Judgment of acquittal not to be disturbed
The respondent was enrolled in the Indian Army as Sepoy in the Unit 981 AD Regiment Workshop on 2.2.2002. He was posted at Jamnagar on 1.6.2011, at about 07:45 hrs, he assaulted Subedar/Master Technical (Communication) Satyendra Singh Yadav, with a Talwar (grass cutting tool) without any provocation. Initially, the respondent hit Subedar /Master Technical (Communication) Satyendra Singh Yadav on his head from behind and when Subedar /Master Technical (Communication) Satyendra Singh Yadav turned around, the respondent hit on his forehead with the Talwar. When the respondent attempted to give a third blow, Naib – Subedar A.P. Singh intervened.
Hon’ble L.N. Rao and Hemant Gupta , JJ., have held that the Summary Court Martial was held on 23.7.2012. The respondent was charged for committing an offence under section 326 of the Indian Penal Code, 1860 by causing grievous hurt to Subedar /Master Technical (Communication) Satyendra Singh Yadav. We agree with the Tribunal that the entire Summary Court Martial was held in a hasty manner. The enquiry commenced at 12.45 p.m. and concluded at 1.30 p.m. and the sentence was imposed at 2.30 p.m.
It is clear from the record that respondent was not given an opportunity to cross –examine the witnesses whose statements were recorded in the summary of evidence. The proceedings of Court of Inquiry, recording of summary of evidence and the Summary Court Martial have been conducted without following the procedure prescribed by the Act and the Rules.
The Tribunal examined the evidence on record to hold that the prosecution failed to establish the guilt of the respondent. The irreconcilable inconsistency between the medical evidence and ocular testimony, lack of scientific evidence like finger prints on the weapon and the absence of blood on the weapon have been taken into account by the Tribunal to hold that the charge against the respondent was not proved.
It is trite law that judgments of acquittal should not be disturbed unless there are substantial or compelling reasons. The substantial or compelling reasons to discard a judgment of acquittal were examined by this Court.
A view that the respondent is guilty is possible on a scrutiny of the oral evidence. However, the relevant factors taken into account by the Tribunal present another probable view. It is settled law that if two views can be reached, the one that leads to acquittal has to be preferred to the other, which would end in conviction. That apart, there is a clear violation of Rules 179 and 180 of the Rules and the respondent was deprived of an opportunity to defend himself.
Union of India v. Sepoy Pravat Kumar Buheria, 2019 (204) AIC 31 SC
Onus shifted on accused to explain death
The appellant, husband of the deceased, is aggrieved by his conviction under 302 of the Indian Penal Code (in short, ‘I.P.C.’) affirmed by the High Court. There is no eye-witness and the case rests only on circumstantial evidence.
The deceased was married to the appellant approximately six to seven years back. Both of them were living alone in the house with their minor child. On 14.10.1994, late in the evening, the family members of the deceased, who resided about 35-40 kms. away, received a telephone call that their daughter had died. They came the next morning at 6.00 a.m. and found the body of the deceased in the middle room of the house, lying on the ground covered with a white sheet. The first information report was lodged at about 7.00 a.m., the inquest report was prepared same day as also the post-mortem was done in the afternoon. The police after completing investigation submitted charge-sheet under section 306 and 498-A, I.P.C. During the course of the trial, considering the nature of evidence that emerged, the Sessions Judge also added section 302, I.P.C. in the charges. The Session Judge held that the charge under section 302 to be established as the deceased had been strangulated to death. The High Court in appeal opined that the deceased had been hanged to death. Both the Courts have unanimously held that the deceased did not commit suicide but that it was a homicidal death.
Hon’ble Navin Sinha and B.R. Gavai, JJ., have held that the occurrence had taken place in the rural environment in the middle of the month of October when it gets dark early. Normally in a rural environment people return home after dusk and life begins early with dawn. It is strange that the appellant did not return home the whole night and was taken into custody on 21.10.1994.
In the circumstances, the onus clearly shifted on the appellant to explain the circumstances and the manner in which the deceased met a homicidal death in the matrimonial home as it was a fact specifically and exclusive to his knowledge. It is not the case of the appellant that there had been an intruder in the house at night.
“……….It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused…….”
In view of our conclusion that the prosecution has clearly established a prima facie case, the precedents cited on behalf of the appellant are not considered relevant in the facts of the present case. Once the prosecution established a prima facie case, the appellant was obliged to furnish some explanation under section 313, Cr. P.C. with regard to the circumstances under which the deceased met an unnatural death inside the house. His failure to offer any explanation whatever therefore leaves no doubt for the conclusion of his being the assailant of the deceased.
Kalu v. State of MP, 2019 (204) AIC 39 SC
FIR taken to be first dying declaration
The appellants have filed the present Criminal Appeal to challenge the order of conviction under section 302, I.P.C. and sentence of Life Imprisonment passed vide Judgment and Order dated 4.12.2008 by Madhya Pradesh High Court in Criminal Appeal No. 206/1994. The High Court has affirmed the Judgment passed by the Sessions Court.
The present appeal arises out of FIR No. 86/1991 lodged on 19.12.1991 at 4.20 p.m. under sections 341, 323, 325, 307 read with 34, I.P.C. by the deceased – Ghansu himself.
Ghansu, in his F.I.R, stated that on 19.12.1991 he had gone to Ishanagar Police Station to file a Report against appellant No. 1 Dayaram Yadav for having beaten his son Chandu. On his way back from the Police Station, at about 3.00 p.m., near Nahar ki Puliya, both the accused viz. Dayaram and Parsu Yadav were hiding in the bushes with lathis. Both of them waylaid him started hitting the deceased with lathis on his head, hands, legs and body which led to severe bleeding. Ghansu fell unconscious. The accused ashamed that the Ghansu had died, and threw his body into the canal, and fled from the scene. While Ghansu was in the water, he regained consciousness and cried for help. Ghansu stated that Chouda Chamar—P.W.9, Thakur Sunla Kumar, Lula Kumhar and Ramlal Kumhar reached the site of occurrence and rescued him. Ghansu stated that the beating was given with a motive to eliminate him completely.
The Hon’ble Ms. Indu Malhotra and R.S. Reddy, JJ., have held that the F.I.R lodged by the deceased was prompt. AS per the statement of the deceased, the incident occurred at 3.00 p.m., and the F.I.R was lodged at 4.20 p.m. by the deceased. The distance between the Police Station and the site of occurrence is about 4 kilometers. The F.I.R was lodged with promptness and the appellants were named in the F.I.R alongwith details of their weapons.
As per section 32(1) OF THE Evidence Act, the F.I.R should be treated as a Dying Declaration.
Considering the totality of the evidence including the two dying declarations made by the deceased, which are both consistent with each other and the ocular evidence is corroborated by the medical evidence, we are satisfied that the prosecution has proved the case beyond reasonable doubt. The chain of circumstances is complete. Court affirm the Judgment passed by the Sessions Court and the High Court.
Dayaram v. State of MP, 2019 (204) AIC 44 SC
