the parents of the appellant / accused from the deceased or her parents, for construction of the house or as monetary help to a jobless husband of their daughter, the said payment cannot be termed as a demand of dowry and further, after making such payment, there is no evidence that demand had been existing till the death of the deceased, has not been established.Therefore, in the absence of necessary ingredients of "demand of dowry", conviction of the appellant / husband Sunil for the offence under Sections 304-B and 498-A, IPC, is not sustainable and acquittal of other respondents / accused no. 1 to 4 in criminal appeal no. 690/04, is proper.So far as the death of deceased Shobha @ Premila is concerned, it is an admitted fact that Shobha @ Premila was living with her husband in the quarter which was allotted to her father-in-law and other members of the family were residing in separate house nearly 200 meters away from the quarter, in which, the deceased was living.Therefore, the learned TrialIn para 5 of his statement, he has confirmed that he was unable to mention the reason of death, therefore, he had preserved viscera and sent it for chemical examination.In cross-examination, he has further admitted that he had not examined density of blood of the deceased.He has stated that burn injuries found on the body of the deceased were post mortem but he has admitted in cross-examination that he had not preserved mucus from trachea, larynx and lungs and he had not conducted blood level test of the deceased.He has further admitted that he had not conducted any test for presence of carbon in blood, although he has stated that such test might be conducted by chemical examination but no blood was preserved for chemical examination which would reveal the presence of carbon particle in the blood.In fact, no examination has been made after conducting post mortem regarding injury sustained by the deceased whether they were post mortem or ante mortem, even chemical examination conducted by FSL, only mentions absence of poisonous substance in viscera.Therefore, other circumstances are to be seen.Learned counsel for the appellant / accused has drawn attention towards the statement of Dr. Subhash Pathak (PW-16), who has seen the-6- Cri.A.2199/03 & 690/04 spot as a Senior Scientist of FSL Team and on seeing spot, he has been stated that the quarter was having 3 rooms, out of which, doors of front were closed from inside at the time of incidence as told to him.He has found blackening in all 3 rooms of the quarter.He has also found pieces of burn cloths in kitchen and other two rooms and this is only possible when the victim moved in all 3 rooms while she caught fire.Police has not prepared any Panchnama regarding condition of the house when the police reached on spot whether the doors of the house were closed from inside or they were open.However, it is an admitted position that appellant Sunil Kumar Dubey was not present at the time of incident in the house.Further, statement of Dr. Subhash Pathak (PW-16) reveals that doors of front and backside were closed from inside and this fact might have gone against the Prosecution agency for implicating the accused persons for offence punishable under Section 302 IPC and further considering the fact that the father of the deceased is a Police Constable, Shivcharan (PW-1), a detailed spot map has either not been prepared or if prepared, it has not been produced, as the factum of closure of doors from inside, might have gone against the theory created by the prosecution agency.Learned Trial Judge has also created different story in para 47 of its judgment, in which, it has been held that the deceased might have been killed by putting pillow on her face or by pressing throat as tongue was found protruded which may be the result of strangulation.Although, the Judge can use experience of the life by considering the evidence of judgment but such experience does not include hypothetical inference.Where the Doctor has stated that the burn injuries were post mortem and failed to collect blood or fluid for confirming the same, Modi's Medical-7- Cri.A.2199/03 & 690/04 Jurisprudence and Toxicology (Ed.23,Page-595), mentions that in homicidal smothering, affected by the forcible application of the hand over the mouth and the nostrils, bruises and abrasions are often found on the lips and on the angles of the mouth, and alongside the nostrils.The inner mucosal surface of the lips may be found lacerated from pressure on the teeth.It further mentions that in case of suffocation, the lips are livid, and the tongue sometimes protruded.Bloody froth comes out of the mouth and the nostrils.Therefore, merely on the basis of protruded and in the absence of any mark of hypothecation it cannot be said that death of the deceased was result of hypothecation particularly when she was alone in the house and doors of the house were closed from inside and was removed in all 3 rooms of the house in burning condition.Learned Trial Court is not justified in holding that the death of the deceased was homicidal in the absence of any proper evidence either medical or circumstantial.The witnesses had seen the deceased cleaning the house in the morning and after sometime, fume was seen coming out from the house while she was inside.Therefore, the death of the deceased may be either accidental or suicidal but in the absence of any evidence regarding demand of dowry and further, in the absence of any evidence in quarrel between the deceased and her husband and further considering the fact that immediately before the incident, the deceased was seen cleaning her house in normal way, it cannot be said that death of the deceased was due to any abetment by her husband.The possibility of abetment for suicide is also not available from the evidence on record.Therefore, there is no evidence against the respondents no. 1 to 4 / accused in criminal appeal no. 690/04 regarding demand of dowry or harassment for dowry and also their presence at the time of incident where deceased was living in the house.Therefore, the acquittal of the respondents no. 1 to 4 in criminal appeal no. 690/04 is proper.A.2199/03 & 690/04 force in the appeal filed by the State against acquittal and learned Trial Court is justified in acquitting them.Therefore, criminal appeal no. 690/2004 filed by the State against the acquittal of the respondents no. 1 to 4 is hereby dismissed.According to Modi's Medical Jurisprudence and Toxicology, (Ed.23, Page-633) persons removed from houses destroyed by fire are often found dead from suffocation due to the inhalation of smoke, carbon monoxide and other irrespirable gases, which are the products of combustion.In such a case, burns found on the body are usually post- mortem.Therefore, it is also possible that after death of the victim, due to suffocation, burn injuries, which are result of continuous burning, may appear post-mortem in nature and the fact that tongue of the deceased was found protruded it is possible that victim might have died due to suffocation, entire damage caused by complete burning.Therefore, merely on the basis of the statement of Doctor that burn injuries were post- mortem, it cannot be held that her death was homicidal.Further, no chemical examination of viscera has been done for confirmation of presence of carbon particle or trachea, larynx or blood and above all, doors were found closed from inside, in which, deceased was found in burnt condition, therefore, it cannot be held that her death was homicidal.Thus, learned Trial Court is not justified in convicting the appellant Sunil Kumar Dubey for offence punishable under Section 302 IPC.Consequently, criminal appeal no. 2199/2003 filed by the appellant Sunil Kumar Dubey is allowed and impugned judgment of conviction and sentenced awarded by the Trial Court is set-aside and he is acquitted of the charges of offence punishable under Sections 302, 304-B and 498-A of IPC as no demand of dowry has been established from the evidence produced by the prosecution.The appellant is in jail; therefore, he is directed to be released from jail forthwith.-9- Cri.A.2199/03 & 690/04Criminal Appeal No.690/04 preferred by the State against the acquittal of the respondents, Ram Kishan, Sushil Kumar, Smt. Rajkumari and Smt. Sunita, is hereby dismissed.

['Section 304B in The Indian Penal Code', 'Section 302 in The Indian Penal Code', 'Section 498A in The Indian Penal Code', 'Section 34 in The Indian Penal Code']

ALLOWED md.CRM No. 5246 of 2018 In Re:- An application for anticipatory bail under section 438 of the Code of Criminal Procedure filed on 24.07.2018 in connection with Arambagh Police Station Case No.911 of 2017 dated 15.09.2017 under Sections 498A/307/406 of the Indian Penal Code and Sections 3 /4 of the Dowry Prohibition Act. ;And In Re:-Tarun Kabi ... Petitioner Mr. Tanmay Chowdhury, Advocate Mr. Tapas Kumar Ghosh, Advocate .. for the petitioner Mr. Aditishankar Chakraborty, Advocate Mr. Nirupam Dhali, Advocate .. for the State The petitioner seeks anticipatory bail in connection with Arambagh Police Station Case No.911 of 2017 dated 15.09.2017 under Sections 498A/307/406 of the Indian Penal Code and Sections 3 /4 of the Dowry Prohibition Act.The petitioner is the husband of the victim and has come up before this Court since the petitioner's prayer has been rejected by the Sessions Court while the other relatives have been granted anticipatory bail.The petition for anticipatory bail is allowed subject to the conditions as indicated above.A certified copy of this order be immediately made available to the petitioners subject to compliance with all requisite formalities.(Abhijit Gangopadhyay, J.) (Sanjib Banerjee, J. ) 2

['Section 498A in The Indian Penal Code', 'Section 406 in The Indian Penal Code', 'Section 307 in The Indian Penal Code']

Counter affidavit filed today on behalf of State is taken on record.Heard learned counsel for the revisionist and learned AGA for the State.The instant revision is filed under Section 102 of the Juvenile Justice (Care & Protection) Act challenging the order dated 24.01.2020 passed by Additional Sessions Judge, Court No. 15, Agra in Criminal (Juvenile) Appeal No. 2 of 2020 by which the appeal filed on behalf of the revisionist was dismissed and order dated 21.12.2019 passed by Principal Magistrate, Juvenile Justice Board, Agra in case crime no. 206 of 2019 under Sections 364, 302, 201, 120B IPC, P.S. Bah, District Agra, rejecting the bail application of the applicant.It is contended by learned counsel for the revisionist that the incident is of 27.03.2019 and the first information report was lodged on 6.7.2019 i.e. after more than three months, under Section 364 IPC against two named persons namely, Vijay and Smt. Sarvesh.It is further contended that accused was not named in the first information report and his name was surfaced in the statement of co-accused Vijay, in which he implicated the revisionist along with other co-accused namely Sainky, Chhatrapal and Smt. Sarvesh.It is further contended by learned counsel for the revisionist that the revisionist has falsely been implicated in the present case, he has no concern with the murder of the deceased.It is further contended that the age of the applicant is juvenile, aged about 16 years 10 months and 23 days on the date of the incident.The report of the DPRO, which is annexed as supplementary affidavit shows that the revisionist is quite normal child having no criminal antecedent nor his family having any chequered past.I have gone through the order impugned and there is no material on record to fall this case under Section 12 of the Juvenile Justice (Care & Protection) Act, 2000 which is quoted hereinbelow :-Bail of juvenile.(1) When any person accused of a bailable or non-bailable offence, and apparently a juvenile, is arrested or detained or appears or is brought before a Board, such person shall, notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974) or in any other law for the time being in force, be released on bail with or without surety 1[or placed under the supervision of a Probation Officer or under the care of any fit institution of fit person] but he shall not be so released if there appear reasonable grounds for believing that the release is likely to bring him into association with any known criminal or expose him to moral, physical or psychological danger or that his release would defeat the ends of justice.(3) When such person is not released on bail under sub-section (1) by the Board it shall, instead of committing him to prison, make an order sending him to an observation home or a place of safety for such period during the pendency of the inquiry regarding him as may be specified in the order."I have carefully seen the order impugned.As per Section 12(1) of Juvenile Justice Act, bail to the minor could be refused, they are:-(i) If there appear reasonable grounds for believing that the release is likely to bring him into association with any known criminal(ii) Or expose him to moral, physical or psychological danger.(iii) Or that his release would defeat the ends of justice.On a careful perusal of the order, their is not even a whisper as to the case of applicant fall within either of the categories mentioned above.It appears that the learned Judge has over obsessed by the sections of IPC in which the applicant is entitled.Consequently the revision stands allowed.

['Section 364 in The Indian Penal Code', 'Section 120B in The Indian Penal Code', 'Section 201 in The Indian Penal Code', 'Section 302 in The Indian Penal Code']

The appellant Bajirao and his.JUDGMENT Hemeon, J.at Linga, Chhindwara tahsil; and during the trial charges under Sections 468 and 474 'ibid' were added against the appellant.In appeal, I held that the addition of the charges during the trial might have been prejudicial to the appellant and quashed the convictions and sentences.The State Government, Madhya Pradesh, thereafter moved the Additional Sessions Judge, Chhindwara, to file a complaint against the appellant under sections 468 and 474 of the Indian Penal Code.The objections raised by the appellant were overruled and the Additional Sessions Judge, Chhindwara, directed a complaint to be filed against him.under those sections in a competent Court.The appellant has now come up in appeal against that order.The case against him was, briefly stated, to the effect that the appellant being covetous of Kishan's valuable field, forged with the help of others a sale deed (articles K-1 to K-4), dated.the 25th December 1950, purporting to have been executed by Kishan, had it registered and retained it.Kishan heard a rumour of this and made inquiries from the appellant who assured him that there was no truth in the rumour.The appellant then being apprehensive that the matter would eventually come to light killed Kishan and threw his body into a river.

['Section 468 in The Indian Penal Code', 'Section 302 in The Indian Penal Code', 'Section 471 in The Indian Penal Code']

The prosecution case, in short, is that the prosecutrix (PW-1) was a student, who was working in the house of one Rekwar Sahab resident of Housing Board Colony, Damoh in the evening hours.On 31.10.2008 when the prosecutrix was coming back from the house of Rekwar and she reached near the culvert by the Housing Board Irrigation Colony, the appellant and his companions 2 Cr.A. No.2959/2011 detained her.The appellant held here hands and dragged her in a gutter near the culvert.The appellant administered some liquor to the prosecutrix and thereafter he did rape with the prosecutrix.At the time of incident the companions of the appellant were teasing the prosecutrix by moving their hands on her body.Thereafter the prosecutrix was left to the spot and she became unconscious.When she gained consciousness, she went to her house and informed about the incident to her mother Tulsa Bai (PW-3), one Bhagwati (PW-4) and others.She was taken to the Kotwali Police Station, Damoh where she had lodged an FIR Ex.P-1 on the same day at about 12:05 AM in the night.She was sent for her medico legal examination in the night itself.Dr. Shraddha Gangele (PW-8) examined her and gave a report Ex.She found that blood was oozing from the vagina of the prosecutrix and after cleaning one small abrasion was found on the exterior part of the vagina.Dr. Shraddha Gangele took yellow salwar of the prosecutrix and also prepared two slides of vaginal swab and such articles were handed over to the concerned lady constable.After due investigation, a charge sheet was filed before the CJM Damoh, who committed the case to the Special Court under SC/ST (Prevention of Atrocities) Act (hereinafter referred to as "Special Act").2 Cr.A. No.2959/20113 Cr.A. No.2959/2011The appellant abjured his guilt.He did not take any specific plea.He has stated that he was falsely implicated in the matter.However, no defence evidence was adduced.appellant from the charge of Section 3(2)(v) of the Special Act, but convicted the appellant for the offence under Sections 376(2)(g) and 506 (Part-II) of IPC and sentenced him as mentioned above.The co-accused Neeraj Singh was also acquitted by the trial Court, because his identification could not be established by the prosecution.I have heard the learned counsel for the parties.The learned counsel for the appellant has submitted that the testimony of the prosecutrix was not trustworthy and therefore no offence was made out against the appellant.4 Cr.A. No.2959/2011In the present case, the prosecutrix (PW-1), Kanchan (PW-2) sister of the prosecutrix and Tulsa Bai (PW-3) mother of the prosecutrix were examined about the age of the prosecutrix and they had shown that the prosecutrix was 13-14 years old at the time of incident.5 Cr.A. No.2959/2011The prosecutrix has deposed that her age was 13 years at the time of incident and she was not cross examined for the assessment of her age.Similarly, no cross examination was done to the witnesses Kanchan, sister of the prosecutrix and Tulsa Bai, mother of the prosecutrix about the age of the prosecutrix.Under such circumstances, it was established that the prosecutrix was below 16 years of age at the time of incident.6 Cr.A. No.2959/20116 Cr.A. No.2959/2011The prosecutrix (PW-1), Kanchan (PW-2) and Tulsa Bai (PW-3) have stated that the prosecutrix went to work in the house of Rekwar Sahab and she was expected to come back upto 6:30 PM in the evening.When she did not come back, Kanchan and Tulsa Bai etc. started searching the prosecutrix and when they came back to the house, they found that the prosecutrix had already reached the house and she told the entire story as to how the appellant committed rape upon her.Bhagwati (PW-4) was also examined to say that the prosecutrix informed her about the incident, however she turned partly hostile and did not corroborate the story of the prosecutrix.The learned counsel for the appellant has pointed out the various contradictions in the statements of witnesses Kanchan, Tulsa Bai and the prosecutrix and also their evidence with the FIR.However, such are the minor contradictions and by such minor contradictions, the testimony of the prosecutrix cannot be thrown away.For example, time of leaving the house of Rekwar and time when the victim reached her house.If the prosecutrix left the house of Rekwar at about 6:30 PM and she was administered some liquor or intoxicant, then certainly the family members of the prosecutrix could not search her.She was unconscious near the culvert.It is true that Dr. Shraddha Gangele (PW-8) did not find any smell of liquor 7 Cr.A. No.2959/2011 from the mouth of the prosecutrix, but it would be apparent that the liquor was given to the prosecutrix at about 7:00 PM in the evening and she was examined by Dr. Shraddha Gangele at 2:30 AM in the night.Smell of liquor could be in the mouth of the prosecutrix according to the quantity of liquor and the time before which the liquor was administered.Hence, it cannot be said that the testimony of the prosecutrix was incorrect.7 Cr.A. No.2959/2011However, if it is supposed that the prosecutrix was not administered with any liquor, then it was for the appellant to prove that she was a consenting party and looking to her age if she was a consenting party, then still crime under Section 376 of IPC would constitute against the appellant because she had not given any consent for such an intercourse.Similarly, the prosecutrix has accepted that she sustained some injuries due to thorns lying on the earth, but she did not say about other injuries.When Dr. Shraddha Gangele (PW-8) examined the prosecutrix, she could not find any injury caused by thorn unless the prosecutrix would have invited her attention to those injuries.The prosecutrix appears not to be a literate girl and it was not expected from her to invite attention to the doctor to such minor injuries, and simply because Dr. Shraddha Gangele did not find any injury of thorn, the testimony of the prosecutrix cannot be thrown away.8 Cr.A. No.2959/20118 Cr.A. No.2959/2011The most important fact is that the appellant was known to the prosecutrix and the prosecutrix has stated that the appellant and his companions were chasing her from time to time.No enmity was shown by the appellant with the prosecutrix so that she would have lodged a false FIR against the appellant.So far as gang rape is concerned, in this connection the testimony of the prosecutrix cannot be believed because she named three persons to be companions of the appellant Shankar.Out of them she 9 Cr.A. No.2959/2011 mentioned the name of c-accused Neeraj Singh in the FIR but thereafter she sent a letter to the SP concerned that Neeraj Singh was not companion of the appellant Shankar, and therefore the trial Court acquitted the Neeraj Singh co- accused of the appellant.The police could not search the remaining two companions of the appellant.The allegations made by the prosecutrix against the companions of the appellant appear to be unnatural.If the appellant was with other three companions at the time of incident and the other companions were moving their hands on the body of the prosecutrix when the appellant was committing rape, then looking to the mental and physical position of the prosecutrix, the remaining alleged accused could not be prevented to commit rape upon the prosecutrix.If they were interested to move their hands on the body of the prosecutrix, then it was not possible for them to leave the prosecutrix when the appellant Shankar left the prosecutrix.10 Cr.A. No.2959/201111 Cr.A. No.2959/201113 Cr.A. No.2959/2011 The sentence of the appellant may be reduced to the jail sentence of seven years' RI and for reducing the sentence from the minimum limit there should be a strong reason.The appellant is in jail continuously since he was arrested.13 Cr.A. No.2959/2011On the basis of the aforesaid discussion, the present appeal filed by the appellant can be partly accepted.(N.K.Gupta) Judge 25/3/2014 Ansari

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

ORDER Palok Basu, J.In this transfer application under Section 407, Cr.P.C. a short question arises to decide which the necessary factual background needs to be mentioned.There is a shop known as Janta Kendriya Upbhokta Sahkari Bhandar Ltd. situated in Rudrapur, district Deoria, Ram Nazar Tiwari, applicant was allegedly the salesman in the said Bhandar and one Gaya Prasad Dwivedi was said to be the Secretary.On 16-2-1988 an F.I.R. was lodged by the applicant against Gaya Prasad Dwivedi which gave rise to the case Crime No. 444 of 1990 of Police Station-Rudrapur.After investigation the police has admittedly filed a charge sheet under Section 380, I.P.C. against Gaya Prasad Dwivedi which is now pending in the court of I Judicial Magistrate, Deoria.Another F.I.R. has been lodged by Gaya Prasad Dwivedi through the Co-operative Cell at Gorakhpur under Section 409, I.P.C. against Ram Nazar Tiwari, applicant.The controversy is as to whether the two cases which admittedly relate to the goods belonging to the said Bhandar should be tried together by the same court or not.Sri R.B. Tripathi, learned counsel for the applicant stressed that since all the witnesses even in the case instituted at Gorakhpur belonged to Deoria, the place of incident also happens to be Rudrapur situated in the district of Deoria and that the allegations pertain to the district Deoria, interest of justice requires that two trials should be held in Deoria.Sri Surendra Singh, learned A.G.A. for the State, however, stated that since the Gorakhpur F.I.R. was properly investigated by the Co-operative Cell has jurisdiction to institute the charge-sheet in Gorakhpur, the said trial should remain in Gorakhpur.The C.J.M. Deoria is directed to try the two cases referred to above himself or direct both of them to be tried by a competent court.

['Section 409 in The Indian Penal Code']

This case discloses a lamentable state of affairs.A tale of woe has unfolded itself revealing how the principal characters who are high ranking police officials in charge of the District of Coimbatore in the matter of enforcement of law discharge their sacred duty in a cavalier fashion with a deep sense of irresponsibility and an obdurate disinclination to see the obvious ever ready to take shelter under the slogan 'it is a Civil dispute'.Here are the facts which bear out the remarks made above.The gist of the complaint is as follows :-"Grave injustice has been done to the petitioner and her family by Coimbatore Police Officers Thiru Muthuswamy, D.S.P., Thiru Nazimuddin and Thiru Madhavan B-3 Police Station Inspectors.On the basis of a false complaint made by Balasubramanian of Baba Theatre, the petitioner's husband" was arrested on 19-2-1989 in spite of anticipatory bail having been obtained by him in the High Court and was kept in the Police Station for a day and a half and ill-treated and thereafter confined in the Central Jail, Coimbatore.On 21-2-1989 when the petitioner was in her sister-in-law's place in Chittalancherry, Palghat Taluk, the petitioner and her sister-in-law were arrested by Coimbatore Inspector Thiru Madhavan and other Police people who came along with Baba Complex Bala-subramanian, Coimbatore D.M.K. leader Thiru Prabhakaran and they were taken to a dingy house in the outskirts of Coimbatore in garden, where they were illtreated and their signatures obtained on blank papers.Thereafter, on 24-2-1989 at 3 a.m. they were taken to B-3 Police Station, Coimbatore and the office of the D.S.P., Coimbatore and illtreated 23-2-1989 evening the petitioner's husband was brought to B-3 Police Station and all of them were taken to the office of the D.S.P. and under threat they were "compelled to sign an agreement for sale in favour of Rangasamy, an employee of Baba Theatre and Murugesa Gounder, a creditor of the petitioner's husband, for a sum of Rs. 9,00,000/- as if they had received a sum of Rs. 7,50,000/- in cash.The petitioner had filed C.S. No. 175 of 1989 in this Court that the agreement was not valid.As there was danger to the property and life of the petitioner, she could not go to Coimbatore and she was staying in Madras.On 4-3-1989 in the night, a Police party along with an army of goondas went to the petitioner's house and found the relatives and servants of the petitioner and removed them along with all the articles in the house without any exception in a van and 4 or 5 lorries.Thereafter, Balasubramanian and goondas occupied the house.The petitioner has got documentary evidence to prove the same and desired to meet the addressee in person and place the evidence before him.There is danger to the life of the petitioner, her husband and her son and there is a threat that the entire family will be wiped off.As big police officials are threatening the petitioner and her family, they have taken refuge under the addressee.The petitioner does not believe anybody else and prays for protection for herself and her family.The petitioner or her husband is not in a position to go to Coimbatore and file any proceeding in Court as there is no protection for them in Coimbatore.The second respondent is Director General of Police, Tamil Nadu.The third respondent is the D.I.G. of Police, Coimbatore.Respondents 4 to 6 are the parties at whose instance, according to the petitioner, the police committed the atrocities mentioned in her complaint.Respondents 7 to 9 are the Deputy Superintendent of Police, Coimbatore and Sub-Inspector of Police, B-3 Police Station, Coimbatore, respectively.Another telegram was sent to the second respondent.He in turn forwarded it to the Deputy Superintendent of Police who sent it to the Inspector, B-2, Police Station for enquiry and report.On the back of the telegram, there is an endorsement that a report was submitted after compliance.Obviously, no action was taken thereon, as the earlier telegram addressed to the third respondent had been forwarded to the Superintendent of Police.The second respondent sent a communication to the third respondent on 10-5-1989 with the complaint given by the petitioner to the Chief Ministry of the State, requiring him to enquire immediately and send a report within five days.There was a warning that even if there was a delay by one day, action would be taken against the persons concerned.That was received by the third respondent on 15-5-1989, and forwarded to the Superintendent of Police on 18-5-1989 calling for a report before 21-5-1989 without fail.There were reminders by the third respondent to the Superintendent of Police on 24-5-1989 and 30-5-1989 requiring him to send his report immediately in order that a report may be sent to the CM Cell.The petitioner had given a complaint on 15-3-1989 to the Inspector General of Police, Madras, containing the same allegations as found in the complaint dated 27-3-1989 made to the third respondent.In fact, the petitioner's husband has referred to the same in paragraph 6 of his affidavit filed in support of the writ petition.As per the report, the statement of the petitioner could not be recorded as she was not available at Coimbatore and confidential enquiry revealed the following facts :-P. K. Unni was residing at Door No. 55, S.R.P. Nagar, Coimbatore.He was a film producer having his office at No. 17, 3rd Street, Habibullah Road, Madras.He had taken loan from Balasubramaniam, Managing Director, Baba Films, Coimbatore" and K. Murugesan, Managing Partner, M/s. Murugesan Enterprises, Financiers and Exhibitors, Coimbatore and also from Thiru.Velavendan, Ex.-Minister, Madras and producing films.Subsequently neither he produced the films nor return the loans to the above parties.On 31-1-89 at 18.15 hrs.a case in B-3 Kattoor P.S. Cr. No. 219/89 under section 420, I.P.C. was registered on the complaint preferred by Balasubramaniam, Managing Director, Sri Baba Films, No. 1 Gopalapuram 2nd Street, CBE, by sub-Inspector Thiru.Subramaniam B-3 Crimes.On 20-2-89 at 05.30 hrs.at 55 S. R. P. Nagar, Coimbatore the said Unni was arrested by Tr.Ramamoorthy, Sub-Inspector of Police B-3 Crime and he was remanded to judicial custody on the same day.It is true that the said P. K. Unni obtained an anticipatory bail in the High Court, Madras on 2-1-89 for the case in Cr. No. not known of 1989 on the file of Inspector B-2 Police Station, Coimbatore."On 20-2-89 at 22.00 hrs.on the complaint of Balasubramaniam M. D. Sri.Baba Films, Coimbatore against P. K. Unni, his son Dileesh and Seethalakshmi and 2 others, a case in B-3 Kattoor P.S. Cr. No. 327/89 under section 342, 347, 364, 365, I.P.C. was registered for abducting the Accountant Remanathan on 19-2-89 in the Car when Balasubramaniam and Ramanathan, the Accountant approached Unni and his family members to settle the issue on the request made by Unni over phone.On 21-2-89, S.I. Tr. A. K. Madhavan of B-3 Kattoor Law and Order Police Station with PC 991 Muthu and W.P.C. 1804 Rejeswari and 1714 Jayadevi visited Citalanjeri, Palghat district and brought Seethalakshmi, her sister-in-law Kalyani to B-3 Kattoor P.S. at 16.00 hrs."During the enquiry it reveals that it is a civil dispute about the money transaction.Hence D.S.P. advised the parties to settle the issues either among themselves or in the Court of law.They effected a compromise among themselves in the presence of lawyers representing all the parties and a deed was executed.As such no further action need to be taken on the petition.The Range Office original references are retransmitted herewith."Enquiry reveals that the petitioner is having her own house at Dr. No. 55, S.R.P. Nagar, Coimbatore which is in "R. S. Puram P.S. limits.It is not the case of respondents 4 to 6 in C.S. No. 175 of 1989 in which they are defendants 1 to 3 that there was any panchayat or compromise as a result of which an agreement for sale was entered into by the petitioner herein, who is the plaintiff in that suit.According to them, possession was with respondents 4 and 5 from 24-2-1989 when a portion of the house was delivered by the petitioner and from 26-2-1989 when the rest of the house was delivered to them.That fact itself should have put them on the trail and they should have continued the investigation.Stranger is the statement found in the last report dated 21-6-1989 that the petitioner was not available at Madras and her whereabouts were not known.She filed an application in the High Court to appoint an advocate Commissioner to take an inventory of the articles in her house at Coimbatore, lock the house and deposit the key in the Court.On 3-3-1989 Thiru Haja Naziruddin was appointed as Commissioner by the Madras High Court to take an inventory of the articles in the house and to find out who was in possession of the same.On 4-3-1989, the Commissioner inspected the house in the morning and took an inventory of all the articles and also noted that the petitioner's son and other relatives were in the house.He filed a report in the High Court to that "effect.The petitioner prays for return of all "the articles taken away by Balasubramanian, the police party and the army of goondas from their house on 4-3-1989".That was followed by a personal meeting of the petitioner's counsel with the third respondent and a copy of the same complaint was also handed over to him.There being no information or indication of the action taken on the complaint, the petitioner's counsel sent a letter on 7-6-1989 to the third respondent that he had no information of the action taken by the latter and requested him to cause the furnishing of the file number of the case etc. There was also a hint in the letter that the writ Court will be moved, if needed.But, the petitioner continued to be kept in dark without any information of the action taken on her complaint.Hence, the petitioner was obliged to move this Court under Art. 226 of the Constitution of India with a prayer for issue of a Mandamus to the second respondent to initiate at once appropriate enquiry and investigation into the complaint of the petitioner against respondents 4 to 9 as contained in the written complaint dated 27-3-1989 submitted to the third respondent annexed as Annexure A to the writ petition.The first respondent in the writ petition is the State of Tamil Nadu represented by the Chief Secretary to the Government.Notice of motion was ordered on 21-6-1989 returnable in two weeks.The other respondents entered appearance shortly thereafter.He felt that the matter should be heard by me as I had dealt with the civil dispute between the petitioner on the one hand and respondents 4 to 6 on the other, on the original side and as a contempt application was pending before me relating to the same matter.At his instance, the papers were placed before the Officiating Chief Justice who directed the writ petition to be posted before me with the contempt matter.However, I had to adjourn the matter to another date to enable the writ petitioner to file a supplemental affidavit explaining an omission in the affidavit filed in support of the writ petition.In spite of the fact that appearance had been entered in the writ petition as early as on 28-6-1989 by respondents 2 and 3, neither of them gave any serious thought to this proceeding under Art. 226 of the Constitution of India relating to an indictment made against some senior Police officials of Coimbatore.It is stated therein that on 15-3-1989 a complaint in writing was submitted to an Inspector General of Police, one Mr. Dorairaj who was later met by the deponent's counsel and who asked the counsel to go to Coimbatore and meet the third respondent personally.The complaint handed over to the Inspector General of Police, Madras, was forwarded to the third respondent, who sent it to the Superintendent of Police on 10-4-1989 calling for a report from the latter.Thus, the Superintendent of Police had with him the telegraphic complaint as well as the written complaint given to the Inspector General of Police, Madras, and the complaint addressed to the Chief Minister of the State.On 21-2-89, Dileesh Kumar, s/o.Unni also came to B-3 Kattoor P.S. by that time.Then the Sub-Inspector questioned them and sent them out subsequently.On 23-2-89 Tr. K. K. Muthusamy, D.S.P., L&O enquired into the matter on the petition given by Balasubramaniam and Murugesan with Unni and others.The commissioner Tr.Khaja Nizirudeen appointed by the High Court, Madras visited the place on 4-3-89 and he would have submitted a report to the High Court.The agreement was prepared and accepted by both the parties will-fully and there is no foul play.Further a civil suit is also pending in the High Court over the issue.The third respondent was not satisfied with the report.He returned it to the Superintendent of Police immediately with the following endorsement dated 1-6-1989 :-"Retd.(i) The S.P. will send for the petitioner, examine her and record her statement as told by her.(ii) He will also examine other connected persons.(iii) He must also go through the records/ documents if any in this episode (relating to dispute between the petitioner and one Baba complex.(iv) Pl."Inspector of Police, Bs (L&O) P.S. conducted an enquiry on the allegations made in this telegram.Cases have been registered against the petitioner and her husband both in B-3 L&O and crime Police Stations.It is learnt that the petitioner's husband owed some lakhs of rupees to the counter petitioners, Balu and Murugesa Gounder, for which a Panchayat was held.Then the petitioner herself vacated the premises and gave it for the counter-petitioner's possession.Subsequently, on consulting her advocates, she sent up this telegram, alleging that her mother and servants were forcibly evicted from her residence.Now this dispute is pending in the High Court, Madras.Under these circumstances this telegram needs no further action."Thus, on 10-6-1989, the Superintendent of Police, Coimbatore, had with him not only the records previously sent to him but also the letter of petitioner's counsel dated 7-6-1989 and the documents enclosed therewith.It is necessary to point out here that the following documents were enclosed with the petitioner's counsel's letter dated 7-6-1989 :-Copy of report and list filed by advocate Commissioner.Copy of High Court judgment in application for redelivery of house.Detailed list of articles and statement of value.The receipt of these documents cannot be disputed as they are found among the records produced by the third respondent before this Court.It should also be mentioned at this stage that on 29-4-1989 the advocate Commissioner appointed by me to redeliver possession of the house to the petitioner with the aid of the police had approached the Superintendent of Police, Coimbatore with a request to depute personnel to help him in taking possession of the house and delivering it to the petitioner.The Superintendent of Police had instructed the Deputy Superintendent of Police to do the needful and directed the advocate-Commissioner to meet the Deputy Superintendent of Police, who is the 7th respondent herein.The 7th respondent deputed one Inspector by name Mr. Chinnasamy from the Control Room and seven constables.What happened thereafter is not relevant for the purpose of this case.On 12-6-1989, the third respondent called upon the Superintendent of Police to expedite his report immediately as an urgent report to CM's Cell was being held up.In reply thereto, the Superintendent of Police informed the third respondent by communication dated 15-6-1989 which was received by the third respondent on 19-6-1989 that a Sub-Inspector of Police from District Special Branch, Coimbatore Urban had been directed to Madras to obtain a written statement from the petitioner herein and on receipt of the same, the report will be sent to the third respondent shortly.On 21-6-1989, the following report is sent by the Superintendent of Police to the third respondent and received by him on 22-6-1989 :-"The petitioner Smt. Seethalakshmi is not available at Madras in the address, furnished by her in the petition.Since this is a civil dispute petitioner has to seek remedy through the Court only.In these circumstances it is opined that no further action needs to be taken on this petition."On the basis of the said report, the third respondent sent a report to the second respondent, the relevant portion of which reads as follows :-"This petition was enquired into by the Inspector District Special Branch, CBE Urban.The petitioner's husband Tr.Unni has been arrested on 20-2-89 and sent for judicial custody on the same day on a complaint preferred by the CP.Balasubramaniam "dealt in B-3 Kattur PS Cr.No. 219/89 under section 420 I.P.C. On 21-2-89, on another complaint of abduction preferred by the CP dealt in B-3 Kattur PS Cr. No. 327/89, under section 342, 347, 364, 365, I.P.C., the petitioner her son and sister-in-law have been arrested and let off subsequently.On 23-2-89, as per the advise of the DSP-City L&O both the parties effected a compromise among themselves in the presence of lawyers representing all the parties and a deed was executed.Records produced before me do not disclose the names of the persons who were enquired and whether any statement was recorded from any person by the Inspector who is supposed to have held the enquiry.The enquiry is described as confidential in one place and discreet in another place.The enquiry was not held with a view to find out the truths.But, it was done with a view to submit a report on the lines drawn already.While the report dated 4-6-1989 states that the petitioner herself vacated the premises and gave it to the counter petitioners' possession pursuant to a panchayat, the report dated 27-5-1989 contained the version that a compromise was effected in the presence of lawyers representing all the parties and a deed was executed, but strangely Balasubramanian took possession of the house on 4-3-1989 night after the advocate-Commissioner visited the place and took an inventory of the articles found in the house.As pointed out already, the third respondent as well as the Superintendent of Police had with them the letter of the petitioner's counsel dated 7-6-1989, which displayed his phone number.The easiest thing for them was to have contacted the petitioner's counsel by phone and ascertained the whereabouts of the petitioner.It should be noted that this writ petition was filed on 21-6-1989, the date borne by the last report of the Superintendent of Police, Coimbatore.The report dated 27-5-1989 admits the factum of anticipatory bail obtained by the petitioner's husband.Secondly, the third respondent asserts categorically that the petitioner's husband was never arrested by the Sub-Inspector of Police, B-3 Police Station, Law and Order, i.e., the 9th respondent.The fact that the petitioner's husband was arrested by the Sub-Inspector of Police B-3 Police Station is admitted by respondents 8 and 9 in their counter-affidavits, though according to them the person who actually arrested him was not the 9th respondent but a Sub-Inspector who was temporarily in charge as respondents 8 and 9 had gone on leave on the relevant date.The third respondent may try to take shelter under a technicality that his statement pertained only to an arrest by the 9th respondent.It is not fair on the part of a high official like the third respondent to make an assertion that the petitioner's husband was never arrested by the Sub-Inspector of Police, B-3 Police Station when the records produced by him and the counter-affidavits filed by respondents 8 and 9 prove to the contrary.Learned Government Pleader appearing for respondents 1 to 3 contended that the complaint dated 27-3-1989 did not give full particulars of the persons who are said to have committed the offence.According to him, the names of the persons who formed the the police party or the army of goondas said to have accompanied the 6th respondent on the night of 4-3-1989 are not furnished in the complaint.The rule does not give a license to any party to a civil dispute to indulge in crimes.

