Author: Advait Shukla.
Himachal Pradesh High Court
1. State of Himachal v. Amar Nath
Case No. Criminal Appeal No. 27 of 2008)
Date of Reserving Judgment: 19th November 2018
Date of Pronouncing Judgment: 21st November 2018
Coram: The Hon’ble Mr. Tarlok Singh Chauhan, J.
Judgment By: The Hon’ble Mr. Tarlok Singh Chauhan, J.
PRINCIPLES OF LAW DISCUSSED:
- Code of Criminal Procedure: Power Appellate court – In Appeal against acquittal – The Appellate court undoubtedly has wide powers of re-appreciating and re-evaluating the entire evidence – but, it would be justified in interfering with the judgment of acquittal only when the judgment of the trial court is palpably wrong, totally ill-founded or wholly misconceived, based on erroneous analysis of evidence and non-existent material, demonstrably unsustainable or perverse.
- Principles relating to power of appellate courts in appeals from acquittals reiterated
- India Penal Code: 279 & 304A & Motor Vehicles Act: S. 182: Definition of “Negligence” & “Rashness” –distinguished.
- The mere proof of accident – not sufficient as the prosecution was required to establish beyond reasonable doubt that the accident was caused by the accused and it was due to rash and negligent driving of the vehicle by the accused.
- The fact that the vehicle may have been driven in a speed cannot by itself without judging the situation in which driver has been placed – to be a factor to prove the rashness and negligence.
DECISION & DISCUSSION:
In this appeal the Hon’ble has dealt with appeal preferred by the state in an order against acquittal. Judgment has discussed the development of Indian Criminal Jurisprudence on the point of Powers of Appellate Court in Appeal against acquittal.
The law on the subject has been succinctly dealt with by the Hon’ble Supreme Court in Ghurey Lal vs. State of U.P.[1],
“…The earliest case that dealt with the controversy in issue was Sheo Swarup v. King Emperor (AIR 1934 PC 227). In this case, the ambit and scope of the powers of the appellate court in dealing with an appeal against acquittal has been aptly elucidated by the Privy Council. Lord Russell writing the judgment has observed as under: (at p. 230):
“…the High Court should and will always give proper weight and consideration to such matters as (1) the views of the trial Judge as to the credibility of the witnesses, (2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial, (3) the right of the accused to the benefit of any doubt, and (4) the slowness of an appellate court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses.…”…
…. The Appellate court undoubtedly has wide powers of re-appreciating and re-evaluating the entire evidence but it would be justified in interfering with the judgment of acquittal only when the judgment of the trial court is palpably wrong, totally ill-founded or wholly misconceived, based on erroneous analysis of evidence and non-existent material, demonstrably unsustainable or perverse…
…48. The question was again raised prominently in Aher Raja Khima v. State of Saurashtra (AIR 1956 SC 217). Bose, J. expressing the majority view observed (at p.220):
“1…It is, in our opinion, well settled that it is not enough for the High Court to take a different view of the evidence; there must so be substantial and compelling reasons for holding that the trial court was wrong;” …
A Constitution Bench in M.G. Agarwal v. State of Maharashtra (AIR 1963 SC 200) observed… “As an appellate Court the High Court is generally slow in disturbing the finding of fact recorded by the trial Court, particularly when the said finding is based on an appreciation of oral evidence because the trial Court has the advantage of watching the demeanour of the witnesses who have given evidence.”
- … Following principles emerge from the cases above:
- The appellate court may review the evidence in appeals against acquittal under Sections 378 and 386 of the Criminal Procedure Code, 1973. Its power of reviewing evidence is wide and the appellate court can reappreciate the entire evidence on record. It can review the trial court’s conclusion with respect to both facts and law.
- The accused is presumed innocent until proven guilty. The accused possessed this presumption when he was before the trial court. The trial court’s acquittal bolsters the presumption that he is innocent.
