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Close relatives easily recognizable even in moon light


The incident occurred around 7.30 p.m. There was moon light. At about 8.00 p.m. Parvathamma (P.W. 29) mother of the injured, along with other villagers reached at the spot and injured Basavaraj was first taken to Chellur. After some time Niranjanappa (P.W. 16) also reached there, and after engaging a motor van, the injured was taken to Shimoga hospital, where he was admitted at 10.45 p.m. However, Basavaraj could not be saved and succumbed to the injuries soon after midnight at about 0040 hrs. A report (Ext. P-5) was given at the nearest Police Station Doddapet on which P.W. 28 M. Gopalappa (Station House Officer) rushed to the hospital. He sent intimation (Ext. P-6) to the jurisdictional Police Station Nyamathi, where the same was registered as Crime No. 49 of 1998. P.W. 33 S.G. Patil (Police Inspector) took up the investigation and, after taking the dead body in his possession, prepared the inquest report (Ext. P-28) and interrogated witnesses including Rajeshwari (P.W. 1), Niranjanappa (P.W. 16) and Parvathamma (P.W. 29). P.W. 2 Dr. C. Francis conducted the post mortem examination on
4-3-1998 at 11.00 a.m. and prepared the autopsy report (Ext. P-2). He opined that the deceased had died due to shock and haemorrhage as a result of injuries suffered by him on the head. On conclusion of investigation the charge-sheet was filed against all the four accused for their trial in respect of offences punishable under sections 506, 354 and 302 read with section 34 of Indian Penal Code (I.P.C).

Having gone through the entire evidence on record, the Court held that the High Court and the Trial Court committed grave error by accepting the defence case that the deceased might have died of the injuries suffered in an accident, as the possibility was not ruled out by P.W. 2 Dr. C. Francis. We have carefully gone through the statement of Dr. C. Francis. What he has stated in the cross-examination is “such injuries can be caused to a person if he meets accident”. There is no suggestion of the fact that at the place of incident any vehicle had passed through at the time of the incident. The Trial Court appears to have taken support of conjectures and surmises. In the circumstances, we are of the opinion that the High Court has correctly held that the view taken by the Trial Court is perverse and against the evidence on record.

As discussed above, the statement of P.W. 1 Rajeshwari (injured) is corroborated not only from the statements of P.W. 16 Niranjanappa, P.W. 29 Parvathamma and P.W. 30 Chanabasappa but also from the medical evidence on record. The First Information Report in the present case is prompt and copy of the same appears to have been sent on the very next day to the Magistrate without delay. On behalf of the State it is pointed out that from the record it is clear that all the three appellants were absconding from the village after the incident, and could be arrested only on 10-3-1998. Also, there is mention in the Wound Certificate (Ext. P- 4(b)). issued by P.W. 3 Dr. Nanda Koti, regarding history of assault.

The Hon’ble N.V. Ramana and P.C. Pant, JJ., have held that as to the source of light it is argued that it is not clear as to how P.W. 1 Rajeshwari recognized the accused. Had the accused been unknown persons, we would have accepted this argument. But the accused were close relatives living in the house of the witness, as such, it cannot be said that it was difficult at all for her to recognize them when they assaulted her brother at 7.30 p.m. on the way back from Honnali to Marigondanahalli. M G Eshwarappa v. State of Karnataka, 2017 (172) AIC 11 (SC)

Legislature cannot be directed to enact law


The State of Himachal Pradesh has called into question certain directions that were issued by a Divison Bench of the High Court on 23rd September, 2016. The High Court called upon the State Government to amend the provisions of section 118 of the H.P. Tenancy and Land Reforms Act, 1972 within a period of ninety days. These directions were issued by the Division Bench while allowing a writ petition which challenged an order dated 23rd April, 2014, of the revenue authorizes. The Judgment of the High Court by which it set aside the order dated 23rd April, 2014, and directed the State to attest the mutation by treating the respondent as an agriculturist is not called into question to that extent.

The appeal is confined to a challenge to the above direction to amend the legislation. In the present proceedings, the appellants have not questioned the correctness of the order passed in favour of the respondent setting aside the order passed by the revenue authorities on 23rd April, 2014 or the direction to attest the mutation within eight weeks. Since the purpose of the respondent in filing the writ petition was served (and the relief granted to him has not been questioned) it has not been necessary to issue notice to the respondent having regard to the nature of the challenge preferred in these proceedings.
The Hon’ble A.M. Sapre and Dr. D.Y. Chandrachud, JJ., have held that the judiciary is one amongst three branches of the State; the other two being the executive and the legislature. Each of the three branches is co-equal. Each has specified and enumerated constitutional powers. The judiciary is assigned with the function of ensuring that executive actions accord with the law and that laws and executive decisions accord with the Constitution. The Courts do not frame policy or mandate that a particular policy should be followed. The duty to formulate policies is entrusted to the executive whose accountability is to the legislature and, through it, to the people. The peril of adopting an incorrect policy lies in democratic accountability to the people. This is the basis and rationale for holding that the Court does not have the power or function to direct the executive to adopt a particular policy or the legislature to convert it into enacted law. It is wise to remind us of these limits and wiser still to enforce them withour exception. State of HP v. Satpal Saini, 2017 (172) AIC 121 (SC)

Occupation by son-in-law amounts to sub-letting


The Rent Controller found that the partnership was a ruse and that it was the son-in-law who was in exclusive possession of the shop and running the business on his own. No books of accounts were maintained, no profit and loss accounts were maintained, and no stock registers concerning the goods in the shop were maintained, as required by the partnership deed. Moreover, the tenancy rights with respect to the lease of the shop were found to have been made property of the partnership firm. The evidence of the widow of the tenant who inherited the tenanted premises and claimed to be running the business along with her son-in-law was held incredible. She was unable to give any details of the amount invested in the shop,
or any details of profit and loss.

Thus, the Rent Controller clearly found that the son-in –law had been put in possession of the shop in pursuance of a sham partnership deed and was not merely assisting in the shop as a son-in-law.

The Hon’ble S.A. Bobde and L.N. Rao, JJ., have held that the respondents-tenants have been found to have inducted the son-in-law as a sub-tenant for the purpose of doing business under a partnership agreement. The arrangement between Hakim Rai and his son-in-law Raj Kumar was not a casual arrangement wherein the latter was requested to conduct business at the shop because the former was old and infirm. There was no need of entering into a partnership agreement in that case.

The Court found upon scrutiny of the evidence in this case that the learned Rent Controller was right in coming to the conclusion that the parties had not acted on the partnership which was shown, and that they was allowed to occupy the premises and carry out business exclusively. There is no evidence on record that the account books were maintained and the profits were shared between the parties as partners. The son-in-law had accepted that he was carrying out a business of sale of merchandise from the shop. Munshi lal v. Smt. Santosh, 2017 (172) AIC 263 (SC)

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