['Section 173 in The Indian Penal Code', 'Section 365 in The Indian Penal Code', 'Section 342 in The Indian Penal Code', 'Section 364 in The Indian Penal Code', 'Section 420 in The Indian Penal Code', 'Section 190 in The Indian Penal Code']

Heard learned counsel for the applicants, learnedcounsel for the intervenor and learned APP for the State.In these applications, the applicants are seeking pre-arrest bail in crime No.261/2018 (FIR No.264/2018) for offencepunishable under sections 376, 406, 420, 504 and 506 read with34 of the Indian Penal Code registered with Wakad police station,Pune.Taking undue advantage of social status of Nikita, it isclaimed that applicant under false promise of marriage andproviding financial support for further education, establishedphysical relations with her.The allegation is also that applicant ::: Uploaded on - 31/01/2019 ::: Downloaded on - 31/01/2019 22:33:17 ::: 3 29) aba1787-18.docAmit has received an amount of Rs.40 lakhs from father ofcomplainant with an promise to pay it to her being her share inancestral property.::: Uploaded on - 31/01/2019 ::: Downloaded on - 31/01/2019 22:33:17 :::So far as other two applicants, namely Avinash andYogesh are concerned, the allegations against them are restrictedonly to the extent of threatening the complainant Nikita, and toact in aid of the main accused Amit.Mundargi would then urge thatthe allegation of receipt of Rs.40 lakhs are not supported by anydocumentary evidence.He would then urge that the applicant isvery much available for investigation and as such, custodialinterrogation is not warranted.::: Uploaded on - 31/01/2019 ::: Downloaded on - 31/01/2019 22:33:17 :::::: Uploaded on - 31/01/2019 ::: Downloaded on - 31/01/2019 22:33:17 :::4 29)So far as the other applicants, namely Yogesh VishnuGaikwad in Anticipatory Bail Application No.1802 of 2018 andAvinash Shripati Kamble in Anticipatory Bail Application No.1787of 2018 are concerned, according to them, the only allegations areof abetment.9. Learned APP has invited my attention to theinvestigation carried out till date and would submit that theconduct of the applicants as is narrated in the F.I.R., which can beinferred from the evidence collected during the course ofinvestigation, speaks of very character of the applicants.It isfurther pointed out that father-in-law of applicant Amit has soldthe ancestral property and handed him part of the consideration tobe paid to complainant which claim to have been misappropriatedby the applicant Amit.Same needs to be recovered from theapplicant Amit.As such, it is claimed that custodial interrogationof all the three applicants is warranted and pray for rejection oftheir applications.Having considered the submissions, what is noticed is,so far as applicants Yogesh Vishnu Gaikwad and Avinash ShripatiKamble are concerned, there are no justifiable reasons on record, ::: Uploaded on - 31/01/2019 ::: Downloaded on - 31/01/2019 22:33:17 ::: 5 29) aba1787-18.docmuch less in the investigation papers, which warrant theircustodial interrogation particularly in absence of involvement incommission of offence punishable under section 376 of the IndianPenal Code.In view thereof, the applications of these applicants,namely Anticipatory Bail Application No.1802 of 2018 andAnticipatory Bail Application No.1787 of 2018 stand allowed onthe following conditions :-::: Uploaded on - 31/01/2019 ::: Downloaded on - 31/01/2019 22:33:17 :::i) In the event of arrest in Crime No.261/2018 (FIR No.264/2018) for offence punishable under sections 376, 406, 420, 504 and 506 read with 34 of the Indian Penal Code registered with Wakad police station, Pune, the applicants Yogesh Vishnu Gaikwad in Anticipatory Bail Application No.1802 of 2018 and Avinash Shripati Kamble in Anticipatory Bail Application No.1787 of 2018, be released on bail on their executing P.R. bonds of Rs.25,000/- each with one or two sureties each in the like amount;ii) The applicants shall attend the Investigating officer as and when directed;iii) The applicants shall not influence the prosecution witnesses or tamper with the evidence;::: Uploaded on - 31/01/2019 ::: Downloaded on - 31/01/2019 22:33:17 :::::: Uploaded on - 31/01/2019 ::: Downloaded on - 31/01/2019 22:33:17 :::The oral statement of the wife of the applicant and thestatement of father-in-law and that of complainant in voluminousterms justify the claim put forth by the complainant Nikita.The Anticipatory Bail Application No.1125 of 2018 ofthe applicant Amit Baban Kale is rejected.Mundargi, at this stage submits that this Court hadgranted ad-interim protection to the applicant on June 20, 2018which is operating till date.According to him, the same becontinued for a period of four weeks from today.This request is objected to by the learned APP andlearned counsel for the complainant.In the facts andcircumstances of the case, the protection is extended for a period ::: Uploaded on - 31/01/2019 ::: Downloaded on - 31/01/2019 22:33:17 ::: 7 29) aba1787-18.docof two weeks from today.::: Uploaded on - 31/01/2019 ::: Downloaded on - 31/01/2019 22:33:17 :::All the applications are disposed of in above terms.(NITIN W. SAMBRE, J.) ::: Uploaded on - 31/01/2019 ::: Downloaded on - 31/01/2019 22:33:17 :::::: Uploaded on - 31/01/2019 ::: Downloaded on - 31/01/2019 22:33:17 :::

['Section 376 in The Indian Penal Code', 'Section 504 in The Indian Penal Code', 'Section 406 in The Indian Penal Code', 'Section 420 in The Indian Penal Code', 'Section 506 in The Indian Penal Code']

Prayer for bail has been made on behalf of the appellants, who have been convicted by Additional Sessions Judge, Maharajganj in S.T. No.83 of 2010 under Section 498-A I.P.C, 304-B I.P.C, 201 I.P.C and 3/4 Dowry Prohibition Act.Heard learned counsel for the appellants and the learned A.G. A. for the State.Perused the judgment and order of learned Sessions Judge and lower court's record Ghanshyam Harijan, appellant no.1 is the husband of deceased and no new ground for bail is made out.Accordingly, prayer for bail of Ghanshyam Harijan, appellant no.1 is rejected.Learned A.G.A opposed the prayer for bail.Considering the age and relationship of Bairagi and Smt Dela @ Dhela in my opinion the appellants are entitled to be released on bail.Pending appeal appellants Bairagi and Smt Dela @ Dhela are convicted in S.T. No.83 of 2010 shall be released on bail on their executing a personal bonds and on furnishing two sureties each in the like amount to the satisfaction of the court concerned.Till further orders realization of fine, if any, shall also remain stayed.Order Date :- 14.11.2011/Shahnaz

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

The prosecution case in short compass is that, the first informant Hema w/o Santosh Kompally, on 15-07-2018 approached to the Police of Bhagyanagar Police Station, Nanded District Nanded and filed the report that her marriage was solemnized on 15-02-2017 with applicant No. 1-husband at Hyderabad.Applicants No.2 and 3 are in-laws whereas applicant No.4 is the brother-in-law and applicant No.5 is sister-in-law of complainant - wife.The applicants No. 7 and 8 are the distant relatives of::: Uploaded on - 25/07/2019 ::: Downloaded on - 15/04/2020 00:01:06 ::: 3 936-CriA-3374-18 the husband of complainant.According to complainant, after marriage she joined the company of husband in the joint family comprising in- laws and brother-in-law at Nacharam Hyderabad (Telangana).She received the proper treatment for some days of marriage from husband and in laws.But after some days the complaint was subjected to mental torture on trifle reasons.The applicants started demanding money from her parents.According to the complainant, the inmates of matrimonial home placed demand of Rs.50,000/- and on some occasion Rs. 1,00,000/- from her parents.But, the demand was not satisfied and on that count they used to assault and abused in filthy language.The applicants No. 7 and 8 also used to instigate the inmates of matrimonial home for maltreatment and harassment to fulfill the demand of money from father of complainant.The applicant-husband was demanding amount of Rs. Five lakhs for contract business.But when the complainant failed to satisfy demand the husband tortured the wife by saying that she has an black complexion and he wanted to perform another marriage by accepting huge dowry.The complainant wife was beaten up and abused by the husband.They kept her unfed.The other applicants i.e. in-laws , sister-in-law and brother-in-law used to instigate the applicant husband for such ill-treatment.According to complainant, in the marriage of brother in-law -Satish, the applicants did not allow the parents of complainant to attend the marriage ceremony.Moreover, she was also neglected by them in marriage.They insisted the complainant wife to withdraw the police complaint.In view of behaviour of applicants the complainant has an apprehension of her life.ORAL JUDGMENT :- (Per: K.K.SONAWANE, J.)1. Rule.Rule made returnable forthwith.Heard finally, with the consent of learned counsel for parties.It has been alleged that on 24-06-2018, the applicants asked the complainant to bring Rs. Five Lakhs from her father as he is going to retire from service and he would get handsome amount towards::: Uploaded on - 25/07/2019 ::: Downloaded on - 15/04/2020 00:01:06 ::: 4 936-CriA-3374-18 pensionary benefits.It has been alleged that applicant left the complainant wife at the house of parents and threatened her to bring money otherwise she would not be allowed for cohabitation.Thereafter the complainant on 26-06-2018 filed complaint to Police.Taking umbrage of the Police complaint, the applicants on 17-07-2018 came to house of parents of complainant, and assaulted and abused the complainant and her parents.Eventually, she approached to the Police and filed the present report for penal action against the applicants.::: Uploaded on - 25/07/2019 ::: Downloaded on - 15/04/2020 00:01:06 :::::: Uploaded on - 25/07/2019 ::: Downloaded on - 15/04/2020 00:01:06 :::Pursuant to FIR, Police of Bhagyanagar Police Station, Nanded District Nanded registered the crime and set the penal law in motion.Investigating Officer recorded statements of witnesses acquainted with the facts of the case.Pending the investigation, the applicants moved the present application to quash and set aside the F.I.R. But, meanwhile, the Investigating Officer after completion of investigation filed the charge-sheet.Learned counsel for applicants vehemently submits that applicants are innocent of the charges pitted against them.They have not committed any crime, but they are falsely implicated in this case.According to learned counsel, the complainant was not interested in cohabiting with applicant-husband.There were no unlawful demand of::: Uploaded on - 25/07/2019 ::: Downloaded on - 15/04/2020 00:01:06 ::: 5 936-CriA-3374-18 money.There was no any specific allegations against applicants for cruelty as contemplated under Section 498-A of the IPC.The learned counsel submits that applicants No. 4 is brother of applicant and since March, 2017 he is residing at USA for his job.He has no concerned whatsoever with the allegations made in the FIR.The applicant No. 5 is married sister of applicant-husband and since marriage she is residing with her husband i.e. applicant No. 6, who is working as technician in Ordinance Factory at Yeddumailaram Village Medak District Telangana State.Applicants No. 7 and 8 are the distant relatives and mediator for settlement of marriage of the complainant with applicant-husband.Learned counsel submits that applicants No. 4 to 8 are residing separately.Applicants No. 4 to 8 have no any concerned with the marital life of applicant No. 1 and complainant.They have no any reason to cause interference into the domestic affairs of the spouses.All the allegations are general and vague in nature.The present complaint is nothing but an abuse of process of law.It would unjust and improper to compel the applicants to face the agony of trial.Hence, learned counsel urged to quash and set aside the penal proceeding initiated against the applicants.::: Uploaded on - 25/07/2019 ::: Downloaded on - 15/04/2020 00:01:06 :::The learned APP as well as learned counsel for respondent No. 2-first informant opposed the contentions put-forth on behalf of applicants and submit that the allegations of ill-treatment nurtured on behalf of complainant in the FIR discloses commission of crime under Sections 498-A, 294, 323, 504 and 506 etc. of the IPC.The complainant categorically described the episode of her maltreatment and torture at the hands of applicants.There was unlawful demand of::: Uploaded on - 25/07/2019 ::: Downloaded on - 15/04/2020 00:01:06 ::: 6 936-CriA-3374-18 money from applicants for contractor business and also physical assault as well as abuses in filthy language to the complainant on the part of applicants.::: Uploaded on - 25/07/2019 ::: Downloaded on - 15/04/2020 00:01:06 :::We have given anxious consideration to the arguments advanced on behalf of both sides.We have also delved into the relevant documents produced on record as well as factual aspects of the matter.We find that there is no scope for exercise of inherent powers under Section 482 of the Cr.P.C. in favour of applicants No. 1 to 3 as it appears from the FIR that prima facie case is made out against them.There are specific allegations cast against husband and in-laws about cruelty as envisaged under Section 498-A of I.P.C. Therefore, we expressed that this Court is not inclined to nod in favour of applicants No. 1 to 3 for grant of relief in their favour.Eventually, learned counsel for applicants No. 1 to 3 seeks leave to withdraw the proceeding to their extent.Accordingly, leave was granted and application to the extent of applicants No. 1 to 3 came to be disposed off as withdrawn.In regard to allegations made against applicants No. 4 to 8, we find that during crucial period of co-habitation of complainant with husband, the applicant No. 4 was not available at matrimonial home of complainant as he was in USA for his job purpose.Applicant No. 5 sister in-law was residing with husband- applicant No. 6 at her matrimonial home.The applicants No. 7 and 8 are the distant relatives.The entire allegations about cruelty are against husband and in-laws.There was reference that applicants No. 4 to 8 instigated the husband and in-laws for mental and physical harassment to the complainant-::: Uploaded on - 25/07/2019 ::: Downloaded on - 15/04/2020 00:01:06 :::::: Uploaded on - 25/07/2019 ::: Downloaded on - 15/04/2020 00:01:06 :::7 936-CriA-3374-18 wife, but all the aspersion against them are vague, and general in nature.There were no specific instances or details of participation of applicants No. 4 to 8 in the alleged act of cruelty available on record for adverse inference about their involvement into the crime.The allegations against applicants No. 7 and 8 are also stray and omnibus in nature.Therefore, it would unjust and improper to compel the applicants No. 4 to 8 to face agony of trial before criminal court following marital discord between spouses.In the cases, where accusations are made, the overt-acts attributed to persons other than husband, are required to be proved beyond reasonable doubt.Their Lordships of Apex Court further observed that, "in their over- enthusiasm and anxiety to seek conviction for maximum people, the parents of the deceased have been found to be making efforts for involving other relations which ultimately weaken the case of the prosecution even against the real accused."::: Uploaded on - 25/07/2019 ::: Downloaded on - 15/04/2020 00:01:06 :::::: Uploaded on - 25/07/2019 ::: Downloaded on - 15/04/2020 00:01:06 :::8 936-CriA-3374-18::: Uploaded on - 25/07/2019 ::: Downloaded on - 15/04/2020 00:01:06 :::Hence, penal proceeding initiated against these applicants No. 4 to 8 deserves to be quashed and set aside.Therefore, we proceed to pass following order :::: Uploaded on - 25/07/2019 ::: Downloaded on - 15/04/2020 00:01:06 :::::: Uploaded on - 25/07/2019 ::: Downloaded on - 15/04/2020 00:01:06 :::Application in respect of applicants No. 1 to 3 stands dismissed as withdrawn.No order as to costs.::: Uploaded on - 25/07/2019 ::: Downloaded on - 15/04/2020 00:01:06 :::

['Section 498A in The Indian Penal Code', 'Section 323 in The Indian Penal Code', 'Section 506 in The Indian Penal Code', 'Section 294 in The Indian Penal Code', 'Section 504 in The Indian Penal Code', 'Section 34 in The Indian Penal Code']

C. No.8582/13 was dismissed as withdrawn by order dated 31/10/13, M.Cr.C. No.279/15 was disposed of with a direction to the trial court to conclude the trial expeditiously preferably within a period of six months vide order dated 4/2/15, M.Cr.C. No. 3357/15 was dismissed as not pressed vide order dated 29/4/15 & M.Cr.C. No. 8728/15 was dismissed as withdrawn by order dated 27/10/15 with liberty to file the fresh application after reexamination of the injured before the trial court.Notice of this application was served on the State counsel.Learned counsel for the applicant submits that said six month's period has already expired and trial has not been concluded till now.He further submits that at the instance of co-accused Vidya Gupta the complainant was recalled and statement of complainant has been recorded wherein he has stated that acid was thrown by his wife and he has also proved Ex.D-2 wherein the said fact is stated.He further submits that the applicant is in custody since 21/7/13 and he has completed more than two and half years in custody and Vidya Gupta has already been enlarged on bail.Learned counsel for the State has opposed the application for grant of bail.(PRAKASH SHRIVASTAVA) JUDGE

['Section 342 in The Indian Penal Code', 'Section 506 in The Indian Penal Code', 'Section 323 in The Indian Penal Code', 'Section 34 in The Indian Penal Code', 'Section 294 in The Indian Penal Code', 'Section 190 in The Indian Penal Code']

Heard on I.A.No.5057/2018, third application under Section 389 (1) of Cr.P.C. for suspension of sentence and grant of bail filed on behalf of the appellant / Mukesh Bhilala.Appellant assails the judgment of conviction and order of sentence dated 04/09/2015 passed in S.T. No. 112/2014 by Special Judge (POCSO), Dist.Guna, whereby, the appellant has been convicted under Section 363 of IPC and sentenced to RI for three years with fine of Rs. 500/-, under Section 366 of IPC and sentenced to RI for five years with fine of Rs. 1000/- and under Section 376 (2) (i) of IPC and sentenced to RI for ten years with fine of Rs. 1000/- with default stipulation.There are fair chances of success of this appeal and the appeal may take long time for its conclusion and the appellant cannot be kept in custody for an unlimited period.Under these circumstances, the execution of sentence be suspended and he be released on bail.On the other hand, learned counsel appearing on behalf of the State opposes the bail application.List the case for final hearing in due course Certified copy as per rules.(S.A. Dharmadhikari) Judge Durgekar* Digitally signed by SANJAY N. DURGEKAR Date: 2018.08.10 14:37:27 +05'30'

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

(3) Riaz Ahmed no doubt joined that criminal conspiracy at Lahore and subsequently came to India to join Saleemuddin to assist him in his espionage activities.On August 10, 1968 he was introduced by M. A. Bajwa to Malik Salim, another Pakistan Intelligence Officer telling him that Riaz Ahmed was being sent to India under the assumed name of Asif.to contact Saleemuddin at Bareilly.The two Pakistan Intelligence Officers gave him the documents Exs.According to the confession, Riaz Ahmed was arrested by the police in front of the Railway Station, Delhi Main on August 13, 1968 at about 10.13 P.M. The confession showed that Riaz Ahmed was a party to the conspiracy hatched at Lahore by the Pakistan Intelligence for collecting information regarding the air-fields in India.The documents recovered from him at the time of his arrest also confirm his participation in the conspiracy.Ex. PL/3 is a typed brief captioned "mission" containing instructions as to the job which Riaz Ahmed was expected to perform.This further confirmed his participation in the conspiracy.Ex. PL/4 is a slip of paper containing two addresses of Lahore to which Riaz Ahmed was required to send his communications from India.He located the same around noon time.He then went back to the police station Killa, Bareilly and contacted the local Police there.Accompanied by the local police and the two witnesses Bhagwati Pershad (Public Witness 5 ) and Basheshwar Nath (Public Witness 7) he went to the house of Saleemuddin at about 4.15 P.M. He remained busy at that house until 8.00 P.M. From 9.00 P.M. to 10.30 P.M. he interrogated Saleemuddin at the police station and it was on some disclosures made by Saleemuddin that Bajaj organized another raid for the arrest of Mohd. Yunis and recovery of incriminating articles.Nirankar Sarup (Public Witness 9) and Har Pershad (Public Witness 10) were summoned by the Killa Police Bareilly.They arrived at the police station at about Ii P.M. Taking these persons with himself Bajaj and the raiding party went to the house of Mohd. Yunis at 33 Phoolwalan Bareilly.He saw that man sitting in that shop on 5 or 6 different occasions.One day that man whom he identified as Saleemuddin, requested him to take him to the Aerodrome as he had not seen an air-craft.He said he was sorry he could not do so because civilians were not allowed to enter the Aerodrome.During his subsequent visits Mohd. Atique introduced him to Mohd. Yunis.He told them of what he knew.They then asked him if he knew the name of any officer working at the air-port and whether there was any officer Gupta by name.The witness pleaded his ignorance.B. Lal (Public Witness 14) deposed that the writer of Ex. Pcc was the same person who had written the specimen writing Ex. Pq (S2).Ex. Pq contains an exact re-production of the contents of Ex. PCC.It was written in Ex. Pcc that on July 29 from 7.45 P.M. to 8.30 P.M. there was a black out in Bareilly.The name of the Wing Commander at Bareilly was also mentioned and it was stated that the writer had made friends with Ravi Kumar who was employed in the repairing station at the Izzat Nagar Air Port.It was further mentioned in this report that the area of the aerodrome was being extended and that a sketch of the air field was under preparation.There was also a reference to an under-ground air-field in the cantonment area and that the writer was trying to locate it.(52) EX.JUDGMENT Hardayal Hardy, J.(1) This judgment will dispose of two criminal appeals and one criminal revision.(2) The appellant Saleemuddin was being tried along with one Riaz Ahmed, a Pakistan national.Two other persons, Mohd. Atique and Mohd. Yunis were also being tried along with them.By a judgment dated October 31, 1969 delivered by the Additional Sessions Judge, Riaz Ahmed, Mohd. Atique and Mohd. Yunis were acquitted of the charge framed against them while Saleemuddin was convicted and sentenced to rigorous imprisonment for five years for an offence punishable under Section 120B Indian Penal Code read with Section 3 of the Indian Official Secrets Act. 1923 and also to rigorous imprisonment for five years under Section 3 In a judgment which but for the errors to which we shall presently refer, is extremely well written, the learned trial Judge has held that Riaz Ahmed being a foreign national could not be tried in this country for the offence of conspiracy which according to him was committed outside India.He was, however, arrested before he could contact Saleemuddin at Bareilly.Saleemuddin did commit acts of espionage at Bareilly by making a rough sketch and preparing an intelligence report relating to Izzat Nagar Air-port at Bareilly.He also sent some reports to the Pakistan Intelligence earlier and was therefore guilty of conspiracy and espionage.[After discussing the facts, the judgment proceeded.] (4) The case was tried by Shri K. S. Sidhu, Addl.Sessions Judge Delhi.who on a consideration of.The said confession was no doubt made after the accused had remained in police custody for nearly 13 days, but in the opinion of the learned trial Judge, this circumstance alone did not detract from the voluntary nature of the confession.The, letter was delivered to Riaz Ahmed for being delivered to Saleemuddin at Bareilly.In this letter Malik Salim was apparently telling Saleemuddin that instead of Riaz he was sending Asif because Riaz had to under-go 'some surgery.The word "Riaz" obviously has reference to another person bearing that name.But since the name of the accused was also Riaz he was being sent under the assumed name of Asif.Ex. PL/1 is a photograph of Saleemuddin bearing his signatures on its back.The offence was complete as soon as Riaz Ahmed who was a national of Pakistan, agreed to be a party to the conspiracy at Lahore.He was arrested in India before he could do any illegal act in this country in pursuance of the conspiracy and that is why no charge for an offence under Section 3 of the Indian Official Secrets Act, 1923 was framed against him.We were told that the State was satisfied about his death.The appeal against him, therefore, abates.(26) According to the learned Judge, the evidence produced by the prosecution relating to the alleged participation of Mohd. Yunis in the conspiracy, consisted of his confessional statement (Ex.PM/7), recovery of an incriminating document (Ex. FEE) from his possession, the oral testimony of Chander Pal (Public Witness 16) and Ravi Kumar (PW4) and the evidence of the handwriting expert.The said document.Mohd. Yunis was found present in the house.He made a disclosure statement (Ex. PUU) in consequence of which a sketch (Ex. PEE) indicating important places and buildings at the lzzat Nagar Air-field, Bareilly was recovered from his house.(30) Learned trial Judge has held that the house of Mohd. Yunis is not far away from the house of Saleemuddin.Although the exact distance was not mentioned, both the houses are within the jurisdiction of the same police station and Mohalla Phoolwalan is not far away from the house of Saleemuddin in Mohalla Phoota Darwaza.According to the learned Judge, if Mohd. Yunis who was living in a house close by and the proceedings for the search of the house of Saleemuddin continued from 4.30 P.M. to 8.00 P.M. he must have in all probability come to know that the house of Saleemuddin had been raided and would have taken steps, to remove the offending article.The evidence does not furnish any material in support of this particular observation of the learned Judge.Bajaj and other members of the raiding party were in plain clothes.There is no evidence on record to show that when the house of Saleemuddin was being searched from 4.30 to 8.00 P.M. any other persons besides the members of the raiding party and the occupants of the house were present.The search took place inside the house.Even while the police was waiting outside for 15 to 20 minutes before Saleemuddin arrived there, there is nothing to suggest that their presence was being marked by any members of the public.The two houses of Saleemuddin and Mohd. Yunis are no doubt within the jurisdiction of police station Killa but they are not in the same street.We were told that the house of Mohd. Yunis is at a distance of about 220 yards from the house of Saleemuddin and that they are in different streets.It is therefore not possible to agree with the trial Judge that Mohd. Yunis "must have in all probability come to know that the house of Saleem- ud-din had been raided" nor does it follow there from that Mohd. Yunis would have destroyed the incriminating document before the police raided his house.Nirankar Sarup does not belong to the locality of Mohalla Phoolwalan.His shop is very close to the police station.He also admitted that Bhagwati Pershad (PW. 5) who had earlier lent his services to the police at the time of its raid on the house of Saleemuddin, is one of his co-sharers in the rickshaw business.The learned Judge has also held that he had been specially called by the police through a constable from a paan shop at about 11.00 P.M. when the police was getting ready to go for the search of the house of the accused.We have looked into the evidence of this witness and since the observations of the learned Judge are not based on the impressions formed by him when the witness was under examination, it is open to us to look into his evidence.(32) Nirankar Sarup admitted in cross-examination that Bhagwati Pershad used to keep his rickshaws, 5 or 6 in number, in his stand and passed on the profits from those rickshaws to him.But assuming there was some kind of partnership between them in the rickshaw business, Bhagwati Pershad was not a witness in the case of raid on the house of Mohd. Yunis.If from the same locality the police summoned two persons who were co-sharers in their business and the services of one of them were utilised as an independent witness of search in one case, it does not follow that the other person whose services were utilised several hours thereafter for search in a different house, would cease to become reliable.It is only after Saleemuddin was taken to the police station and interrogated that the name of Mohd. Yunis was .revealed and thereafter Bajaj proceeded to the house of Mohd. Yunis.It has not been shown that Nirankar Sarup was known to Bajaj.He was called to the police station through a constable who according to the witness, was not even known to him.A suggestion was put to him in cross-examination that some one had lodged , report against him that he had kidnapped some one's daughter and that he had succeeded in getting the case dropped by using his influence with the police.He denied the suggestion and nothing has been placed on record to show that there is any truth in the allegation.If the evidence of Bhagwati Pershad has been believed by the learned trial Judge, there is no reason why the evidence of this witness who is apparently more respectable than Bhagwati Pershad.According to his statement, his house is at a distance of about 100 to 125 yards from Thana Killa whereas the distance from his house to the house of Mohd. Yunis would be between 3 to 4^ furlongs.Can it be said under these circumstances that he was not a witness from the locality ? The search was carried out sometime after 11.00 P.M. It was the month of August.There might have been quite a number of persons living near the house of Mohd. Yunis but if the police took with themselves some one whose house was half a mile away from that house, it cannot be said that the witness did not belong to the locality, particularly when no connection has been shown between Bajaj or any other police officer belonging to Police Station Killa at Bareilly.(33) The next witness of search is Har Pershad (Public Witness 10).' He actually belongs to Mohalla Phoolwalan, and is therefore a witness from the locality.He said that in his presence Mohd. Yunis had told the police that a map was.lying in almirah in his house and that he could produce it.The map Ex. Pee was produced from between two books lying in the almirah.The recovery memo Ex. Public Witness bears the signature of this witness.In cross-examination it was brought out that he had instituted a complaint against Fiaz-ud-din father of Saleemuddin and that showed his enmity against the accused.It however transpired that he had done so after this case, because the accused had harassed him a lot through thier friends and relations by trying to bring influence on him not to give evidence against them.Another ground urged by Mr. Anthony was that the witness had stated that he signed the sketch Ex. Fee and also the recovery memo Ex. Puu, and in fact he had signed only one of those documents.The other witness Nirankar Sarup had mentioned that he had signed only one of the two documents.If the witness made a slight mistake, it cannot be said that his evidence as such is not relevant or admisible.Both the witnesses of sketch have supported the prosecution case about the recovery of Ex. FEE.(36) Mr. Anthony lastly argued that Nirankar Sarup could not give the direction in which the main entrance of the house of Mohd, Yunis was situated.The witness gave a complete description of the inner apartments and merely because he could not say whether the main entrance was to the East or to the West or to the North or to the South, would hardly discredit his testimony.(37) We, therefore, hold that the prosecution evidence fully establishes the recovery of Ex. Fee from the house of Mohd. Yunis.There is also the evidence of the handwriting expert, Shri B. Lal (FW 14).According to that witness, the document Ex. Pee is entirely in the hand of Mohd. Yunis and all the writings in that document are in his hand.But there is one piece of writing (Ex. Q 11/1) which is encircled red and is in the handwriting of Saleem-ud- din.If there was no connection between Saleemuddin and Mohd. Yunis a document showing the building etc., in Izzat Nagar Air-port prepared by Mohd. Yunis could not contain the writing of Saleem-ud- din.The presence of this document, therefore, clearly establishes the association between Saleemuddin and Mohd. Yunis and the possession of Ex. Pee shows the common concert between them.The association between Saleemuddin and Mohd. Yunis is also amply proved by the oral testimony of Chander Pal (Public Witness 16) and Ravi Kumar (Public Witness 4).Ravi Kumar who was a leading Air-craftsman at the lzzat Nagar Air-port at Bareilly was living in a private accommodation.He and his wife used to go to Bara Bazar for shopping.They used to buy cosmetics etc. from a shop known as Citizens Centre.(38) MOHD.Atique was one of the salesman at that shop.In 1968 Mohd. Atique introduced him to another person whom he described as a compounder working with a doctor.He was told that Mohd. Yunis was a student of M.Sc.and was working in a rubber factory in Bareilly.He denied the suggestion that he had made the statement in court under the fear of dismissal on the allegations of mixing up with civilians.The police came to know about this witness from one of the documents found from the possession of Saleemuddin and, therefore, examined him as a witness.(39) The witness is a Maharashtrian.He has no animus against the accused.Nothing has been brought on record to show that he was making the statement in court under pressure from the police.No question was put to him about his acquaintance with Bajaj.The only outcome of his evidence is that the shop of Mohd. Atique was the rendezvous of Saleemuddin and Mohd. Yunis and that Saleemuddin was eager to visit Izzat Nagar Air-port.(40) Chander Pal was a cleaner in a truck which was employed to carry bricks from the kiln of Asa Nand to the Air-port for Bharat Builders who were doing construction work there.During that period two youngmen, Saleemuddin and Mohd. Yunis met him at the kiln and asked him about lzzat Nagar Air-port.(41) In cross-examination he stated that the two accused spent about 3 to 4 hours at the kiln and that he did not ask them why they were asking those questions.This evidence by itself is not of any importance but when read in conjunction with the sketch (Ex. PEE) which shows the various buildings and their location in the air-port and which bears the writings of Mohd. Yunis and Saleemuddin, it is apparent that these two persons must have been going round and meeting persons who had occasion to be inside the air-port.(51) The documents recovered from the possession of the accused and from the search of his house clearly implicate this accused.Apart from Ex. Pqq, Ex. Pcc is the intelligence report which had been prepared by the accused and had been kept ready by him for delivery to Riaz Ahmed who was expected to contact him at Bareilly.Ex. Pqq (S2) is a specimen writing of the accused made in the presence of a magistrate.Pz recovered from the possession of the accused is an incomplete rough sketch of the lzzat Nagar Air-port.B. Lal, the document expert, compared the writing in Ex. Pz with the specimen writing Ex.PQ/3 of Saleemuddin and deposed that the disputed words in Ex. Pz were written by Saleemuddin.The reference in the sketch to Ex. Pcc also goes to show that this sketch was prepared by the accused.The recovery of the typed brief Ex.PY and the handwritten brief in Urdu (Ex. PAA) from the possession of the accused further establishes that he was engaged in espionage activities at Bareilly in pursuance of a criminal conspiracy, in terms of these briefs.The pocket diary Ex. Pbb contains some nothings in his hand which further establish that he was engaged in espionage activities at Bareilly.This document shows that he had seen some movie on June 21, at Bareilly.In Ex. Pbb he made an entry thereof (Ex. Q8/5) giving the tail numbers of some aeroplanes which seem to have been shown in flight in the news reel.There is another entry dated June 20, showing that he had already dispatched one intelligence report (Ex. RPT) to the other conspirators in Pakistan.Ex. Pss is a post-card letter purported to have been written by one Anwar Nasim from Pakistan to Saleemuddin accused at Bareilly.In that letter Anwar Nasim was remonstrating with the accused and had inquired if Riaz Ahmed had met him.The confession (Ex. PK/1 ) made by Riaz Ahmed also lends assurance to the conclusion that Saleemuddin accused was a party to the criminal conspiracy.The documents recovered from Riaz Ahmed also fortify the conclusion that Saleemuddin was a party to the conspiracy for collecting information regarding defense installations in India.Ex. Pl, handed over to Riaz Ahmed by Malik Salim for onward delivery to Saleemuddin at Bareilly is another document incriminating the accused.In that letter the word "Sari" has been written.But according to the cipher code adopted by the conspirators the word "Sari" stood for "Intelligence Report." The documents recovered from Riaz Ahmed viz. PL/I, PL/2, and PL/3 are also incriminatory of Saleemuddin.These documents clearly establish the guilt of Saleemuddin in the charge of criminal conspiracy.(54) There is also evidence implicating the accused in an offence under Section 3 of the Indian Official Secrets Act. One of the counts relates to the rough sketch Ex. Pz and to the intelligence report Ex. PCC.(55) In their examination under Section 342 Criminal Procedure Code all the three accused denied their complicity in the offence alleged against them.Riaz Ahmed stated that he was a Pakistani national and had entered India on August 13, 1948 without any travel documents.He admitted that he had visited India on two occasions on the authority of travel documents.But this time it was on the advice of his maternal uncle who was residing at Amritsar that he came to India without any travel documents.He said that he had done so because he was advised by his maternal uncle that if he wanted to settle in India he should come without a pass-port.He denied having made a confession and added that he was arrested at Amritsar and that he had written on the Railway Time Table (Ex. PX) at Amritsar Railway Station the words Sohan Lal, because he wanted to settle down in India with Sohan Lal as his name.He said that he did not disclose to the police the name of his maternal uncle and that he did not know any of the other accused.(56) Saleemuddin and Mohd. Yunis also denied all connections with the conspiracy.As regards the photograph (Ex. PL/1), Saleem-ud- din admitted that it was his photograph and that he had also signed it at the back.He said he had sent it from Bareilly to his beloved Noor Bihar of Sialkot and that in the accompanying letter he had mentioned about his meeting with Capt. Shukla and that is why the letter was censored and retained.He denied having made the confession.Mohd. Yunis denied his connection with the conspirary.He also denied having made any confession.He admitted that he was identified by Chander Pal and Ravi Kumar at the identification parade, but being the tallest among all the participants in the parade and having been asked to put on the same clothes which he was wearing at the time of his admission to jail and with his glasses removed, he was made to join the parade.He stated that he was suffering from tuberculosis and heart trouble.(57) The statement of the accused is thus one of denial.There is clear evidence to support the case of conspiracy against all the three accused.There is also evidence of an offence under Section 3 of the Indian Official Secrets Act, 1923 against Saleemuddin and Mohd. Yunis.(58) The question that arises for consideration is what sentence should be inflicted on them.The maximum sentence provided for the offence under Section 3 of the Indian Official Secrets Act, 1923 is 14 years.The offences have been committed by the accused after great deliberation and planning both in Pakistan and in India.The information that the accused were collecting in India relates to military secrets of vital nature.The learned Addl.Sessions Judge has himself held that the offences being serious the accused deserved deterrent punishment.Supplying information about defense installations in this country to a country which has already been at war with this country.It imperils not only the security of the country but exposes its military equipment and people to destruction.We therefore convict Riaz Ahmed and Saleemuddin of the offence of conspiracy and give them the sentence of ten years' rigorous imprisonment each.The sentence of five years rigorous imprisonment awarded by the trial Court to Saleemuddin appears to us to be highly in-adequate.Both the sentences against him will.however, run concurrently.(59) The case against Mohd. Yunis stands on a different footing.He is a young college student reading for the M.Sc.The sentence awarded to him is.however, not to be treated as a precedent in such cases.It is the state of his health and want of evidence about his connections with foreign spies which impel us to treat his case with leniency.We are told that he is due to appear for his M.Sc. examination soon.The jail authorities may make arrangements for his taking the examination.(60) The result is that the appeal of Saleemuddin is dismissed while the appeal and Criminal revision filed by the State are allowed.The appeal against Mohd. Atique abates.

['Section 120B in The Indian Penal Code', 'Section 2 in The Indian Penal Code', 'Section 411 in The Indian Penal Code', 'Section 4 in The Indian Penal Code', 'Section 3 in The Indian Penal Code', 'Section 380 in The Indian Penal Code']

[Order of the Court was made by A.SELVAM, J.] This Habeas Corpus Petition has been filed under Article 226 of the Constitution of India praying to call for records relating to the detention order passed in BCDFGISSSV No.1163/2016 dated 17.11.2016 by the Detaining Authority against the detenu by name, Kishore Kumar, aged 24 years, S/o.Rajan, residing at No.3/176, L.V.Nagar, Balakrishnapuram, New Gummidipoondi, Thiruvallur District- 601 201 and quash the same.The Inspector of Police, M-4, Redhills Police Station, as Sponsoring Authority, has submitted an affidavit to the Detaining Authority, wherein, it is averred to the effect that the detenu has involved in the following adverse cases :i.T-4, Maduravaiyal Police Station, Crime No.1297 of 2014, registered under Section 379 of Indian Penal Code;ii.E-5, Sholavaram Police Station, Crime No.512 of 2015 registered under Section 379 of Indian Penal Code; andiii.Vellore North Police Station Crime No.376/2016 registered under Section 379 of Indian Penal Code.Further it is averred in the petition that on 20.09.2016, one Muthukumar, S/o.Per contra, the learned Additional Public Prosecutor has contended that the representation given by the petitioner has been disposed of without delay and therefore, the contention putforth on the side of the petitioner is liable to be rejected.On the side of the respondents, a proforma has been submitted, wherein, it has been clearly stated that in between column Nos.7 and 9, sixteen clear working days are available and in between column Nos.12 and 13, three clear working days are available and no explanation has been given on the side of the respondents with regard to such delay and the same would affect the rights of the detenu guaranteed under Article 22[5] of the Constitution of India and therefore, the Detention Order in question is liable to be quashed.The Detention Order dated 17.11.2016 passed in No.BCDFGISSSV No.1163 of 2016 by the first respondent against the detenu by name, Kishore Kumar, aged 24 years, S/o.

['Section 379 in The Indian Penal Code', 'Section 341 in The Indian Penal Code', 'Section 294 in The Indian Penal Code']

Learned counsel for the rival parties are heard.The petitioner is in custody since 22.08.2014 and the new ground raised herein is recording of statement of prosecutrix on 12.02.2015 in which age as claimed by the prosecutrix to be 17 years, but as per case diary the age of the prosecutrix on the basis of school register is shown as 25.07.1996, according to which, the prosecutrix was 18 2 M.Cr.C.No.2405/2015 years and about one month on 15.08.2014 when the alleged crime was committed.