- Due or proper weight and consideration must be given to the trial court’s decision. This is especially true when a witness credibility is at issue. It is not enough for the High Court to take a different view of the evidence. There must also be substantial and compelling reasons for holding that trial court was wrong.”
Further, while dealing with question of Negligence & Rashness, the Hon’ble High Court deals with various definitions and law settled through various judgments on the said point.
In Tukaram Sitaram Gore vs. State[2], the learned Single Judge of the Bombay High Court has held that
“… ‘high speed’ of a motor vehicle does not by itself prove rashness or negligence of driver. Supreme Court in the case of Suleman Rahiman v. State of Maharashtra, 70 Bom LR 536 at p.538 (AIR1968 SC 829 at p.831) there must be proof that the rash or negligent act of the accused was the proximate cause of the death and there must be a direct nexus between the death of a person and the rash or negligent act of the accused.”
Further, the court has summarised the settled law on this point as,
“It is more than settled that in order to bring home the guilt of rash and negligent driving, three things need to be proved by the prosecution that too beyond any reasonable doubt: –
- i) that the accident actually took place;
- ii) that the accident took place due to rash and negligent driving;
iii) that the accused was the person, who was driving the vehicle at that time.”
Also, in Badri Prasad Tiwari vs. State[3] Hon’ble Orissa HC set out the difference in rashness and negligence as follows:
“… A distinction between “rashness” and “negligence” is that “rashness” conveys an idea of doing a reckless act without considering any of its consequences, whereas, “negligence” connotes want of proper care…”
Thus, it is absolutely clear that, the element of “rashness” and “negligence” is a sine-qua-non for the offences under Sections 279/304-A IPC and the same cannot be presumed.”
Reliance was also made on old judgment of Holloway J. where he had aptly pointed out that:
“Culpable rashness is acting with the consciousness that the mischievous and illegal consequences may follow, but with the hope that they will not, and often with the belief that the actor has taken sufficient precautions to prevent their happening. The imputability arises from acting despite the consciousness. Culpable negligence is acting without the consciousness that the illegal and mischievous effect will follow, but in circumstances which show that the actor has not exercised the caution incumbent upon him and that if he had, he would have had the consciousness. The imputability arises from the negligence of the civic duty of Circumspection.”[4]
Principle laid down by this judgment:
“Thus, the mere proof of accident in itself is not sufficient as the prosecution was required to establish beyond reasonable doubt that the accident was caused by the accused and it was due to rash and negligent driving of the vehicle by the accused. The death should be direct result of rash and negligent act. Meaning thereby, it must be “causa causans”. It is not enough that it may have been causa sine-qua-non and, therefore, the mere fact that the accused may have been driving the vehicle at a very high speed in itself may not attract the provisions of Section 279 IPC…
… The fact that the vehicle may have been driven in a speed cannot by itself without judging the situation in which driver has been placed to be a factor to prove the rashness and negligence.”
2. State of Himachal Pradesh v. Puneet Goyal
Case No. Criminal Appeal No. 346 of 2007
Date of Reserving Judgment: 16th November 2018
Date of Pronouncing Judgment: 21st November 2018
Coram: The Hon’ble Mr. Tarlok Singh Chauhan, J.
Judgment By: The Hon’ble Mr. Tarlok Singh Chauhan, J.
PRINCIPLES OF LAW DISCUSSED:
- Code of Criminal Procedure: Power Appellate court – In Appeal against acquittal – The Appellate court undoubtedly has wide powers of re-appreciating and re-evaluating the entire evidence – but, it would be justified in interfering with the judgment of acquittal only when the judgment of the trial court is palpably wrong, totally ill-founded or wholly misconceived, based on erroneous analysis of evidence and non-existent material, demonstrably unsustainable or perverse.
- Principles relating to power of appellate courts in appeals from acquittals reiterated
- When out of the same incident two separate FIRs came to be registered – in such circumstances, the evidence of the parties has to be appreciated with more care and caution.
