No justification to cause fatal injuries even to the thief
This appeal takes exception to the judgment and order dated 4th January, 2008, passed by the Gauhati High Court in Criminal Appeal, confirming the conviction of the four appellants for offences punishable under section 302/34 of I.P.C. as recorded by the Additional Sessions Judge, No.2 (Ad –hoc) at Sivasagar in Sessions Case. Initially, six accused were tried for the stated offence. Amongst them two accused came to be acquitted by the Trial Court on the finding that no tangible evidence was produced to establish their guilt. The four accused, who are appellants herein, however, came to be convicted by the Trial Court. They preferred an appeal before the High Court which came to be dismissed. The High Court, however, reversed the observation of the Trial Court that P.W. 5 (Lakhiram Kurmi) was an eyewitness. In that sense, the Trial Court as well as the High Court proceeded on the basis that it was a case of circumstantial evidence to establish the complicity of the appellants.
The High Court affirmed the view taken by the Trial Court that the stated circumstances clearly indicated the involvement of the appellants in the commission of the crime resulting in the death of Jugeswar Kurmi (deceased), and having so held, confirmed the conviction and sentence awarded by the Trial Court qua the appellants.
Hon’ble A.M. Khanwilkar and K.M. Joseph, JJ., have held that the case of appellant Dipankar Bora, the nine circumstances noted by the Trial Court and affirmed by the High Court would certainly establish his involvement in the commission of crime, and in particular, on account of recovery of the weapon from his house, which was used to assault Jugeswar Kurmi. He has not offered any explanation except claiming to the innocent. The medical evidence does indicate that the two injuries were fatal and each of them was sufficient to cause death in ordinary course of nature. P.W. 8 has deposed that a patient with such injuries can survive up to one hour and beyond that possibility of survival is minimal. The Trial Court as well as the High Court were right in relying upon the evidence of P.W. 5 and P.W. 8 to hold that the nine circumstances were duly established. That being a possible view, we would be loath to interfere with the same. The proved circumstances clinchingly point towards the involvement of appellant Dipankar Bora in the concurrent conclusion reached by the two Courts about the finding of guilt against the appellant Dipankar Bora in the commission of the crime for causing the death of Jugeswar Kurmi.
It was further held that the question is: whether the offence of section 302 of I.P.C. can be converted to section 304 (2) of I.P.C. The fact that only two fatal injuries have been noticed during the postmortem of the dead body of deceased (Jugeswar Kurmi) would not bring the case within any exception to hold that it was a case of culpable homicide not amounting to murder. The High Court has found that the deceased (Jugeswar Kurmi) was not armed and could not have offered any resistance or challenged the chowkidars armed with weapon. Concededly, though the accused perceived Jugeswar Kurmi as a thief and had chased him but that could be no justification to inflict vigorous stick blows which cause fatal injuries as noticed in the postmortem report and proved by P.W. 8. Therefore, we are not inclined to disturb the conclusion reached by the High Court that it was a case of causing murder of Jugeswar Kurmi (deceased), albeit by accused Dipankar Bora, an offence liable to be punished under section 302 of I.P.C. simpliciter.
Bikash Bora v. State of Assam, 2019 (195) AIC 1 SC
Permanent injunction can be granted to one who is in actual possession of property
This appeal arises out of the judgment dated 23.6.2016 passed by the High Court of Judicature at Mumbai dismissing the Writ Petition No. 6873 of 2016 thereby affirming the judgment of the First Appellate Court decreeing the first respondent’s suit for permanent injunction.
When the first respondent –plaintiff has neither proved his actual possession nor shown to have paid the rent from the year 1991, in the suit filed by the first respondent –plaintiff under section 38 of the Specific Relief Act, whether the High Court and the First Appellate Court were right in granting permanent injunction in favour of the first respondent – plaintiff, is the point falling for consideration in this appeal.
Hon’ble R. Banumathi and R.S. Reddy, JJ., have held that in a suit filed under section 38 of the Specific Relief Act, permanent injunction can be granted only to a person who is in actual possession of the property. The burden of proof lies upon the first respondent – plaintiff to prove that he was in actual and physical possession of the property on the date of suit. The first appellate Court drew inference of the possession of the first respondent – plaintiff from Purshis Ex. -41 and from the circumstances that he has obtained permission from the Corporation for carrying out the repairs. The Commissioner’s report which was referred to in extensor in the order passed in interlocutory application (Ex. -5) rejecting the first respondent’s prayer for temporary injunction shows the poor condition of the suit premises prior to filing of the suit RCS.
The first respondent – plaintiff has filed the suit under section 38 of the Specific Relief Act seeking permanent injunction on the ground that he is in actual possession of the suit property. Grant of permanent injunction results in restraining the defendant’s legitimate right to use the property as his own property. Under section 38 of the Specific Relief Act, an injunction restraining the defendant from disturbing possession may not be granted in favour of the plaintiff unless he proves that he was in actual possession of the suit property on the date of filing of the suit.
Balkrishna Dattatraya Galande v. Balkrishna Rambharose Gupta, 2019 (195) AIC 147 SC
Fresh commission can be issued
Hon’ble A.M. Sapre and Dinesh Maheshwari, JJ., have held that local commissioner appointed by Trial Court in the case if the report of the Local Commissioner was suffering from an irregularity i.e., want of following the applicable instructions, the proper course for the High Court was either to issue a fresh commission or to remand the matter for reconsideration but the entire suit could not have been dismissed for any irregularity on the part of Local Commissioner. To put it differently, we are clearly of the view that if the Local Commissioner’s report was found wanting in compliance of applicable instructions for the purpose of demarcation, it was only a matter of irregularity and could have only resulted in discarding of such a report and requiring a fresh report but any such flaw, by itself, could have neither resulted in nullifying the order requiring appointment of Local Commissioner and for recording a finding after taking his report nor in dismissal of the suit. Hence, we are unable to approve the approach the High Court, where after rejecting the Commissioner’s report, the High Court straightaway proceeded to dismiss the suit. The plaintiffs have been asserting encroachment by the defendants on their land and have also adduced oral and documentary evidence in that regard. As noticed, the First Appellate Court had allowed the appeal and decreed the suit filed by the plaintiff not only with reference to the Commissioner’s report but also with reference to the other evidence of the parties. Unfortunately, the High Court appears to have overlooked the other evidence on record.
In the totality of circumstances, in our view, for just and effectual determination of all the questions involved in the matter, the proper course is of issuing a fresh Commission and for direction to the Trial Court to decide the entire suit afresh on the issues as originally framed as also on the additional issues after taking the report of the Local Commissioner afresh and affording an opportunity to the parties to submit their objections, if any.
Ram Lal v. Salig Ram, 2019 (195) AIC 169 SC