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

This petition under Article 226 of the Constitution of India has been filed seeking the following reliefs:-''7(i).That, the respondents may kindly be directed to make appointment of the petitioner on the post of Constable in Department of Madhya Pradesh Police.(ii) That, Any other writ order and direction, which is found just, suitable and proper in favour of the petitioner, may kindly be granted to the petitioner.(ii-a) That, the order Annexure P/9 may kindly be set aside.'' (2) The necessary facts for disposal of the present petition in short are that in the year 2017-18 an advertisement was issued by the respondents for appointment on the post of Police Constables.The said Special Recruitment Drive was for the members of primitive scheduled tribes.The petitioner also participated in the Special Recruitment Drive and by the merit list (Annexure P3), the petitioner was declared selected and accordingly, the Assistant Inspector General of Police, Special Branch, PHQ Bhopal, by letter dated 02/11/2018 (Annexure P5), directed the petitioner for his appearance before the Special Branch, PHQ Bhopal on 16/11/2018 for verification of his character.It is submitted that on 12/03/2017, Crime No.75/2017 was registered by Police Station Raghogarh, District Guna against the petitioner for offence u/S. 363 of IPC.Later on, charge-sheet for offence under Sections 363, 366, 376(1) of IPC and Section 3 /4 of Protection of 2 Children from Sexual Offences Act, 2012 [in short '' POCSO Act''] was filed.Thereafter, by letter dated 22/04/2019 (Annexure P9), the petitioner has been informed that the Scrutiny Committee by its order dated 08/03/2019 has held that the petitioner is unfit for his appointment on the post of Constable.Bunty by order dated 14/3/2019 passed in Civil Appeal No.3046/2019 has held 5 as under:-

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

The notice be made returnable within three weeks.This is an application under Section 438 of the Cr.P.C. for grant of anticipatory bail to the applicant.The applicant apprehends his arrest in connection with Complaint Case No. 115/2015 registered at Police Station-Rajpura, District Damoh for the offences punishable under Sections 452, 354, 506-II of the IPC.Since this matter arose out of private complaint filed by complainant Sunita, wherein Judicial Magistrate first Class, Hatta, District Damoh took cognizance against this applicant and warrant of arrest had been issued against the applicant.Learned counsel for the applicant has submitted that during enquiry by police, it was found that after the incident, the complainant went to the police but she had not disclosed the fact in regard to outraging her modesty.Certified copy as per rules.(G.S. SOLANKI)

['Section 354 in The Indian Penal Code', 'Section 452 in The Indian Penal Code']

The first six items in the schedule relate to five letters and one telegram while the seventh item mentions other books, papers and documents relating to the appellants in the possession of the Registrar of this Court under Order, dated May 6, 1966, passed by this Court.JUDGMENT Raju, J.The above writ appeals, involve for consideration identical questions of law and, therefore, were heard together and are considered in common.When the writ petition No. 9354 of 1995 came up before the learned single Judge for orders regarding admission, the learned single Judge by his order dated 31-7-1995 dismissed the same.Before the learned single Judge, as could be seen from his order, only three grounds of challenge have been pursued and they are :"(a) The issue of a summons under Section 40 of the Act could be made or justified when some investigation or proceeding under the Act is pending and when there is no such investigating or proceeding, there is no authority to invoke Section 40 of the Act. Therefore, it is the bounden duty or necessity for the authority issuing the summons to inform the appellant as to the nature of investigation or proceeding, pending before him under the Act and the non-specification of the same in the summons vitiated the same.Aggrieved, the above appeal has been filed.

['Section 228 in The Indian Penal Code', 'Section 193 in The Indian Penal Code']

sh Heard on admission.a hy Heard on I.A.No.7520/2018 for suspension of sentence and grant of bail under Section 389(1) of the Code of Criminal ad Procedure filed on behalf of appellants Bhantu Ahirwar and M Dinesh.A perusal of the record reveals that appellants stand of convicted under Sections 323 read with section 34 of the IPC rt and have been sentenced to undergo rigorous imprisonment ou for a period of six months and fine in the sum of Rs.500/- with default stipulations.C Learned counsel for the appellants submits that the h appellants have been released on bail by the trial Court under ig section 389 (3) of the Code of Criminal Procedure till H 04.06.2018; therefore, it has been prayed that the substantive jail sentence of the appellants be suspended.Learned Government Advocate for the respondent/State on the other hand has opposed the application.Keeping in view the short duration of sentence imposed upon the appellants, in the opinion of this Court, the appellants deserve to be released on bail.It is directed that on depositing the fine amount, if not already deposited, and furnishing a personal bond in the sum of Rs.30,000/- with one solvent surety in the same amount each to the satisfaction of the trial Court for their appearance before the Registry of this Court on 06.12.2018 and on all other subsequent dates fixed by the Registry in this regard, the remaining part of the substantive jail sentence imposed upon the appellants shall stand suspended and they shall be released on bail.Certified copy as per rules.(C V SIRPURKAR) sh JUDGE e ad vai Pr a hy Digitally signed by VAISHALI AGRAWAL Date: 2018.05.16 03:58:41 -07'00' ad M of rt ou C h ig H

['Section 389 in The Indian Penal Code', 'Section 34 in The Indian Penal Code']

(28/11/2017) Per S.K.Awasthi, J.This Judgment shall govern the outcome of Criminal Appeal No. 140/1999, Criminal Appeal No. 159/1999 and Criminal Appeal No. 114/1999 which have been preferred against the Judgment dated 25.02.1999 passed in Sessions Trial No. 205/1990 whereby the Trial Court has convicted the appellants of each appeal indicated hereinabove for commission of offences punishable under Section 302 read with Section 149 of Indian Penal Code, 1860 (in short, 'IPC') with respect to death of Lekhan Singh.Similarly, the appellants have been convicted under the same provisions of IPC with respect to death of Govind Singh.The appellants have also been convicted under Section 325 read with Section 149 of IPC for inflicting grievous injuries upon Chain Singh and Ram Singh.Lastly, the appellants have been convicted for commission of offences punishable under Section 323 read with Section 149 of IPC with respect to the injuries suffered by Dhondu in addition to conviction under Section 148 of IPC.Therefore, the situation which emerges with respect to the punishment is that the appellants have been sentenced to undergo life imprisonment with fine of Rs.5000/- each for causing death of Lekhan Singh and Govind Singh and the appellants have also been directed to undergo two years rigorous imprisonment with fine of Rs.2000/- each for causing grievous hurt to Chain Singh and Ram Singh.Additionally, the appellants have been directed to serve three months rigorous imprisonment with fine of Rs.500/- for causing hurt to Dhondu, 3 Criminal appeal No.140/1999 Prakash Singh & Ors.State of MP with default stipulation.The appellants have also been sentenced to one year rigorous imprisonment for their conviction under Section 148 of IPC.The facts which emerge for adjudication are that on 07.08.1990, Sher Singh (PW-12), the father of deceased Lekhan Singh and Govind Singh, narrated the incident before the Police that occurred on same day in evening, that the accused persons, who were equipped with weapons such as Lohangi, Lathi, Farsa etc., had constituted an unlawful assembly and cornered the deceased persons by inflicting several injuries on them which were fatal in nature and eventually led to their death.During the occurrence of the said incident, the other victims namely, Chain Singh, Ram Singh and Dhondu, also suffered injuries inflicted by the unlawful assembly of persons which included the present appellants.The respondent proceeded to record an FIR bearing Crime No. 108/1990 (Ex. P-27) and named all the accused persons for commission of offences punishable under Sections 302, 307, 147, 148 read with Section 149 of IPC.Subsequently, the deceased persons and other injured victims were taken to the Hospital where their medical examinations were carried out; however, on the next date i.e. 08.08.1990, Lekhan Singh and Govind Singh succumbed to the injuries sustained by them and the post-mortem was conducted by Dr. A.D. Bhatnagar (PW-4).In the Post Mortem Report (Ex. P-7) in relation to Govind Singh, it was observed that the deceased Govind Singh sustained thirteen injuries which were caused by hard and blunt object, out of which the injuries enlisted at Serial No. 1 and 2 of the Post-Mortem Report were concluded as being fatal in nature and the cause of death was recorded as Cerebral Hemorrhage and the person died while in the state of Coma.Thereafter, another Post-Mortem Report (Ex. P-11) was prepared with respect to the deceased, Lekhan Singh, according to which the deceased Lekhan Singh received as 4 Criminal appeal No.140/1999 Prakash Singh & Ors.State of MP many as fourteen injuries, out of which Injuries No. 5 and 12 were caused by a sharp-edged weapon whereas the remaining injuries were by a hard and blunt object.Lastly, it was concluded that Injury No. 12 which was caused on occipital region resulted into clotting of blood and was fatal in nature.Consequently, Dr. A.D. Bhatnagar (PW-4) observed that the cause of death was Cerebral Hemorrhage and the death occurred while the person was in the state of Coma.The Medical Reports with respect to the remaining victims indicated that they had suffered injuries caused by hard and blunt object.The respondent on the basis of evidence collected during the course of investigation and the medical evidence which had come on record, proceeded to present the chargesheet against the accused persons including the present appellants.Consequently, the charges were framed on 12.01.1995 against all the accused persons for commission of offences punishable under Section 302 of IPC read with Section 149 of IPC as also for commission of offences punishable under Section 307 read with Section 149 of IPC and Section 148 of IPC.However, later on, additional charges were framed by the Trial Court against all the accused persons with respect to death of Lekhan Singh on 04.10.1997 for commission of offences punishable under Section 302 read with Section 149 of IPC.The prosecution was given an opportunity to lead evidence and as many as sixteen witnesses were examined by the prosecution which included the statement of Chain Singh (PW-13) and Ram Singh (PW-14) who also sustained injuries during the occurrence of the incident whereas one of the accused persons, namely, Anant Singh, took the plea of alibi by submitting that he was admitted in a Hospital in District Vidisha at the time of the incident.In order to substantiate the plea of alibi, the statement of Dr. SGS Khare (DW-1) was recorded.5 Criminal appeal No.140/1999 Prakash Singh & Ors.State of MPUpon cumulative consideration of the material on record and statements of the witnesses produced by the prosecution, the Trial Court proceeded to pronounce impugned Judgment dated 25.02.1999 and convicted the present appellants for commission of offences stated hereinabove.This Judgment is the subject-matter of the instant appeals before this Court.During pendency of the appeals, appellant No.1-Prakash Singh of Criminal Appeal No.140/1999 died, therefore, his appeal stands dismissed.The learned counsel for the appellants submitted that the prosecution witnesses who have been presented as ocular witnesses, namely, Geeta Bai (PW-5), Sharda Bai (PW-6), Chain Singh (PW-13), Ram Singh (PW-14), are the family members of the deceased persons and are interested witnesses.Therefore, their testimonies cannot be relied upon to convict the present appellants.It was further contended that the Doctor, who had performed the Post-Mortem of the deceased persons, namely, Dr. AD Bhatnagar (PW-4), had categorically stated in Para 14 of the statement recorded before the Trial Court that the injuries suffered by Lekhan Singh can be caused if a person falls down on the floor.Therefore, on the basis of statements of the interested witnesses, it cannot be assumed that the appellants had inflicted the injuries which find mention in the Post-Mortem Reports (Ex. P-7 and Ex. P-11).The learned counsel for the appellants laid much emphasis on the fact that according to the Medical Reports as well as the Post Mortem Reports, the injuries caused were simple and therefore, no intention to cause injuries which are sufficient for death in the ordinary course of nature can be gathered in the facts of the present case.We have given our anxious consideration on the contentions raised by the rival parties and the material available on record.First of all, it is to be considered whether the death of deceased Govind and Lekhan was homicidal in nature or not ? In this connection, the evidence given by Dr. A.D.Bhatnagar (PW-4) may be considered, who performed the postmortem on the body of the deceased Govind and found following injuries vide his report Ex.(i) One lacerated wound on occipital region towards left side, size 2"x1/2"x bone deep compound fracture;(ii) One lacerated wound on left temporal region size 1"x1/2"x bone deep compound fracture;(iii) One lacerated wound on right side over parietal region 1/2"x1"x1/4";stitched, stitches removed before examination.(iv) One abrasion on left clavicle bone near sternum size 2"x1/2";(vi) One abrasion on left shoulder joint posteriorly size 2"x1" swelling;(vii) One contusion on left clavicle bone near shoulder joint size 1"x1" brownish in colour;(viii) One abrasion on left elbow joint size 1"x1/2";(ix) One contusion on right leg 2" above ankle joint laterally size 3"x2" brownish in colour;(x) Four contusions on left leg, thigh behind knee joint (posteriorly) size 2"x2", 3"x2", 2"x2", 2- 1/2"x2" swelling brownish in colour;(xi) One contusion on left knee joint laterally 2"x2"brownish in colour;(xii) One contusion on left popliteal fossa size 2"x2", reddish brown in colour swelling positive;(xiii) One contusion on right shoulder in joint posteriorly size 2"x2" reddish brown in colour.Dr. A.D.Bhatnagar further submitted that he has performed the postmortem of deceased Lekhan Singh and found following injuries vide his report Ex.P/11 :-(i) One contusion on right forearm from hands up to elbow x 3" reddish brown in colour, swelling positive;(ii) One contusion on left side of abdomen size 3"x2"reddish brown in colour;(iii) One contusion on left forearm from hands upto elbow joint laterally size 10"x3", reddish brown in colour, deformity positive;(iv) One contusion on left forearm medially 2"x2"reddish brown in colour swelling positive;(v) Multiple contusions on left side of back from scapular region up to left renal area bluish in colour, swelling positive;(vi) One contusion on lumber region size 6"x2" bluish in colour;(vii) Swelling 4"x3 & deformity positive left elbow joint;(viii) One incised wound on vertebral column at lumber region 2"x1", blood clot positive;(ix) One contusion on right arm posteriorly size 4"x3"reddish brown colour, swelling positive;(x) One incised wound on right leg 3" above ankle joint anteriorly size 2"x1", blood clot positive swelling;(xi) One contusion on right popliteal fossa, reddish brown in colour swelling;8 Criminal appeal No.140/1999 Prakash Singh & Ors.State of MP(xii) One incised wound on occipital region size 2"x1/2"x bone deep, blood clot;(xiii) One contusion on right hand, reddish brown in colour swelling, deformity positive;(xiv) One contusion on left popliteal fossa;According to Dr. Bhatnagar, the deceased Govind Dangi and Lekhan Dangi died due to cerebral hemorrhage and the injuries found to the deceased were sufficient to cause their death.The opinion given by Dr. Bhatnagar (PW-4) cannot be discarded.Such injuries could not be caused in an accident and they could not be self-inflicted and, therefore, death of deceased Govind Dangi and Lekhan Dangi was neither accidental nor suicidal, hence it was homicidal in nature.Witnesses Geetabai (PW-5) and Sharda Bai (PW-6) deposed that accused Jagat Singh having farsa, Jalam Singh armed with sword, Maharaj Singh with Lohangi, Harnam Singh, Ajab Singh, Prakash, Sher Singh, Ghanshyam, Vijay, Sajjan, Santosh, Anant Singh, Babbu and Dhanraj carrying lathis came and caused injuries to Govind Singh and Lekhan Singh.Accused Jalam Singh inflicted blow of sword on the chest and right hand of Lekhan Singh whereas accused Jagat Singh gave a blow of farsa on the head of Govind Singh.Other accused persons caused injuries by lathi.However, in the cross- examination both the witnesses admitted that at the time of incident they were in their house and after receiving the information about the incident from Dhandu and Chain Singh they reached on the spot.Thus, it is clear that these witnesses were not present at the time of crime and they have not seen the incident.Witnesses Sher Singh (PW-12) and Ram Singh (PW-14) deposed that six years ago at about 5 pm, after receiving the information from Chain Singh that accused persons have inflicted injuries to Govind Singh and Lekhan Singh, they reached on the spot where they saw that the accused persons having in their hands sword, farsa, lohangi and lathis were returning from the spot.Govind Singh and Lekhan Singh were 9 Criminal appeal No.140/1999 Prakash Singh & Ors.State of MP found on the spot in injured condition, therefore the trial Court has rightly concluded that Sher Singh and Ram Singh were also not present on the spot when accused persons were assaulting.Witness Chain Singh (PW-13) deposed that Six and half years ago at about 5 - 5.30 pm, there was a crowd of 40-50 people near the culvert on the eve of immersion of Bhujuriyon, where he was present along with Govind Singh, Lekhan Singh and Dhandu.Accused Jagat Singh, Prakash, Maharaj Singh, Dhanraj, Mathura, Jalam were assembled there.Mathura caught the legs of Lekhan Singh, then Prakash, Jagat Singh, Jalam, Maharaj Singh, Dhanraj and Mathura caused injuries to Lekhan Singh by their respective weapons like Lathi, Farsa, Sword, Lohangi.Lekhan Singh was standing near the platform of Dulha Dev where he was beaten and Govind Singh was standing near the platform.Govind Singh was beaten by Harnam Singh, Bablu @ Babulal, Anant Singh, Vijay, Sajjan Singh, Ghanshyam, Ajab Singh, Preetam, Sher Singh, Maharaj Singh by lathis and Man Singh by Lohangi, due to which Govind Singh fell down.When he went to Lekhan Singh, then Dhanraj gave lathi blow on his shoulder and after beating of Lekhan Singh, all the accused had beaten him and Dhandu and Ramsingh were also beaten by the accused persons.The prosecution's non- production of one independent witness who has been named in the FIR by itself cannot be taken to be a circumstance to discredit the evidence of the interested witness and disbelieve the prosecution case.What one may notice, another may not.And one cannot expect people to make very precise or reliable estimates in such matters.Again, it depends on the time- sense of individuals which varies from person to person.(6) Ordinarily a witness cannot be expected to recall accurately the sequence of events which take place in rapid succession or in a short time span.A witness is liable to get confused, or mixed up when interrogated later on.Learned counsel for the appellants argued that the appellant Sajjan Singh is not named in the FIR.The sole eyewitness Chain Singh (PW-13) has deposed that at the time of incident Sajjan Singh caused injury to Govind Singh but he did not assign any role of Sajjan Singh assaulting the deceased Govind Singh in his statement Ex.D-5 under Section 161 of 20 Criminal appeal No.140/1999 Prakash Singh & Ors.State of MP CrPC.Thus, the trial Court has committed error in accepting the evidence of Chain Singh (PW-13) as credible.From the perusal of FIR (Ex.P-27) it reveals that the FIR is lodged by Sher Singh, father of deceased Govind Singh and Lekhan Singh and the trial Court has found that at the time of incident, he was not present on the spot.Chain Singh (PW-13) has received as many as 10 injuries.A lacerated wound was found on his skull and swelling was found on his left forearm and left shoulder.He had contusion on his right jaw, right ankle and left thigh.In these circumstances, it cannot be expected from him to record his statement immediately after the incident.Further, it is to be stated that with regard to the main part of the prosecution version that accused assaulted deceased Gurdev Singh, the prosecution evidence is fully corroborated by medical evidence.The medical evidence also corroborates the say of the witnesses that on both the deceased, apart from injury by firearm, accused assaulted by gandasa.Dr. R.K. Chaudhary, P.W. 1 and Dr. H.L. Gupta, P.W. 2, who carried on post-morterm examination of Gurdev Singh (deceased), found that he was having as many as 13 injuries out of which 6 injuries were incise wounds.There were multiple contusions and lacerated wounds on the body.Similarly, with regard to Tek Singh (deceased), there were in all 9 injuries, 3 were incise wounds and rest were multiple contusions and lacerated wounds.Therefore, it cannot be stated that the evidence of the prosecution witnesses is not corroborated by medical evidence.It is true that they have failed to locate exact seat of the injuries but that is natural, when the incident takes place all of a sudden within two to three minutes and successive blows are inflicted by the accused, 8 in numbers.They came all of a sudden armed with the deadly weapons and attacked the victims, who rushed to take the shelter in the house.In such a fact situation, some contradictions as to who assaulted whom, with what weapon and whether it was by sharp edge or blunt side of Gandasa are bound to be there and particularly when blows are given in quick succession, it would be against the ground reality to expect the witnesses to depose exactly on which part of the body blow landed.In these circumstances, even if there is some exaggeration with regard to the inflictions of blows, it would hardly be a ground for rejecting their testimony."Though the trial court referred to the evidence of the eye- witnesses, it chose to disbelieve them merely on account of minor 22 Criminal appeal No.140/1999 Prakash Singh & Ors.State of MP inconsistencies in their evidence, relating to the exact site of occurrence and failure to name all who landed blows and the exact nature of injuries.The High Court, on the other hand, held that minor inconsistencies and discrepancies regarding the exact place or the point at which the incident took place or as to who landed the blows is not sufficient to disbelieve the evidence of injured eye- witnesses.Having gone through the evidence of Chain Singh (PW-13), we are in complete agreement with the trial Court that the contradictions and discrepancies cannot be said to be material contradictions affecting the credibility of the evidence of Chain Singh.In his testimony Chain Singh has given graphic details of the occurrence and his evidence is also corroborated by the medical evidence which clearly shows that several blows were given to the deceased Lekhan Singh and Govind Singh by the appellants/accused persons by way of sharp cutting weapon as well as by hard and blunt object.The learned counsel for the appellants has also pointed out that the statements of the prosecution witnesses do not sufficiently indicate the overt act of each individual who have been named as accused, leave alone the role of the appellants.Suffice it to observe that in a case where ingredients of Section 141 of IPC which defines unlawful assembly are satisfied and from the material available on record, it is clear that the appellants had gone to the place of incident equipped with sharp-edged weapons and hard and blunt objects, the pre- meditation and common object of the members of the assembly can easily be ascertained.Learned counsel for the appellants submits that the appellant Sajjan Singh has filed an application on 2.12.1993 before the trial Court, alleging that he was minor, hence his 25 Criminal appeal No.140/1999 Prakash Singh & Ors.State of MP case be separated and be sent to the Juvenile Court for hearing but the said application was rejected by the trial Court vide order dated 16.3.1994 without conducting any enquiry and without granting any opportunity for producing the evidence regarding juvenility to the appellant, which is mandatory according to the settled law.After getting several opportunities on 23.9.1993 accused Man Singh and Ghanshyam submitted that they do not wish to produce any evidence in this regard and after that, all the applications including the application filed on behalf of accused Sajjan Singh, were decided by common order dated 16.3.1994 and the trial Court found that on the basis of the medical evidence, mark sheets and horoscopes, it appears that Ajab Singh and Ghanshyam were below 16 years of age at the time of incident, therefore, it was directed that the charge sheet regarding them shall be filed before the Juvenile Court but the other accused persons including Sajjan Singh have not filed any document regarding their age and they have also not prayed for time to adduce any evidence to prove their juvenility, hence, the trial Court dismissed their applications.After 26 Criminal appeal No.140/1999 Prakash Singh & Ors.State of MP rejection of their claim, the accused persons have not challenged the rejection order of the trial Court by filing revision petition before this Court.Therefore, the order of the trial Court has attained its finality.Before this Court also, accused Sajjan Singh has not filed any document to show that at the time of incident he was below 18 years.Since accused Prakash Singh (appellant No.1 in Criminal Appeal No.140/1999) has expired, therefore, his appeal stands dismissed, however the conviction and jail sentence of remaining appellants in these three appeals for the offences punishable under Sections 302/149, 325/149, 323/149 and 148 of IPC is maintained.A copy of the judgment be also sent to the trial Court along with its record for information.

['Section 149 in The Indian Penal Code', 'Section 302 in The Indian Penal Code', 'Section 148 in The Indian Penal Code', 'Section 307 in The Indian Penal Code', 'Section 323 in The Indian Penal Code', 'Section 325 in The Indian Penal Code', 'Section 161 in The Indian Penal Code', 'Section 304 in The Indian Penal Code', 'Section 147 in The Indian Penal Code']

In Re : An application for anticipatory bail under section 438 of the Code of Criminal Procedure filed on 25.7.2019 in connection with Daspur P.S case no. 141 of 2019 dated 1.6.2019 under sections 341/323/354B/506/34 of the Indian Penal Code And Allowed In Re : Smt. Shefali Gantait nee Shephali Gantait nee Mita Gantait & Ors.The application being CRM 6585 of 2019 is disposed of.(Manojit Mandal, J.) (Joymalya Bagchi, J.) 2

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

Learned Government Advocate for the respondent/State informed that notice to the respondent no.2/victim has already been served.None appeared for the victim.Heard on and I.A.No.14149/2019 application filed by appellant under Section 389(1) of the Code of Criminal Procedure, 1973 for suspension of sentence and grant of bail to the appellant.The appellant stands convicted for the offence punishable under Section 354 of the IPC and sentenced to undergo R.I. for 3 years with fine of Rs.500/- under Section 354-A of the IPC and sentenced to undergo R.I. for 2 years with fine of Rs.500/-, under Section 7/8 of the POCSO Act, 2012 and sentenced to undergo R.I. for 3 years with fine of Rs.500/- and under Section 3(1)(11) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and sentenced to undergo R.I. for 1 year with fine of Rs.500/-with default stipulations.Having heard both the learned counsel for the parties, appellant jail sentence has already be suspended by the trial Court under Section 389(3) of the Cr.P.C. and that period is further extended by this Court.The appellant did not misused the liberty.Appellant was on bail during the trial.Learned Government Advocate for the respondent/State on the other hand has opposed the application.List this case for final hearing in due course.Certified copy as per rules.(Vishnu Pratap Singh Chauhan) Judge vai Digitally signed by VAISHALI AGRAWAL Date: 2019.09.17 11:57:35 +05'30'

['Section 354 in The Indian Penal Code']

The appellant used to abuse Shobha for bringing less dowry.She used to deprive her from getting food and also used to misbehave with her.Before the date of incident, Shobha was not given any food by the appellant.On 5.7.1992 at 10 A.M when Shobha was sitting in her room, appellant, with a kerosene oil cane, entered her room, poured the oil on her and set her ablaze.Shobha cried and because of that neighbours reached to the place of incident.The said police station registered it as Crime No.90/92 under section 307 of IPC.Shobha was medically examined and statement of witnesses were recorded.In turn, Shobha was hospitalized for further treatment where she died.Apart from this, Mata Prasad (P.W.4), is neighbour of appellant and an independent witness.The appellant was tried by the court below in Sessions Trial No.312/92 for committing offence under section 498-A and 304-B and in alternatively under section 302 of the Indian Penal Code (for short 'IPC').By the impugned judgment dated 9.11.95, the appellant was exonerated from the offence under section 498-A and 304-B IPC.However, she is held guilty for committing murder of her daughter-in-law Shobha.The appellant is accordingly convicted under section 302 IPC and was directed to undergo life imprisonment with fine of Rs.500/- with default stipulation.Upon receiving the information of her death, 'marg' intimation No.90/92 was recorded and offence was converted from section 307 to 302 of IPC.After investigation, challan was filed before JMFC under section 498-A and 302 of IPC.On committal, the Sessions Court received the matter.The appellant abjured the guilt and prayed for full fledged trial.In her defense statement, she stated that she has been falsely implicated.Her daughter-in-law Shobha sustained burn injuries while preparing the food.In her support, Amritlal (D.W.1), Puranlal (D.W.2) and Smt. Janki Bai (D.W.3) entered the witness box.After recording the evidence of parties and hearing the arguments, the impugned judgment is passed which is called in question by Shri Siddharth Datt by contending; (i) The incident had taken place on 5.7.92 at 10 A.M. The FIR (Ex.P/14) was recorded at 10.50 A.M. There exists an over writing on the relevant column which is related to date and time of receiving information.Shri Datt submits that although this F.I.R may be treated as a dying declaration, this document is not trustworthy because at the bottom of this document, in a different hand writing name of deceased Shobha is written.Putting it differently, it is argued that under the thumb impression of deceased Shobha, in a different writing, her name is mentioned which creates serious doubt on this dying declaration; (ii) The dying declaration (Ex.P/10) recorded by the Doctor is also not trustworthy because time mentioned in it is 10.15 A.M.-:- 3 -:-A No.1565 of 1995 is interpolation in one entry of this dying declaration.This witness could not give satisfactory explanation regarding existence of two finger impressions on the dying declaration (Ex.P/10).Similarly, he could not give justifiable explanation about adding of words in the portion of impression which is marked as "D to D"; (iv) Dr. Nema was unable to show the reason of death whether it is homicidal or suicidal hence it is totally unsafe to hold the appellant guilty; (v) In cross-examination, Rakesh Tiwari (P.W.14) admitted that there exists an over writing in Ex.P/14 in " l to l" portion.As per statement of this witness also Shobha, was 100% burnt.If she was 100% burnt, it cannot be believed that she was in a fit state of mind to give the dying declaration.This witness was unable to explain as to how two finger impressions are available on Ex.P/10; (vi) Gulab Bai (P.W.2) mother of deceased did not support the prosecution story and turned hostile hence it is not safe to give stamp of approval to the impugned judgment; (vii) Reliance is also placed on the statement of defense witnesses wherein they have stated that Shobha had committed suicide;Shri Datt, learned counsel for the appellant, on the strength of aforesaid arguments stated that the findings of the court below are perverse in nature.The court below has not appreciated the documentary and ocular evidence in a lawful manner which resulted into conviction of the appellant.Shri Ajay Tamrakr, learned P.L for the respondent/state urged that the spot-map (Ex.P/1) was prepared which contains the name of Mata-:- 4 -:-A No.1565 of 1995 Prasad (P.W.4).Mata Prasad (P.W.4) is the neighbour and an independent witness who entered the witness box on behalf of the prosecution.By taking this court to the statement of Mata Prasad (P.W.4), he urged that the statement of this witness is totally trustworthy.In the dying declaration, the Doctor has specifically mentioned that deceased Shobha was in a fit state of mind.By placing reliance on Ramavati Devi Vs.It need not be recorded be the Magistrate.No other point is pressed by learned counsel for the parties.We have heard the counsel at length and perused the record.The appellant was tried for committing offence under section 498- A and 304-B of IPC also apart from offence under section 302 of IPC.The mother of deceased Smt. Gulab Bai (P.W.2) turned hostile and prosecution could not lead any evidence to bring home the allegations regarding offence under section 498-A and 304-B of IPC.The first dying declaration was recorded by the Doctor at 10.15 A.M. As per evidence on record, the place of incident/ house of deceased and appellant is very near to the hospital and police station.There is no over writing on the first dying declaration (Ex.P/10) so far time of recording of this dying declaration is concerned.This dying declaration is pregnant with two finger impressions.In the right bottom of Ex.P/10 just below the thumb impression, it is clearly mentioned that it is right thumb impression of deceased Shobha.Yet another impression almost at the middle of this declaration finds place.Although there exists no explanation for existence of this thumb impression, we find no reason to doubt the dying declaration because of existence of another thumb impression on the same declaration.This is trite that if dying declaration is otherwise trustworthy, it amounts to substantive evidence-:- 5 -:-A No.1565 of 1995 and it cannot be discarded on flimsy grounds.The Doctor made it clear that the alleged interpolation of words between "D to D" were also made at the time of recording of declaration.A careful reading of this dying declaration (Ex.P/10) clearly shows that Shobha clearly deposed that mother-in-law/ appellant had poured kerosene and set her ablaze.There is no over writing or interpolation on this relevant parts of dying declaration.Thus, we find no reason to disbelieve this dying declaration.The aforesaid dying declaration (Ex.P/10) is called in question for yet another reason.It was argued that when burn injuries were to the tune of 100%, it is not safe to accept the dying declaration.The F.I.R (Ex.P/14) is also assailed for the same reason.It is noteworthy that Doctor clearly in the first dying declaration that Shobha is in a fit state of mind to give the declaration.The Division Bench of this Court in Rajiya Bi Vs.The Division Benchs in State of MP Vs.Koushal- 2008(4) MPHT-170 and Kamal Singh Vs.State of M.P.-ILR (2010) M.P.1797 also took the same view.Pertinently, in Vijay Pal Vs.State of M.P-(2015) 4 SCC-749, the Apex Court considered a matter where deceased sustained 100% burn injuries.The oral dying declaration was made to brother of the deceased.The dying declaration was found to be credible.State of Karnataka- (2010) 6 SCC 533 wherein the argument that deceased sustained severe burn injuries and it was elicited that tongue of the deceased was swollen and protruding and lips were burnt, were not accepted despite the fact that she sustained 100% burn injuries.The statement of Doctor was believed that she was in a fit state of mind to give the declaration.The same is the case here where Dr. Nema (P.W.9) could withstand the cross-examination and hisWhen he reached to the place of incident at around 10 A.M, he found that husband of deceased, namely, Govind brought Shobha out of the house.She was crying that mother-in-law set her ablaze.He and Govind took Shobha to the hospital.This witness clearly deposed that in the mid way to the hospital, Shobha was saying that appellant had set her ablaze.Her husband Govind repeatedly asked her not to take name of mother and advised her to take his, brother's or father's name but Shobha candidly-:- 7 -:-A No.1565 of 1995 stated that she will take the name of appellant because she alone had set her ablaze.This statement of the independent witness carries a lot of weight.There is no enmity between the family of appellant and this independent witness who is neighbour of the appellant.The appellant in her statement/ explanation under section 313 of Cr.P.C stated that deceased caught fire while preparing the food.However, the defence witnesses narrated a different story i.e she committed suicide.Thus, the defence of appellant and the story narrated by the defence witness, is not worthy of credence.

['Section 302 in The Indian Penal Code', 'Section 498A in The Indian Penal Code', 'Section 307 in The Indian Penal Code', 'Section 304B in The Indian Penal Code']

No costs.Consequently, connected miscellaneous petition is closed.5.The Director General of Police, Government of Tamil Nadu, Chennai.6.The District Collector, Madurai District, Madurai.7.The Superintendent of Police, Madurai District, Madurai.8.The Commissioner of Police, Madurai City, Madurai.9.The Executive Engineer, Highway Department, Madurai, Madurai District.10.The Deputy Commissioner of Police, Anna Nagar Limit, Madurai City, Madurai.11.The Inspector of Police, Othakadai Police Station, Othakadai, Madurai District.12.The Inspector of Police, Melur Police Station, Melur, Madurai District.13.The Inspector of Police, Puthur Police Station, Madurai District.14.The Inspector of Police, Anna Nagar Police Station, Madurai District.2. Heard Ms.R.Fathima, appeared in person, Mr.K.Chellapandian, learned Additional Advocate General, assisted by Mr.R.Sethuraman, learned Special Government Pleader appearing for the respondents 1 to 10 and 12 to 15 andMr.We also note that the petitioner informs thatshe is moving the present writ petition ?as per the guidelines and footstepsof the senior citizen and Social Activist - Traffic Dr.Ramaswamy?.We wouldseriously doubt as to whether a public interest litigant, like the petitionerherein, can move a Writ Petition at the behest of others.The petitioner hasalso informed commission of certain offences under the Indian Penal Code,which really may not be attracted in this case and some of which requiresanction for prosecution.4.This Writ Petition is dismissed as not maintainable.

['Section 201 in The Indian Penal Code']

The application is hereby allowed.Applicant No.1 Narayan Dhanraj Ghuge and applicant No.2 Mahadev @ Mahadu s/o Fulchand Ghuge in Bail Application No.1210 of 2020 and applicant No.1 Vyankati s/o Manikrao Ghuge and applicant No.2 Rahul Sudam Ghuge in Bail Application No. 1224 of 2020 in connection with Crime No. 190 of 2020 registered with Yusuf Wadgaon Police Station for the offences punishable under Sections 307,::: Uploaded on - 28/10/2020 ::: Downloaded on - 29/10/2020 03:00:01 ::: (4) BA-1210_ 2020.odt 324, 323, 147, 148, 149, 304, 427 of the Indian Penal Code be released on furnishing personal bonds of Rs.20,000/- (Rupees Twenty Thousand only) each with one solvent surety each of the like amount, on the following conditions :::: Uploaded on - 28/10/2020 ::: Downloaded on - 29/10/2020 03:00:01 :::(ii) The applicants shall attend the concerned Police Station once in a week on every Sunday between 8 a.m. to 11 a.m. till fling of the charge-sheet.The applications are accordingly disposed of.(V.K. JADHAV, J.) VD_Dhirde::: Uploaded on - 28/10/2020 ::: Downloaded on - 29/10/2020 03:00:01 :::::: Uploaded on - 28/10/2020 ::: Downloaded on - 29/10/2020 03:00:01 :::

['Section 307 in The Indian Penal Code', 'Section 427 in The Indian Penal Code', 'Section 504 in The Indian Penal Code', 'Section 149 in The Indian Penal Code', 'Section 147 in The Indian Penal Code', 'Section 323 in The Indian Penal Code', 'Section 324 in The Indian Penal Code', 'Section 148 in The Indian Penal Code']

Sri Anurag Kumar Pandey, learned Advocate has filed his Vakalatnama on behalf of the opposite party no.2, which is taken on record.Heard learned counsel for the applicants, learned Additional Government Advocate for the State/opposite party no.1, learned counsel for the opposite party no.2 and perused the record with the assistance of learned counsel for the parties.This application under Section 482 Cr.P.C. has been filed by the applicants to quash the charge-sheet no. 51 of 2017 dated 12.08.2017 arising out of Case Crime No. 81 of 2015 and proceedings of case no. 144 of 2017 (State Vs.Rishipal and others), under Sections 498A, 323, 506 IPC and Section 3/4 D.P. Act, Police Station Mahila Thana, District-Baghpat pending in the court of Additional Chief Judicial Magistrate, Baghpat.Marriage of applicant no.1 was solemnized on 25.11.2013 with the opposite party no.2, but their marriage was not successful, as a result thereof, the opposite party no.2 lodged FIR dated 31.07.2015 making allegation of her harassment and torture in her matrimonial house by the accused persons on account of non-fulfillment of demand of dowry, in which, charge-sheet was submitted on 12.08.2017 and cognizance was taken on 29.06.2018 by the Magistrate concerned.Learned counsel for the applicants has drawn the attention of the Court to the order dated 1.8.2019 passed by this Court in an Application under Section 482 Cr.P.C. No. 6541 of 2019, whereby upon being informed about the factum of inter-se compromise in between the parties concerned, the concerned court below was directed to verify the factum of compromise between the parties concerned.The said order dated 1.8.2019 is being reproduced herein-below:-"Shri Anurag Kumar Pandey, learned Advocate has filed his Vakalatnama on behalf of opposite party No. 2 along with counter affidavit, which are taken on record.Heard learned counsel for the applicants and the learned A.G.A. for the State and Shri Anurag Kumar Pandey, learned counsel for the opposite party no.2 and perused the record.As such compromise has to be duly verified in presence of the parties concerned before the Court.Applicants are permitted to file compromise application before the concerned court below within three weeks.Accordingly, this application is disposed of with a direction to the court concerned that if any such compromise is filed before it, it shall issue notices to all the signatories to the compromise requiring their personal presence and, thereafter, proceed to verify the compromise.If the aforesaid compromise is verified, a report to that effect shall be prepared by the court and the compromise will be made part of the record.It is submitted by learned counsel for the applicants that pursuant to aforesaid order dated 1.8.2019, the parties concerned appeared before the concerned court below, who have been identified by their respective counsel and terms of compromise made between the parties concerned were read over before the parties and thereafter, the Magistrate concerned passed an order dated 3.09.2019 verifying the said compromise.Certified copy of the said compromise verification order dated 3.09.2019 has been appended as Annexure No.5 to the application.