- while dealing with a judgment of acquittal, an appellate Court must consider the entire evidence on record, so as to arrive at a finding as to whether the views of the trial Court are perverse or otherwise unsustainable
- It is only in exceptional cases when there are compelling circumstances and the judgment under appeal is found to be perverse, that the appellate Court can interfere with the order of acquittal.
DECISION & DISCUSSION:
The law on the subject has been succinctly dealt with by the Hon’ble Supreme Court in Ghurey Lal vs. State of U.P.[5] summarised below:
“69. … Following principles emerge from the cases above:
- The appellate court may review the evidence in appeals against acquittal under Sections 378 and 386 of the Criminal Procedure Code, 1973. Its power of reviewing evidence is wide and the appellate court can reappreciate the entire evidence on record. It can review the trial court’s conclusion with respect to both facts and law.
- The accused is presumed innocent until proven guilty. The accused possessed this presumption when he was before the trial court. The trial court’s acquittal bolsters the presumption that he is innocent.
- Due or proper weight and consideration must be given to the trial court’s decision. This is especially true when a witness credibility is at issue. It is not enough for the High Court to take a different view of the evidence. There must also be substantial and compelling reasons for holding that trial court was wrong.”
Principle of law laid by this judgment:
“… 18. that when out of the same incident two separate FIRs came to be registered. Therefore, in such circumstances, the evidence of the parties has to be appreciated with more care and caution.”
“… 21. while dealing with a judgment of acquittal, an appellate Court must consider the entire evidence on record, so as to arrive at a finding as to whether the views of the trial Court are perverse or otherwise unsustainable. Even though the appellate Court is entitled to consider, whether in arriving at a finding of fact, the trial Court has placed the burden of proof incorrectly or failed to take into consideration any admissible evidence and/or had taken into consideration the evidence brought on record contrary to law; the appellate Court should not ordinarily set-aside a judgment of acquittal in a case where two views are possible, though the view of the appellate Court may be the more probable one. The trial Court which has the benefit of watching the demeanour of the witnesses is the best judge of the credibility of the witnesses…
…It is only in exceptional cases where there are compelling circumstances and the judgment under appeal is found to be perverse, that the appellate Court can interfere with the order of acquittal.”
3. Jagjit Singh @ Vicky v. State of Himachal Pradesh.
Case No. Cr. MP(M) No. 1236 of 2018
Date of Pronouncing Judgment: 21st November 2018
Coram: Hon’ble Mr. Sandeep Sharma, J.
Judgment By: Hon’ble Mr. Sandeep Sharma, J.
PRINCIPLES OF LAW DISCUSSED:
- Code of Criminal Procedure:438 – Principles while granting bail reiterated.
- The object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail – The object of bail is neither punitive nor preventative –Deprivation of liberty must be considered a punishment, unless it can be required to ensure that an accused person will stand his trial when called upon.
DECISION & DISCUSSION:
This judgment is an order arising from a bail petition. The FIR was registered against the accused u/s. 376, 506 r/w S. 67 of I.T. Act,2000. There was a delay of one year in lodging of FIR. The Hon’ble High Court while granting the bail, has discussed following important judgments.
In Criminal Appeal No. 227/2018, Dataram Singh vs. State of Uttar Pradesh & Anr, decided on 6.2.2018 Apex Court has held that freedom of an individual cannot be curtailed for indefinite period, especially when his guilt has not been proved. It was further held,
“2. A fundamental postulate of criminal jurisprudence is the presumption of innocence, meaning thereby that a person is believed to be innocent until found guilty. However, there are instances in our criminal law where a reverse onus has been placed on an accused with regard to some specific offences but that is another matter and does not detract from the fundamental postulate in respect of other offences. Yet another important facet of our criminal jurisprudence is that the grant of bail is the general rule and putting a person in jail or in a prison or in a correction home (whichever expression one may wish to use) is an exception. Unfortunately, some of these basic principles appear to have been lost sight of with the result that more and more persons are being incarcerated and for longer periods. This does not do any good to our criminal jurisprudence or to our society.”
