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OCULAR  TESTIMONY:  Greater Value than Medical Evidence


The Hon’ble Supreme Court has held that ocular testimony is of greater evidentiary value than the medical evidence.

The brief facts of the case as culled out from the case of the prosecution are that on 26th December, 1987 at about 1 p.m. while Gambhir Singh (P.W.7) (brother of the deceased) was having lunch at his home, the appellant along with a group of co-accused persons, each armed with deadly weapons rushed to his house hurling abusive filthy words and picked up a quarrel with his brother Jagannath Singh (deceased) who was sitting outside on a platform (chabutara) along with his nephew Bir Singh (P.W. 11). When Jagannath Singh (deceased) raised objection to their behaviour, the appellant fired a gunshot in the abdomen of the deceased as a result of which he fell down on the ground and succumbed to the injuries.

The Trial Court by its judgment and order dated 30th November, 1994 acquitted the appellant from the alleged offences mainly on the ground that there are contradictions in the evidence of eyewitnesses to that of medical evidence; prosecution has failed to prove beyond reasonable doubt formation of unlawful assembly with a motive of committing murder of the deceased and also failed to establish that the bullet had been fired with the firearm seized from the appellant.

The High Court, on a re-analysis of evidence of prosecution witnesses and other material available on record came to the conclusion that the Trial Court was right in acquitting the other co-accused persons but found fault with the acquittal of the appellant under section 302, I.P.C. The High Court, therefore, partly allowed the appeal by confirming the judgment of the Trial Court in respect of the charge under section 148 and convicted the appellant herein for the offence under section 302, I.P.C. and sentenced him to undergo imprisonment for life.

In view of contradictory statements by the prosecution witnesses coupled with the unmatched medical evidence, delay in recording of statements of witnesses by the I.O., non-availability of proper site plan and in the absence of authenticated ballistic expert report that the bullet had been fired with the seized gun of the appellant, the Trial Court had to decide the case against the prosecution and discharge the appellant from the charges.

Mahavir Singh v. State of MP, 2016 (168) AIC 40 (SC)


SUSPICION CANNOT SUBSTITUTE PROOF


In a recent case, the Hon’ble Supreme Court has held that suspicion, however grave, cannot substitute proof.

The prosecution was set in motion by the First Information Report lodged on 27-3-2006 at 2.30 a.m. by one Gunasekaran, the cousin brother of the deceased Gurunathan, the husband of the appellant Nathiya (accused No. 1). The appellant Suresh (accused No. 2) is allegedly the paramour of accused No. 1. It was averred in the FIR that the deceased was a book binder by occupation and owned some properties located in his village, worth several lakhs. He also had his own house. The house of the appellant Suresh was also situated nearby. It had been alleged that the appellant Nathiya, the wife of the deceased had developed illicit relationship with Suresh which was not only to the knowledge of the deceased but also of the informant.

Eventually the charge-sheet was submitted against the accused persons. The case was committed for sessions trial. The appellants having denied the charge, were made to stand trial and finally by the judgment and order dated    13-11-2007 passed in S.C. No. 94 of 2007, the appellants were convicted under section 302 read with section 34, I.P.C. and sentenced as above. To reiterate, their conviction and sentence has been upheld by the High Court by the judgment and order impugned herein.

The Hon’ble Dipak Misra and Amitava Roy, JJ., have held that the defence proposition that P.W. I being the cousin brother of the deceased had framed the appellants so as to wrest his property in absence of his legal heirs in the above factual premise, also cannot be lost sight of. The imputation of sustained unchaste conduct and the activities of the wife, if true, the possibility of the deceased committing suicide as an extreme step in an unbearable anguished state of mind also cannot be wholly excluded.

However, on an analysis of the overall fact situation, the Court is of the considered opinion that the chain of circumstantial evidence relied upon by the prosecution to prove the charge is visibly incomplete and incoherent to permit conviction of the appellants on the basis thereof without any trace of doubt. Though the materials on record do raise a needle of suspicion towards them, the prosecution has failed to elevate its case from the realm of “may be true” to the plane of “must be true” as is indispensably required in law for conviction on a criminal charge. It is trite to state that in a criminal trial, suspicion, howsoever grave, cannot substitute proof.

Nathiya v. State by Inspector of Police, 2016 (168) AIC 48 (SC)


JURISDICTION OF CIVIL COURT: Barred by section 34, SARFAESI Act


The Hon’ble Supreme Court has held that the jurisdiction of a civil court is specifically barred by section 34, SARFAESI Act.

The appellant is a nationalized bank which had lent `8,00,000 (Rupees eight lakh) to respondent No. 1 by way of a term loan on certain conditions and so as to secure the said debt, respondent No. 1 debtor had mortgaged his immovable property forming part of premises bearing No. C-8/298, Yamuna Vihar, Delhi. As respondent No.1 committed default in re-payment of the said loan, the appellant initiated proceedings under the provisions of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (hereinafter referred to as ‘the Act’). When notice under section 13(2) of the Act had been issued and further proceedings were sought to be initiated by the appellant against respondent No. 1, the said proceedings had been challenged by respondent No. 1 by filing Civil Suit No. 4 of 2003 in the Court of Civil Judge, Delhi.

In the said suit, the appellant filed an application under Order VII, Rule 11 of the C.P.C. contending that the court had no jurisdiction to entertain the suit in view of the provisions of section 34 read with section 13(2) of the Act, which prohibits a civil court from dealing with matters arising under the provisions of the Act.

The Hon’ble Anil R. Dave and L.N. Rao, JJ., have held that upon perusal of section 34 of the Act, it is very clear that no civil court is having jurisdiction to entertain any suit or proceeding in respect of any matter which a Debt Recovery Tribunal or the Appellate Tribunal is empowered by or under the Act to determine the dispute. Further, the civil court has no right to issue any injunction in pursuance of any action taken under the Act or under the provisions of the DRT Act.

State Bank of Patiala v. Mukesh Jain and another, 2016 (168) AIC 55 (SC)


WRONGFUL ACQUITTAL: Preferred over Wrongful Conviction


The Hon’ble Supreme Court, in a recent case, has held that a wrongful acquittal should be preferred in comparison to the risk of wrongful conviction.

The Hon’ble Pinaki Chandra Ghose and Amitava Roy, JJ., have held that it is a trite proposition of law, that suspicion however grave, cannot take the place of proof and that the prosecution in order to succeed on a criminal charge cannot afford to lodge its case in the realm of “may be true” but has to essentially elevate it to the grade of “must be true”. In a criminal prosecution, the court has a duty to ensure that mere conjectures or suspicion do not take the place of legal proof and in a situation where a reasonable doubt is entertained in the backdrop of the evidence available, to prevent miscarriage of justice, benefit of doubt is to be extended to the accused. Such a doubt essentially has to be reasonable and not imaginary, fanciful, intangible or non-existent but as entertainable by an impartial, prudent and analytical mind, judged on the touch stone of reason and common sense. It is also a primary postulation in criminal jurisprudence that if two views are possible on the evidence available, one pointing to the guilt of the accused and the other to his innocence, the one favourable to the accused ought to be adopted.

The facts as obtained in the present case present a jigsaw puzzle in which several frames are missing to permit an unreserved opinion of the complicity of the appellant.

Jose @ Pappachan v. Sub-Inspector of Police and another, 2016 (168) AIC 1 (SC)

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