['Section 307 in The Indian Penal Code', 'Section 498A in The Indian Penal Code', 'Section 482 in The Indian Penal Code', 'Section 323 in The Indian Penal Code', 'Section 506 in The Indian Penal Code', 'Section 320 in The Indian Penal Code']

Theaccused no. 4 i.e. Energo Masch Power Engineering & Consulting Pvt. Ltd. isanother Company.The accused Nos. 5, 6, 7 & 8 are its Directors.9 is the Manager of M/s Indian Renewable Energy Development Agency (inshort 'IREDA') a financing agency and is brother-in-law of A5 and A6, andaccused No. 10 is a private person, namely Mrs. Sudha Ramani who is said tohave been given a fictitious authorization in respect of a Bank account bya resolution of the company.In brief, it was alleged that the accused entered into acriminal conspiracy to cheat the complainant and the Company.These Criminal Appeals are preferred by the complainant againstthe Judgment of the High Court of Judicature of Andhra Pradesh at Hyderabadby which the High Court has in exercise of powers under Section 482 of theCode of Criminal Procedure (in short Cr.P.C.) quashed the proceedings in CCNo.37 of 2008 on the file of the court of the Special Judge for EconomicOffences at Hyderabad insofar as the accused Nos. A4, A5, A6, A9 and A10are concerned.The complainant i.e. the appellant herein lodged a privatecomplaint in his capacity as a Promoter Director of Sri Satyanarayana PowerPrivate Ltd. - a company incorporated to generate biomass based powerproject in the District of Warangal in the State of Andhra Pradesh(hereinafter referred to as the 'Company').The complaint was filed inrespect of the offences allegedly committed under Section 628 of theCompanies Act, 1956 (in short the 'Companies Act') and Sections 120B and420 of the Indian Penal Code (in short the 'IPC').This complaint wasfiled in the Court of Special Judge for Economic Offences at Hyderabad.The accused Nos. 1, 2 and 3 are Directors of the Company.Further,accused A1 to A3 made false declaration in regard to record maintainedunder the provisions of the Companies Act, and filed a false declarationpurporting to be an extract of Board Resolution of the Company beforeAndhra Bank, Sowcarpet Branch, Chennai in order to open a bank account.According to the complainant the signatory to the Board Resolution was noteven a Director in the Company on the date the bank account was opened.Aseries of events alleged in the complaint show how the complainant wasinduced to invest in the Company by acquiring land for the Company at acost of Rs. 20 lakhs and make payment for the front end fee to IREDA whichhad in collusion with the other accused sanctioned the financial assistanceto the Company to the extent of Rs. 11.50 crores subject to the conditionthat the promoters should invest Rs. 4.98 crores as their contributiontowards the total project cost of Rs. 16.48 crores.Though Rs. 145 lakhsfrom the first installment of loan and Rs. 92 lakhs from the secondinstallment of loan were paid to the A4 Company only a nominal amount ofRs. 30 lakhs was used for work and the rest was swindled.As a part ofthese transactions the complainant alleged that A1 to A3 had made a falsedeclaration as records in a purported Board Resolution of the Company inorder to open a bank account and falsely authorised A10 and thereby made afalse declaration amounting to an offence under Section 628 of theCompanies Act. Thus, A10 was falsely authorized to operate the bankaccount.It will thus be seen from the above that according to thecomplainant the transactions of all the accused persons in conspiracy witheach other amounted to offences under Sections 120B and 420 of the IPC andSection 628 of the Companies Act.However, without giving any special reasons as regards accused Nos. A9 andA10 the High Court quashed the taking of cognizance.It may berecalled that the allegation as regards Section 628[2] of the Companies Actis said to have been committed by the accused A1 to A3 by making a falsedeclaration with regard to the record that is maintained in accordance withSection 193 of the Companies Act by filing an extract of the Boardresolution of the company before the Andhra Bank, Sowcarpet Branch, Chennaiin order to open a bank account 'the said Board resolution being a falsedeclaration,' since a bank account in the said bank was already opened evenbefore A1 had obtained consent of the complainant to open the said accountand further since the said Board resolution is signed by Hari Sesha Reddy -A3 who was not even a Director in the company as on the date of the openingof the bank account.The offence alleged against A10 was that she haddrawn huge amounts through self cheques in the capacity of the authorizedsignatory of the company.It is surprising to see that the High Court hasquashed the complaint against the accused persons on the ground of legaldefects though no allegation containing such defects were made against thesaid accused persons.As can be seen from the complaint the allegations are that theaccused conspired with each other to cheat the complainant and a series oftransactions gave rise to offence under Section 120B read with Section 420of the Indian Penal Code as also Section 628 of the Companies Act. It is,therefore, clear that if the Special Court has jurisdiction to try offencesunder both the aforesaid Acts then the trial can certainly continue inrespect of the offences which do not require the complainant to belong tothe categories specified under Section 621 of the Companies Act. Thus thetrial could certainly continue against those accused under the IPC.The High Court completely overlooked the fact that thecomplaint made allegations against the accused A4, A5, A6, A9 and A10 onlyin respect of Section 120B and 420 of Indian Penal Code and there was noreason in law to quash a complaint against them on the ground that theywere immune from prosecution under Section 628 of the Companies Act byvirtue of Section 621 of that Act.Date : 26/03/2015 These appeals were called on for hearing today.Suresh Babu, Adv.Mr. Ravi Kumar Tomar,AOR Mr. V.Senthil Kumar, Adv.Mr. K. Muthu, Adv.Mr. M. A. Chinnasamy,Adv.Chawla) (Renu Diwan) Court Master Court MasterITEM NO.1D COURT NO.4 SECTION II S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGSCriminal Appeal No(s).516-518/2010S. SATYANARAYANA Appellant(s) VERSUSENERGO MASCH POWER ENGG.&CONST.P.L.&ORS.Respondent(s)[HEARD BY HON'BLE JAGDISH SINGH KHEHAR AND HON'BLE S.A.BOBDE, JJ.]Date : 26/03/2015 These appeals were called on for judgment today.For Appellant(s) Mr. Vivek Singh for Mr. Lakshmi Raman Singh,AORFor Respondent(s)Mr.Ravi Kumar Tomar,AOR Mr. M. A. Chinnasamy,AOR Mr. V. N. Raghupathy,Adv.(NP) Hon'ble Mr. Justice S.A. Bobde pronounced the judgment of theBench comprising Hon'ble Mr. Justice Jagdish Singh Khehar and His Lordship.

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

Appellant-Satish, has preferred this appeal under Section 14-A(2) of the SC/ST (PA) Act, 1989, feeling aggrieved with the order dated 10.3.2017, rendered by Special Judge Shajapur, in S.T. No.38/2017, whereby the prayer for regular bail has been declined to the appellant.Allegedly, prosecurtrix aged about 15 years was enticed away by one Prakash.Further allegation is that she was taken by Prakash to Borgaon and in Borgaon the present appellant helped Prakash in procuring rental premises for his stay.The further allegation is that the prosecutrix was also subjected to rape by Prakash.It is submitted by learned Counsel for the appellant that only allegation against the appellant happens to be that he helped and facilitated Prakash in procuring rental premises for stay and that the same prima facie cannot amount to an offence under the aforesaid provisions of law.Though the prayer for bail is opposed by learned Public Prosecutor, however, considering the nature of the allegation so also the quality of evidence to support the same, it would be appropriate to admit the appellant on bail.Consequently, setting aside the impugned order, the appeal is hereby allowed.It is directed that the appellant shall be released on bail on execution of personal bond in the sum of Rs.40,000/- (Rupees Forty thousand only) with a solvent surety in the like amount to the satisfaction of the learned trial Court for his regular presence during trial.Certified copy as per rules.(Ved Prakash Sharma) Judge M.Jilla.

['Section 366 in The Indian Penal Code', 'Section 363 in The Indian Penal Code', 'Section 3 in The Indian Penal Code', 'Section 376(2) in The Indian Penal Code', 'Section 120B in The Indian Penal Code']

The prosecution case in brief is that on 31 -8-74 at 10-20 AM a case under Section 392 IPC was registered against Rana Sikh at police station Cantonment.The investigation was entrusted to S.I. Sagir Ahmed who started from police station Cantt at 10.45 AM along with S.I. Jahangir Khan and S. I. Lalman.When they reached outpost Chakeri they took Rameshwar Singh Head-Constable, Ram Gopal Head constable and some other police personnel.After visiting the place where offence under Section 392 IPC had taken place they received information that accused Ranveer alias Rana who was involved in the offence under Section 392 IPC was at the shop of Autar Singh near Khalsa Inter College.On this information the police party started for the shop of the Autar Singh and they took Satya Narain, Ganga Ram and Jugraj as Motbir witnesses.When the police party was 20-25 paces away from the shop of Autar Singh, the accused saw them and immediately whipped out his pistol and fired at the police party saying that if the police party comes near they would be killed.Saying so the accused ran towards Narendra ground by scaling over the wall jumped on the other side.The police party and others continued to chase the accused.On Narendra ground also the accused fired at the police party but nobody was hurt.The chase continued and the accused fired at the police party from time to time.When the accused and the police party were in the lanes of village Safipur, Head-Constable Ram Bahadur Singh thought that the accused has run out of ammunition and he came close to the accused who turned around and fired a shot at Ram Bahadur Singh Head-Constable.Ram Bahadur Singh, however, gave a Danda blow to the accused and sat on the ground pressing his injury by his both hands.At this stage Sri Sagir Ahmad S.I. fired at the accused but he missed his aim.The police continued to chase the accused but he was able to make good his escape.1) Punctured wound 1 cmx 1 cm circular with depth under observation on the right chest lower part at the level of the seventh rib in the line of the nipple 6 cm below the nipple.Margins inverted.Tatooing present around the wound.JUDGMENT O.P. Jain, J.Appellant Ranveer Singh alias Rana was convicted and sentenced under Section 307 and 332 IPC in S.T. No. 204/75 by Vlth Addl.Sessions Judge, Kanpur.A sentence of three years R.I. under Section 307 IPC and one year R.I. under Section 332 IPC has been awarded.The shot fired by the accused hit Head-Constable Ram Bahadur Singh on the chest.Head-Constable Ram Bahadur Singh was sent to the hospital through Sri Lallan Singh A.S.I, and Rameshwar Singh Head-Constable.A report of this incident was written by Sagir Ahmad S. I. and it was sent to police station Cantonment where a case was registered at 1.30 P.M. The firing incident took place at 12 noon.The injuries of Ram Bahadur Singh were medically examined by S. K. Khare P.W. 7 and the following injuries were found.2) Punctured wound 2.25 cm x .25 cm x depth under observation on the back right side in post auxiliary line at the level of the 7th rib.Margine averted.After completing usual investigation the Investigating Officer submitted the chargesheet against the accused.The accused was committed to the Court of Sessions.The prosecution examined eight witnesses before learned Sessions Judge.The first witness is Head-Constable Ram Bahadur who is the injured, P.W. 2 Jahangir Khan and P.W. 4 Sagir Ahmed S. I. are the members of the police party and are eye witnesses.P.W. 3 Ganga Ram is the member of the public who accompanied the police party and he is also an eye witness of the incident.Dr. S. K. Khare P.W. 7 has examined the injuries and Dr. H. N. Bahadur P.W. 5 has given the details of the treatments and has stated that on 1 -9-74 he stitched the entry and exit wounds of Ram Bahadur Singh.The last witness is P.W. 8 D. K. Gupta who is the Investigating Officer of the case.The plea taken by the accused is that he has been falsely implicated and that on the date of the incident he was at Allahabad where he surrendered on coming to know that he is wanted in this case.In order to prove his defence the accused has examined D.W. 1 Ajai Pal Singh.The most important witness in the case is naturally injured Ram Bahadur Singh P.W. 1 who has stated that they had gone in search of the accused because he was wanted in an earlier case under Section 392 IPC.An entry of their departure from police station Cantonment was made in the General Diary No. 29 Ex.It is further stated by Ram Bahadur Singh that he came to know that the accused was at the shop of Autar Singh and when they reached near that place the accused whipped out his revolver and fired at the police party but no one was hurt.Thereafter the accused started running and he scaled compound wall of Narendra ground.The police party continued to chase him till they reached village Safipur.In between the two places the accused continued to fire at the police party.Near the house of one Balwant Singh the police party thought that now there is no bullet in the revolver and therefore Ram Bahadur Singh went forward for apprehending the accused but the accused took a turn and fired at Ram Bahadur Singh causing injury on his chest.Ram Bahadur Singh gave a danda blow to the accused and sat down holding the injured part by his both hands.It is not necessary to repeat the statements of all the eye witnesses which are similar and it will be proper to come straight to the criticism levelled by the learned counsel for the appellant.At the time of the incident the police party had three Head-Constables and three constables beside the Sub-Inspector named above.The criticism levelled by the learned counsel for the accused about Ganga Ram is factually correct and it is true that Ganga Ram has admitted in his cross-examination that 20-25 cases were registered against him at police station Cantt and two cases were pending against him at the time he gave evidence in this case.This should, however, be kept in view that when a police party is going to arrest a desperate criminal, an ordinary law abiding person is not likely to accompany the police party and to put himself in danger.Therefore, the police has no option but to take the assistance of such persons who come forward to assist it.At that time the police could not have scrupulously examined the antecedent of the persons who were ready to assist the police party.

['Section 307 in The Indian Penal Code', 'Section 392 in The Indian Penal Code', 'Section 324 in The Indian Penal Code', 'Section 332 in The Indian Penal Code', 'Section 313 in The Indian Penal Code', 'Section 300 in The Indian Penal Code']