Further, in Sanjay Chandra versus Central Bureau of
Investigation[6] wherein it has been held as under:
“The object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventative. Deprivation of liberty must be considered a punishment, unless it can be required to ensure that an accused person will stand his trial when called upon. The Courts owe more than verbal respect to the principle that punishment begins after conviction, and that every man is deemed to be innocent until duly tried and duly found guilty. Detention in custody pending completion of trial could be a cause of great hardship. From time to time, necessity demands that some un-convicted persons should be held in custody pending trial to secure their attendance at the trial but in such cases, “necessity” is the operative test. In India, it would be quite contrary to the concept of personal liberty enshrined in the Constitution that any person should be punished in respect of any matter, upon which, he has not been convicted or that in any circumstances, he should be deprived of his liberty upon only the belief that he will tamper with the witnesses if left at liberty, save in the most extraordinary circumstances. Apart from the question of prevention being the object of refusal of bail, one must not lose sight of the fact that any imprisonment before conviction has a substantial punitive content and it would be improper for any court to refuse bail as a mark of disapproval of former conduct whether the accused has been convicted for it or not or to refuse bail to an un-convicted person for the propose of giving him a taste of imprisonment as a lesson.”
In Prasanta Kumar Sarkar v. Ashis Chatterjee and Anr.[7] has laid down the following principles to be kept in mind, while deciding petition for bail:
“(i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence;
(ii) nature and gravity of the accusation;
(iii) severity of the punishment in the event of conviction;
(iv) danger of the accused absconding or fleeing, if released on bail;
(v) character, behaviour, means, position and standing of the accused;
(vi) likelihood of the offence being repeated;
(vii) reasonable apprehension of the witnesses being influenced; and
(viii) danger, of course, of justice being thwarted by grant of bail.”
4. Dalip Thakur v. Roshan Lal
Case No. Criminal. Revision No. 255 of 2018
Date of Pronouncing Judgment: 21st November 2018
Coram: Hon’ble Mr. Sandeep Sharma, J.
Judgment By: Hon’ble Mr. Sandeep Sharma, J.
PRINCIPLES OF LAW DISCUSSED:
- Negotiable Instruments Act, 1881: Ss. 138 & 147 – while exercising power under Section 147 of the Act, can proceed to order compounding of offence even after recording of conviction by the courts below.
DECISION & DISCUSSION:
While deciding the present Revision Petition, The Hon’ble HC has relied upon, Apex Court’s Judgment in Damodar S. Prabhu v. Sayed Babalal H.[8] where it was held that:
“while exercising power under Section 147 of the Act, can proceed to order compounding of offence even after recording of conviction by the courts below.”
Accordingly, matter is can be compounded and impugned judgments passed by the courts below are quashed and set-aside and the petitioner accused is acquitted of the charges framed against him under Section 138 of the Act.
Bombay High Court
5. Bharat Polaji Ghanchi @ Ghelot & Anr. v. State of Maharashtra
Case No.: Criminal Appeal No.817 Of 2014 With Criminal Appeal No.977 Of 2014
Date of Reserving Judgment: 26th OCTOBER, 2018.
Date of Pronouncing Judgment: 19th NOVEMBER, 2018.
Coram: S.S. SHINDE & A.S. GADKARI, JJ.
Judgment By: S.S. Shinde J.
PRINCIPLES OF LAW DISCUSSED:
- Code of Criminal Procedure: 313 – It is expected from accused to explain that how he came into the possession of the articles, belonging to victim. – The recovery of such articles is reliable evidence.
- Recovery from the place, which is accessible to all – not an incriminating evidence against accused.
- Suspicion cannot take place of the proof – When the only evidence against accused person – recovery of stolen property – although said stolen property is part of transaction of murder – not correct to infer that the person in possession of stolen property is a murderer.
