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Anyone can be directed to give footprints

Law was set into motion after an FIR was registered by the complainant on the basis of written report. The said Suresh Pal Singh was arrested on 4-9-2000 and on the basis of the confessional statement made by the accused, a knife, blood-stained clothes and other articles were recovered by the Investigating Officer (P.W. 7) in the presence of P.W. 4 and recovery memo Ext. Ka-8 was made. Involvement of respondent herein was also unearthed on the basis of the said confessional statement. After conclusion of the investigation charge-sheet was submitted before the learned Magistrate who committed the case to the Court of Additional Sessions Judge, Etawa, U.P. Accused Suresh Pal Singh died during the trial and therefore criminal proceedings against him stood abated. The trial court convicting the accused Sunil under sections 302 and 429 read with section 34 of I.P.C. and awarded death sentence to him and imposed a fine of Rs. 500/- for offence under section 429 of I.P.C.

After careful perusal of the evidence and material on record, we are of the considered opinion that the following question would play a crucial role in helping us reaching an upright decision:

“Whether compelling an accused to provide his finger prints or footprints etc. would come within the purview of Article 20 (3) of the Constitution of India i.e., compelling an accused of an offence to be a “witness” against himself?”

It would be relevant to quote Article 20 (3) of the Constitution of India and : “(3) No person accused of any offence shall be compelled to be a witness against himself.”
Hon’ble P.C. Ghose and R.F. Nariman, JJ., have held that the answer to the question above-mentioned lies in judicial pronouncements made by this court commencing with celebrated case of State of Bombay v. Kathi Kalu Oghad and others.

However any person can be directed to give his foot-prints for corroboration of evidence but it cannot be considered as violation of the protection guaranteed under Articles 20 (3) of the Constitution of India. It may, however, be noted that non- compliance of such direction of the Court may lead to adverse inference, nevertheless, it cannot be entertained as the sole basis of conviction.

In a case where there is no direct witness to prove the prosecution case, conviction of the accused can be made on the basis of circumstantial evidence provided the chain of the circumstances is complete beyond all reasonable doubt.

State of Madhya Pradesh v. Sunil, 2017 (174) AIC 83 (SC).

Unreasonable to accept witness to give picture perfect report of occurrence

Appeal has been filed, challenging the judgment of the Gujarat High Court dated 1-2-2016 dismissing the Criminal Appeal filed by the appellant, questioning the order of conviction recorded by Ahmedabad City Sessions court under section 364-A read with section 114 of I.P.C.

The present appellant and another accused Kamlesh were convicted and sentenced to life imprisonment and a fine of rupees five hundred by city Sessions Court. Both the accused had filed appeals before the High Court which have been dismissed. We have been informed that only one of the convicts has come up in this appeal.

The submission that without any evidence High Court has presumed that custody of victim P.W. 6 was with the appellant and accused No. 2 without any material witness to corroborate. Both the courts have come to the conclusion that victim was kidnapped by appellant and accused No. 2 with whom he remained till 28-5-2010 which is proved by ample evidence on record.

The sequences of event as narrated by child witness are fully proved by the incident which happened at Dausa, Rajasthan i.e., recovery of child alongwith two accused. Thus, the prosecution case of kidnapping the victim and taking victim from Shakriba Plot Ahmedabad to Dausa Rajasthan has been fully proved and the evidence of child witness has been corroborated by evidence of P.W. 3. P.W. 5, P.W.13, P.W. 14 and evidence of P.W. 17.

The Hon’ble A.K. Sikri and Ashok Bhushan, JJ., have held that this court in Chandrappa and others v. State of Karnataka where this Court has laid down that it is unreasonable to expect from a witness to give picture perfect report of the incident and minor discrepancies have to be ignored. In para 17 and 18 following was stated by this court:

“17. It has been contended by the learned Counsel for the appellants that the discrepancies between the statements of the eyewitnesses inter se would go to show that they had not seen the incident and no reliance could thus be placed on their testimony. It has been pointed out that their statements were discrepant as to the actual manner of assault and as to the injuries caused by each of the accused to the deceased and to P.W. 3, the injured eyewitness. We are of the opinion that in such matters it would be unreasonable to except a witness to give a picture perfect report of the injuries caused by each accused to the deceased or the injured more particularly where it has been proved different kinds of weapons.”

Suraj Singh v. State of Gujarat, 2017 (174) AIC 13(SC).

Notice send on correct address deemed to be served

In a recent case, the Hon’ble Supreme Court, has held that a registered notice sent on correct address shall be deemed to be served.

It is explicitly made clear under clause (c) of section 138 of N.I. Act, that this gives an opportunity to a drawer of the cheque to make payment within fifteen days of receipt of such notice sent by the drawee. It is manifest that the object of providing clause (c) is to avoid unnecessary hardship. Even if the drawer has failed to make payment within fifteen days of receipt of such notice as provided under clause (c), the drawer shall be deemed to have committed an offence under the Act and thereafter the drawee would be competent to file complaint against the drawer by following the procedure prescribed under section 142 of the Act.

The Hon’ble N.V. Ramana and P.C. Pant, JJ., have held that it is clear from section 27 of the General Clauses Act, 1897 and section 114 of the Indian Evidence Act, 1872, that once notice is sent by registered post by correctly addressing to the drawer of the cheque, the service of notice is deemed to have been effected. Then requirements under proviso (b) of section 138 stands complied, if notice is sent in the prescribed manner. However, the drawer is at liberty to rebut this presumption.

This Court in catena of cases has held that when a notice is sent by registered post and is returned with postal endorsement “refused” or “not available in the house” or “house locked” or “shop closed” or “addressee not in station”, due service has to be presumed. Though in process of interpretation right of an honest lender cannot be defeated as has happened in this case. From the perusal of relevant sections it is clear that generally there is no bar under the N.I. Act to send a reminder notice to the drawer of the cheque and usually such notice cannot be construed as an admission of non-service of the first notice by the appellant as has happened is this case.

It is further held that moreover the first notice sent by appellant on 12-4-1991 was effective and notice was deemed to have been served on the first respondent. Further, it is clear that the second notice has no relevance at all in this case at hand. Second notice could be construed as a reminder of respondent’s obligation to discharge his liability. As the complaint, was filed within the stipulated time contemplated under clause (b) of section 142 of the N.I. Act, therefor section 138 read with 142 of N.I. Act is attracted. In the view of the matter, we set aside the impugned judgment of the High Court.

N Parameswaran Unni v. G Kannan, 2017 (174) AIC 141 (SC).

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