i. Complainant Aniket Shankarrao Deshpande was resident of Purwa Apartment situated at Ahinsa Nagar, opposite Akashwani, Aurangabad and was serving in Sterlight Technology Company situated at MIDC Waluj, Aurangabad.Mansi 21 year old sister of Aniket was residing with him.She was studying in IInd year B.C.S. in MGM College, Aurangabad.At the time of incident their father was posted at Shrinagar.Aniket was to return home from work at 07:00 pm.He could not return on time as some problem had cropped up in one machine and he was required to over stay in the company to attend the problem of machine.Aniket came back home on 12th June, 2009 at 05:00 am.He ::: Uploaded on - 08/03/2016 ::: Downloaded on - 09/03/2016 00:03:02 ::: 7 Cri.Appeals 516, 281 n 468 of 2012.odt called Mansi on her mobile at around 05:00 am.::: Uploaded on - 08/03/2016 ::: Downloaded on - 09/03/2016 00:03:02 :::receive any response from Mansi so again he phoned her.He thought that Mansi might be fast asleep and her mobile battery might have discharged.So instead of disturbing Mansi he went to the house of his friend Vivek Agrawal who was residing in Bhagyanagar at Aurangabad.Till 09:00 am to 09:30 am Aniket slept at the house of his friend.By that time Vivek had already left to his workplace.Aniket then locked the door of the house of his friend and came to his house at around 10:00 am.Aniket noticed that house was closed from inside.He knocked the door and also called his sister on phone but he did not receive any response.After few minutes as the door was not opened Aniket suspected something wrong and went down stair to the house of owner ::: Uploaded on - 08/03/2016 ::: Downloaded on - 09/03/2016 00:03:02 ::: 8 Cri.Appeals 516, 281 n 468 of 2012.odt Bankar Patil.Aniket was staying on the first floor.He informed the owner of the house that he wanted to climb from the grill of their Varandha in order to go to his house.Then he climbed the grill and went to the gallery of his flat.He noticed that door of the room attached to balcony was opened.He entered the drawing room and then to bedroom of Mansi.Aniket was shocked to see Mansi lying on the bed in injured condition.Her hands were tied with wire of headphone of mobile and legs were died with big scarf of Mansi.Aniket found bed-sheet covered around her face.He removed the bed-sheet and saw no clothes on her person.He noticed injury to her neck and profused bleeding.A screw driver and a scissor were lying there.Many articles in the house were found scattered.Appeals 516, 281 n 468 of 2012.odt Aniket.She called other neighbourers.Aniket called his friend Vivek Agrawal and Vishal for help.He asked Mr. Khadke who was providing tiffin to him and residing in the next apartment, to come with doctor immediately.Mr. Khadke then came with doctor.In the meanwhile Police were informed.Police also rushed to the house.::: Uploaded on - 08/03/2016 ::: Downloaded on - 09/03/2016 00:03:02 :::Doctor examined her and declared that she died before 3-4 hours.Aniket lodged report with the police station.Crime No.65 of 2009 was registered at Jinsi Police Station under Section 302 and 201 of the Indian Penal Code.Police took dead body in custody.It was sent for postmortem to Ghati Hospital.Before referring the dead body for postmortem, inquest Panchanama was drawn by P.S.I. Akmal in the presence of Panch witnesses.P.S.I. Akmal seized black mobile, one scarf, one T-shirt, one blood stained bracier under separate Panchanama.Inquest ::: Uploaded on - 08/03/2016 ::: Downloaded on - 09/03/2016 00:03:02 ::: 10 Cri.Appeals 516, 281 n 468 of 2012.odt Panchanama and seized articles were handed over by P.S.I. Akmal to PW-32 Investigating Officer Sopan Borse.::: Uploaded on - 08/03/2016 ::: Downloaded on - 09/03/2016 00:03:02 :::PW-32 P.I. Sopan Kisan Borse was entrusted with the investigation of crime.He visited the spot.At the time of recording scene of occurrence Panchanama, blood stained bed-sheet, scissor, screw driver, green Salvar and a nicker were seized.Photographs were taken.Statements of witnesses were recorded.On 13th June, 2009, blood sample of Mansi, pubic hair, vaginal swab preserved by Medical Officer at the time of performing postmortem, viscera and seized clothes of Mansi were sent to Forensic Science Laboratory Mumbai for analysis and DNA test to find out whether girl was ravished.During investigation supplementary statement of Aniket was recorded.In his supplementary statement Aniket informed Police that Mansi was ::: Uploaded on - 08/03/2016 ::: Downloaded on - 09/03/2016 00:03:02 ::: 11 Cri.Appeals 516, 281 n 468 of 2012.odt having a mobile phone and he did not find her mobile phone in the room.A.P.I. Gautam Patare attached to Chavni Police Station was conversant with cyber crimes.Three teams were formed for further investigation.It was revealed that Mansi had purchased mobile from Zee Corner Mobile Shop.Statements of PW-6 Sheetal Satish Sonawane friend of Mansi who accompanied her to purchase a mobile and mobile shop owner PW-18 Abdul Rauf came to be recorded.A receipt regarding purchase of mobile by Mansi was collected.A.P.I. Patare obtained information from Airtel company on the basis of IMEI number mentioned on the receipt regarding purchase of mobile.From IMEI number of mobile of Mansi, it could be revealed that said IMEI number was visible on the mobile having simcard number "9503667292".From tower location A.P.I. Patare could also know the spot from where mobile was being used.It was from hotel Pancham.::: Uploaded on - 08/03/2016 ::: Downloaded on - 09/03/2016 00:03:02 :::Appeals 516, 281 n 468 of 2012.odt x. A.P.I. Patare then visited hotel Pancham.Accused No.2 Pradip Chandaliya was present.Mobile was seized from Accused No.2 under seizure Panchanama.Accused No.2 Pradip Chandaliya was interrogated regarding possession of mobile with him.Accused No.2 informed police that his son Mayur had given a simcard to him and a customer Jawedkhan @ Tingrya gave him the mobile towards a bill of his hotel.Information in respect of mobile purchased by Mansi as per the receipt exactly tallied with the mobile seized from Accused No.2 Pradip Chandaliya.Before arrest, Investigating Officer confirmed from Jawedkhan whether he had given the mobile to Pradip Chandaliya.Jawedkhan admitted that he gave mobile to ::: Uploaded on - 08/03/2016 ::: Downloaded on - 09/03/2016 00:03:02 ::: 13 Cri.Appeals 516, 281 n 468 of 2012.odt Pradip Chandaliya.::: Uploaded on - 08/03/2016 ::: Downloaded on - 09/03/2016 00:03:02 :::After arrest Accused Jawedkhan was interrogated.During interrogation it could be revealed that gold ring of Aniket which was found missing from the house was given by Jawedkhan to Accused No.3 Ram Bodkhe against some dues which Accused Jawedkhan owed to Ram Bodkhe.Accused No.1 Jawedkhan was referred to Ghati Hospital for medical examination.Medical Officer was requested to take his blood, pubic hair, semen sample and nail clippings.Investigating Agency could recover the clothes of Jawedkhan at his instance which clothes he was wearing at the time of commission of offence.Those clothes were concealed in garbage just in front of the spot of incident.Accused No.3 Ram Bodkhe gave statement to recover gold ring received by him from Accused Jawedkhan.At the instance of Accused No.3, gold ring of Aniket was recovered from a room of electric motor near Tulsi Chambers.Its seizure Panchanama was recorded.It appears that after the incident Accused Jawedkhan changed his clothes and wore clothes of Aniket.He had shown his readiness to produce those clothes hidden in the garbage near Tapadia Natyagraha.Memorandum of Accused Jawedkhan was accordingly recorded and clothes of Aniket were recovered at the instance of Accused Jawedkhan.In the present case to prove homicidal death Prosecution has placed strong reliance on medical and circumstantial evidence.So far as factum of homicidal death is concerned, evidence of PW-25 Dr. Anand Bassaiya Mugadalimath and PW-30 Dr. Sachin Gade is important.On 12th June, 2009 Dr.Mugadalimath was attached to Forensic Science Department Government Medical College and Hospital, Aurangabad.Dead body of Mansi Deshpande was brought to the hospital by Jinsi Police.5) Stab wound over neck anteriorly over mid line irregularly slit shaped, horizontally placed of size 3.5 cm x 0.5 cm x cavity deep on approximation 3.9 cm, margin irregular, contused blood infiltrated both angles blunted.9) Two contusions over upper medial of quadrant of left breast, upper contusion have 2 arches of size 4.5 cm each with concavity downwards & distance between two arches is 2 mm.Lower contusion have single arch with concavity upwards and 5 cm long.Both contusions are reddish in colour.10) Contusions over both ala of nose, irregular in shape and reddish.11) contusions over both lips whole length, irregular in shape and reddish.12) Laceration of frenulum of upper lip, margins irregular contused & blood infiltrated.13) Two stab wounds over right side of chest laterally of size 2 cm x 1 cm x cavity deep and 4 cm x 1 cm x cavity deep, on approximation 2.4 cm and 4.4 cm in length, irregularly oval in shape, margins - irregular contused and blood infiltrated with tailing posteriorly and anterior angles rounded and both placed horizontally.Direction of stab wound - Anteriorly downwards.19) Two stab wounds over left gluteal region laterally of size 0.5 cm x 0.5 cm x cavity deep and 0.2 cm x 0.2 cm x cavity deep, separated by 0.3 cm, irregularly oval, on approximation 0.8 cm x 0.3 cm in length, margins irregular, contused and blood infiltrated, both angles blunted.On dissection tract of stab wound - skin - subcutaneous tissue.Direction of stab wound - Anteriorly downwards.20) Two stab wounds over left gluteal region ::: Uploaded on - 08/03/2016 ::: Downloaded on - 09/03/2016 00:03:02 ::: 22 Cri.No evidence of fractures of Hyoid bone.No evidence of fractures to cricoid and thyroid lactilages except stab injury as mentioned in injury no. (5).On internal examination and dissection of neck, doctors found evidence of haemorrhage in all strap muscles.Petechial haemorrhage above and below Epiglottis and larynx was noticed.Appeals 516, 281 n 468 of 2012.odt Hymenal remnants seen at places.There was loss of rugosity of vaginal wall.There was also found contusion on the vaginal wall anteriorly lower 1/3rd reddish in colour.On internal examination they noticed as follows -"Uterus of size - 6 cm x 4 cm x 2.5 cm of weight 50 grams.On opening blood clots seen.Cervix closed transversly slit like.Ovaries and fallopian tubes normal."The entire evidence of Dr. Mugadalimath and Dr.Mugadalimath, could not bring on record anything adverse affecting the reliability of medical evidence.In addition to medical evidence, prosecution has relied upon uncontroverted inquest panchanama (Exhibit 31), photographs (Exhibits 35/1 to 35/5) of the spot taken by PW-3 Baburao Sitaram Batade and spot panchanama (Exhibit 29).So far as inquest panchanama is concerned, PW-32 P.I. Borse deposed that P.S.I. Akmal had drawn inquest Panchanama (Exhibit 31) and seized various articles from the spot vide seizure Panchanama (Exhibit 30).In respect of photographs, evidence of PW-3 Baburao Sitaram Batade would be relevant.Baburao Batade (PW-3) was running Paras Photo Studio at Kailashnagar, Aurangabad.She answered her examination and being holidays was staying alone when Aniket was attending his office.It is stated by Aniket that on 11th June, 2009 at around 09:00 am he left for the office.Mansi was alone in the house.He was to return home at about 07:00 pm.Due to some problem in a machine, he was required to over stay and came home at around 05:00 am on the next day.Before coming home Aniket called Mansi on her mobile phone.The mobile was switched off.After reaching home he knocked the door for 5 to 10 minutes.Thinking that Mansi might be fast asleep he went to the house of his friend Vivek in Bhagyanagar at Aurangabad and slept there.He woke up at 09:00 to 09:30 am.By that time Vivek had already left for the work.He locked the door of the house of Vivek and came to ::: Uploaded on - 08/03/2016 ::: Downloaded on - 09/03/2016 00:03:02 ::: 28 Cri.The flat of Aniket was on the first floor.He came down stair to the house of owner Bankar Patil and told him that he has to enter his house by climbing the grill of their Varandha.Then he climbed the grill and went to the gallery of his flat.He saw door of room of balcony opened.Then he entered the drawing hall and bedroom of Mansi.He found that hands of Mansi were tied with wire of headphone of mobile.Her legs were tied with a big scarf.Her face was covered with a bed-sheet.He removed bed-sheet and saw that body of Mansi was stiff and she was not talking.No clothes were found on her body.He also saw injury to her neck and profused bleeding.Many articles in the house were lying scattered.A screw driver and scissor were lying there.He got frightened and immediately rushed to neighbourer Mrs. Soni.Aniket then states that Mrs.Soni accompanied him.After seeing Mansi she started calling Mrs. Bankar.Aniket phoned his friends Vivek and Vishal for help.He requested Mr. ::: Uploaded on - 08/03/2016 ::: Downloaded on - 09/03/2016 00:03:02 ::: 29 Cri.Appeals 516, 281 n 468 of 2012.odt Khadke residing in front of the house and who was providing tiffin to them to call the doctor immediately.Mr. Khadke came with doctor within 10 minutes.Police also reached the spot.Doctor examined Mansi and declared her dead.Vivek Agrawal was serving in Sterlight Company, MIDC Waluj, Aurangabad as Deputy Manager.Complainant Aniket was serving in the same company.It appears from the evidence of PW-1 Vivek that on 11 th June, 2009 he had been to company in the morning.Aniket also joined duty at about 09:30 am.It is further stated by PW-1 Vivek that on the next day at around 05:30 am Aniket rang the door bell of his house.He opened the door.Thereafter, Aniket went to sleep in a room.PW-1 Vivek also went to sleep in his room.According to Vivek at around 08:45 am he left the home for office.That time Aniket was sleeping.At 09:30 am he received phone call from Aniket informing that his sister Mansi was raped.PW-1 Vivek then rushed to the house of Aniket.He saw people gathered near his house.He also saw that both the hands of Mansi were tied with wire of headphone and legs were tied with clothes.Many household articles were lying scattered in the room.Appeals 516, 281 n 468 of 2012.odt She stated that on 12th June, 2009 at around 09:00 am she heard that Mansi was murdered.She had gone to the house of Mansi and learnt that mobile phone, gold ring, cash and pant of brother of Mansi were stolen.Mansi was student.From the evidence of PW-2 Vaishali it can be seen that Aniket and Mansi only two persons were residing in the house and incident of theft and murder had taken place.This witness was not cross-examined by the Accused.Next important witness is PW-4 Shanta Rameshwar Soni to whom Aniket had rushed for help after seeing Mansi lying injured in pool of blood.According to PW-4 Shanta Soni on 12 th June, 2009 at around 05:30 am she opened the door of her house.She saw Aniket knocking the door of his house.She asked Aniket not to knock the door as his sister would get up.Aniket told PW-4 Mrs. Soni that he returned home after attending night duty in the office.PW-4 Mrs. Soni told Aniket that he should wait for some time as Mansi might be sleeping.She asked Aniket to sit in her house and went for plucking flowers.PW-4 Mrs. Soni stated that when she returned after collecting flowers she saw that Aniket was not in her house.It is then stated by PW-4 Mrs. Soni that at about 11:25 am again Aniket came and knocked the door of her house.She opened the door.Aniket asked her to come to his house and see whether his sister Mansi is alive or not.PW-4 Mrs. Soni accompanied Aniket.She went to his house.She saw that hands and legs of Mansi were tied.Blood was oozing from her mouth.She checked her veins and pulse and then called Bankar Patil from the gallery of house.(I) (a) Recovery of mobile of Mansi from AccusedAs stated by Investigating Officer, P.I. Borse (PW-32) on 19th June, 2009 supplementary statement of Aniket was recorded.From the supplementary statement it was revealed that Mansi had purchased a mobile of Sony Erikson company.The ::: Uploaded on - 08/03/2016 ::: Downloaded on - 09/03/2016 00:03:03 ::: 38 Cri.Appeals 516, 281 n 468 of 2012.odt statements of shop owner and salesman of mobile shop came to be recorded and receipt of purchase of mobile Exhibit 39 was collected.On recovery of mobile of Mansi, prosecution examined PW-7 complainant Aniket, PW-6 Sheetal Sonawane, PW-11 Amirkhan - a Panch, PW-16 Mohammed Mubin - a witness on test identification parade in respect of mobile handset of Mansi, PW-18 Abdul Rauf - owner of mobile shop, PW-19 Ravindra Bahule - a police constable in the team of detection of stolen mobile, PW-20 A.P.I. Gautam Patare and PW-24 Shaikh Nadeem - a salesman at the mobile shop.34. PW-6 Sheetal Satish Sonawane was college mate of Mansi.They were studying in MGM college in I st year B.C.S. and were together in one class since XIIth standard.Mansi was her best friend.She stated that Mansi was calm and quiet.Mansi told her that her marriage was arranged with Dinesh residing in America.Appeals 516, 281 n 468 of 2012.odtAccording to Sheetal in 2009 Mansi called her on phone and told her that she wanted to purchase a mobile phone.This happened before 15 days of incident.Sheetal stated that both then went to Nirala Bazaar, 'Z' Corner at Aurangabad.Sheetal identified receipt Exhibit 39 and mobile phone seized in the crime from Accused No.2 Pradip Chandaliya as the same mobile which was purchased by Mansi.Witness Sheetal has not been cross-examined by Accused persons.Prosecution had examined PW-11 Amirkhan a Panch on seizure of mobile from Accused No.2 Pradip Chandaliya, but this witness did not support the prosecution and his evidence needs to be kept out of consideration.Another witness Assistant Police Inspector Gautam Keshav Patare (PW-20) was attached to Jinsi Police Station at the relevant time.He conducted investigation in the case.On 21st June, 2009, A.P.I. Patare received information that stolen mobile ::: Uploaded on - 08/03/2016 ::: Downloaded on - 09/03/2016 00:03:03 ::: 40 Cri.The next witness Shaikh Nadeem Sk.Saleem (PW-24) was a salesman working at Zee Corner mobile shop.He stated that on 28th June, 2009 at 06:30 pm owner of the shop Abdul Rauf called him on phone and asked him to attend Jinsi Police Station.He went to Jinsi Police Station.Police had shown him a photograph of a girl who came to purchase mobile from their shop.He identified the photograph as of the same girl who purchased mobile from their shop.He also identified the receipt regarding purchase of mobile which bears his signature.According to this witness receipt Exhibit 39 and mobile article 25 were the same.He states that mobile was purchased by Mansi Deshpande a girl in the photograph.Mr. Datta Narhari Bharaskar (PW-22) was Naib Tahsildar attached to Tahsil Office, Aurangabad.On 28th June, 2009, letter Exhibit 90 was received by him from P.I. Borse of Jinsi Police Station for conducting identification parade of Muddemal.The evidence of this witness shows that he conducted identification parade in respect of gold ring, clothes and mobile.The evidence of Naib Tahsildar is corroborated by PW-16 Mohammed Mubin Mohammad Abbas.The other important witnesses on recovery of mobile are PW-31 Ganesh Pawar and PW-33 Sachin Bhadange.PW-31 Ganesh Ramrao Pawar was serving in Bharti Air-Tel company as Nodal Officer.The company was providing mobile services to customer.It is stated by Ganesh Pawar that on 2nd July, 2009, Aurangabad Police demanded certain information on E-mail.He stated that IMEI number is of 15 digits.Last digit '0' is common in all IMEI number, whereas first fourteen digits are unique.Information regarding IMEI number was also given to Police by them.It was a computerized information.Mobile call details Exhibit 131, certificate thereon Exhibit 132 and certificate regarding information of mobile Exhibit 130 have been proved by this witness.(PW-33) Sachin Shantaram Bhadange was a Nodal Officer in Vodafone company.He stated that mobile No.9764079190 was of their company.Last call from said mobile was made on 12th June, 2009 at 01:54 hours.He stated that after ::: Uploaded on - 08/03/2016 ::: Downloaded on - 09/03/2016 00:03:03 ::: 45 Cri.Appeals 516, 281 n 468 of 2012.odt 12th June, 2009, no telephone call was made from said mobile.::: Uploaded on - 08/03/2016 ::: Downloaded on - 09/03/2016 00:03:03 :::It can be further seen from the evidence of A.P.I.Patare that before arrest he interrogated Pradip Chandaliya regarding possession of mobile and Pradip Chandaliya disclosed to him that mobile was given to him by his customer Jawedkhan i.e. Accused No.1 towards payment against the bill of hotel.Through the evidence of above witnesses, prosecution could establish beyond reasonable doubt that -(i) Mobile recovered from Accused No.2 Pradip Chandaliya belonged to deceased Mansi.(ii) The said mobile identified at article 25 was given by Accused No.1 Jawedkhan to Accused No.2 Pradip Chandaliya towards the payment against hotel bill.The testimony of Damodhar thus inspires confidence.The next witness on recovery of gold ring is PW-29 Ashok Kesharlal Chopra, Manager working in the shop of R.C.Bafna.This witness was examined to show that PW-8 Damodhar had purchased gold ring from the shop of R.C.Bafna.Appeals 516, 281 n 468 of 2012.odt from the shop.He identified gold ring article 26 as the same ring sold from their shop.The evidence of PW-29 Ashok could not be shattered in the cross-examination.He showed his readiness to produce gold ring.Memorandum of Accused Ram Bodkhe was recorded vide Exhibit 64 in the presence of Panch witnesses.Then at the instance of Accused Ram Bodkhe gold ring was recovered from the room of electric motor in Tulsi Chambers.The gold ring was kept below a brick in the room.Borse has duly proved recovery Panchanama of gold ring and identified the gold ring article 26 as the same ring recovered on the basis of information given by Accused Ram Bodkhe.It is pertinent to note that test identification parade was conducted by PW-22 Naib Tahsildar in respect of gold ring and Aniket identified gold ring Exhibit 26 as the same ring which was gifted by his friend Damodhar.He too supports the identification of gold ring by Aniket at the time of test identification before Executive Magistrate.(IV) Recovery of blood stained clothes of Accused No.1 at his instance.It is the case of prosecution that on 23 rd June, 2009 Accused No.1 Jawedkhan made a memorandum to discover his clothes concealed in garbage in front of the building in which incident took place.PW-15 Asif Mohammad Akbar was the Panch witness on recovery of clothes of Accused No.1 Jawedkhan.It is stated by Asif that in his presence Accused Jawedkhan had shown his readiness to discover the clothes which he was wearing at the time of incident.Memorandum Exhibit 61 was drawn in his presence.At the instance of Accused No.1 Jawedkhan his blood stained clothes were recovered from the heap of waste material.Discovery Panchanama was recorded vide Exhibit 62 in the presence of PW-15 Asif by PW-32 P.I. Borse.It further appears from the evidence of Investigating Officer that seized clothes of Accused No.1 Jawedkhan were sent for chemical analysis.The blood sample of Mansi was also sent for chemical analysis to find out the blood group of the deceased.C.A. report Exhibit 119 shows that blood group of deceased was AB.Another C.A. report Exhibit 117 indicates that T-shirt of Accused Jawedkhan was having blood stains of blood group AB.Accused Jawedkhan was also sent for medical examination after his arrest.PW-21 Dr.She was Casualty Medical Officer at Ghati Hospital at the relevant time.The evidence of Medical Officer shows that blood sample of Accused was collected and it was sent for DNA and chemical examination.It can be seen from C.A. report Exhibit 115 that on examination blood group of Accused Jawedkhan was found as A.The blood stains found on the shirt of Accused Jawedkhan were of blood group AB which was the blood group of the deceased.Since no plausible explanation is coming forth from the side of Accused No.1 we have no hesitation to rely upon this circumstance too.It was revealed during investigation that Accused Jawedkhan had changed his clothes after the incident and put on the clothes of complainant Aniket.The clothes of Aniket were recovered at the instance of Accused Jawedkhan.On 24th June, 2009 during interrogation Accused Jawedkhan had shown his readiness to produce the clothes of Aniket hidden below garbage near Tapadiya Natya Graha.As per memorandum accused led the police and Panch witnesses to the place where clothes of Aniket were kept concealed in garbage near Tapadiya Natya Graha.In pursuance to the information given by Accused Jawedkhan clothes of Aniket were recovered ::: Uploaded on - 08/03/2016 ::: Downloaded on - 09/03/2016 00:03:03 ::: 56 Cri.The clothes of Aniket were also sent for chemical analysis.No blood stains were found on the clothes of complainant.The blood stains which were found were only on the shirt of Accused Jawedkhan.During test identification parade Aniket identified the clothes recovered at the instance of Accused Jawedkhan as the clothes belonging to him (Aniket).This is another clinching circumstance to indicate that Accused Jawedkhan after the incident had changed his clothes and wore the clothes of Aniket which were available in the house.(VI) Medical evidence showing that girl was forcibly raped and then done to death.The evidence of Medical Officer Dr.Mugadalimath (PW-25) and Dr. Sachin Gadge (PW-30) has been elaborately discussed herein above.By the said judgment and order Accused No.1 Jawedkhan, Accused No.2 Pradip Chandaliya and Accused No.3 Ram Bodkhe were convicted and sentenced for various offences as under :Accused No.1 Jawedkhan :of Rs.300/- in default Simple Imprisonment for ten days.457 Rigorous Imprisonment for three years and fine of Rs.300/- in default Simple Imprisonment for ten days.458 Rigorous Imprisonment for three years and fine of Rs.300/- in default Simple Imprisonment for ten days.::: Uploaded on - 08/03/2016 ::: Downloaded on - 09/03/2016 00:03:02 :::default Simple Imprisonment for ten days.376 Rigorous Imprisonment for ten years and fine of Rs.300/- in default Simple Imprisonment for ten days.201 Rigorous Imprisonment for one year and fine of Rs.300/- in default Simple Imprisonment for ig ten days.Accused No.2 Pradip Chandaliya :::: Uploaded on - 08/03/2016 ::: Downloaded on - 09/03/2016 00:03:02 :::Learned Additional Sessions Judge found that Accused were not guilty of some of the offences alleged against them and accordingly acquitted the Accused as under :Criminal Appeal No.281 of 2012 is by the State of Maharashtra for enhancement of sentence awarded by the Trial Court.Criminal Appeal No.468 of 2012 is also by the State of Maharashtra against the order of acquittal.The instant case reveals a sordid story in which the alleged brutal sexual assault on a young helpless girl followed by merciless murder by dastardly act of the Accused is said to have been committed.Most disgusting feature is that an innocent college going girl of 21 year fell a prey to the unbridled lust of the Accused.The story sends shocking waves to everyone having slighted sense of human value and dignity.::: Uploaded on - 08/03/2016 ::: Downloaded on - 09/03/2016 00:03:02 :::Appeals 516, 281 n 468 of 2012.odt::: Uploaded on - 08/03/2016 ::: Downloaded on - 09/03/2016 00:03:02 :::v. Aniket was frightened and immediately rushed to his neighbour Mrs.Soni.Soni accompanied ::: Uploaded on - 08/03/2016 ::: Downloaded on - 09/03/2016 00:03:02 ::: 9 Cri.::: Uploaded on - 08/03/2016 ::: Downloaded on - 09/03/2016 00:03:02 :::The shirt of Accused Jawedkhan was stained with ::: Uploaded on - 08/03/2016 ::: Downloaded on - 09/03/2016 00:03:02 ::: 14 Cri.Appeals 516, 281 n 468 of 2012.odt blood.::: Uploaded on - 08/03/2016 ::: Downloaded on - 09/03/2016 00:03:02 :::Investigating Agency then forwarded clothes of Accused Jawedkhan and clothes of Aniket recovered at the instance of Accused No.1 to Forensic Science Laboratory for analysis.::: Uploaded on - 08/03/2016 ::: Downloaded on - 09/03/2016 00:03:02 :::Appeals 516, 281 n 468 of 2012.odt xvii.On 25th June, 2009, original simcard of Vodafone company which was in the mobile of Mansi was recovered from the shutter of godown of Tulsi Chamber at the instance of Accused Jawedkhan.Identification parade in respect of gold ring and clothes of Aniket was held before the Executive Magistrate.Aniket identified that gold wring and clothes were belonging to him.An opinion was also sought from Medical Officer Ghati whether Accused Jawedkhan was capable to perform sexual intercourse or not.Several witnesses were examined in the course of investigation.After completing investigation charge-sheet was submitted to the concerned Magistrate who committed the case for trial to the Court of Sessions.Their defence was of total denial.::: Uploaded on - 08/03/2016 ::: Downloaded on - 09/03/2016 00:03:02 :::Appeals 516, 281 n 468 of 2012.odtProsecution examined in all 33 witnesses during trial.After going through the evidence adduced in the case, the learned Additional Sessions Judge convicted and sentenced the Accused and also acquitted in respect of some of the offences as stated in paras 1 and 2 above.We have heard the learned counsel for parties in extenso.With the assistance of the learned counsel for parties, we have carefully gone through the evidence of prosecution witnesses.After giving our anxious consideration to the facts and circumstances of the case, arguments advanced by the learned advocates for parties, reasonings recorded by Trial Court and the evidence on record, for the reasons stated below we are of the opinion that the judgment and order of conviction and sentence recorded by the Trial Court against the Accused in respect of various offences as stated in paragraph No.1 above, except sentence awarded for the offence punishable under Section 302 of the Indian Penal Code is just and proper and needs to be upheld.So far as order of sentence in respect of offence punishable under Section 302 of the Indian Penal Code is concerned, we find that in the facts and circumstances of the case ::: Uploaded on - 08/03/2016 ::: Downloaded on - 09/03/2016 00:03:02 ::: 17 Cri.Appeals 516, 281 n 468 of 2012.odt life imprisonment imposed by the Trial Court would be an inadequate sentence and capital punishment is the only punishment which is adequate punishment.::: Uploaded on - 08/03/2016 ::: Downloaded on - 09/03/2016 00:03:02 :::Dr. Mugadalimath stated that history of alleged assault was given by police in the inquest Panchanama.Dead body was identified by Aniket Deshpande brother of Mansi.::: Uploaded on - 08/03/2016 ::: Downloaded on - 09/03/2016 00:03:02 :::Appeals 516, 281 n 468 of 2012.odt On external examination the team performing postmortem including Dr. Mugadalimath noticed the following injuries -1) Crescentic abrasion over lower part of cheek with concavity anteriorly right side of size 3 cm, reddish in colour.2) Two linear scratch abrasion over lower part of cheek right side of size 7 cm and separated by 0.2 cm anteriorly and 0.5 cm posteriorly and reddish in colour.3) Three crescentic abrasions over mandibular area right side of size 4 cm, 4.5 cm and 5 cm each, 5 cm, 5.5 cm and 6 cm.below and lateral to chin with concavity downwards reddish in colour.4) Two crescentic abrasions over right side of neck of size 2 cm and 3 cm with concavity backward and 5.5 cm and 6 cm below and forward to right mastoid, reddish in colour.Stab wound in 10 cm from chin and 8 cm from supra sternal notch.On dissection tract of stab wound - skin - subcutaneous tissue - platysma - deep cervical fascia - thyroid cartilage - vocal cord - left carotid sheath - Left common carotid artery - left ::: Uploaded on - 08/03/2016 ::: Downloaded on - 09/03/2016 00:03:02 ::: 19 Cri.Appeals 516, 281 n 468 of 2012.odt internal jugular vein.::: Uploaded on - 08/03/2016 ::: Downloaded on - 09/03/2016 00:03:02 :::Direction of stab wound - backwards -downwards - laterally.6) Stab wound over neck anteriorly over midline, irregularly oval in shape, horizontally placed of size 3 cm x 0.5 cm x cavity deep on approximation 3.4 cm in length, margin irregular, contused and blood infiltrated and both angles blunted.Stab wound is 13 cm from chin and 5 cm from supra sternal notch.On dissection tract of stab wound - skin - subcutaneous tissue - deep cervical fascia - tracheal rings - oesophagus.Direction of stab wound - backwards and downwards.7) Stab wound over right side of neck 15 cm below and laterally to chin, 8 cm from right mastoid with lower margin, anteriorly of size 1 cm x 0.5 cm x cavity deep.On approximation 1.4 cm in length and irregularly oval in shape, margin irregular, contused and blood infiltrated, both angles blunted.On dissection tract of stab wound - skin- subcutaneous tissue - platysma - deep cervical fascia - right side strap muscles.Direction of stab wound - downwards - backwards and medially.8) Two stab wounds over neck right side of size 0.6 cm x 0.6 cm and 0.3 x 0.3 cm, both cavity deep and 4 cm x 6 cm below right mastoid.On ::: Uploaded on - 08/03/2016 ::: Downloaded on - 09/03/2016 00:03:02 ::: 20 Cri.Appeals 516, 281 n 468 of 2012.odt approximation 0.8 cm and 0.5 cm in length and both irregularly oval in shape, margins irregular contused and blood infiltrated with both angles blunted.On dissection tract of wound - skin - subcutaneous tissue - platysma - deep cervical fascia - sternocleido mastoid muscles.::: Uploaded on - 08/03/2016 ::: Downloaded on - 09/03/2016 00:03:02 :::Direction of stab wound - backwards, downwards and medially.On dissection tract of stab - skin -::: Uploaded on - 08/03/2016 ::: Downloaded on - 09/03/2016 00:03:02 :::Appeals 516, 281 n 468 of 2012.odt subcutaneous tissue.Direction of stab wound - Anteriorly and downwards.14) Contusion over right thenar aspect of palm of size 4 cm x 4 cm, irregular and reddish.15) Contusion over left thenar aspect of palm of size 4 cm x 3 cm, irregular and reddish.16) Contusion over right foot medial aspect of size 6 cm x 5 cm, irregular and reddish.17) Contusion over left foot medial aspect of size 6 cm x 4 cm, irregular and reddish.18) Stab wound over left side of chest laterally of size 0.5 cm x 0.5 cm x cavity deep on approximation 0.7 cm in length, irregularly oval in shape, margins - irregular, contused and blood infiltrated both angles blunted.On dissection tract of stab wound - skin - subcutaneous tissue.Appeals 516, 281 n 468 of 2012.odt posteriorly of size 0.5 cm x 0.5 cm x cavity deep and 0.2 cm x 0.2 cm x cavity deep separated by 0.3 cm.On approximation 0.8 cm x 0.3 cm in length, irregularly oval in shape, margins irregular, contused and blood infiltrated, both angles blunted.::: Uploaded on - 08/03/2016 ::: Downloaded on - 09/03/2016 00:03:02 :::On dissection tract of stab wound - skin - subcutaneous tissue.Direction of stab wound - Anteriorly downwards.21) Evidence of multiple contusions over left side of neck of sizes varying from 6 cm x 0.2 cm to 0.5 cm x 0.5 cm, irregular and reddish.On neck dissection - evidence of hemorrhages in all strap muscles.Evidence of petechial hemorrhages above and below epiglottis and larynx.All the above injuries were found ante-mortem.Further on external examination of genital organs doctors noticed Labia minora contused along the whole length, reddish in colour.::: Uploaded on - 08/03/2016 ::: Downloaded on - 09/03/2016 00:03:02 :::The evidence of Dr. Mugadalimath shows that viscera was preserved, blood, pubic hair, nails, vaginal swab and smear, swab from left breast, matted vaginal hair, aspirated vaginal fluid of the deceased were collected for chemical analysis.Those samples were forwarded to FSL, Aurangabad for analysis.For DNA test samples were sent to FSL, Mumbai.Medical Officers opined cause of death due to multiple penetrating wound over neck with transection of carotid vessels associated with signs of strangulation and smothering with injury over external genitals.It was also noticed by doctors that injuries over external genitals mentioned in column No.21 of the postmortem report were ::: Uploaded on - 08/03/2016 ::: Downloaded on - 09/03/2016 00:03:02 ::: 24 Cri.Appeals 516, 281 n 468 of 2012.odt pointing forcible sexual intercourse with the victim.Dr. Mugadalimath further stated that injuries 1 to 21 in column No.17 could be possible by pointed blunt edge weapon like screw driver, scissor etc. It is stated by Dr. Mugadalimath that he along with Dr.Sane and Dr.Gadge performed postmortem.::: Uploaded on - 08/03/2016 ::: Downloaded on - 09/03/2016 00:03:02 :::It is then stated by Dr. Mugadalimath that they received DNA test report and CA reports from concerned laboratories i.e. Mumbai and Aurangabad.After receiving DNA report and CA reports doctors had opined final cause of death of Mansi as multiple penetrating wounds over neck with transection of carotid vessels associated with signs of strangulation and smothering with and forceful sexual intercourse.Dr. Mugadalimath had stated that injury on neck of victim could be possible by hands, nails and blunt tipped weapon.The ::: Uploaded on - 08/03/2016 ::: Downloaded on - 09/03/2016 00:03:02 ::: 25 Cri.Appeals 516, 281 n 468 of 2012.odt smothering could be possible by shutting the mouth and nostrils by palm.::: Uploaded on - 08/03/2016 ::: Downloaded on - 09/03/2016 00:03:02 :::Accused have not disputed genuineness of inquest Panchanama (Exhibit 31).From inquest panchanama it can be seen that multiple injuries were found on the dead body of Mansi.::: Uploaded on - 08/03/2016 ::: Downloaded on - 09/03/2016 00:03:02 :::Appeals 516, 281 n 468 of 2012.odtOn 12th June, 2009 he was called by Police to take photographs of the scene of offence.Accordingly, he took 14 photographs and handed over the photographs and its bill to Police.PW-3 Baburao has not been cross-examined by the Accused.Further it can be seen from the evidence of Investigating Officer (PW-32) P.I. Borse that he visited the scene of offence and recorded spot Panchanama in the presence of Panch witnesses.Several articles mentioned in Panchanama (Exhibit 29) were seized from the spot.Accused have not disputed genuineness of spot Panchanama (Exhibit 29).It shows that articles in the house were lying scattered.Accused did not cross-examine the Investigating Officer in respect to the factual position of scene of offence clearly indicative of the fact that victim was done to death by the assailants.Before we advert to each of the circumstances enumerated above it would be essential to evaluate the evidence ::: Uploaded on - 08/03/2016 ::: Downloaded on - 09/03/2016 00:03:02 ::: 27 Cri.Appeals 516, 281 n 468 of 2012.odt regarding occurrence of incident.PW-7 Aniket Shankarrao Deshpande is a crucial witness.He is complainant and brother of victim Mansi.Father was in Government service and posted at the relevant time at Shrinagar.::: Uploaded on - 08/03/2016 ::: Downloaded on - 09/03/2016 00:03:02 :::Appeals 516, 281 n 468 of 2012.odt his house at around 10:00 am.::: Uploaded on - 08/03/2016 ::: Downloaded on - 09/03/2016 00:03:02 :::He knocked the door and also called Mansi on phone.But he did not receive any response.He waited for 5 minutes and then suspected something wrong.Then Aniket lodged FIR.::: Uploaded on - 08/03/2016 ::: Downloaded on - 09/03/2016 00:03:02 :::Police seized articles lying on the spot.Aniket noticed that his clothes and gold ring were missing.He identified those articles before the Court.Accused Nos.2 and 3 did not cross-examine him.Nothing substantial could be elicited in the cross-examination of Aniket to disbelieve his testimony.The evidence of Aniket is thus consistent, trustworthy and believable.Another witness examined by prosecution is PW-1 Vivek Chandrakant Agrawal.PW-1 Vivek came home at 07:30 pm.At around 08:00 - 09:00 pm Vivek called Aniket on phone.Aniket ::: Uploaded on - 08/03/2016 ::: Downloaded on - 09/03/2016 00:03:02 ::: 30 Cri.Appeals 516, 281 n 468 of 2012.odt informed him that he was in company.Then Vivek asked him when would he return home.Aniket told him that there was major fault in the machine and he would be late in returning home.::: Uploaded on - 08/03/2016 ::: Downloaded on - 09/03/2016 00:03:02 :::He could see bleeding injuries on her neck and blood on the bed-sheets.Police had already reached the house.Accused have not cross-examined PW-1 Vivek and we do not find any reason to disbelieve his testimony.PW-2 Vaishali Vivek Khadke used to provide tiffin to Aniket and Mansi.She was residing in front of Purwa Apartment.::: Uploaded on - 08/03/2016 ::: Downloaded on - 09/03/2016 00:03:02 :::She thought that Mansi might have ::: Uploaded on - 08/03/2016 ::: Downloaded on - 09/03/2016 00:03:02 ::: 32 Cri.Appeals 516, 281 n 468 of 2012.odt opened the door and Aniket might be inside the house.::: Uploaded on - 08/03/2016 ::: Downloaded on - 09/03/2016 00:03:02 :::Mrs. Bankar immediately came.She asked to call the Police.Thereafter, Police were informed.This witness is also not cross-examined by the Accused.26. PW-5 Manoj Sajan Mali, a medical practitioner was running Shree Clinic at Kailashnagar, Aurangabad at the relevant time.On 12th June, 2009 at about 10:30 am he was in his clinic and received a phone call from his patient Mr. Khadke residing in front of Purwa Apartment informing him about the incident and asking him to attend the girl.As PW-5 Dr. Mali was not aware of residential address, he told Mr. Khadke to come and take him to the place.Accordingly, Mr. Khadke came on bike and Dr. Mali attended Mansi.::: Uploaded on - 08/03/2016 ::: Downloaded on - 09/03/2016 00:03:03 :::Appeals 516, 281 n 468 of 2012.odt It is stated by PW-5 Dr. Mali that articles in the house were scattered.He saw hands of Mansi tied with wire and legs tied with clothes.He also noticed profused bleeding around her neck.He could gather from the circumstances that it was a case of murder and so he expressed his inability to examine Mansi and told Aniket to call Police before touching the body of Mansi.Aniket asked him that he had already informed the Police and requested PW-5 Dr. Mali to see whether there is any chance of survival of Mansi.On the request of Aniket, he examined Mansi and found that her respiratory system and pulses were not functioning.Body was stiff.PW-5 Dr. Mali told Aniket that Mansi was no more.Accused did not cross-examine this witness.The next witness Shobhana Deelip Patil (PW-9) was the owner from whom Aniket sought permission to climb the staircase to go to his house.She stated that on 12 th June, 2009 at around 11:15 am Aniket came to her house and asked her son Abhikshekh that he was not having the key of his flat and wanted to go to his flat through their iron ladder.Abhikshekh allowed him ::: Uploaded on - 08/03/2016 ::: Downloaded on - 09/03/2016 00:03:03 ::: 34 Cri.Appeals 516, 281 n 468 of 2012.odt and accordingly Aniket climbed the ladder and went to his house.::: Uploaded on - 08/03/2016 ::: Downloaded on - 09/03/2016 00:03:03 :::Thus from the evidence of PW-25 Dr. Mugadalimath and PW-30 Dr. Sachin Gade, postmortem report (Exhibit 32), final cause of death certificate (Exhibit 112), spot Panchanama (Exhibit29), seizure Panchanama (Exhibit 30), the manner of incident and circumstances brought on record as discussed above an irresistible conclusion must follow that death of victim girl was homicidal in nature.Prosecution case exclusively rests on the circumstantial evidence.The principal fact or "factum probandum" may be proved indirectly by means of certain ::: Uploaded on - 08/03/2016 ::: Downloaded on - 09/03/2016 00:03:03 ::: 35 Cri.Appeals 516, 281 n 468 of 2012.odt inferences drawn from "factum probans" i.e. evidentiary facts.To put it differently, circumstantial evidence is not direct to the point in issue but consists of evidence on various other facts in issue that taken together forms a chain of circumstances from which the existence of a principal fact can be legally inferred or presumed.::: Uploaded on - 08/03/2016 ::: Downloaded on - 09/03/2016 00:03:03 :::iii) The circumstances should be of a conclusive ::: Uploaded on - 08/03/2016 ::: Downloaded on - 09/03/2016 00:03:03 ::: 36 Cri.Appeals 516, 281 n 468 of 2012.odt nature and tendency.::: Uploaded on - 08/03/2016 ::: Downloaded on - 09/03/2016 00:03:03 :::iv) They should exclude every possible hypothesis except the one to be proved.v) 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 it must show that in all human probability, the act must have been done by the accused and the accused alone.Keeping in view the settled law we shall examine the circumstantial evidence on which reliance is placed by the prosecution.In the case on hand prosecution has relied upon the following incriminating circumstances which according to the prosecution prove the guilt of the Accused beyond reasonable doubt.::: Uploaded on - 08/03/2016 ::: Downloaded on - 09/03/2016 00:03:03 :::(VIII) Failure of the Accused to offer plausible explanation to the incriminating circumstances against him.The said receipt contains details of mobile purchased by Mansi.P.I. Borse formed separate squad for further investigation.::: Uploaded on - 08/03/2016 ::: Downloaded on - 09/03/2016 00:03:03 :::Both Sheetal and Mansi were often visiting each others house.::: Uploaded on - 08/03/2016 ::: Downloaded on - 09/03/2016 00:03:03 :::Mansi purchased a mobile phone of Soni Erickson company having simcard of Vodafone company for Rs.7,000/-.After purchasing mobile Mansi was given a receipt.Appeals 516, 281 n 468 of 2012.odt was in possession of owner of hotel Pancham.So along with Panch witness and other staff he went to hotel Pancham on Jalna Road and gave information at the counter of hotel about purpose of his visit.::: Uploaded on - 08/03/2016 ::: Downloaded on - 09/03/2016 00:03:03 :::Accused No.2 Pradip Chandaliya was available on the counter.A.P.I. Patare asked Pradip Chandaliya whether he was possessing mobile.Pradip Chandaliya told him that he was having mobile handset of Soni Ericson company which was given to him by his customer Jawedkhan on 14th June, 2009 towards a bill of hotel.Pradip Chandaliya also stated that simcard in the mobile was given to him by his son Mayur.Pradip Chandaliya handed over the mobile to A.P.l.A.P.I. Patare identified the mobile and the simcard before the Court.The evidence of A.P.I. Patare is consistent throughout and nothing otherwise could be elicited in his cross-examination to disbelieve his testimony.In order to ascertain whether mobile seized from Accused No. 2 belonged to Mansi, reliance is also placed on the evidence of PW-18 Abdul Rauf and PW-24 Shaikh Nadeem.PW-18 Abdul Rauf Mohammad Yakub was running Zee Corner ::: Uploaded on - 08/03/2016 ::: Downloaded on - 09/03/2016 00:03:03 ::: 41 Cri.Appeals 516, 281 n 468 of 2012.odt mobile shop at Nirala Bazar, Aurangabad.Accused did not cross-examine this witness.::: Uploaded on - 08/03/2016 ::: Downloaded on - 09/03/2016 00:03:03 :::In the cross-examination by Accused No.1, nothing substantial could be brought on record to doubt his testimony.::: Uploaded on - 08/03/2016 ::: Downloaded on - 09/03/2016 00:03:03 :::Appeals 516, 281 n 468 of 2012.odtAnother witness (PW-19) Ravindra Murlidhar Bahule was a police constable in the team formed for detection of stolen mobile.He identified mobile article 25 and supported Panchanama of recovery of mobile.Since Accused No.2 Pradip Chandaliya has not seriously disputed that mobile was recovered from him by Police the evidence of P.C. Bahule is not of much importance.According to prosecution, mobile which was seized from Accused No.2 Pradip Chandaliya was identified by complainant PW-7 Aniket as of Mansi.Test identification parade in respect of mobile was conducted by PW-22 Datta Bharaskar.Aniket identified gold ring and clothes belonging to him and mobile as of Mansi.TIP Panchanamas were duly proved by Mr. Bharaskar.::: Uploaded on - 08/03/2016 ::: Downloaded on - 09/03/2016 00:03:03 :::Appeals 516, 281 n 468 of 2012.odt He was cross-examined at length by Accused.Except some minor contradictions and omissions, the evidence of Mr.Bharaskar remained consistent throughout on TIP.E-mail was received from the office of Commissioner of Police, Aurangabad.Accordingly details were given to Police pertaining to said mobile.This witness had given detailed information in respect of the calls made, from which number calls were received, time of ::: Uploaded on - 08/03/2016 ::: Downloaded on - 09/03/2016 00:03:03 ::: 44 Cri.Appeals 516, 281 n 468 of 2012.odt conversation traceable from IMEI number and simcard number.::: Uploaded on - 08/03/2016 ::: Downloaded on - 09/03/2016 00:03:03 :::(iii) IMEI number mentioned on the receipt of purchase of mobile (Exhibit 39) exactly tallied with IMEI number visible on the mobile seized from Accused No.2 Pradip Chandaliya.::: Uploaded on - 08/03/2016 ::: Downloaded on - 09/03/2016 00:03:03 :::Appeals 516, 281 n 468 of 2012.odt(iv) Receipt Exhibit 39 shows that the said mobile was purchased by Mansi.(v) Accused No.1 Jawedkhan did not explain possession of mobile with him.On the recovery of simcard in the mobile phone of Mansi prosecution examined PW-12 Mukram Khan Abdul Gaffar Khan, PW-23 Vinod Kharat, PW-26 Mayur Chandaliya, A.P.I.Patare (PW-20) and P.I. Sopan Borse (PW-32).PW-12 Mukram Khan did not support the prosecution and his evidence needs to be kept out of consideration.PW-23 Vinod was working in Hotel Pancham owned by Accused No.2 Pradip Chandaliya.He was examined to show that simcard given by PW-26 Mayur to his father Pradip was ::: Uploaded on - 08/03/2016 ::: Downloaded on - 09/03/2016 00:03:03 ::: 47 Cri.Appeals 516, 281 n 468 of 2012.odt inserted in the mobile by him.According to PW-26 Mayur he purchased three simcards from a mobile shop.One was given by him to his friend Mayur Jain.He handed over two simcards to PW-23 Vinod Kharat who was working in their hotel.He denies that he had given simcard to his father.To that extent contradiction is proved through the evidence of Investigating Officer.Mayur however admits that simcard which was given to his father was purchased by him.The evidence of this witness suggests that simcard which was found in the mobile recovered from Accused No.2 Pradip Chandaliya given by Accused No.1 Jawedkhan was purchased by Mayur and it further suggests that mobile handset given by Jawedkhan to Pradip Chandaliya was without simcard.::: Uploaded on - 08/03/2016 ::: Downloaded on - 09/03/2016 00:03:03 :::The next important witnesses on recovery of simcard are PW-20 A.P.I. Patare and PW-32 P.I. Borse.It is stated by A.P.I. Patare that he interrogated Accused No.2 Pradip Chandaliya regarding possession of mobile handset with him and during interrogation Pradip Chandaliya stated that simcard in the said mobile was given to him by his son Mayur.A.P.I. Patare seized the simcard under Panchanama.The said simcard was ::: Uploaded on - 08/03/2016 ::: Downloaded on - 09/03/2016 00:03:03 ::: 48 Cri.Appeals 516, 281 n 468 of 2012.odt given by PW-26 Mayur to his father Pradip Chandaliya for being used in the mobile seized from Pradeep Chandaliya.::: Uploaded on - 08/03/2016 ::: Downloaded on - 09/03/2016 00:03:03 :::Further link in the circumstances has been established through the evidence of PW-32 P.I. Borse.P.I. Borse interrogated Pradip Chandaliya regarding possession of mobile.Pradip Chandaliya told him that simcard was given to him by his son Mayur and mobile handset was given to him by Jawedkhan @ Tingarya s/o Habib Khan a customer of his hotel towards the bill of hotel.P.I. Borse then interrogated Mayur who admitted that he had given the simcard to his father for being used in the mobile handset.This evidence clearly establishes that while handing over mobile to Accused No.2 simcard was removed by Accused No.1 Jawedkhan.Now the crucial question which is to be answered is regarding the simcard used by Mansi.In this connection P.I.Appeals 516, 281 n 468 of 2012.odt given by Accused Jawedkhan simcard was recovered from the place stated by him.It was seized and it's Panchanama Exhibit 54-A was drawn in presence of Panchas.Article 21 simcard has been identified by P.I. Borse as the same.::: Uploaded on - 08/03/2016 ::: Downloaded on - 09/03/2016 00:03:03 :::True, Panch witnesses do not support the prosecution on recovery of simcard.In our view that alone would not be enough to discard the testimonies of police officers whose evidence is otherwise found to be trustworthy and believable.On the basis of their evidence we hold that prosecution has proved this clinching circumstance against Accused Jawedkhan beyond doubt.It can be seen from the evidence of PW-7 Aniket that gold ring gifted to him by his friend on his birthday was found missing from the house.PW-8 Damodhar Manik Ghuge was doing welding work in Sterlight company where Aniket was serving.Damodhar and Aniket were working in the same ::: Uploaded on - 08/03/2016 ::: Downloaded on - 09/03/2016 00:03:03 ::: 50 Cri.Appeals 516, 281 n 468 of 2012.odt department.He stated that in March 2008 he had attended birthday of Aniket and offered him a gold ring weighing 5½ grams.He purchased the gold ring from the shop of R.C.Bafna at Aurangabad.He came to know that gold ring given by him to Aniket was stolen.Police called him to identify the gold ring.He went to Police Station and identified the gold ring as the same given by him to Aniket.::: Uploaded on - 08/03/2016 ::: Downloaded on - 09/03/2016 00:03:03 :::This witness was cross-examined on identification of gold ring.Damodhar stated that gold ring was containing name of R.C.Bafna and white imitation stone.Despite cross-examination at length, evidence of Damodhar has remained unshaken and consistent throughout.PW-29 Ashok stated in his evidence that gold ring seized in the crime was having monogram of their shop.The same was sold ::: Uploaded on - 08/03/2016 ::: Downloaded on - 09/03/2016 00:03:03 ::: 51 Cri.Through his evidence prosecution could prove that gold ring article 26 given to Aniket was purchased from the shop of R.C.Bafna.::: Uploaded on - 08/03/2016 ::: Downloaded on - 09/03/2016 00:03:03 :::According to prosecution gold ring article 26 was recovered at the instance of Accused No.3 Ram Bodkhe.During investigation Accused No.3 Ram Bodkhe was interrogated.Another witness PW-15 Asif Mohammad Akbar was examined on recovery of gold ring at the instance of Accused No.3 Ram Bodkhe.He sticks up to his evidence regarding ::: Uploaded on - 08/03/2016 ::: Downloaded on - 09/03/2016 00:03:03 ::: 52 Cri.Nothing could be elicited in his cross-examination to disbelieve his testimony.::: Uploaded on - 08/03/2016 ::: Downloaded on - 09/03/2016 00:03:03 :::Further it was revealed during investigation that Accused Jawedkhan had to pay some dues to Ram Bodkhe and against the payment of dues Accused Jawedkhan had given gold ring article 26 to Ram Bodkhe.Prosecution through the evidence of Complainant, Panch witnesses and Investigating Officer has proved that gold ring recovered at the instance of Accused No.3 Ram Bodkhe was given to him by Accused No.1 Jawedkhan and the said ring was gifted to Aniket by his friend Damodhar.::: Uploaded on - 08/03/2016 ::: Downloaded on - 09/03/2016 00:03:03 :::Appeals 516, 281 n 468 of 2012.odtP.I. Borse fully supported memorandum and discovery Panchanama of the clothes of Accused Jawedkhan and identified T-shirt article 28 and Jeans Pant article 27 as the clothes which were recovered on the basis of information given by Accused No.1 Jawedkhan.::: Uploaded on - 08/03/2016 ::: Downloaded on - 09/03/2016 00:03:03 :::Appeals 516, 281 n 468 of 2012.odtThis is a strong clinching circumstance against Accused Jawedkhan confirming his presence on the spot and tilting the ::: Uploaded on - 08/03/2016 ::: Downloaded on - 09/03/2016 00:03:03 ::: 55 Cri.Appeals 516, 281 n 468 of 2012.odt needle towards him and him alone to show that he is the culprit.::: Uploaded on - 08/03/2016 ::: Downloaded on - 09/03/2016 00:03:03 :::Appeals 516, 281 n 468 of 2012.odt and recovery Panchanama Exhibit 57 was drawn by P.I. Borse.::: Uploaded on - 08/03/2016 ::: Downloaded on - 09/03/2016 00:03:03 :::On examination of genital organs Medical Officers found that the girl was sexually assaulted.Postmortem Report Exhibit 32 duly proved by Medical Officers shows clear evidence of forcible sexual intercourse with the victim.::: Uploaded on - 08/03/2016 ::: Downloaded on - 09/03/2016 00:03:03 :::Appeals 516, 281 n 468 of 2012.odtAccused Jawedkhan was sent to Ghati Hospital for medical examination as stated above.PW-21 Dr. Heena Khan examined the Accused and found that he was capable of performing sexual intercourse.She proved the certificate ExhibitDuring examination Dr. Heena Khan collected blood, public hair, semen samples and nail clippings of Accused Jawedkhan.Accused Nos. 2 and 3 did not cross-examine PW-21 Dr. Heena Khan.There was no effective cross-examination of this witness from the side of Accused No.1 Jawedkhan.In respect of DNA test of Accused Jawedkhan it was revealed during investigation by P.I. Borse that special kit was required for taking blood and semen samples of the Accused.The special kit was available only at FSL, Kalina, Mumbai.Head Constable Hiwale was deputed by P.I. Borse for calling the special kit from FSL Mumbai.He then sent the special kit along with Accused Jawedkhan to Medical Officer Ghati Hospital, Aurangabad and wrote a letter Exhibit 147 to take blood and semen samples of Accused Jawedkhan in special kit for performing DNA test.The samples were accordingly collected ::: Uploaded on - 08/03/2016 ::: Downloaded on - 09/03/2016 00:03:03 ::: 58 Cri.Appeals 516, 281 n 468 of 2012.odt and forwarded to FSL Mumbai for DNA test of Accused Jawedkhan.::: Uploaded on - 08/03/2016 ::: Downloaded on - 09/03/2016 00:03:03 :::The opinion of expert on examination was as under :"For all the 17 genetic systems analysed with the PCR using male specific Y STR system the male haplotypes obtained in Semen stains detected on bed sheet (FSL ML Case No. DNA 356/09 - Exh.1) exactly matched with male haplotypes in control blood sample of accused Jawedkhan."On the basis of the results of analysis it is crystal clear that Accused Jawedkhan had committed rape on Mansi as male haplotypes of Jawedkhan were found in the aspirated vaginal fluid of Mansi clearly indicative of the fact that it was Accused Jawedkhan who committed rape on victim girl.Further from DNA report Exhibit 119 it can be seen that in the DNA extracted from the semen stains on the bed sheet in the house of Mansi, male haplotypes in control blood sample of Accused Jawedkhan were found.This makes it clear that Accused had committed sexual intercourse with victim Mansi.::: Uploaded on - 08/03/2016 ::: Downloaded on - 09/03/2016 00:03:03 :::Appeals 516, 281 n 468 of 2012.odt From another report Exhibit 120 it can be seen that blood stains detected on the bed-sheet, T-shirt of the Accused and the control blood stains of deceased were of same biological individual.In this background, it can be safely concluded that prosecution could successfully prove that Accused No.1 Jawedkhan sexually assaulted victim Mansi.(VII) Motive.In a case based on circumstantial evidence, motive assumes pertinent significance as existence of motive is an enlightening factor in a process of presumptive reasoning in such a case.The absence of motive however, puts the court on its guard to scrutinize the circumstances more carefully to ensure that surmises and conjectures do not take place of legal proof.From the incriminating circumstances discussed here-in-above motive of the Accused in the present case has been established i.e. to commit theft, satisfy the unbridled lust of the Accused and then to cause death of victim girl so that his acts can be simply buried forever.As motive is apparent, prosecution does safely cross this hurdle too.::: Uploaded on - 08/03/2016 ::: Downloaded on - 09/03/2016 00:03:03 :::Appeals 516, 281 n 468 of 2012.odt(VIII) Failure of the Accused to offer plausible explanation to the incriminating circumstances against him.The last circumstance against the Accused is his failure to offer plausible explanation to the incriminating circumstances against him.In his statement under Section 313 of the Code of Criminal Procedure Accused has not given any explanation whatsoever for any of the clinching circumstances brought on record by the prosecution against him.We consider the silence of Accused as an additional link to complete the chain in the circumstantial evidence and on the close and critical examination of the evidence on record we hold that all the circumstances proved by the prosecution clearly indicate that accused and accused alone is responsible for the acts attributed to him.On the contrary, the same are of exclusive nature consistent only with the hypothesis of the guilt of the accused and conclusively lead to an irresistible conclusion that it is Accused No.1 who ::: Uploaded on - 08/03/2016 ::: Downloaded on - 09/03/2016 00:03:03 ::: 61 Cri.Appeals 516, 281 n 468 of 2012.odt committed lurking house trespass with an intention to commit theft and then committed rape on the victim and done her to death.::: Uploaded on - 08/03/2016 ::: Downloaded on - 09/03/2016 00:03:03 :::In response to the submissions made on behalf of Appellant Jawedkhan, learned APP Mr. Sonpawale strenuously submitted that considering the nature of offence, manner in which it was committed and its impact on the society at large it is a rarest of rare case in which capital punishment needs to be awarded and life imprisonment would be an inadequate sentence.On the point of death sentence learned APP relied upon the following authorities:::: Uploaded on - 08/03/2016 ::: Downloaded on - 09/03/2016 00:03:03 :::C.R.(Cri.) 744 ::: Uploaded on - 08/03/2016 ::: Downloaded on - 09/03/2016 00:03:03 ::: 63 Cri.a) Accused was 21 years old at the relevant time.The hard facts of the present case are that Accused Jawedkhan entered the house in the odd hours to commit theft, brutally and sexually assaulted victim girl who was sleeping alone in the house and then mercilessly caused her murder.Such an act of the Accused in our view has to be dealt with stern hands.The circumstances established by the prosecution listed above show how a precious life of a young girl was taken away by Accused in a most cruel, barbaric and inhuman manner.Further how brutal and diabolical act of causing sexual assault and death of victim was, is apparent from the modus-operandi of Accused proved through various circumstances brought on record.::: Uploaded on - 08/03/2016 ::: Downloaded on - 09/03/2016 00:03:03 :::Appeals 516, 281 n 468 of 2012.odtIt would not be out of place to mention here that at all levels may be International, National, State or local commitment has been made that women have an inherent right to life which includes right to live with dignity, honour and respect.Any leniency in our view would result into an inadequate punishment.It was revealed from his past antecedents that Accused Jawedkhan was involved in five offences relating to housebreaking and two offences of theft.The extracts of crime registers (Exhibits 152 to158) were proved by the Investigating Officer clearly indicating that past antecedents of Accused Jawedkhan were not clean and clear.In this background and considering the nature of offence, manner in which it was committed and upon evaluating the aggravating and mitigating circumstances according to us this is a case which falls in the category of rarest of rare case.We have therefore no hesitation in awarding sentence of death to Accused No.1 Jawedkhan.So far as remaining two Accused Pradip Chandaliya ::: Uploaded on - 08/03/2016 ::: Downloaded on - 09/03/2016 00:03:03 ::: 73 Cri.Appeals 516, 281 n 468 of 2012.odt and Ram Bodkhe are concerned they were convicted basically for the offences relating to receiving stolen property.Both did not challenge the order of conviction recorded by the Trial Court against them.It is the State of Maharashtra who came in appeal for enhancement of sentence against all the Accused.On appreciation of the evidence against Accused No.2 Pradip Chandaliya and Accused No.3 Ram Bodkhe we find that the reasons and findings recorded by the learned Additional Sessions Judge are based upon due appreciation of evidence and are consistent with the evidence on record as well as the settled legal principles.::: Uploaded on - 08/03/2016 ::: Downloaded on - 09/03/2016 00:03:03 :::In respect to the appeal against acquittal under some of the provisions of the Indian Penal Code, we upon evaluation of evidence do not find any perversity, illegality or incorrectness in the findings recorded by the Trial Court.We thus find that appeal against acquittal filed by the State of Maharashtra deserves to be dismissed.In the above premise and in the totality of the facts and circumstances, we proceed to pass the following order -::: Uploaded on - 08/03/2016 ::: Downloaded on - 09/03/2016 00:03:03 :::Appeals 516, 281 n 468 of 2012.odt ORDER Criminal Appeal No.516 of 2012 I. Criminal Appeal No.516 of 2012 is dismissed.Criminal Appeal No.281 of 2012 I. Criminal Appeal No.281 of 2012 is partly allowed against Accused No.1 Jawedkhan @ Tingarya s/o Habibkhan.Conviction of Accused No.1 Jawedkhan @ Tingarya s/o Habibkhan under Sections 456, 457, 458, 392 read with 397, 376 and 302 of the Indian Penal Code is maintained.The order of sentence of imprisonment for life in respect of offence punishable under Section 302 of the Indian Penal Code is modified and instead Accused No.1 Jawedkhan @ Tingarya s/o Habibkhan is sentenced to death, he be hanged by neck till he is dead.::: Uploaded on - 08/03/2016 ::: Downloaded on - 09/03/2016 00:03:03 :::Appeals 516, 281 n 468 of 2012.odt IV.The order of sentence in respect to the other offences mentioned in II above is confirmed.V. Appeal Against Accused No.2 Pradip s/o Askaran Chandaliya and Accused No.3 Ram s/o Sheshrao Bodkhe stands dismissed.Copy of judgement shall be given free of cost to Accused No.1 Jawedkhan @ Tingarya s/o Habibkhan immediately.Criminal Appeal No.468 of 2012 I. Criminal Appeal No.468 of 2012 is dismissed.::: Uploaded on - 08/03/2016 ::: Downloaded on - 09/03/2016 00:03:03 :::