- Indian Evidence Act & Indian Penal Code: S.114 (presumption) & S. 34 (common intention) – not safe to extend the presumption u/s. 114 to hold appellants guilty of the offence of murder – with the aid of Section 34 IPC – Courts must take a cautious view.
DECISION & DISCUSSION:
The Instant Case is based entirely upon the circumstantial evidence laid down by the Prosecution. No eye witness for connecting the accused to the said crime. However, the Prosecution has established a chain of the overwhelming circumstantial evidence thereby linking the accused to the body of crime.
It is further discussed, when the articles (ornaments in instant case) are found in possession of the accused, it is expected from him to offer a plausible explanation regarding the same in his s.313 statement (under CrPC). It is expected from him to explain that how he came into the possession of the said articles belonging to victim. The Court relied upon the judgment of the Apex Court in the case of Praveen vs. Sate of M.P.[9] where it held, “In absence of any explanation from the accused as to the possession of the articles belonging to the victim, the recovery of the articles is reliable.”
When the recovery of weapon is made at the instance of the accused from a place which was accessible to all, then the said circumstance cannot be said to be incriminating against the accused. On this point, the Court referred to Division Bench judgment of the same court, in Sujit Gulab Sohatre & Ors. vs. the state of Maharashtra.[10] “that, recoveries from the places which are accessible to all and sundry is not incriminating evidence”.
However, the court further held that, mere recovery of the articles from the possession of the accused is not sufficient to link him with another offence arising out of the same transaction. Court referred Supreme Court Judgment in Sanwat Khan vs. State of Rajasthan.[11] Where court held,
“(7) … In our Judgment no hard and fast rule can be laid down as to what inference should be drawn from a certain circumstance. Where, however, the only evidence against an accused person is the recovery of stolen property and although the circumstances may indicate that the theft and the murder must have been committed at the same time, it is not safe to draw the inference that the person in possession of the stolen property was the murder. Suspicion cannot take the place of proof.”
Further the court discussed the law dealing with presumptions under S.114 of Indian Evidence Act, 1872. Court relied upon another landmark judgment of Apex Court in Limbaji and others vs. State of Maharashtra[12]
“28. Whether the presumption could be further stretched to find the appellants guilty of the gravest offence of murder is what remains to be considered. It is in this arena, we find divergent views of this Court, as already noticed. In Sanwat Khan case, the three Judge Bench of this Court did not consider it proper to extend the presumption beyond theft (of which the accused were charged) in the absence of any other incriminating circumstances excepting possession of the articles belonging to the deceased soon after the crime…
… we are of the view that in the peculiar circumstances of the case, it would be unsafe to hold the accused guilty of murder, assuming that murder and robbery had taken place as a part of the same transaction…
… When there is reasonable scope for two possibilities and the court is not in a position to know the actual details of the occurrence it is not safe to extend the presumption under Section 114 so as to find the appellants guilty of the offence of murder with the aid of Section 34 IPC. While drawing the presumption under Section 114 on the basis of recent possession of belongings of the victim with the accused, the court must adopt a cautious approach and have an assurance from all angles that the accused not merely committed theft or robbery but also killed the victim.”
In the instant case, Bombay High Court applied the same principle to state that though it is proved that one of the accused has committed theft, there is no separate proof brought by the prosecution to prove that the offence under S.302 was committed by him. Therefore, the court thereby upheld conviction of only one appellant, and partly allowed the appeal of another appellant by convicting him only for the theft and not for murder. As common intention not being established.
6. Sanjay Bhavrao @ Baburao Sapkal v. State of Maharashtra
Case No. CRIMINAL APPEAL NO. 546 OF 2016)
Date of Reserving Judgment: 10/08/2018.
Date of Pronouncing Judgment: 21/11/2018.
Coram: SMT. VIBHA KANKANWADI, J.
Judgment By: SMT. VIBHA KANKANWADI, J.
PRINCIPLES OF LAW DISCUSSED:
- Indian Penal Code: distinction between S.304 & 304-A IPC: Section 304A speaks of causing death by negligence. This Section applies to rash and negligent acts –does not apply to cases where death has been voluntarily caused.
- A rash act is a negligent act done precipitately – Negligence is the genus, of which rashness is the species.
- Principle of ‘res ipsa loquitur’ in Criminal Law: We have already abused that the doctrine of res ipsa loquitur is equally applicable to the cases of accident and not merely to the civil jurisprudence. – Thus, these principles can equally be extended to criminal cases provided the attendant circumstances and basic facts are proved.
- The factum of accident having been established, the Court with the aid of proper evidence may take assistance of attendant circumstances – may apply the doctrine of “res ipsa loquitur
DECISION & DISCUSSION:
The Instant case is an appeal from judgment of conviction. The Hon’ble Bombay HC (Aurangabad Bench), has dealt with the law on point of distinction between S.304 & 304-A IPC. Reliance was made on, Apex Court Judgment in, Prabhakaran V/s State of Kerala,[13] wherein it has been observed that,
“Section 304A speaks of causing death by negligence. This Section applies to rash and negligent acts and does not apply to cases where death has been voluntarily caused. This Section obviously does not apply to the cases where there is an intention to cause death or knowledge that the act will in all probability cause death. It only applies to cases in which without any such intention or knowledge death is caused by what is described as a rash and negligent act”
“…A rash act is a negligent act done precipitately. Negligence is the genus, of which rashness is the species. It has sometimes been observed that in rashness the action is done precipitately that the mischievous or illegal consequences may fall, but with a hope that they will not.”
Further in, Alister Anthony Pareira V/s State of Maharashtra,[14] wherein the distinction has been made in respect of offences under Sections 304A, 304 part I and II, 279 of I. P. C.
Principle of ‘res ipsa loquitur’ in Criminal Law
Further, the Hon’ble High Court has laid down law relating to the acceptance of principle res ipsa loquitur. Reliance was placed on decision wherein it has been held that the elements of doctrine of res ipsa loquitur the event would not have occurred but for someone’s negligence. The evidence on record rules out the possibility that an action of the victim or some third party could be the reason behind the event. Here, the same situation arises.
Further, it was observed that,
“We have already abused that the doctrine of res ipsa loquitur is equally applicable to the cases of accident and not merely to the civil jurisprudence. Thus, these principles can equally be extended to criminal cases provided the attendant circumstances and basic facts are proved. It may also be noticed that either the accident must be proved by proper and cogent evidence or it should be an admitted fact before this principle can be applied. This doctrine comes to aid at subsequent stage where it is not clear as to how and due to whose negligence, the accident occurred. The factum of accident having been established, the Court with the aid of proper evidence may take assistance of attendant circumstances and apply the doctrine of “res ipsa loquitur”. Therefore, definitely the facts before this Court prove that due to the rashness and negligence on the part of appellant, the accident was caused and therefore, he has been rightly held responsible for committing offences punishable under Sections 279, 304A of I. P. C.”
[1] 2008 (10) SCC 450.
[2] AIR 1971 Bombay 164
[3] I (1994) ACC 676.
[4] Nidamorti Nagabhusanam (7 Mad.H.C.R. 119).
[5] 2008 (10) SCC 450.
[6] (2012)1 Supreme Court Cases 49.
[7] (2010) 14 SCC 496.
[8] (2010) 5 SCC 663.
[9] (2008) 16 SCC 166.
[10] 1996 [3] All M.R. 439.
[11] AIR 1956 SC 54.
[12] (2001) 10 SCC 340.
[13] (2007) 14 Supreme Court Cases 269.
[14] (2012) 2 Supreme Court Cases 648.
About the Author: Advait is a 2016-19 Batch student at ILS Law College, Pune.
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Criminal Law Research & Review 