['Section 302 in The Indian Penal Code', 'Section 354 in The Indian Penal Code', 'Section 392 in The Indian Penal Code', 'Section 457 in The Indian Penal Code', 'Section 201 in The Indian Penal Code']

The petitioners herein stand accused of having committed offencesunder Sections 170, 419, 353, 506(1) r/w.34 of IPC and are facing trial inC.C No.343 of 2012 on the file of the learned Judicial Magistrate No.1,Tirunelveli.2.The case of the prosecution is that on 15.08.2010 at about 20.00 hrswhen the fifth respondent, namely, Tmt.V.Roselin Savio, was on duty as theSub Inspector of Police of Veeravanallur Police Station, the accused enteredthe station premises by falsely posing themselves as if they are coming fromHuman Rights Commission and authoritatively demanded certain documents pertaining to one Suresh who was detained under Tamil Nadu Act 14 of 1982 (shortly known as Goondas Act).When the said Sub Inspector of Police wanted to know the identity of the accused, they not only refused but alsothreatened her with dire consequence.Thereupon, the said Sub Inspector ofPolice informed her superior officials.Since the accused intentionallyentered the police station by impersonating themselves as officialsrepresenting the Government Human Rights Commission and made the Sub Inspector of Police to believe so and demanded production of case documents,Crime No.161 of 2010 was registered on the file of the VeeravanallurPolice Station.3.The learned counsel appearing for the petitioners submitted thatOne Suresh, a Dalit Youth who was a resident of Veeravanallur was subjectedto human rights abuse.Therefore, a Non Governmental Organization known as Dalit Foundation constituted a fact finding team to go into the said issue.The said Dalit Foundation and Peoples Watch had organized a trainingprogramme from 11.08.2010 to 20.08.2010 at Pillar House, Madurai.Asa part of the training, the accused visited Veeravanallur to gather materialsrelating to the said issue.They interviewed the family members of the saidSuresh.Thereafter, they went to Veeravanallur Police Station to enquire theStation House officer about the status of the case pertaining to the arrestof the said Suresh and the alleged ill treatment meted out to him in thepolice station.(P-351-379).The police have concealed evidence including letters of authority carried byeach trainee issued by People's Watch, large training manuals and otherevidence which would reveal the fact that they were trainees.(Discussedin Para 9).The accused Suresh, was arrested from a temple festival and brutally beatenin full view of public.The allegation of torture by police is confirmed byDr.(P.695) and statement of Dr.Simson Ravi, Assistant Surgeon,Govt.Hospital (P-291-293).The accused/victim Shri.Gnana Thiraviyam who was a diabetic patient was notgiven any treatment/medicine by the Police/Jail Authorities due to which hisblood sugar rose to level of 480 and he suffered ill-health.His medicalpapers are enclosed.(P.1415-1431).The Hon'ble Commission may advise the Govt. of Tamil Nadu to directthe concerned Public Prosecutor to withdraw the Case FIR No.161/10 u/s 170/353/416/506(ii), PS Veervanallur, against all the five innocent victimsnamely (i)Ms.The five trainees/victims, were arrested in a false case vide FIRNo.161/10 dated 15.08.10 of PS ? Veeravanallur.The three female and two maletrainees/victims remained in Judicial Custody till 24.08.10 and 25.08.10respectively.These five trainees have undergone the public shame and suffering ofbeing imprisoned for 8/9 days with common criminals for no fault of theirs.Therefore, the Hon'ble Commission may advise the Tamil Nadu Govt. to grantadequate compensation to all the five trainees/victims, for trauma they hadsuffered in jail and the defamation in the eye of the known as well as otherpublic persons.The witnesses have not been subjected to any cross-examination.3.The Secretary, Home Department, Fort St.It was subsequently transferred to Deputy Superintendent ofPolice, Organized Crime Unit, CB CID, Tirunelveli City who laid the finalreport against the petitioners.The same was taken on file in CC No.343 of2012 by the learned Judicial Magistrate No.1, Tirunelveli.To quash thesaid proceedings, 4 out of the 5 accused have filed this Criminal OriginalPetition.4.According to the petitioners, when they went to the police station,neither the Inspector of Police nor the Sub Inspector of Police wereavailable.After obtaining the telephone number of the S.I of Police, theywere about to leave the police station.At that time, the fifth respondentwas coming towards the police station.She said to be known to the firstpetitioner.She, therefore, invited all the team members to have a cup ofcoffee with her.When they waiting for the coffee to be served, the sixthrespondent, who was the in-charge Inspector of Police, arrived.When hebecame aware of the purpose of their visit, his attitude changed.Based onhis information, the seventh respondent who was the then DeputySuperintendent of Police S.Ramu arrived.Since by then darkness set in, thepetitioners wanted to leave the police station.But they were not allowed toleave the police station.They were detained and then taken to the houseof the Judicial Magistrate, Cheranmahadevi.Only then, the team membersrealized that they have been implicated in a criminal case and also arrested.They were remanded to judicial custody.The were granted bail only after 10days.The petitioners thereafter filed Crl OP(MD) No.10130 of 2010 forquashing the F.I.R. But, the said criminal original petition was renderedinfructuous in view of the filing of the final report.Therefore, they filedCrl OP(MD)No.11303 for quashing the final report.Crl OP(MD)Nos.11348 and 12006 of 2010 were also filed seeking transfer of investigation.The saidpetitions were allowed on 28.09.2010 and the investigation was transferredfrom the Inspector of Police, Veeravanallur Police Station to DeputySuperintendent of Police, Organized Crime Unit, CB CID, Tirunelvei City.Since the third respondent also filed a final report implicating the teammembers and the same was taken on file by the learned Trial Magistrate in CCNo.343 of 2012, the present criminal original petition was filed for quashingthe said proceedings.Hendri Tiphagne, the learned counsel for the petitioners arguedwith considerable force and and passion.He raised very many contentions.NHRC has been arrayed as the eighth respondent in this petition.The conclusions and recommendations of the NHRC are as follows:The three entries cannot be correct at thesame time.(para 8.4 ? 8.6, 8.16-8.19).The obtaining of correct addresses from the five accused persons aftersustained interrogation and confusing replies from 5 trainees would take atleast 30/40 minutes.(Para-6.10.1).The 5 Trainees, went inside the PS Veeravanallur much earlier than made outby the Police (Para 8.12-16 & 8.18), ie., earlier than 20.00 hrs, which makesthe trainees version of timings credible.(Para-8.17).WSI-Reselin was earlier posted in PS Tirupavanan, District Manamadurai andwas acquainted with Shri Gnana Thiraviyam, one of the male trainees whileworking there.WSI Roslyn has falsely denied her earlier acquaintance withShri.Gyana dhiraviam.(Para ? 9.11)The situation at PS Veeravanallur at the time of the stated incidentie.20.00 hrs was not such that anyone had to rescue WSI-Roselin from theclutches of 5 accused trainees.(8.4-8.6)The meeting of 5 accused persons/victims with WSI-Roselin in the evening of15/8/2010 was cordial and friendly.But the situation changed at about 2045hrs with the arrival of Inspector/SHO-Murugeshan and SDPO/Cheranmahadevi ? S Ramu, (para 7.9 ? 12, 8.10).The Police did not inform the arrested trainees about the grounds of arrest.Only the Judicial Magistrate Cheranmahadevi, told them about the offenceunder which they were arrested.(Para ? 7.13, 9.13)The required ingredients of sections 170/353/416/506(i) IPC of FIR No.161/10PS Veeravanallur, are not satisfactorily fulfilled.This is discussed indetail in Xssue No.1?of this report.(para 8.1 ? 8.22)The trainees were implicated in a false by the Police due to some reasonconnected to their enquiry into the allegation of torture of accused Suresh.The detailed firs CD made out on 15/0/10 by the IO does not mentionthe presence of the two independent witnesses at the time of the allegedincident.Though there are five accused and only four of them arebefore this Court, the benefit of this order will enure in favour of the nonpetitioning accused Ms.Bharathi also.18.Accordingly, this Criminal Original Petition is allowed.Consequently, connected miscellaneous petitions are closed.1.The Judicial Magistrate No.I, Tirunelveli.5.The Deputy Superintendent of Police, Organized Crime Unit, Crime Branch CID, Tirunelveli City.6.The Inspector of Police, Veeravanallur Police Station, Veeravanallur, Tirunelveli District.

['Section 228 in The Indian Penal Code', 'Section 506 in The Indian Penal Code', 'Section 353 in The Indian Penal Code']

C.C. as per rules.(SMT.ANJULI PALO) JUDGE pn Digitally signed by PANKAJ NAGLE Date: 2018.06.28 11:00:10 +05'30'Heard learned counsel for the applicants finally at motion stage.The present application under Section 482 of the Cr.P.C. has been filed by the applicants for quashing the complaint Case No.59/2018 pending before the J.M.F.C. Jatara District Tikamgarh.The documents as indicated by the applicants show that the allegation against the applicants with regard to cruelty was occurred at the place of Mauranipur, Jhansi (U.P.) and Jaipur (Rajasthan) and complaint was lodged before the Court of J.M.F.C. Jatara, District Tikamgarh for the offences punishable under Sections 498-A, 406, 323, 294 and 506-B of the IPC and Sections 3/4 of Dowry Prohibition Act.The main plea of the applicants is that the J.M.F.C. Jatara, District Tikamgarh has no jurisdiction to try the complaint against the applicants for offence under Section 498-A of the IPC.After hearing learned counsel for the applicant and looking to the facts and circumstances of the case, it is a fit case in which an interference is required by invoking the inherent powers of this Court under Section 482 of the Cr.P.C.Consequently, the present application under Section 482 of the Cr.However, the respondent would be at liberty to file the complaint against the applicants before the competent Court having territorial jurisdiction.

['Section 498A in The Indian Penal Code', 'Section 406 in The Indian Penal Code', 'Section 323 in The Indian Penal Code', 'Section 294 in The Indian Penal Code']

No.1/State.This application under Section 482 of CrPC has been filed for quashing the FIR in Crime No.206/2017 registered at Police Station Guna, District Guna for offence under Sections 354, 354-A, 34 of IPC and under Section 3(1)(w) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities)The necessary facts for the disposal of present application in short are that respondent no.2- complainant lodged the following FIR :-"12 First Information contents izFke lwpuk rF;% cts esa lwpuk gS fd Jheku ,lMhvksih egksn; xquk ds i= dz-@,lMhvksih@xquk@32@17 fnukad 31@03@17 ds }kjk vkosfndk dq-gseyrk ,Ddk 'kkldh; foeq dU; Nk=kokl cekSjh ftyk xquk ds f'kdk;rh vkosnu ds laca/k esa /kkjk 354]354,]34 Hkknfo ,oa ,llh,lVh ,DV dh /kkjk 31w dk vijk/k iathc) djus gsrq izkIr gqvkA mijks vkns'k ds ikyu esa dk;eh dh tkrh gSA udy vkosnu gLotsy gS izfr] Jheku iqfyl v/kh{kd egksn;] vk-tk-dk Fkkuk izHkkjh ftyk xquk e-iz- fo"k; Jh vkj-,l-ifjgkj ftyk la;kstd vktkdk foHkkkx xquk }kjk izrkfMr djus ds laca/k esaA egksn;] mijks fo"k; esa fuosnu gS fd esjk uke dq-gseyrk ,Ddk gS eSa vkfnoklh efgyk lgk;d v/;kid ds in ij inLFk gwaA orZeku esa 'kk-foeq tkfr dU;k Nk=kokl ckeksjh dk v/kh{khd; izHkkj gSA tc ls foHkkx esa Jh vkj-ifjgkj ftyk la;kstd in ij vk;s gSa blds dqN fnu ckn ls gh eq>s VkpZj djuk izkjaHk dj fn;k x;kA eq>s dke ds cgkus ,oa Nk=kokl dh vU; tkudkjh dk cgkuk cukdj vius fuokl ij cqyk;k djrs FksA tc eSaus buds caxys ij tkuk mfpr ugha le>k rks dq>s dbZ ckj /kedh nh xbZ fd rqedks xou ds ekeys esa Qlk;k tk;sxk ,Q-vkb-Zvkj dh tk;sxh fjdojh fudkyh tk;sxhA Jh ifjgkj us eq>ls Qksu ij v'yhy ckrs dh eq>ls dgk rqe gekjh nksLr jgksxh rks D;k esjs izk;osV ikV~lZ xeZ gks tk;asxs vkSj rqEgkjs izk;osV ikV~lZ Hkh xeZ gksxs rks D;k rqe Mkyus ls euk djksxhA rqe fuoZL= gekjs lkeus dsV ckd djksxh rks gedks dqN ugha gksxk] tc rd rqe gedks Vp ugha djksxhA Vp djksxh rks esjs izk;osV ikV~lZ xeZ gks tk;sxsA jkr ds 11 cts Qksu yxkdj m ckr dgh xbZA eSus euk fd;k rks eq>s 2 Nk=kokl ls gVkus dh /kedh nh A eq> ij nckc cukdj eq>s 'kkjhfjd laca/k cukus ds fy, etcwj fd;k x;kA eq>s vius fuokl ij cqykdj Nk=kokl pktZ esa nsus dh ckrs djus yxs fQj Jh vkj-ifjgkj us esjk gkFk idM fy, eSus fojks/k fd;k rks eq>s Mjk;k fd vxj gkFk NqMkvksxs rks ge dgh vkSj gkFk yxk;sxsA ,slk dgdj mUgksaus psLV dks Vp fd;kA eSa mBdj tkus yxh rks bUgksus eq>s fdfpu esa pk; cukus dk cksydj ihNs ls vk;s vkSj eq>s ihNs ls idMdj vius izk;osV ikV~lZ eq>ls Vp djkus yxsA eSus fojks/k dj ds ckgj vk xbZ blds i'pkr ~eq>s 'kk-vk-dU;k vkJe dk izHkkj gVk fn;k x;k D;ksafd eSus budh eU'kk iwjh ugha dhA eSa vkfnoklh efgyk eq>s bl izdkj ls vf/kdkjh }kjk izrkfM+r fd;k tk jgk gSA fojk/sk djus ij /kedh nh tkrh gS fd Nk=kokl ls gVk fn;k tkosxkA eq> ij rjg rjg ds vkjksi yxkdj ckj ckj /kedkdj nckc cukdj izrkfMr fd;k tkrk gSA eSus lh-ch-pansy us eq>s igyh nQk Qksu yxkdj lkgc ls eqykdkr djkbZA eSus lh-ch-paVsy lj ls iwNks eq>s D;ksa cqyk jgs gS lkgc] rks mUgksus cksyk vf/kdkjh ls esy tksy vPNk jgrk gS muls vkdj feyks ,slk dgkA esjs }kjk lh-ch-pansy dks lwfpr fd;k x;k fd Jh ifjgkj th ds bjknksa ij eq>s 'kadk gS rks oks eq>ls v'yhy ckrsa djrs gSa v'yhy gjdr djrs gSaA eSa buds v/khuLFk dk;Zjr gksus ds dkj.k ;s lgu djrh jghA vc lcz VwV pqdk gSA budh v'yhy gjdr ,oa /kedh ls eSa VwV pwdh gwaA eSa vR;ar ruko xzLr gks pqdh gwaA eSa vkfnoklh efgyk gwa eq>s vf/kdkjh }kjk izrkfMr fd;k tk jgk gSA vr% Jheku~th ls fuosnu gS fd Jh-vkj-ifjgkj ftyk la;kstd vkfne tkfr dY;k.k foHkkx xquk ds fo:) dk;Zokgh vfr'kh?kz djokus dh d``ik djsaA gLrk{kj vaxzsth izkFkhZ dq- gseyrk ,Ddk 'kk-foeq tkfr dU;k Nk=kokl ceksjh ftyk xquk e-iz- 9926778507" .'' It is submitted by learned counsel for the applicant that since the complainant was holding the the charge of Superintendent of two different hostels, a direction was issued by the Collector, Guna to withdraw the charge of post of Superintendent of one hostel from the person who was holding the charge of more than one hostel and accordingly, a notice was issued to the complainant- respondent No.2 to hand over the charge of the hostel.As the respondent No.2 was creating all the hurdles in handing over the charge, ultimately a complaint was made by the incoming incumbent.She was directed to take the charge ex parte and in spite of the instructions issued by the applicant, the complainant- respondent No.2 did not hand over the complete charge and all the relevant documents were withheld by her and apprehending some departmental action against her, she has lodged a false FIR.The counsel for the applicant has also referred the letter dated 22/03/2017 issued by the applicant directing the Area Coordinator, AJAK, Guna to ensure that the charge of the Superintendent, Vimukt Jati Girls' Hostel, Bamori is handed over to the incoming incumbent Smt. Bhanu Patwa.Thereafter, an order dated 25/03/2017 was passed by the applicant, directing the Area Coordinator to ensure that charge of the institution is given to the incumbent and all the accounts of which charge is not given, should be freezed and the details of the material purchased during the last three years should also be prepared.It is further submitted by the counsel for the applicant that the girls of the hostel had made a written complaint to the Collector, Guna on 31/10/2012 against the respondent No.2 as she was involved in illicit activities thereby physically violating the occupants of the girls' hostel.Similarly, a notice was issued to the respondent No.2 on 3/01/2017 that one the girl is illegally residing in the hostel for the last three years whereas she was never admitted in the hostel and in spite of that, the respondent No.2 had allowed that girl to stay in the hostel.The matter shall be 4 investigated in a free and fair manner and final opinion shall be formed by the Investigating Officer and he would proceed in accordance with law.It is submitted by learned Senior Counsel for the respondent No.2 that so far as the allegation of delay in lodging the FIR is concerned, it is submitted that the respondent No.2 has merely narrated the correct facts, otherwise respondent No.2 could have made the allegation that she was physically or sexually violated by the applicant immediately prior to lodging of the FIR.It is further submitted that the applicant apart from harassing her physically and sexually, was in habit of sending indecent messages to the respondent No.2 and some of the messages have been placed on record.It is submitted that in the whatsapp messages the applicant had sought answer from the respondent No.2 that as to why she does not have any friend and had suggested that she should have friend.Heard the counsel for the parties.The submissions made by the counsel for the applicant can be summarized as under:-(I)That, the applicant is working as District Coordinator,AJAK Department, District Guna whereas the respondent No.2 was holding the charge of post of Superintendent of two different hostels.

['Section 34 in The Indian Penal Code', 'Section 354 in The Indian Penal Code']

Ms. Shraddha Dixit, learned counsel for the appellant.Shri Pankaj Wadhwani, learned Public Prosecutor.Heard the learned counsel for the parties on I.A. No.6381/2017, an application on behalf of the appellant - Harikishan Pal for staying the effect of conviction.It is submitted that the appellant has been selected in the examination conducted by Staff Selection Commission and if the effect of conviction is not stayed, then his entire career shall be spoiled.2 CRA 798/2016 Per contra, it is submitted by the learned Public Prosecutor that the appellant was having close relationship with Dharmendra Sharma @ D.K. Singh and, therefore, he is equally responsible for the offence.Heard the learned counsel for the parties and perused the record.Considering the role attributed to the appellant in the commission of alleged crime so also the fact that his career is at stake, it would be appropriate to suspend the effect of conviction imposed against him.Accordingly, the prayer for staying the effect of conviction is allowed.The conviction of the appellant for the aforesaid offences shall remain stayed till pendency of this appeal.I.A. No.6381/2017 stands accordingly disposed of.C.C. as per Rules.

['Section 120B in The Indian Penal Code']

Arguments heard upon both the applications filed on 13.03.2020 under Section 439 of the Cr.P.C. for grant of bail on behalf of applicants namely Ramlal Saket and Kamla Saket, both are confined in custody since 27.02.2020 in connection with the crime No.20/2020 registered at Police Station Talaiya, District Bhopal (M.P.) for the offences punishable under Sections 363, 366, 376-2, 366A, 368 of IPC and Section 5L/6 of POCSO Act.It appears from the impugned order that the prosecturix came into contact with the son of both applicants and their son Atul Kumar Saket called her through video calling.When she reached Rewa, Atul Kumar Saket received her and took her in the house.The allegation against the present applicants is that they gave the shelter to the prosecutrix in their house because they are the parents of main accused Atul Kumar Saket.It is also alleged that Kamla Saket gave the threat to the prosecutrix for not disclosing the incident to anybody at Bhopal.It is directed that the applicants namely Ramlal Saket and Kamla Saket be released on bail upon their furnishing bail bond worth Rs.30,000/-(Rupees Thirty Thousand Only) each and personal bond of the same amount to the Digitally signed by SHAHINA KHAN Date: 26/06/2020 15:44:50 2 MCRC-11925-2020 satisfaction of the trial Court.A t the time of releasing the applicants from custody, all the instructions issued by the Government related to COVID-19 shall also be followed by the concerned authority.Accordingly, both M.Cr.C. stand allowed.Certified copy as per rules.(B. K. SHRIVASTAVA) JUDGE shahina Digitally signed by SHAHINA KHAN Date: 26/06/2020 15:44:50

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

Heard on admission as well as on I.A.No.19726/2013, an application for staying the proceedings pending before the trial Court.The applicants have moved a petition under section 482 of the Cr.P.C. against the order dated 2.7.2013 passed by the learned Second Additional Sessions Judge, Satna in criminal revision No.277/2012, whereby an order under section 398 of the Cr.P.C. was passed for re-enquiry in the complaint.A copy of the order be sent to both the Courts below for information.

['Section 447 in The Indian Penal Code', 'Section 294 in The Indian Penal Code', 'Section 323 in The Indian Penal Code', 'Section 506 in The Indian Penal Code', 'Section 147 in The Indian Penal Code']

A. No. 512/2000 Page 1 of 46PW-3 H.C Chander Bhan while on patrolling duty at the Chabutra of Gurudwara Bangla Sahib received information from a devotee that a quarrel had taken place in the NDMC Park.The criminal law machinery in this case was set in motion by DD No. 14A (Ex. PW 18/A).On 14.06.1995, ASI Dharam Singh (PW-18) was on emergency duty from 8 a.m to 8 p.m at P.S Parliament Street.Pursuant to the receipt of the aforesaid information he along with Constable Bhagat Ram (PW-13) reached at the spot i.e Jai Singh Road.At the spot one PCR Van, H.C Chander Bhan (PW-3), Constable Nirmal Singh, injured Shera and the appellant Mannu met him.Subsequently, ASI Dharam Singh (PW-18) took the injured in the PCR Van to R.M.L Hospital where the doctor declared the injured as brought dead.Thereafter, he along with the Addl.S.H.O reached at the spot where H.C. Chander Bhan handed over to him a kirpan along with the cover.The kirpan and cover of the kirpan were recovered at the spot and was sealed by A.S.I Dharam Singh.Thereafter, the investigation was handed over to the S.H.O, Gurnam Singh Randhawa.The accused was detained at the spot and he recorded the statement of HC Chander bhan.The rukka was sent for registration of the case.The photos of the scene of occurrence were taken.The I.O. inspected the spot, site plan was prepared, 'Tat' which was lying at the spot in the park was sealed in a parcel, along with the sample soil was also taken into possession.The old turban lying at the spot was taken into custody.Some blood was lying at the spot.He also took sample of concrete from the spot.The accused mannu who was detained at the spot was sent for medical examination by ASI Dharam Singh.He recorded the statement of eye witness Prakash Chander.He recorded the statement of other witnesses.After his examination, the accused was brought back to the NDMC park and was arrested.However, names of none of these persons including ASI Dharam Singh who was the senior most official finds mention in the MLC.PW-7 Prakash Chander also claims that the deceased Crl.A. No. 512/2000 Page 4 of 46 was well- known to him and he knew the name of the deceased.Further ASI Dharam Singh (PW-18) who claims to have accompanied the deceased to the hospital has stated in his statement that the deceased informed him that his name was Shera, yet no one informed the doctor in the hospital.A. No. 512/2000 Page 4 of 46d) In the MLC it is recorded that an "unknown" person had been brought dead by Constable Jai Ram Singh of PCR Van with the alleged history of being found unconscious on Jai Singh Road.The two police officials (PW-13 and PW-18) who were travelling in the same PCR Van with the deceased to the hospital gave absolutely two different versions in their respective statements.g) As per the prosecution's version, no call was received by the PCR van, still it failed to establish how it reached at the spot.This is clear from the evidence on record including the evidence of PW-3, H.C Chander Bhan who stated that he did not send any intimation to the Police Station nor made any call to the PCR.h) That the deceased did not reveal the name of the accused to PW-3 H.C Chander Bhan nor made any statement regarding the incident although he had ample time and opportunity to do so.i) When a suggestion was put to PW-3 H.C Chander Bhan in his cross examination that if the accused made any attempt to run away on seeing H.C Chander Bhan, because as per the normal human conduct, the appellant if he was actually involved in the crime, could not have gathered the courage Crl.With the legal dicta as discussed in the foregoing paras, let us now examine as to whether the counsel for the appellant succeeds in throwing any serious doubts on the prosecution case particularly to discredit or impeach the testimonies of the two eye witnesses i.e. HC Chander Bhan (PW-3) and Prakash Chander (PW-7).As per the deposition of Prakash Chander (PW-7), he himself was serving as a sevadar in Gurudwara Bangla Saheb and he very well knew Crl.A. No. 512/2000 Page 17 of 46 both the accused and the victim.At the time of the incident, at 10.30 PM on 14th June 1995, Prakash Chander (PW-7) was also lying in the same NDMC Park along with a few others when he witnessed the quarrel to have taken place between the accused and the victim over a gunny bag.During the quarrel, Prakash Chander (PW-7) saw the accused snatching the gunny bag from the victim and thereafter the victim running towards the shop.The accused then caught him near a tree and took out a kripan from the possession of the victim and started hitting him with the kripan while sitting on him.He could not see how many blows were given by the accused to the victim because accused sat with his back facing towards him.He also saw PW-3 HC Chander Bhan to have reached at the spot who took both the accused and the victim from the park towards the road behind the toilet.In his cross-examination, he stated that he was working as sevadar in the Gurudwara Bangla Saheb for the last five years.He also deposed that at the time of the incident, 5-6 persons were sleeping in the park and after the incident, seeing the police these persons went away.He also deposed that he did not get up from his place as he was under the apprehension of getting stabbed if he would interfere.He also deposed that at the time of the incident, the accused was only wearing an underwear (kachha) and he did not see any blood stains on his Crl.A. No. 512/2000 Page 18 of 46 body.He also deposed that he did not see any blood stains on the clothes of PW-3 HC Chander Bhan.He also deposed that he could only see from one eye.He also deposed that when HC Chander Bhan took the victim Shera towards the road, he could see that the victim was alive.The presence of PW-7 also cannot be disputed because of the fact that his statement was recorded by the police under Section 161 of Cr.P.C. while he was available at the spot and he was also witness to the seizure memo of samples of the soil (Ex.A. No. 512/2000 Page 19 of 46 having come to know about some altercation to have taken place in the NDMC Park.After he had reached the spot, he saw that there was a clean shaven person and a Sardar who were grappling with each other.He also saw that a clean shaven person pinned down the sardar on the ground .He further saw that the clean shaven person was having a small kripan in his right hand and was inflicting blows with the kirpan on the sardar who was lying on the ground.He saw that he was being hit on the chest with the kirpan.This witness tried to snatch the kirpan from the hand of clean shaven person and in that process the clean shaven person had rubbed and cleaned the blood from the kirpan.This witness had overpowered both the persons and took both of them out of the park towards the road.The injured person told his name as Shera to this witness while blood was oozing out from his body.The victim sat near the police quarters on Jai Singh road and fell down as he was suffering from pain.In the meantime another constable Nirmal Singh had reached there and after handing over both the said persons to the said constable, PW-7 started moving towards Ashok Road in search of vehicle to remove the injured to the hospital.But in the meanwhile a PCR Van had reached there.The PCR officials alongwith ASI Dharam Singh and Bhagat Ram had removed the injured to the hospital while PW-3 HC Chander Bhan and Constable Nirmal Crl.A. No. 512/2000 Page 20 of 46 Singh remained at the spot alongwith the accused.After sometime SHO of Police Station Parliament Street, ASI Dharam Singh and SI also reached at the spot and they were informed that the injured Shera had expired.PW-3/B, and also bears his signatures.PW-3 is also the witness to the seizure and recovery of the gunny bag (Taat), pagri, and blood stained earth sample which were lifted from the spot by the police and sample of the soil and personal search memo of the accused.The wound is present 102 cm above left heel wound is muscle deep.d. Injury No.2 is piercing through left lung and anterior wall of the heart.The post mortem Report further states that it was the injury No.2 that pierced the left lung due to which the left lung had collapsed.KAILASH GAMBHIR, JBy this appeal filed under section 374 of Criminal Procedure Code, 1973 (hereinafter referred to as 'Cr.P.C.'), the appellant seeks to challenge the impugned judgment dated 29.05.2000 and order on sentence dated 30.05.2000 whereby the Appellant - Mannu was convicted for committing an offence punishable under Section 302 of the Indian Penal Code, 1860 (hereinafter referred to as 'IPC') and was sentenced to undergo rigorous imprisonment for life, further to pay fine of Rs.10000 and in case of default, to undergo simple imprisonment for a period of six months.The facts germane to the case of the prosecution are that - Crl.A. No. 512/2000 Page 1 of 46His personal search was taken and after interrogation of Crl.A. No. 512/2000 Page 2 of 46 the accused, they went back to the police station.The post-mortem of the deceased was conducted and the exhibits were sent for analysis and after completion of the investigation challan was filed.A. No. 512/2000 Page 2 of 46To prove its case the prosecution examined as many as 19 witnesses.The State was led by Mr. Sunil Sharma, Learned Additional Public Prosecutor.Addressing arguments on behalf of the appellant, Ms. Nidhi Raman, Advocate categorised her submissions under various heads, the same are outlined as under:-I. Gaps, infirmities, contradictions and lacunae in the prosecution:As per the counsel for the appellant the genesis of the prosecution case is shrouded in mystery and the two eye-witnesses have been introduced to make out a semblance of a case.The infirmities, gaps and Crl.A. No. 512/2000 Page 3 of 46 contradictions which were pointed out by the counsel for the appellant are detailed as under:Therefore, there is nothing substantive on record to prove the presence of Constable Jai Ram Singh at the spot.c) As per the case of the prosecution, the deceased was brought to the hospital by the PCR officials, ASI Dharam Singh (PW-18) and Ct Bhagat Ram (PW-13).e) As per the prosecution case, the place of occurrence was NDMC Park but the DD Entry, MLC and the Post Mortem Report, all show that the deceased was found unconscious on Jai Singh Road which clearly demonstrate that the scene of occurrence was Jai Singh Road, Gurudwara Bangla Sahib and not NDMC Park.A. No. 512/2000 Page 5 of 46f) PW-5, Dr Sanjeev Tandon deposed that Injury No.2 (stab wound) had pierced the left lung and the anterior wall of the heart, yet the deceased was able to walk from the Park to Jai Singh Road which according to the prosecution was at a distance of 230 mtrs .A. No. 512/2000 Page 6 of 46 of continuing to fight and stab the deceased in front of a police officer.A. No. 512/2000 Page 6 of 46j) The MLC of the accused show that it was recorded at 3:30 a.m. however, the incident allegedly took place at 10:45 p.m. Evidence on record suggests that till 3:15 a.m. the accused remained on the spot.The SHO has himself said that Mannu, the accused herein was taken to the hospital at 3:15 a.m. Thus, the medical examination of the accused was conducted after 4.5 hours when he could have been sent immediately with the injured and this fact further casts a doubt on the prosecution case.k) The exhibits were sent to CFSL after more than 20 days of the incident.Even the Rukka was sent to the Police Station at 12:50 a.m., however the incident occurred at 10.45 p.m. Thus the counsel urged that the case of the prosecution suffers from proven improbabilities, infirmities and contradictions and does not inspire confidence.The story of the prosecution is that PW-3 H.C Chander Bhan while on patrolling duty at the Chabutra of Gurudwara Bangla Sahib received Crl.A. No. 512/2000 Page 7 of 46 information from a devotee that a quarrel took place in the NDMC Park.Counsel submitted that this "devotee" has not been named or produced in the witness box.Hence the Hon'ble Court should draw adverse inference against the prosecution for non- examination of material witnesses in the case.A. No. 512/2000 Page 7 of 46It is a settled law that where there is a gap or infirmity in the prosecution case which could have been supplied or made good by examining a witness who though available but was not examined, the prosecution case can be termed as suffering from deficiency and withholding of such a material witness would oblige the Hon'ble Court to draw an adverse inference against the prosecution.The statement and evidence of the alleged eye- witness PW-7 Prakash Chander lacks credence and reliability and his presence at the spot is also highly doubtful.A reading of his testimony and the testimony of H.C Chander Bhan clearly show that they were not present at the place of occurrence.The name of Prakash Chander (PW-7) does not find mention in the Rukka and the FIR.According to PW-7 about a month prior to the incident there was a quarrel between the accused and the deceased in which the accused sustained head injuries.This is entirely Crl.A. No. 512/2000 Page 8 of 46 false as the material/evidence on record show that the quarrel took place between one Deepak tea stall owner and the accused a month prior and not between the accused and the deceased "Shera".A. No. 512/2000 Page 8 of 46The owner of Deepak Tea Stall could have thrown some light on the incident and was a material witness but was conveniently discarded from being examined by the prosecution.Furthermore, PW-7 stated in his cross examination that in the alleged quarrel between the accused and the deceased had caused head injury to the accused with the help of a crutch of another person.However, his statement is patently false as the MLC of the accused shows that there was no such head injury.In respect of PW-7 Prakash Chander it is also very surprising that at 10:45 p.m he could see the incident very minutely in the darkness of the Park when he himself is blind from one eye.It is also very intriguing that PW-7 as per his deposition was always present whenever the accused was being beaten up or when he Crl.A. No. 512/2000 Page 9 of 46 was supposed to beat anyone.He seems to be an omnipresent witness in the present case.A. No. 512/2000 Page 9 of 46That the glaring discrepancies would be noticed in the testimonies of PW-3 H.C Chander Bhan and PW-7 Prakash Chander with regard to the narration of the incident which affect the very core of the prosecution case.Its non-corroboration by other witnesses or evidence makes it a weak piece of evidence.In these circumstances the ratio laid down by the Hon'ble Supreme Court in catena of judgements is that when the prosecution relies upon the testimony of a sole eye-witness, then such evidence has to be wholly reliable and trustworthy and if the evidence of the sole eye- witness is in conflict with the other witnesses, it may not be safe to make such a statement as a foundation for the conviction of the accused.Counsel in this regard referred to the following judgements of the Hon'ble Supreme Court:(i) (2012)4 SCC 722: Govindaraju alias Govinda vs State(ii) (2005) 10 SCC 196: Pohlu vs State Crl.A. No. 512/2000 Page 10 of 46 III.Medical evidence and other evidence in support:A. No. 512/2000 Page 10 of 46The whole story about the accused having wiped the blood on the kirpan with his hands is a fabricated one.This is corroborated by the CFSL Report which says that no blood was found on the kirpan.In similar circumstances i.e. when no blood was found on the weapon of offence, the Hon'ble Supreme Court and a Division Bench of this Hon'ble Court have set aside the conviction of the Appellant.Reference in this regard was placed on the following judgements:(ii) ILR Delhi Series 1986 Volume II: Imtiaz Ahmed vs StateThe prosecution has also been unable to produce the blood stained clothes of the accused.A version has been put forth that the accused was in his undergarments at that point of time.The undergarment (Kachha) has also not been produced.If the accused was actually sitting on the chest of the deceased and giving kirpan blows, the undergarment would have been soaked with blood.The undergarment (Kachha) was admittedly not sent to CFSL.That PW-3 HC Chander Bhan stated that when he took the deceased from the Park to the road, the deceased was leaning upon him.Even PW-7 Prakash Chander stated the same.However, even though the Crl.A. No. 512/2000 Page 11 of 46 deceased was bleeding profusely, surprisingly H.C Chander Bhan's clothes not smeared in any blood stains casts a doubt on the prosecution story.Thus it is manifest that PW-3 H.C Chander Bhan does not seem to be a witness to the crime at all and has reached there only after everything was over.To support this argument counsel placed reliance on the following judgments:A. No. 512/2000 Page 11 of 46(ii) ILR Delhi Series 1986 Volume II: Imtiaz Ahmed vs State(iii) 52 (1993) DLT 351: Rishi Pal & Ors vs State IV No motiveCounsel also submitted that the prosecution has failed to prove any motive for the crime.According to the prosecution the dispute this time was over a gunny bag.It is inconceivable that over a small piece of 'tat' and that too after the accused had already snatched it from the deceased as per the testimony of PW-7, he ran after the deceased to kill him.V Conversion of sentence from 302 IPC to 304 (I) or (II)Lastly, it was submitted by the Learned Counsel that even if the Crl.A. No. 512/2000 Page 12 of 46i. Admittedly there was a sudden fight which allegedly happened between the Accused and the Deceased over a piece of gunny bag.There was no pre-meditation: The accused was not carrying any weapon with him and is alleged to have taken the kirpan of the deceased to stab him.The accused made no attempt to run away from the spot.There are no other criminal cases pending against the accused in any other Court Counsel submitted that reference in this regard could be made to the following judgments of the Hon'ble Supreme Court:(i) (2009)15 SCC 635: Gurmukh Singh vs State of Haryana Crl.A. No. 512/2000 Page 13 of 46A. No. 512/2000 Page 13 of 46(ii)JT 2013(12) SC 28: Chandera @ Chandera Ram vs State of Chhattisgarh The counsel thus urged and prayed for the discharge of the Appellant/accused to meet the interests of justice.Per contra, learned APP for the State vehemently refuted the said submissions of learned counsel for the appellant and contended that the case of the appellant is an open and shut case based on the testimony of two eye witnesses and both the testimonies remained coherent, cogent and clinching throughout.They are also duly supported by the medical and forensic evidence leaving no space for any doubts.Learned APP also submitted that the learned trial court went into each and every aspect of the material placed on record by the prosecution and the defence raised by the accused at the time of recording of his statement under Section 313 of Cr.P.C. and counsel for the appellant has not been able to point out any illegality or perversity in the reasoning given by the learned trial court to convict and sentence the appellant for committing an offence punishable under Section 302 IPC.Learned APP thus strongly urged that the appeal filed by the appellant is devoid of any merit and the same may be dismissed.We have heard learned counsel for the parties at considerable Crl.A. No. 512/2000 Page 14 of 46The incident took place near a devout place of worship, known for its purity and religious beliefs, Gurudwara Bangla Sahib.Gurudwara Bangla Saheb is the most prominent Sikh Gurudwara and is known for its association of 8th Sikh Guru - Guru Harkishan Singh.The victim in the present case was a sevadar at the Gurudwara Bangla Sahib.God creates, we destroy, how true that is in our society that for some psychological satisfaction, a human develops a tendency, an urge, fear or anxiety to rip off a person's life in seconds and at that spur even forgets the outcome that he would have to suffer at the hands of law, and that there can be no escape from the clutches of law.The incident took place in the NDMC maintained park which adjoins the said Gurudwara.As per the case of the prosecution, the tussle between the accused and the victim was over a piece of gunny bag (taat) which was given by the Management of the Gurudwara to the sewadars for sleeping purpose.The night of 14th June 1995, was the peak of summers and probably due to this reason, the accused was only wearing an underwear and there was no other cloth on his body.HC Chander Bhan (PW-3) and Prakash Chander Crl.A. No. 512/2000 Page 16 of 46 merely based on few infirmities.A. No. 512/2000 Page 16 of 46PW-3/E) collected from the spot, seizure memo of Pagri of the deceased (Ex.PW- 3/f), seizure memo of the old gunny bag (taat) and personal search memo of the accused proved on record as Ex.PW-3/H. Despite a lengthy cross- examination of this witness, we do not find that the defence could succeed to create any dent to disbelieve his testimony.Many questions were put to him to dispute his presence and even with regard to his working as a sevadar in the Gurudwara Bangla Saheb but nothing could be elicited by the defence to disbelieve his presence at the spot of the crime or even his being a sevadar in the said Gurudwara Bangla Saheb.A. No. 512/2000 Page 17 of 46ASI Dharam Singh had recorded the statement of PW-3 Chander Bhan which carried the endorsement of ASI Dharam Singh and then sent the rukka (Ex.PW-18/B) to the Police Station for registration of the FIR.He further deposed that he had handed over kripan to ASI Dharam Singh and sketch of the Kirpan was drawn by ASI Dharam Singh which is proved on record as Ex.He is also a witness to the sketch of the cover of kirpan.The defence could not succeed to shatter his evidence despite his grueling cross-examination.The testimonies of these two eye witnesses find corroboration in the testimonies of PW-13 Bhagat Ram, PW-18 ASI Dharam Singh and PW-16 - Inspector B.S. Rana and PW-19 Inspector Gurnam Singh.The ocular evidence of this witness finds corroboration by medical evidence and forensic evidence proved on record by the prosecution.A. No. 512/2000 Page 19 of 46A. No. 512/2000 Page 20 of 46A. No. 512/2000 Page 21 of 46Learned counsel for the appellant made a desperate but vain attempt to find fault with the testimonies of prosecution witnesses especially the two eye witnesses but nothing substantial was pointed out to disbelieve the case of the prosecution.To say that no DD entry was produced to show that PW-3 HC Chander Bhan was on patrolling duty at Gurudwara Bangla Saheb; the names of PCR officials were not found mentioned in the MLC of the deceased; failure of ASI Dharam Singh (PW-18) to inform the name of the deceased to the doctor of the hospital; PW-18 ASI Dharam Singh, Constable Bhagat Ram giving two different versions about the disclosure/non-disclosure of his names by the victim - Shera while he was being taken to the hospital in the PCR Van; variations with regard to the place of occurrence; how the deceased received fatal injury on the road which was at a distance of 230 sq. yds.and DD entry was recorded after a gap of 15 minutes from the time of incident; PCR Van reaching at the spot without receipt of any information about the incident; non-disclosure of the name of the accused by the deceased to HC Chander Bhan although he had ample time to disclose the same; ample time for the accused to run away if he had actually committed the crime; delayed medical assistance to the accused after a gap of 4-5 hours; sending of exhibits to CFSL after more than 20 days of the incident; are Crl.A. No. 512/2000 Page 22 of 46 only the peripheral aspects of the case but in no manner the same can corrode the credibility of the prosecution case.As already stated above, Gurudwara Bangla Saheb is a prominent place of worship and thousands of people almost round the clock pay visit to the gurudwara to seek blessings and there is nothing unusual that PW-3 Chander Bhan was on a patrolling duty in the vicinity of the said gurudwara.We also do not find anything unusual that the PCR had reached at the Jai Singh road at its own where the victim and the accused were brought by PW-3 - HC Chander Bhan.The non disclosure of the name of Shera by PW-18 to the doctor, who attended the deceased also cannot be held fatal to throw over broad the case of the prosecution which is otherwise found reliable, credible and trustworthy.A. No. 512/2000 Page 22 of 46So far as the variation with regard to the place of occurrence as pointed out by counsel for the appellant is concerned, the argument merits outright rejection as indisputably the victim and the accused were brought to the Jai Singh Road from the spot of the crime by HC Chander Bhan(PW-3) and there is nothing wrong if the DD entry and the postmortem entry records the name of the place where the victim was found unconscious.This fact, will however not change the place of actual Crl.A. No. 512/2000 Page 23 of 46 occurrence of the site which will remain the NDMC Park adjoining the Gurudwara Bangla Saheb.A. No. 512/2000 Page 23 of 46So far the contention of counsel for the appellant that the accused did not make any attempt to run away, had he been actually involved in the crime or the fact that he would not have the courage to continuously stab the victim in front of police officer, also do not cut much ice as HC Chander Bhan(PW-3) had over powered the accused and it is not the version of HC Chander Bhan(PW-3) that the accused kept on inflicting blows after he had seen him.As per his testimony, he saw the accused giving kirpan blows to the sardar who was lying on the ground and then he tried to intervene to snatch the kirpan from his hand.The blows therefore, were already inflicted by the accused on the victim before the intervention of HC Chander Bhan.The other discrepancies pointed out by learned counsel for the appellant are also totally inconsequential being of very trivial and insignificant nature.Where the omissions amount to a contradiction, creating a serious doubt about the truthfulness of the witness and other witnesses also make material improvement while deposing in the court, such evidence cannot be safe to rely upon.However, minor contradictions, inconsistencies, embellishments or improvements on trivial matters which do not affect the core of the prosecution case, should not be made a ground on which the evidence can be rejected in its entirety.Dealing with the next contention raised by the learned counsel for the appellant that the prosecution neither recorded the statement of Constable Jai Ram Singh nor examined him as a witness although he was the only person whose name was found to be mentioned in the MLC and would have been the best person to depose about the incident and Crl.A. No. 512/2000 Page 27 of 46 similarly, non examination of Head Constable Sucheta, who went to inform the PCR and likewise non-examination of the 'devotee' who had informed HC Chander Bhan(PW-3) about the quarrel to have taken place in the NDMC Park.Undoubtedly, the name of constable Jai Ram Singh does find mention in the MLC of the victim Shera and he was one of the police official who was present in the PCR.HC Chander Bhan (PW-3) in his cross-examination has referred to the person - Constable Jai Ram Singh in the PCR van.There were other police officials also in the PCR Van including the driver of the PCR Van.So far as the non-examination of the devotee is concerned, PW-3 HC Chander Bhan did not disclose the name of the devotee and in his cross- Crl.A. No. 512/2000 Page 28 of 46 examination he categorically stated that he did not note down the name of the person who had informed about the quarrel in the NDMC Park as many people had passed through that area to move towards the Gurudwara side at that time.A. No. 512/2000 Page 27 of 46A. No. 512/2000 Page 28 of 46The evidence is to be weighed and not counted.The general rule is that it is not the numerical strength of witnesses but the inherent strength of any witness which is the guiding factor for the prosecution to prove its case, therefore, it is not that particular number of witnesses in a case will be required to prove any particular fact if such a fact can be proved by any single credible witness.We thus, do not find any force in the contention raised by counsel for the appellant to disbelieve the prosecution version due to non examination of the said three witnesses.The next contention raised by counsel for the appellant was that there was no blood found on the weapon of offence and therefore, the story of the prosecution cannot be believed.PW-3 - HC Chander Bhan was very categorical in stating in his examination in chief that the accused person rubbed and cleaned the blade of the kirpan at the time when he tried to snatch the kirpan from his hand.When such coherent Crl.He further clarified that his clothes did not get any bloodstains from the injured Shera while he was talking to him and proceeding towards the road.We find no reason to disbelieve the clarification given by him that his clothes did not get any blood stains from the injured Shera.Even otherwise, the statement of the witness is to be read as a whole and once the court finds no reason to disbelieve his presence at the spot and his narration of what he had seen in front of his eyes is credible, we are not convinced to accept that his presence can be disbelieved because his clothes were free from bloodstains of the deceased.We also cannot loose sight of the fact that the presence of PW-3 HC Chander Crl.A. No. 512/2000 Page 30 of 46 Bhan at the spot of crime is duly corroborated by other prosecution witnesses mainly PW-7 Prakash Chander, SHO, and others.Even the FIR of the case was registered on the statement of PW-3 HC Chander Bhan.A. No. 512/2000 Page 29 of 46A. No. 512/2000 Page 30 of 46PW-5/B wherein, he stated that the weapon has slightly curved in the front portion and therefore, the injuries caused on the body of the victim may be inflicted from a slightly curved weapon.The said subsequent opinion given by PW-5 - Dr. Sanjiv Tandon, Senior Head of Department of Forensic and Medical, Lady Harding Medical College stating that the weapon examined by him was slightly curved is also in consonance with the sketch of the weapon of offence proved on record as Ex.PW-3/B which clearly shows that the kirpan was a curved one in the front portion.A. No. 512/2000 Page 31 of 46 not find any force in the aforesaid contention raised by counsel for the appellant.A. No. 512/2000 Page 31 of 46Learned counsel for the appellant also raised a contention that the prosecution has failed to prove any motive on the part of the accused to commit the said crime.Motive assumes importance in cases wholly depending upon the circumstantial evidence and where ocular evidence is very clear and convincing and the role of accused persons in the crime can be clearly established, the failure to prove motive for the crime is hardly of any consequence.(Ref: Yunis @ Kariya etc. Vs.A. No. 512/2000 Page 32 of 46 result in demolishing the otherwise clear and convincing evidence of the prosecution.A. No. 512/2000 Page 32 of 46The following anti mortem injuries were received by the deceased as per the post mortem report:a. Abrasion of 3X2 cm present on the right lateral centhus of eye b. Stab wound of 1.5X0.5 cm present on left side of the chest, 5 cm below left nipple & 124 cm above left heel left feet.The Crl.A. No. 512/2000 Page 33 of 46 wound is directed medically upward having fine border and sharp edges.A. No. 512/2000 Page 33 of 46c. Wound of 1.6 cm, 0.5 cm above left illiaccrest in mid axillary lone.The above list of circumstances is, of course, not exhaustive and there may be several other Crl.A. No. 512/2000 Page 44 of 46 special circumstances with reference to individual cases which may throw light on the question of intention...A. No. 512/2000 Page 44 of 46A. No. 512/2000 Page 45 of 46 appellant is modified from life imprisonment to the rigorous imprisonment for a period of ten years with fine as already imposed by the learned trial court.A. No. 512/2000 Page 45 of 46The appeal stands disposed of in the aforesaid terms.

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

Since both the appeals have arisen out of the common judgment of conviction and order of sentence dated 06.04.2016 passed by the Additional Sessions Judge Ganjbasoda, District Vidisha (M.P.) in Sessions Trial No.305/2009, both the following present interlocutory applications are being disposed of by the present common order:Heard on I.A.No.7748/16 and I.A.No.6669/16, applications under Section 389 (1) of Cr.P.C for suspension of sentence filed by appellant No.1, namely, Vikram (in Cra.450.2016) and by appellants No.1 and 4, namely, Kamlesh and Deshraj Singh (in Cra.463.2016) respectively.Each of the appellants has been convicted as mentioned below:Learned counsel for the appellants submit that the present appellants were on bail during trial and they did not misuse the liberty granted to them.In the present case, so many eyewitnesses like Pappu (PW-1), Inder Singh (PW-2), Kera Bai (PW-6), Avtaar Singh (PW-7), Rajesh Yadav (PW-9), Bhura (PW-8), Chandu (PW-10) and Sunnulal Yadav were examined.Some of the witnesses have declined to see the assault done with the deceased Prahlad Singh and some of them have said omnibusly that all the accused persons who were ten in number assaulted the deceased Prahlad Singh.Eye-witness Rajesh Yadav (PW-9) has turned completely hostile.Dr. Ashok Sharma (PW-4) has performed the post-mortem on the body of deceased Prahlad Singh and gave his report Ex.According to him there was a fracture on his head and a stitch wound was found on the head and he died due to the injuries caused on his head.Dr. Mamta Pardeshi (PW-3) had performed MLC of the deceased Prahlad Singh when he was alive.She gave a report Ex.According to her, several contusions were present on the head having size from 2x2 cms to 5x3cms.It was not 3 Cra.450.2016 & Cra.463.2016 mentioned by Dr. Mamta Pardeshi (PW-3) that how many contusions were found on the head whereas 10 accused persons were implicated in the crime.It is not the evidence of the witnesses that each of the accused had assaulted on the head of the deceased whereas no other injuries were found on his person except injuries on the head.No specific overt acts of the present appellants, namely, Vikram, Kamlesh and Deshraj Singh have been established by any of the eyewitnesses.Possibility cannot be ruled out that the other accused persons had assaulted the deceased and therefore the deceased Prahlad Singh would have died.There is no reason to presume the common intention or object of the present appellants along with other main accused persons.There are fair chances of success in this appeal.Present appellants- Vikram, Kamlesh and Deshraj Singh cannot be kept in custody unnecessarily otherwise the present appeals filed by them may turn infructuous.Under these circumstances, appellants- Vikram, Kamlesh and Deshraj Singh pray for suspension of their remaining jail sentence and grant of bail.Learned Panel Lawyer opposes the application.After considering the submissions made by learned counsel for the appellants and looking to the facts and circumstances of the case and the 4 Cra.450.2016 & Cra.463.2016 fact that the present appellants were on bail during trial, it would be appropriate to accept the applications of appellants- Vikram, Kamlesh and Deshraj Singh.Consequently, their applications I.A.No.7748/16 and I.A.No.6669/16 are hereby allowed.If appellants- Vikram, Kamlesh and Deshraj Singh deposit the fine amount before the trial court and furnish a bail bond in the sum of Rs.70,000/- (Rupees Seventy Thousand only) each along with one surety bond each of the same amount to the satisfaction of the trial Court that they shall appear before the Registry of this Court first on 19.12.2016 and on subsequent dates given by the office for appearance till the disposal of the present appeals then appellants- Vikram, Kamlesh and Deshraj Singh shall be released on bail and execution of their jail sentence shall remain suspended till the disposal of these appeals.Certified copy as per rules.

['Section 389 in The Indian Penal Code']

Heard on I.A.No.6560/2013 and I.A.No.6561/2013 which are the applications filed under Sections 320 and 320(2) of Cr.P.C. seeking permission to compromise the matter with a prayer to accept the same and decide the case in the light of the compromise.Matter was referred to the Principal Registrar of this Court directing him to verify the factum of compromise between the parties.Verification report dated 16.10.2014 has been perused.It has been found by the Principal Registrar of this court during verification that parties have arrived at compromise voluntarily without any fear or force for the offence registered at Crime No.216/2012 at Police Station Ambah, District Morena (M.P.) for commission of offence punishable under Sections 363, 3662 Mcrc.5404.2013 Deepak Rathore Vs.State of M.P. and another II, 34 of IPC On perusal of case-diary, it is clear that the offences as alleged against the petitioner are not of such nature which affects the society adversely.

['Section 366 in The Indian Penal Code', 'Section 363 in The Indian Penal Code', 'Section 506 in The Indian Penal Code', 'Section 34 in The Indian Penal Code']

Allegations are false.Applicant is aged 19 years and suffering confinement since 06-09- 2019 which amounts to pretrial detention.As per the undertaking of the counsel on behalf of the applicant for social/community work, the applicant is directed to visit District Hospital, Sheopur in Outdoor Patient Department (OPD) and serve the patients for six months on THE HIGH COURT OF MADHYA PRADESH 3 M.Cr.C. No.40492/2019 every Monday and Tuesday between 09:00 am to 1 pm from this month of October till April, 2020 so that he may learn the lesson to believe in peaceful co-existence in the society and become a better citizen.The natural instinct of compassion, service, love and mercy needs to be rekindled for human existence as they are innately engrained attributes of human existence.4 M.Cr.Certified copy as per rules.(Anand Pathak) Judge Anil* Digitally signed by ANIL KUMAR CHAURASIYA Date: 2019.10.01 06:56:57 +05'30'With consent heard finally.The applicant has filed this first application under Section 439 of Cr.P.C for grant of bail, who has been arrested and is in custody since 06-09-2019, in connection with Crime No.122/2019, registered at Police Station Manpur, District Sheopur for the offence punishable under Sections 354-A, 342, 323, 504/34 of IPC and Sections 7/8 of the POCSO Act.He does not bear any criminal record.He undertakes to cooperate in investigation and trial and to appear before the investigating officer and trial court as and when required and further undertakes that he would not be a source of harassment and embarrassment to the complainant party in any manner and intends to do some community service.Thus, prayed for bail.Learned Public Prosecutor for the State opposed the prayer and THE HIGH COURT OF MADHYA PRADESH 2 M.Cr.C. No.40492/2019 prayed for dismissal of this application.Chief Medical Health Officer (CMHO), Sheopur shall permit the applicant to work in the Outdoor Patient Department only while assisting the ward boys and male nurses to serve the patients.He would not be allowed to move in the Wards and ICU etc. CMHO, Sheopur/Hospital Superintendent, District Hospital Sheopur District Sheopur shall use the service of applicant in maintaining cleanliness in the building and serving the patients and doing work like First Aid etc., so that applicant may inculcate some basic knowledge of First Aid or Emergency Care of patients which may be helpful for unforeseen exigencies or natural calamities wherein applicant may be helpful as a volunteer.Even otherwise, CMHO/Hospital Superintendent as the case may be may submit a report about the work done by the applicant after completion of his stint with community service in every two months.The report may be submitted in THE HIGH COURT OF MADHYA PRADESH 4 M.Cr.On the other hand, applicant shall also have to submit a report in every month about his experience of community service before this Court, which shall be placed before this Court under the caption "Direction".This direction is made by this Court as a test case to address the Anatomy of Violence and Evil by process of Creation and a step towards Alignment with Nature.

['Section 34 in The Indian Penal Code', 'Section 323 in The Indian Penal Code', 'Section 342 in The Indian Penal Code', 'Section 504 in The Indian Penal Code']

The facts are as follows:Birdhichand deceased was a goldsmith.He had a shop in Purani Mandi, Aimer.He used to reside in his house at Aimer at some distance from his shop.He used to keep his cash and valuables in a safe in his shop He had raised funds to start new business.He had received a loan of Rs. 5.000/- in instalments from the Rehabilitation Department.He had raised funds by selling some property, also.Shivprasad another resident of Aimar.was a friend of the deceased.The appellant, Phoolchand is a resident of Kishansarh and is the brother of Shivprasad's wife.The prosecution case, as it emerges from the record, is, that Phoolchand and Shivprasad hatched a conspiracy to murder Birdhichand with a view to take away cash and valuables from his shop.in the evening, Phoolchand and Shivprasad went to Shamlal.the Caretaker of the Tourist Bungalow at Pushkar, which is about.21 miles from Kishangarh.There, they talked to Shamlal who also joined them in the conspiracy.When these three were conferring with each other in confidence, Jagmohan, the Farash-cum-Chowkidar of the bungalow also came there.Shamlal asked Jagmohan to go away as he did not want him to intrude into their conversation.Jagmohan obeyed.On May 21, 1966, at about 8 p.m., Shivprasad and Phoolchand both went to the house of Birdhichand.Phoolchand remained outside while Shivprasad went to the poli of the house and called Birdhichand.As Birdhichand was, at that time, in the latrine, his daughter, Chandrakala, aged 11 years, responded to the call.She went downstairs and met Shivprasad.She saw Phoolchand standing at a short distance behind Shivprasad near the Chabutra.Shivprasad told her that he wanted to see Birdhichand.In the meantime Birdhichand came out of the latrine.His wife, Shanti who was on the 1st floor, asked him to take his dinner.Birdhichand put on his shirt and told her that Shivprasad and Phoolchand were waiting outside and that he would return within five minutes after seeing them.He asked his wife, that she should in the meantime prepare mango juice.On Shanti's enquiry, the deceased told her that the keys of the shop were with him.Saying this, the deceased went away from his house in the company of Shivprasad and Phoolchand, never to be seen alive, again.After awaiting in vain the return of her husband till 1 A. M. Shanti went to sleep.On the same day at the Tourist Bungalow, Pushkar, at about 9 P. M. Jagmohan.Farash was about to close the door of the bungalow, as usual, when Shamlal, Care-Taker stopped him from doing so, saying that he was expecting three visitOrs.1966, the Farash saw Shivprasad and Phoolchand accompanied by another person coming into the bungalow.All the three went to Shamlal's office and talked to him.Shamlal made an entry in the Visitors' Book with regard to the fact that two persons were put up in Room No. 2F. There after Shamlal took all the three up stairs into Room No. 2F. There were only two beds in that room.Shamlal asked Jagmohan Farash to put a third bed therein for use by the visitOrs.Accordingly, Jagmohan laid the third bed in that room.Jagmohan was living, at the material time, in a quarter within the precincts of the bungalow along with his two daughters, Ruth Prem (19) and Vimla (17) and his son Ullas (16).At that time, his wife was not present there.She was in the family way and had gone to her parents' village.He went to Shamlal who was lying on a cot in front of his quarter within the precincts of the bungalow and told him about the shrieks.Shyamlal then went to Room 2F and returned and informed Jag mohan.that Shivprasad was crying because a table had fallen and hurt his leg.. Shamlal advised Jagmohan to go and rest.Jagmohan laid himself on his bed; but being in a disturbed state of mind, was unable to get a wink of sleep.About 15 minutes thereafter, he saw Shivprasad corning down and going to Shyamlal and then returning to Room 2F. After an elapse of hour and half, Shivprasad again came down-stairs ' and went back with Shyamlal to Room 2F. Shivprasad had then a kurta and a towel in his hand,On the morning of May 22, 1966 at about 7, Jagmohan saw Phoolchand, Shivprasad and Shamlal going out of the bungalow after locking behind Room 2F. Thereafter, Shyamlal and Phoolchand returned to the bungalow in the evening.On the night between the 22nd and 23rd of May at about 11 p.m., Ruth Prem heard the sound of "khat khat" coming from the first floor of the bungalow.She awakened her sister Vimla.Then both these girls saw two persons coming down by the staircase with a heavy load on their shoulders from the 1st floor.Shamlal was also with them.She then saw those persons carrying away that bundle out of the bungalow.On May 23, 1966, at about 7 a.m. Chootu went to his field which is at a distance of about 2 furlongs from the bungalow.There he saw a dead-body wrapped in a gunny bag.There was blood on the bag Chhotu forthwith went to the Police Station, Pushkar, made the report Ex. P/l.The report was recorded by A.S.I. Mohinder Pal Mohinder Pal accompanied Chhotu to the field and sent an information to the Circle Inspector, Aimer.Mohinder Pal posted constables to guard the dead-body at the spot.H.M. Tak, Sub-Inspector who was deputed to investigate the case, reached Pushkar at about Noon and got the dead-body taken out of the gunny bag.A number of articles were found on the dead-body, Those articles included a ring (Ex. 4), silver bottons (Ex. 5), some silver ornaments (Exhs. 11, 12, 13 and 14), one-rupee currency note and a key (Ex. 17).The autopsy was conducted by Dr. Chander Mohan Mathur at Pushkar.The Doctor found 5 stab wounds en the body.Wound No. 1 was on the thoricic cavity on the left side of the chest.Wound No. 2 was in the abdominal cavity.A loop of small intestines was found protruding out of the wound.Wound No. 3 was also going deep into the abdominal cavity! Wound No. 4 was on the left lumber region and had pierced the left kidney.The Investigating Officer found blood on the floor outside Room 2F, on the staircase and also on the way leading to the field of Chhotu, where the dead-body was found.The Investigating Officerrecorded the statement of Jagmohan and his daughters, Ruth Prem and Vimla, on the 24th May. On 24th May, the Sub-Inspector took into possession the stock Register (Ex. 27) and the Visitors' Book (Ex. 25) of the Bungalow.He also seized blood-stained Dari (Ex. 30).On May 20, 1966, Shivprasad and Phoolchand visited Tourist Bungalow at Pushkar in the evening and talked to Shyamlal, Caretaker in confidence.Shivprasad and Phoolchand (appellant herein) together visited the house of Birdhichand, deceased, at 3 p.m. on May 21, 1966 at Aimer.Thereafter, Shivprasad called out the deceased and took him away.On May 21, 1966 at about 11 p.m. Phool Chand and Shiv Prasad, accompanied by another person (who according to the prosecution was the deceased) came to the Tourist Bungalow.Shyamlal, Care taker took them upstairs, and lodged them in Room No. 2F.On the night, between the 21st and 22nd May, 1966, at about 4 a.m., shrieks emanating from this Room 2F were heard.Next morning at about 7 A. M. on the 22nd May, 1966, Phoolchand and Shivprasad were seen going out after locking Room No. 2F, and the third visitor was not with them Shyamlal, carrying a Lota was also going out.On May 22, 1966 at about 11 a.m.. Phoolchand and Shivprasad came back to the Tourist Bungalow; Shivprasad then seated himself on the chabutri, while the sound of some footsteps of the other going upstairs were heard.On the night between the 22nd and 23rd May 1966, two persons were seen carrying a heavy load from the Tourist Bungalow.Shyamlal was with them, Shortly thereafter, Shyamlal alone returned to the Bungalow.On May 23, 1966, the dead- body of Birdhichand wrapped in a gunny bag was found in the field of one Chhoti PW at a distance of about furlongs from the Tourist Bungalow, Pushkar.JUDGMENT R.S. Sarkaria, J.It is directed against an appellate judgment of the High Court of Rajasthan whereby the acquittal of the appellant was set aside and converted into a conviction under Section 302 read with Section 34, Penal Code.At about 4 a.m. on May 22, 1966, Ruth Prem woke up on hearing shrieks emanating from Room 2F. She awakened her father.Jag mohan, who was lying asleep on a nearby cot.Jagmohan also heard the shrieks.There were also marks, each 1/2" wide around both the legs in their lower one- third part.The Doctor also found reddening on both sides of the neck of the body.In the opinion of the Doctor, wounds 1 to 4 were sufficient to cause instantaneous death in the ordinary course of nature.The reddening on the neck, in the Doctor's opinion, might be the "result of applying of hands on the neck."He also took pos session of blood-stained bed-sheets (Ex. 31, Ex. 32) and the blood-stained table Ex. 33 from Room No. 2F. On the 25th May he arrested Phool Chand, appellant, Shyamlal, Care taker and one Prabhatilal.In consequence of the information supplied by Phool Chand, the Police Sub- Inspector recovered a silken kurta and a towel from the house of Kishorilal.On June 1, 1966, pursuant to information given by Prabhatilal, he recovered a towel (Ex. 23) of the Tourist Bungalow, chappel (Ex. 6) of the deceased and pyjama (Ex. 22) lying in room 2F.Shiv Prasad absconded and could not be arrested despite search.Therefore, after completing the investigation against Phoolchand, Shyamlal and Prabhatilal, the police sent them under a charge-sheet before a Magistrate, who after a preliminary enquiry committed them to the Court of Additional Sessions Judge, Ajmer, who tried the case and acquitted all the three accused.Against the acquittal of Phoolchand and Shymalal, the State preferred an appeal to the High Court.The High Court set aside the acquittal and convicted Phoolchand under Section 302, read with Section 34 Penal Code and sentenced him to imprisonment for life.The High Court maintained the acquittal of Shyamlal in respect of offences under Section 302 read with Section 109 and Section 465, Penal Code but convicted him for an offence under Section 201, Penal Code, with a sentence of 3 years' rigorous imprisonment.At the trial the prosecution demanded conviction of the appellant and his co-accused purely on the basis of circumstantial evidence which may be catalogued as under:It bore several injuries including stab wounds and reddening on both sides of the neck.The stab wounds were ante mortem and sufficient to cause death in the ordinary course of nature.The Dari of Room No. 2F, Seized on the 24th May, 1966 from the store-room, and one bed sheet were found stained with blood which according to the Serologist was human blood.Blood was found on the stone pieces of the floor just outside Room 2F and on the slab of the staircase.This blood according to the report of the Serologist was of human origin.20. Evidence with regard to circumstance No. 2 was given by Smt. Shanti Devi (PW 6) and Chandrakala (PW 7) the wife and daughter, respectively of the deceased.To substantiate Circumstance No. 8, the prosecution examined Chhotu (PW2) the Investigating Ofifcer, H.N. Tak (PW 33) and Dr. Chandra Mohan Mathur PW.Evidence with regard to Circumstance 10 was furnished by the statement of the Investigating Officer.In its opinion, "Shanti Devi's statement in this Court, that Phool Chand visited her house along with Shiv Prasad during the night of May 21, 1966 when her husband accompanied them, does not seem to be true so far as Phool Chand is concerned." It further held that Jagmohan's statement was "wholly unacceptable." It further found that the infirmities in Ruth Prem's evidence go to show that she had seen (or heard) nothing during the nights between 21/22-5-66 and 22/23-5-66, and that her evidence has been created." On these findings," the trial Court acquitted Phoolchand and Shyamlal.On appeal by the State, the High Court reversed these findings.In its opinion, the evidence of the aforesaid witnesses was entirely trustworthy and therefore, the circumstances enumerated above which had been cogently established, were sufficient to bring home the guilt to the appellant beyond doubt.Mr. Mulla, learned Counsel for the appellant contends that in the circumstances of the case, the High Court was totally unjustified in reversing the acquittal.Apart from reiteratnig the reasons given by the trial Court Counsel has pointed out several features of this case, which according, to him, had made the testimony of Jagmohan an unsafe basis for convicting the appellant.It is contended that the investigation was not fair; that the investigator fabricated evidence of the recovery of some incriminating articles to implicate the appellant; that this piece of evidence was found wholly unreliable by both the courts below; that Jagmohan was , first rounded up as one of the suspects and after some detention, a statement was extorted from him after a delay of at least two days and the story of Jagmohan's proceeding on two days' leave was fabricated to cover up the delay; that Jagmohan's evidence be sides being of an accomplice character, was a got up one; that to tie down Jagmohan to the story put in to his mouth by the Police, his statement was got recorded before a Magistrate under Section 164, Cr.P.C., that in any case, Jagmohan according to his own admission, had never seen Phoolchand, appellant before the 20th May, and on that day, too.for some fleeting moments in the darkness; that on the morning of 20th May, also, he claims to have seen Phoolchand from a distance; that in these circumstances it was hazardous to convict the appellant on the basis of the uncorroborated testimony of Jagmohan; that no such corroboration wag forthcoming since the evidence with regard to Phoolchand's visit to the house of the deceased on the night of the 21st May, 1966 was utterly unreliable.As against this, Mr. Jain, appearing for the respondent-State has tried to support the judgment of the High Court.After a careful consideration of the evidence on record and the arguments advanced on both sides, we are of opinion that the conviction of Phoolchand, appellant cannot be upheld.The case against the appellant hinges to a very large extent on the testimony of Jagmohan.While most of these reasons were effectively dispelled by the High Court, two of them in our opinion, have not been considered in the right perspective, nor entirely neutralised.The first of them relates to his statement that on May 20, 1966, also, at about 8 p.m. Phool Chand appellant and Shivprasad came to the Tourist Bungalow, Pushkar and began having a talk with Shyamlal accused.When the witness tried to go near them, Shyamlal asked him to be off, and the witness went away.The trial Judge did not believe the above version of Jagmohan because in his opinion the defence version rendered by two Audit Officers, B.P. Mathur (DW 3) and R.L. Sharma (DW 4) showed that at 8 P.M. on the 20th May. 1966, Shyamlal was at the Bus Stand, Pushkar to see off the said Officers.On these premises, the trial Judge concluded:The statement of Jagmohan that accused Shivprasad and Phoolchand came to the Tourist Bungalow in the evening of 20-5-66 does not seem to be correct in point of time.(Underlining ours)We agree with the trial Judge that Jagmohan's version as to the visit of Shivprasad and his companion to the Tourist Bungalow, Pushkar on the 20th May not be correct with regard to the time of the visit.The visit appears to have been sometime after 8 p.m. under cover of darkness.The time of this visit and keeping Jagmohan away, have an important bearing on the question of Phool Chand's identification.In cross-examination, Jagmohan admitted that he had not seen Phool Chand before his visit to Shyamlal on the 20th May. In other words, Phool Chand was not known to the witness.The witness according to his own showing, was not allowed to come near and participate in the talk between the visitors and Shyamlal.He had therefore, caught only a momentary glimpse of the visitors in the darkness.In spite of the fact that Phool Chand was a stranger to Jagmohan, no test identification of Phool Chand was held before a Magistrate.On the 21st May, also, he according to his own version, saw Phool Chand and Shiv Prasad coming to the Bungalow at 11 P.M. at night time.He did not escort the visitors to lodge them in Room No. 2F. Nor did the witness contact them.It was Shyamlal only who took them to that room to be lodged for the night.It seems that Jagmohan was deliberately not allowed by Shyamlal to get near the visitOrs.Under these circumstances, Jagmohan could commit an honest mistake as to the identification of Phool Chand who was not previously known to him.The second infirmity in Jagmohan's evidence stems from the circumstance that there was a delay of two days in recording his statement by the Police.Jagmohan has tried to explain it away by saying that he had gone away from Pushkar after taking two days' leave for the 22nd and 23rd May, 1966 and his statement was recorded on his return from leave on the 24th May. There is a discrepancy as to the place where Jagmohan's statement was recorded.The Investigating Officer stated that he had examined Jagmohan in the Tourist Bungalow.Inconsistently with it, Ruth Prem (PW 27) daughter of Jagmohan stated that their statements were recorded in the Police Station where her father had been kept under restraint for some days.No leave application of Jagmohan was forthcoming.Jagmohan gave a cock and bull story inasmuch as he said that he had sent his son Ullhas (PW 29) to borrow Rs. 5/- to cover his travelling expenses to Beawar, while he himself could do the same on his way to Beawar via Aimer.In view of all these circumstances, the trial Court's finding that the story of Jagmohan going on two days' leave, had been invented merely to cover up the delay of two days in his examination by the Police, could not be said to be clearly wrong.The fact remains that there was hesitation on his part to disclose the facts within his knowledge, concerning the commission of this murder.Then, his statement was got recorded by the Police before a Magistrate, under Section 164, Cr.P.C. Might be that this precaution to get a hold on the witness was taken, because there was an apprehension of the witness resiling from his statement under pressure of the accused.Such an apprehension could not be altogether unfounded because one of the accused, namely, Shyamlal, was his immediate Officer, and another, Shivprasad was absconding.It remains to be seen further whether such confirmation, circumstantial or direct, was available, in this case.That Birdhichand was murdered sometime on the night between 21st and 22nd of May, 1966 is not disputed.The medical witness who conducted the autopsy found redness on both sides of the neck of the deceased.There were several ante-mortem stab wounds on the body which were sufficient to cause death in the ordinary course of nature.The Doctor opined that the redness on the neck was caused by the application of pressure on the neck.The medical evidence thus indicates that the murder was in all probability, committed by two assailants acting in concert.While the medical evidence fixes the number of the assailants at two, it cannot fix their identity.There was yet another circumstance which, if established, could have, with some certainty, connected Phool Chand with the murder in question.This circumstance, as alleged by the prosecution, was that on the evening at about 8 P.M. on May 21, 1966, Shiv Prasad absconder and Phool Chand appellant, both decoyed and took away Birdhi Chand from the latter's house at Aimer.The prosecution had examined two witnesses to substantiate this circumstance.The witnesses were Smt. Shanti, the wife, and Chanderkala, aged 11 years, the daughter of the deceased.The trial Court found that Chanderkala even at the time of her examination in court, was too immature to understand the sanctity of oath, and therefore no oath was administered to her.The Court further held that she was a child witness and as such her evidence was "dangerous in the extreme" as child witnesses not un-often live in a climate of "make-believe."The trial Court also took note of the fact that Shanti Devi while informing on the 22nd May, about the non-return of her husband, to her brother Rattan Lal (PW 4), did not name Phool Chand, but named Shiv Prasad only as the person who had taken her husband away from the house:The High Court has tried to counter these reasons by saying that in cross-examination no questions were put to the child witness to establish that she had been tutored to make that statement: that Smt. Shanti's statement at the trial was of a derivative nature and her omission to name Phool Chand before the police as the companion of Shiv Prasad when the latter took away her husband from his house at Aimer, could not be used to contradict or discredit either Shanti or her daughter Chander Kala.In our opinion, the High Court did not appraise the failure of Smt. Shanti to implicate Phool Chand, while reporting the matter to her brother, in the right perspective.Firstly, her report to her brother was not a statement made to police in the course of investigation.Consequently, the bar of Section 162, Cr.P.C. as to the use of that statement, did not apply.Secondly, Smt. Shanti must have made full enquiries from her daughter, Chanderkala, as to the number of persons who had been seen by her when she went downstairs to meet Shiv Prasad.Smt. Shanti has stated that soon after the departure of her husband her suspicions about the security of their valuables were (Ref.(I.T.) No. 158 of 1967, D/-6-3-1970 of the Award of Ind. Tri.Maharashtra) aroused.Consequently, she got a double lock put on the shop of her husband.Conversely, if Phool Chand had really been seen standing behind Shiv Prasad near the chabutri by Chanderkala, she would not have failed to pass on that information to her mother when she asked her to put another lock on the door of the shop.

['Section 34 in The Indian Penal Code']

Arguments heard.Perused case diary and material on record.This is the first bail application filed by the applicants under Section 439 of the Cr.P.C in connection with crime no.280/2015, registered at Police Station Rampayli, District Balaghat, against them for the offence punishable under Section 306 read with 34 of the IPC.Prosecution allegations are that the applicants are son and father and they are neighbour of deceased Sursen in village Gosai Tola.The applicants used to torture and harass the deceased by saying that he had played witchcraft upon them and their family members as a result of which they fell ill.It is also submitted by him that the applicants are permanent residents of village Gosai Tola and they do not have any criminal antecedents.It is also submitted by him that the police seized a suicide note alleged to be written by the deceased in which he had not stated that on account of torture by the applicants he was forced to commit suicide.Upon these submissions learned counsel prays for grant of bail to the applicants.Learned Panel Lawyer opposes the prayer on the ground of suicide note written by the deceased.Certified copy as per rules.(RAJENDRA MAHAJAN)

['Section 107 in The Indian Penal Code']

B/325/34 of the Indian Penal Code.And In the matter of : Amirul Sk. & Others.... Petitioners Mr. Atis Kumar Biswas .. for the Petitioners Mr. Arabinda Manna .. For the State Apprehending arrest in connection with Murutia Police Station Case No. 132 of 2016 dated 2.8.2016 under Sections 447/324/354B/325/34 of the Indian Penal Code, this application for anticipatory bail has been filed under Section 438 of the Code of Criminal Procedure.Certified copy of this order, if applied for, be given to the parties on priority basis.( Patherya, J.) ( Debi Prosad Dey, J. )

['Section 447 in The Indian Penal Code', 'Section 324 in The Indian Penal Code', 'Section 34 in The Indian Penal Code', 'Section 325 in The Indian Penal Code']

M.C. No.2863/2008 & Crl.M.A. No.16253/2013 Page 1 of 10 the Police Station Connaught Place that upon visiting office he found that the office was unattended and without the lock.On the same date i.e. 24th July, 2000 respondent No.2/Mr.N.S. Hoon claiming himself to be the tenant of the said premises also filed a complaint with the Police that the petitioner No.2 along with one Dewan forcibly evicted the premises by threatening the workers and he picked up the briefcase of the respondent No.2 which was kept in the office, containing rent deed, other documents and money.N.S. Hoon also filed a subsequent complaint on 26th July, 2000 against Sanjay Ahuja and others.On 6th November, 2000 Mr.N.S. Hoon filed a writ petition, being W.P. (Crl.) 947/2000 in this Court seeking direction to register the FIR.The same was registered being FIR No.732/2000 under Sections 448/379/34 IPC.The petitioners have filed the present petition under Section 482 Cr.P.C. for quashing of the summoning order dated 12th May, 2008 passed by the Metropolitan Magistrate, Delhi in case arising out of the FIR bearing No.RC 4S/2003/SCB-1 DLI and all the consequent proceedings arising therefrom.Brief facts of the case as per the petition are that the petitioner No.2 filed a complaint with the Police Station Connaught Place Smt.Meera Ahuja on 20th July, 2000 mainly on the reason that she was trying to grab office bearing No.1003, Akashdeep Building, 26 A Barakhamba Road, belonging to the firm of M/s. Ahuja Finance Corporation.Another complaint was filed by the petitioner No.2 with Crl.The said writ petition was disposed of by order dated 28th May, 2003 transferring further investigation to CBI.On 13th June, 2003 the CBI registered the case under No.RC 4S/2003/SCB-1 DLI.On 11th January, 2005, after investigation the CBI filed a final report in the said case exonerating the petitioners under Sections 448/379/34 IPC due to lack of any evidence observing further as under:-M.C. No.2863/2008 & Crl.M.A. No.16253/2013 Page 1 of 10(i) As per partnership deed, Smt Meera Ahuja was not a partner of M/s Ahuja Finance Corsporation and therefore could not dispose off or rent properties belonging to the firm.M.C. No.2863/2008 & Crl.M.A. No.16253/2013 Page 2 of 10(ii) The rent deed was executed by Smt. Meera Ahuja in the capacity of partner of M/s Unitex Corporation which was not the owner of the property in question.(iii) Moreover Smt. Meera Ahuja was not partner of the said M/s Unitex Corporation.(iv) Complaint dated 20th July, 2000 was filed by petitioner No.2 against Smt Meera Ahuja that in their absence, the latter was trying to grab properties belonging to the firm of M/s Ahuja Finance Corporation.Smt. Meera Ahuja had allegedly informed the Estate Manager, Akashdeep Building in writing that she was authorizing Mr Hoon (Respondent No.2) to use the property in question as his office.(v) No independent witness corroborates story of respondent No. 2 regarding presence of police personnel or theft of briefcase.(vi) No proof of threats or commotion thereby having no proof of criminal trespass.It is also a matter of fact that another complaint was filed against the petitioners, their son and brother Avtar Ahuja by Meera Ahuja under Sections 380/406/420/448/468/451 read with 120B IPC on 20th September, 2001 and the investigation was transferred to CBI by an order of this Court.Closure report was filed in the said complaint and the same was accepted by the Magistrate further observing that the CBI had rightly concluded that the allegations made by the respondent No.2 against the petitioners were of civil nature and there was no need to initiate any legal action under any provision of law.M.C. No.2863/2008 & Crl.M.A. No.16253/2013 Page 3 of 10By order dated 31st March, 2006, the trial Court had accepted the final report of CBI while observing that despite of sufficient notice given to respondent No.2, he did not appear nor filed any protest petition in rebuttal.On 15th April, 2006, respondent No.2 filed a revision petition being Crl.On 6th August, 2007, the Additional Sessions Judge remanded the matter back to the Magistrate, while observing that the investigating agency was not competent to decide ownership or title of the premises in view of the allegations of dispossession and no one had denied the said fact that petitioner No.2 took over possession of the said flat.By order dated 28th October, 2013, the petitioners were directed to produce the original partnership deed.It was mentioned that if the said partnership deed is not produced then the petitioners have to explain to the Court as to why it is not produced.On 19th December, Crl.M.C. No.2863/2008 & Crl.M.A. No.16253/2013 Page 4 of 10 2013 counsel for the petitioners submitted that the petitioners do not have the original partnership deed.It appears from the record that the petitioners also filed an application seeking amendment of the petition being Crl.Along with the application the amended petition was also filed.The application was allowed by order dated 19th December, 2013 and the amended petition was taken on record.The prayer made in the amended petition reads as under:M.C. No.2863/2008 & Crl.M.A. No.16253/2013 Page 4 of 10Metropolitan Magistrate, Karkardooma Courts, New Delhi;(B) Quash the summoning order dated 12.05.2008 and the summons issued thereupon in RC 4S/2003/SCB-I DLI;(C) Set aside and quash order dtd.06.08.2007 (Annexure P-10) passed by the Ld. Addl.Under these circumstances, without expressing anything on merit, the judgment dated 6th August, 2007 passed by the Additional Crl.M.C. No.2863/2008 & Crl.M.A. No.16253/2013 Page 9 of 10 Sessions Judge, Karkardooma Courts, in Criminal Revision No.117/2006 is set aside.Consequently, the summoning order dated 12th May, 2008 is quashed with the direction that the criminal revision petition is restored to its original position.The petitioners are impleaded as respondents in the said criminal revision petition.The same shall be heard after service of notice to both the parties.The Revisional Court is requested to make its endeavour to decide the revision petition within a period of three to four months.M.C. No.2863/2008 & Crl.M.A. No.16253/2013 Page 9 of 10Trial court record be sent back forthwith.The present petition is accordingly disposed of.Pending application also stands disposed of.(MANMOHAN SINGH) JUDGE APRIL 27, 2015 Crl.M.C. No.2863/2008 & Crl.M.A. No.16253/2013 Page 10 of 10M.C. No.2863/2008 & Crl.M.A. No.16253/2013 Page 10 of 10

['Section 448 in The Indian Penal Code', 'Section 34 in The Indian Penal Code', 'Section 380 in The Indian Penal Code', 'Section 200 in The Indian Penal Code', 'Section 379 in The Indian Penal Code', 'Section 468 in The Indian Penal Code', 'Section 406 in The Indian Penal Code', 'Section 420 in The Indian Penal Code']

Case diary perused.This is first bail application under Section 439 of Cr.P.C. filed on behalf of the applicant in connection with Crime No.387/2019 registered by Police Station Gadarwara District Narsinghpur for the offence punishable under Sections 457, 380, 511 of the IPC.The case of the prosecution is that, in the intervening night of 8- 9/4/2019, applicant with other co accused persons was found to attempt theft in the shop of complainant Chain Singh Rajput situated at village Kaudiya near Barheta Road.It is submitted that applicant Chain Singh Rajput got information on telephone then he reached the spot and got hold of the applicant-Golu Dhanak and co-accused Kishan Dhanak.They were taken to the police station, where on interrogation they admitted that they were trying to open locks and shutter of the shop.It is also alleged that some iron rods were also recovered from their possession.Applicants were taken into custody and abovementioned offence was registered against the applicants.Learned counsel for the applicant has submitted that the applicant has not committed any crime and has falsely been implicated in the case.He is a permanent resident of the address shown in the application.There is no likelihood of his absconding or tampering with the prosecution witnesses.Learned Panel Lawyer for the respondent/State on the other hand has Digitally signed by LORETTA RAJ Date: 28/06/2019 01:52:08 2 MCRC-20877-2019 opposed the application.Keeping in view the facts and circumstances of the case, particularly, the fact as pointed out by the learned counsel for the applicant and the period of detention of the applicant, in the opinion of this Court, it is a fit case to enlarge the applicant on bail.Consequently, this application for bail under Section 439 of the Code of Criminal Procedure filed on behalf of applicant is allowed.It is directed that the applicant shall be released on bail on furnishing a personal bond in the sum of Rs.30,000/- (Rupees Thirty Thousand Only) with one solvent surety in the like amount to the satisfaction of the trial Court for his appearance before that Court on all dates fixed in the case and for complying with the conditions enumerated under Section 437 (3) of the Code of Criminal Procedure.Accordingly, the M.Cr.C. stands allowed and disposed of.(MOHD.FAHIM ANWAR) JUDGE loretta Digitally signed by LORETTA RAJ Date: 28/06/2019 01:52:08

['Section 511 in The Indian Penal Code', 'Section 457 in The Indian Penal Code', 'Section 437 in The Indian Penal Code', 'Section 380 in The Indian Penal Code']

The applicants has applied for bail in Case Crime No. 119 of 2005 under Sections 376 and 306 I.P.C. P.S. Shahi District Bareilly.An information was given that deceased Km.Durgesh daughter of Ayodhya Prasad, aged about 13 years committed suicide by hanging herself at her house.On that information, one head constable/ A.S.I, alongwith other two police personnel came at the place of the occurrence and prepared the inquest report of the deceased on 29.3.2005 since 9.30 A.M. To 11 A.M. The inquest report was prepared in the presence of Ayodhya Prasad, the father of the prosecutrix.According to the inlquest report, the cause of death was strangulation by pressing the neck of the deceased.According to that report, the parents of the deceased Durgesh Kumari had gone to Delhi on 24.3.2005 who attend Satsang of Satgurudev Maharaj and the deceased remained alone at her house because one Tula Ram, the brother of the first informant was also living in the village.The deceased was student of Class-IVth.On 24.3.2005 at about 8 P.M., she had gone to attend the call of nature out side the village but she did not return after a considerable period then one Tula Ram went towards the place of occurrence in search of the deceased.He heard the Shriekh of the deceased from the field of one Mohan Swaroop.He proceeded towards there by flashing a torch light and saw the applicants and co-accused Nanhey Lal and Prem Pal who were committing the rape at the pistol point by pressing the mouth of the deceased.Thereafter, the applicants and other accused persons ran away leaving the deceased at the place of occurrence.The deceased disclosed the fact before all the persons who gathered at the place of occurrence that she was forcibly lifted by the applicants and two other co-accused persons and taken to the field of wheat where she was raped by the applicants and 2 other co-accused persons at the pistol points.The parents of the deceased were not present at the house so the F.I.R. was not lodged immediately thereafter.But thereafter certain derogatory remarks were also passed by the applicants and other co-accused persons on the deceased and she was harassed and mentally tortured.On 28.3.2005, the parents of the deceased came to Bareilly from Delhi but the father of the deceased stayed at Bareilly for some work and the mother of the deceased came to village Lalpur.JUDGMENT Ravindra Singh, J.The mother of the deceased went to the house of Khem Karan Lal.In the meantime, the applicants and two other co-accused persons entered into the house of the deceased by crossing a boundary wall and the main gate was closed by them from inside and they committed murder of the deceased by throtling and to conceal this act and to divert the attention of all the persons, the deceased was hanged by them at the door and they ran away from the house by jumping the boundary wall.They were seen by Deena Nath when they were jumping the boundary wall , subsequently, it was found that the deceased was hanging thereafter, rope was cut and she was taken down but and the deceased had died and on that information , Ayodhya Prasad, the father of the deceased came in the village in the same night.But, the Chaukidar went to police station to gave this information.It is contended by the learned counsel for the applicants that according to the prosecution version, the applicants and two other co-accused persons committed the rape with the deceased on 24.8.2005 at about 8.00 P.M. but in respect of the rape, no F.I.R. was lodged, whereas, Deena Nath, the uncle of the deceased was present in the village.Accordingly to the information of the chaukidar and according to the statement of the witnesses recorded by the Investigating Officer under Section 161 Cr.P.C, the deceased committed suicide because she was raped by the applicants and other co-accused persons and the insulting remarks were passed upon her by them and she was mentally harassed, but the allegation of rape has been made against the applicants and other co-accused persons but no such F.I.R. was lodged against the applicants and other co-accused persons, therefore, it is an allegation after thought.It is further contended that the prosecution story is not corroborated by the post mortem examination report, the deceased had not committed the suicide but she was murdered by strangulation because injuries were found on the neck of the deceased on the front of both the sides of the neck 7 cm below the right ear and 3 cm below the chin and 4 cm below left ear and the cause of death was Asphyixia as a result of ante mortem strangulation, it is contended that the deceased was murdered by her family members but to save their skin, the false information was given to the police station concerned and thereafter, the applicant and other co-accused persons were falsely implicated.It is opposed by the learned A.G.A. by submitting that according to the detailed report dated 30.3.2005, ther father of the deceased clearly stated that when his wife has gone to the house of one Khem Karan Lal at that time, the deceased was alone at her house.The applicants and other co-accused persons got a chance and entered into the house by jumping the wall and after closing the door from nside and they committed the murder of the deceased by way of throttling .It is further contended that nobody has seen that how and in what manner the deceased was murdered but the post mortem examination report shows that first of all the deceased was subjected to rape , thereafter, he was murdered by throttling because in the post mortem examination report, an abrasion insize of 4cm x 3 cm was present on inner part of thigh near to vaginal region and hymen was teared and clothed blood was present and the blood was found in the uterus of the deceased also.It shows that a sexual assault was made on the deceased .She was murdered there after hanged by to divert the attention , there was a sexual assault also, thereafter the deceased was murdered.There is specific allegation against the applicants and other co-accused person when they have entered the house of the deceased by jumping a wall and the door of the house was closed from inside, it shows that she was murder and thereafter hanged by the applicants and other co-accused persons, in such circumstances, it cannot be said that the parents of the deceased have committed the murder of the deceased.Accordingly this bail application is rejected.

['Section 376 in The Indian Penal Code', 'Section 306 in The Indian Penal Code', 'Section 302 in The Indian Penal Code']

-: 1 :- Misc.HIGH COURT OF MADHYA PRADESH; BENCH AT INDORE Misc.(Jitendra s/o Budan Mankar v/s State of Madhya Pradesh) Indore, Dated : 09.08.2019 :-Shri Ashish Gupta, learned counsel for the applicant - Jitendra.Shri Anil Ojha, learned Public Prosecutor for the Non-applicant/State.Submissions were made on this first application filed under Section 439 of the Code of Criminal Procedure seeking bail in connection with Crime No.200/2019 registered at Police Station Anjad, District Barwani for the offence punishable under Sections 498-A and 306 of IPC.As per the prosecution story, deceased Ranubai, the wife of the applicant, married for a year with applicant committed suicide by setting herself ablaze.Learned counsel for the applicant submits that the charge-sheet has been filed in this matter.He points out that Merg was first recorded 11 days after the death and this delay has not been explained by the prosecution.In the Merg statement, the harassment has been shown to be meted out to the deceased by making allegation against her character by the applicant.Learned counsel for the State was also heard.Perused the case-diary.After duly considering the documents placed in the charge-sheet, this application is being allowed.The applicant is directed to be released on bail on his furnishing a personal bond in the sum of Rs.50,000-00 [Fifty Thousand Rupees] with one solvent surety of the like amount to the satisfaction of the Trial Court for his regular-: 2 :- Misc.[ Shailendra Shukla ] JUDGE (AKS) Anil Digitally signed by Anil Kumar Sharma DN: c=IN, o=High Court of Madhya Pradesh Bench Indore, Kumar postalCode=452001, st=Madhya Pradesh, 2.5.4.20=753b65d225a9746e99a75a 441cdc964aa7a158d438793e7f3246 Sharma 7b355745f3ae, cn=Anil Kumar Sharma Date: 2019.08.09 17:29:37 +05'30'

['Section 306 in The Indian Penal Code', 'Section 498A in The Indian Penal Code', 'Section 437 in The Indian Penal Code']

Case diary is available.This is first application filed under Section 439 of Cr.P.C. for grant of bail.The applicant has been arrested on 22.12.2017 in connection with Crime No. 278/2017 registered by Police Station Bhauti, District Shivpuri for offence punishable under Sections 363, 366, 376-D, 342, 326A, 120-B of IPC and under Section 3/4 of POCSO Act.It is submitted by the counsel for the applicant that there is no allegation of rape against the applicant.The only allegation against the applicant is that he provided an accommodation to the co-accused and the prosecutrix at Bombay.Certified copy as per rules.

['Section 363 in The Indian Penal Code', 'Section 120B in The Indian Penal Code', 'Section 366 in The Indian Penal Code', 'Section 342 in The Indian Penal Code']

Mr. Aniket Mitra appears for the West Bengal State Electricity Distribution Company Limited.The allegations are of theft of electricity.Learned Counsel for the Petitioner has pointed out that after assessment, the total amount of energy said to have been pilfered comes to about Rs.87,000/- (Rupees Eighty Seven Thousand only).However, in this case, learned Counsel for the Petitioner has very fairly volunteered to pay the money to the said company as a condition for grant of anticipatory bail.The Petitioner will be obliged to pay that amount within fifteen days from the date the Electricity Distribution Company demands such sum in writing.With the aforesaid observations and directions, the application for anticipatory bail stands allowed.(TAPEN SEN, J.) (INDRAJIT CHATTERJEE, J.)

['Section 341 in The Indian Penal Code', 'Section 332 in The Indian Penal Code', 'Section 34 in The Indian Penal Code', 'Section 186 in The Indian Penal Code']

Heard learned counsel for the applicant and learned A.G.A. for the State.The present application under Section 482 Cr.P.C. has been filed for quashing the entire proceedings of case crime no. 200/2019, under Sections- 323, 324, 504, 506, 452, 354 IPC, P.S.- Adarsh Mandi, District Shamli pending before the concerned court below as well as summoning order dated 30.10.2019 and all consequential proceedings of the aforesaid case."1. Heard Mr. Atul Pandey and Sandeep Tripathi, learned counsel for the applicant and learned A.G.A. for the State.The present 482 Cr.P.C. application has been filed to quash the charge sheet no. 01/2019 dated 27th September, 2019 as well as the entire proceedings of Case Crime No. 200 of 2019 (State of U.P. Vs.Ompal), Shadik Ali & Another), under Sections 323, 324, 504, 506 I.P.C., Police Station-Adarsh Mandi, District-Shamli, pending in the Court of Civil Judge (Senior Division), Shamli.The contention of learned counsel for the applicants is that no offence against the applicants is disclosed and the present prosecution has been instituted with a malafide intention for the purpose of causing harassment.He pointed out certain documents and statements in support of his contention.At this stage, the argument raised by learned counsel for the applicants involves factual disputes and appraisal of evidence.State of Punjab, A.I.R. 1960 S.C. 866, State of Haryana Vs.Bhajan Lal, 1992 SCC (Cr.) 426, State of Bihar Vs.P.P.Sharma, 1992 SCC (Cr.) 192 and lastly Zandu Pharmaceutical Works Ltd. Vs.The prayer for quashing the entire proceeding of the aforesaid case is refused.However, in view of the entirety of facts and circumstances of the case, it is directed that in case the applicants appear and surrender before the court below within 45 days from today and apply for bail, their prayer for bail shall be considered and decided in view of the settled law laid by this Court in the case of Amrawati and another Vs.For a period of 45 days, no coercive measure shall be taken against the applicants in the aforesaid case.With the aforesaid directions, this application is finally disposed of."The instant application u/s 482 Cr.P.C. has been filed for quashing of summoning order dated 30.10.2019 and all consequential proceedings of the aforesaid case.It is correct that in earlier application filed by the applicant, Sections 452 and 354 IPC were not there, but the fact remains that incident and case is the case.When application of applicant for quashing of proceedings under Sections 323, 324, 504, 506 IPC of aforesaid case was dismissed, the second application u/s 482 Cr.P.C. for quashing of same proceedings would not be maintainable under shield that two more sections have been added.

['Section 323 in The Indian Penal Code', 'Section 506 in The Indian Penal Code', 'Section 324 in The Indian Penal Code', 'Section 504 in The Indian Penal Code', 'Section 354 in The Indian Penal Code', 'Section 452 in The Indian Penal Code']

The role ascribed to him is that of the middlemen, who arranged seven solvers/impersonators and brought them to Bhind for appearing in Police constable Recruitment Test, 2013 held on 15.09.2013 posing as real candidates.Taking into consideration these facts applicant's previous applications: M.Cr.C.No.8543/2017, M.Cr.C.No.10660/2017, M.Cr.C.No.22965/2017 and M.Cr.No.1/State.Mr. Vivek Khedkar, learned counsel for the respondent No.2/CBI.This is fifth application under Section 439 Code of Criminal Procedure, 1973 for grant of bail.The applicant is an accused in Crime No.458/2013 registered at Police Station Kotwali, District Bhind for the offences under Sections 417, 419, 420, 467, 468, 471, 474 and 120-B and 511 IPC.C.No.42826/2018 were dismissed on 18.08.2017, 23.10.2017, 18.12.2017 and 18.01.2019, respectively.However, on a comparison made, we do not perceive any similarity.In the present case besides the fact that the applicant had earlier misused the liberty; in a supplementary chargesheet filed by the CBI 14 accused persons including accused applicant Deep @ Deepnarayan under Sections 120-B read with 417, 419, 420, 467, 468, 471, 474 and 511 of IPC and Sections 4/3 D (1), (2) of MPRE Act, 1937 on 03.12.2018 before the Court of Learned Special Magistrate, CBI, Vyapam Cases, Gwalior.Apart from this, CBI also filed a separate chargesheet in the case against 02 juveniles under Sections 120-B read with 417, 419, 420, 467, 468, 471, 474 and 511 of IPC on 14.01.2019 before the learned Juvenile Justice Board, Bhind, wherein charges are yet to be framed against them.

['Section 120B in The Indian Penal Code', 'Section 419 in The Indian Penal Code', 'Section 467 in The Indian Penal Code', 'Section 420 in The Indian Penal Code', 'Section 417 in The Indian Penal Code', 'Section 471 in The Indian Penal Code', 'Section 468 in The Indian Penal Code', 'Section 511 in The Indian Penal Code']

Brief facts which are necessary to dispose of this appealare recapitulated as under:-The dispute is between very close and intimate familymembers.Deceased Gurcharan Singh was the brother ofBakhtawar Singh and uncle of Darshan Singh.He was thefather of Gurdish Singh, PW7, the informant.The agriculturefields of both brothers, Gurcharan Singh and BakhtawarSingh were situated adjoining to each other.According to theprosecution, on 15.7.1991 at about 8 a.m. Gurdish Singh,PW7 and his father, Gurcharan Singh were irrigating theiraforesaid fields and were also mending its ridges and at thattime Gurdev Singh, PW8 and Ajit Singh were also presentthere.In the meantime, Darshan Singh and Bakhtawar Singhcame there from the side of their fields raising lalkaras andabused the complainant party.Darshan Singh, accused wasarmed with D.B.B.L. gun and his father Bakhtawar Singh was 3carrying a Gandasa and they were saying that they wouldteach a lesson to the complainant party for cutting the ridges.According to the further story of the prosecution,Bakhtawar Singh gave a Gandasa blow causing injuries on thechest of Gurcharan Singh.Gurcharan Singh was also havinga Gandasa with him and in order to save himself he alsocaused injury on the head of Bakhtawar Singh.Thereafter,Darshan Singh fired two shots from his licensed gun which hitGurcharan Singh in the chest and some of the pellets hitGurdish Singh PW7 on his left upper arm and Gurdev Singh,PW8 on his left thigh.Gurcharan Singh fell down and died atthe spot.Gurdish Singh and others retraced their steps inorder to save themselves.Both the accused in order to savethemselves ran towards their respective houses.GurdishSingh, PW7 left the dead body of Gurcharan Singh andproceeded to the police station to lodge a report.GurdevSingh PW8 also accompanied him.They met Om Prakash, ASIat about 9 a.m. at Barnala crossing where Gurdish Singh PW7gave his statement.It was then read over and explained tohim who signed the same admitting the contents thereof to becorrect.Om Prakash, ASI made his endorsement (Ex. N/1) 4and forwarded the statement to the police station, Rajkot andon the basis of which the case was registered against both theaccused.Om Prakash, ASI accompanied Gurdish Singh andGurdev Singh to the place of occurrence.He prepared inquestreport in respect of the dead body of Gurcharan Singh andthen sent the dead body for post-mortem examination throughConstable Milkha Singh and Head Constable Pargat Singh.Om Prakash, ASI lifted blood stained earth from the placewhere dead body of Gurcharan Singh was lying and took thesame into possession after preparing the recovery memo.Onegandasa and an empty cartridge of 12 bore were found lyingnear the dead body.The gandasa and the empty cartridgewere also taken into possession.The Investigating Officerprepared visual site plan of the place of occurrence withmarginal notes.The factum of the incident has not been denied bythe accused and they claimed right of private defence.According to the prosecution, the motive of the crime wasdispute regarding partition of land between both brothersBakhtawar Singh and Gurcharan Singh.One year prior to thepresent incident, the village Panchayat had got the disputecompromised by a written agreement.There was a commonwell situated in the adjoining land.As a result of thecompromise, the well along with a small piece of land attachedto it was given to Gurcharan Singh and the land of commonpathway leading to the well was given to the accused party.The compromise was not accepted by the accused party andthey wanted repartition of the land attached to the well.Dalveer Bhandari, J.Both Darshan Singh and Bakhtawar Singh wereacquitted by the Sessions Court, Ludhiana.The said judgmentof acquittal was set aside by the High Court of Punjab &Haryana at Chandigarh.3. Darshan Singh and Bakhtawar Singh filed appeal againstthe said judgment before this court.During the pendency ofthis appeal, Bakhtawar Singh died and consequently theappeal filed by him abated.Gurdish Singh and Gurdev Singh's injurystatements were also prepared and sent for medico legalexamination.Dr. Mukesh Gupta PW4 conducted post-mortemexamination on the dead body of Gurcharan Singh on 515.7.1991 at 4.30 p.m. On the same day at 5.50 p.m. Dr.Gupta also conducted medico legal examination of GurdevSingh and found one abrasion on his left thigh.Dr. Guptafound a superficial abrasion on Gurdish Singh on his elbow.Thisgrievance led to this unfortunate incident.The prosecution examined 11 witnesses.Dr. MukeshGupta, PW4 who conducted the post-mortem examinationfound the following injuries on the dead body of GurcharanSingh:-There were 14 wounds in an area of 20 cm x 18 cm on left side of the chest above the nipple.One of the wounds which was above the nipple was having inverted margins.A wad was recovered from this wound.This wound was 1 cm x 1 cm.The 9 wounds which measured 0.75 cm x 0.75 cm which were on the chest and shoulder also had inverted margins.Out of these wounds 6 were found to entering chest cavity and 6 pellets were recovered from the chest cavity.The remaining 3 wounds were having everted margins.These were near the axilla and each wound measured 1 cm x 1 cm.One of the 14 wounds which measured 0.75 cm x 1.5 cm was having inverted margins.It was skin deep and was on the shoulder, upper part of humerous and clavicle bones were found to be fractured.4th and 5th rib of the left side of the chest were also found to be fractured.There were 7 wounds in an area of 20 cm x 8 cm on the upper part of the chest on its right side above the nipple.Out of these wounds 3 wounds measuring 0.75 cm x 1 cm each was having inverted margins, these were skin deep.2 wounds were having everted margins having a dimension of 1 x 1 cm each near the axilla.A pellet was recovered from near the axilla.The remaining 2 wounds were near the top of right shoulder measuring 0.75 x 1.5 cm each with inverted margins.These were skin deep.An incised wound 8 cm x 0.5 cm skin deep on the left side of chest 3 cm above the nipple.It was horizontally placed."Dr. Mukesh Gupta found following injury on the personof Gurdev Singh:-"An abrasion measuring 1 cm x 0.5 cm on the front and inner side of left thigh.It was a superficial abrasion reddish in colour, over the junction of upper 1/3rd and lower 2/3rd of the thigh.There was damage to the pajama corresponding to the injury."According to the doctor, the injury was simple in natureand was caused within 24 hours.Doctor also found injury onGurdish Singh to be superficial.The same reads as under:-"A very superficial abrasion 1 cm x 0.5 cm on the upper side of left upper arm 12 cm above the elbow.It was reddish in colour."It may be relevant to mention that Dr. M.S. Gill, PW5,who conducted the medical examination of Bakhtawar Singhfound the following injuries on his person:-An incised wound 7 cm x 0.5 cm on the parietal region of the right side of head.It was placed anterior posteriorly.The wound was bone deep and 4 cm above the right pinna.Clotted blood was present."According to doctor, this injury was caused by sharp-edged weapons.Both Gurdish Singh, PW7 and Gurdev Singh, PW8 arethe eye-witnesses who gave detailed description of theoccurrence.After examining the prosecution evidence, thefollowing statements of Darshan Singh and Bakhtawar Singhwere recorded under section 313 Cr.P.C.. The relevant portionof the statement of Darshan Singh reads as under:-"I am innocent.In fact the complainant party had gone back from the agreement got effected by the Panchayat one year prior to the occurrence.In accordance with the said compromise we had ploughed the land which was earlier under common pathway.One day prior to the occurrence we had irrigated that portion of the land.On the day of occurrence when we went to the fields, Gurcharan Singh (deceased) along with 3-4 outsiders came to our field and remarked that we would be taught a lesson for irrigating the land.Immediately thereafter Gurcharan Singh gave a gandasa blow hitting my father Bakhtawar Singh on the head as a result of which he fell down.I felt that my father had been killed.Gurcharan Singh then advanced towards me holding the gandasa.I apprehended that I too would be killed and I then pulled the trigger of my gun.Gurcharan Singh fell to the ground and his companions took to their heels.I then took Bakhtawar Singh in injured condition to Govt. hospital, Sudhar.Police came to the hospital at about 5 p.m. We were kept under guard and brought to the police station on the next day after getting my father discharged.We have been falsely implicated in this case.Bakhtawar Singh (accused) pleaded as under:-"I am innocent.It was the complainant party who had resiled from the compromise got effected by Panchayat about a year before the occurrence.We had ploughed the land which had fallen to our share and one day prior to the occurrence we had irrigated the same.On the day of occurrence when we went to the fields Gurcharan Singh (deceased) along with 3-4 outsiders came to our field and remarked that we would be taught a lesson for irrigating the land.Immediately thereafter Gurcharan Singh gave a gandasa blow on my head as a result of which I fell down.Gurcharan Singh then advanced towards Darshan Singh holding his gandasa whereupon Darshan Singh fired a shot from his gun.I was taken to Government hospital, Sudhar by Darshan Singh.Police came there on the same day at about 5 p.m. and took us to the police station after getting me discharged.I have been falsely involved in this case."According to the versions of the accused Darshan Singhand Bakhtawar Singh, Gurcharan first gave Gandasa blowhitting Bakhtawar Singh on the head and the injury caused onBakhtawar Singh was an incised wound of 7 cm x 0.5 cm.onthe parietal region of the right side of head.The wound wasbone deep and 4 cm above the right pinna and clotted bloodwas present and after receiving these injuries in order to savehimself, Darshan Singh fired at Gurcharan Singh and as aresult of which he died.According to the accused, the entireact is covered by the right of private defence.According to theprosecution, Bakhtawar Singh gave first injury on the chest of 10Gurcharan Singh whereas according to the defence the firstinjury was given by Gurcharan Singh to Bakhtawar Singh.The appellant Darshan Singh fired only after the seriousincised wound by a Gandasa was inflicted on his fatherBakhtawar Singh and at that time in order to save his life hefired 2 shots which hit the deceased Gurcharan Singh leadingto his death.The point for determination is the place where theunfortunate incident had taken place.According to BhupinderSingh Patwari, PW3, point `A' in site plan Ex.According to Bhupinder SinghPatwari, Point `E' is in Khasra No.10 from where DarshanSingh had allegedly fired at Gurcharan Singh.According tothe site plan prepared by Bhupinder Singh Patwari, Point `F' isthe place where the dispute took place with Bakhtawar Singh.According to the Patwari, this point `F' is in Khasra No.10 at a 11distance of 5 karms which is equivalent to 27.5 feet from theaforesaid pathway and point `A' is at a distance of 7 karmsfrom point `F'.Thus, from this evidence it is evident that theoccurrence took place inside Khasra No.10 which was inpossession of Bakhtawar Singh accused.Gurcharan Singhcovered a distance of about 7 karms which is equivalent to37.5 feet.The trial court came to the conclusion that the presenceof Gurdev Singh and Gurdish Singh at the time of allegedoccurrence is highly doubtful.Dr. Mukesh Gupta also statedthat injuries on the person of Gurdev Singh and GurdishSingh could be caused by friendly hands and can be selfsuffered.He further stated in the cross examination thatduration of the injuries was less than 6 hours.As per theprosecution case, the injuries were allegedly received by themat about 8 a.m. No pellet was recovered from the injuries ofthese witnesses namely, Gurdev Singh and Gurdish Singh.According to the trial court, the possibility of these injuries ontheir person having been fabricated at a later stage cannot beruled out.The trial court also held that there was no mentionof the injuries received by Gurdish Singh and Gurdev Singh in 12the inquest report whereas this fact finds mention in the firstinformation report.According to the prosecution, GurdishSingh suffered pellet injury on the left upper arm whereas,Gurdev Singh was hit on his left thigh.If it was so, therewould have been mention of this fact in the inquest report orthe investigating officer must have prepared their injurystatement, but neither any such injury statement wasprepared at the spot nor their medical-examination wascarried out.Om Prakash, ASI, in his cross-examination hasadmitted that he came to know about the injuries of GurdishSingh and Gurdev Singh only when they gave theirsupplementary statements at the bus stand.According to thefindings of the trial court, their injury statement was preparedat the spot and they were medically examined by Dr. MukeshGupta.Thus, according to the trial court the injuries werefabricated with connivance with the investigating officer just inorder to make Gurdish Singh and Gurdev Singh stampwitnesses.The trial court after discussing the entire evidence cameto the conclusion that two counter versions of the case havebeen presented and, in the view of the trial court, the defence 13version is more probable and nearer to the truth for thefollowing reasons:(i) The delay in lodging the FIR impells the court to scrutinize the evidence of witnesses regarding the actual occurrence with greater care and caution.(ii) The crucial point to be decided in this case was that who was the aggressor or which of the parties can have the motive to open the attack?The trial court held that "if the accused were already cultivating the land as per compromise, then it does not appeal to reason as to why they would feel aggrieved.On the other hand there was strong motive for Gurcharan Singh to assault the accused person as he has resiled from the compromise."(iii) The next crucial point according to the trial court was as to where the incident took place? According to the trial court the incident had taken place in the field of the accused.Gupta stated that the injuries on Gurdev Singh and Gurdish Singh could be caused by friendly hands and can be self suffered.(v) No pellet was recovered from the injuries of the prosecution witnesses namely, Gurdev Singh and Gurdish Singh.The possibility of the injuries on their persons having been fabricated at a later stage cannot be ruled out.The trial court found that, in the instant case, it appeared that the inquest report was prepared first and the FIR was prepared at some later stage because there was no mention about the injuries of Gurdev Singh and Gurdish Singh in the inquest report, whereas this fact is mentioned in the FIR.According to the prosecution case, Gurdish Singh suffered a pellet injury on his left upper arm whereas, Gurdev Singh was hit on his left thigh.This was so mentioned in the FIR.If it was so, this fact would have been mentioned in the inquest report or the Investigating Officer must have prepared their injury statement, but no such injury statement was prepared at the spot nor their medical examination was got done.In the cross-examination, Om Prakash ASI had admitted that he came to know about the injuries of Gurdish Singh and Gurdev Singh only when they gave their supplementary statements at the bus stand.The finding of the trial court is that the injuries were fabricated with the connivance of the Investigating Officer just in order to make Gurdish Singh and Gurdev Singh stamp witnesses.(vi) Gurdish Singh P.W.7 had admitted that his father Gurcharan Singh was face to face when Bakhtawar Singh gave Gandasa blow from above to downward vertically on the chest of Gurcharan Singh.However, Dr. Mukesh Gupta contradicted him and stated that injury no.3 on the person of Gurcharan Singh was skin deep and was horizontally placed and was possible by a fall on a sharp edged weapon.From this it can safely be concluded that it was not Bakhtawar Singh who gave Gandasa blow to Gurcharan Singh in the manner as suggested by the prosecution.It is most likely that Gurcharan Singh suffered injury no. 3 by a fall on his own Gandasa and this was the reason that the wound was only skin deep.The story put forth by the prosecution that 16 Gurcharan Singh was cutting weeds of ridges with Gandasa is not believable.Gurdish Singh stated that he was collecting the cut weeds.They were not having any Kassi or Khurpa and it was not possible to cut weeds of ridges with Gandasa.(vii) The trial court came to a clear conclusion that Bakhtawar Singh was injured at point `F' as shown in the site plan at the hands of Gurcharan Singh (deceased).Gurcharan Singh after causing that injury forwarded towards Darshan Singh armed with Gandasa and at that point Darshan Singh had no option but to open fire and Gurcharan Singh died of that firearm injury.

['Section 313 in The Indian Penal Code']