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Wednesday, June 22, 2011

Santosh Jagwayan (PW.13) lodged an FIR on 17.12.1996 at 8.30 A.M., that in the intervening night between 16th and 17th December, 1996 on hearing the noise, he sent his Chowkidar Gopal Nepali (deceased) to the roof of his house. Gopal Nepali went upstairs and opened the gate of the roof and found that 8 to 10 accused persons were trying to enter into the house by breaking upon the door of the roof. They immediately fired shot at Gopal Nepali (deceased) and entered into the house. The accused persons locked Shashi Devi (PW.12) wife of complainant, Preeti (PW.14) and Sandhya (PW.15), his daughters, in the bathroom and started looting the moveable properties. In the meanwhile, his neighbours raised their voice. Thus, the accused immediately fired a shot at Mrs. Anita Yadav, as a result of which, she died on the spot. Kripa Dayal Yadav (PW.2), husband of Anita Yadav (deceased) caught hold of one of the accused but he was beaten with the butt of the gun by the other accused persons and they got the accused released from his clutches. The accused decamped with cash, jewellery and silver wares etc. B. On the basis of the said complaint, an FIR No. 240 of 1996 (Ex.P-30) was registered under Sections 395, 396, 397 and 398 IPC and investigation ensued. The dead bodies of Gopal Nepali and Anita 2 the sole question remains to be decided whether adverse inference could be drawn against the accused merely on the basis of recoveries made on their disclosure statements.


                                                                  REPORTABLE


                 IN THE SUPREME COURT OF INDIA

              CRIMINAL APPELLATE JURISDICTION


                  CRIMINAL APPEAL NO. 937 of 2005




State of Rajasthan                                                         ...Appellant


                                       Versus


Talevar & Anr.                                                              ...Respondents


                                  J U D G M E N T


Dr. B.S. CHAUHAN, J.




1.      This appeal has been preferred by the State of Rajasthan against


the judgment and order dated 27.10.2004 passed by the High Court of


Judicature for Rajasthan, Jaipur Bench, in Criminal Appeal No. 1579


of 2002 acquitting the respondents, setting aside their conviction and


the sentence passed by Additional District and Sessions Judge, (Fast


Track), Laxmangarh, Alwar, dated 2.11.2002 in Sessions Case No. 4


of   2002   (14/2000)   for   the   offences   punishable   under   Sections   395,


396   and   397   of   the   Indian   Penal   Code,   1860   (hereinafter   called   the


IPC).




2.      The   facts   and   circumstances   giving   rise   to   this   case   are   as


under:


A.     Santosh   Jagwayan   (PW.13)   lodged   an   FIR   on   17.12.1996   at


8.30   A.M.,   that   in   the   intervening   night   between   16th  and   17th


December,  1996 on hearing the noise, he sent his Chowkidar Gopal


Nepali   (deceased)   to   the   roof   of   his   house.     Gopal   Nepali   went


upstairs and opened the gate of the roof and found that 8 to 10 accused


persons were trying to enter into the house by breaking upon the door


of the roof.   They immediately fired shot at Gopal Nepali (deceased)


and entered into the house.  The accused persons locked Shashi Devi


(PW.12) wife of complainant, Preeti (PW.14) and Sandhya (PW.15),


his   daughters,   in   the   bathroom   and   started   looting   the   moveable


properties.  In the meanwhile, his neighbours raised their voice.  Thus,


the accused immediately fired a shot at Mrs. Anita Yadav, as a result


of which, she died on the spot.  Kripa Dayal Yadav (PW.2), husband


of Anita Yadav (deceased) caught   hold of one of the accused but he


was beaten with the butt of the gun by the other accused persons and


they   got   the   accused   released   from   his   clutches.   The   accused


decamped with cash, jewellery and silver wares etc.




B.     On   the   basis   of   the   said   complaint,   an   FIR   No.   240   of   1996


(Ex.P-30) was registered under Sections 395, 396, 397 and 398 IPC


and investigation ensued.  The dead bodies of Gopal Nepali and Anita





                                                                                      2


Yadav were recovered and sent for post-mortem examination.  Kuniya


-   accused/respondent   was   arrested   on   24.12.1996.   He   made   a


disclosure statement (Ex.P-76) on 29.12.1996 on the basis of which a


silver   glass   and   one   thousand   rupees   were   recovered   vide   recovery


memo   (Ex.P-53).   Further,   on   his   disclosure   statement,     a   scooter


bearing   No.   RJ-05-0678   was   recovered   vide   recovery   memo   (Ex.P-


52) on 2.1.1997.




C.     Another   accused   Talevar   -   respondent,   was   arrested   on


19.1.1997   and   on   his   disclosure   statement   made   on   26.1.1997,   two


thousand rupees, a silver key ring and a key of Ambassador car was


recovered vide seizure memo (Ex.P-45).




D.     Some   more   recoveries   were   made   from   the   other   accused


persons.   After   completing   the   investigation   chargesheet   was   filed


against   9   accused   persons   including   the   two   respondents.   As   all   of


them   pleaded   not   guilty,   they   were   put   to   trial   for   the   offences


punishable under Sections 395, 396 and 398 IPC.




E.         In   the   Sessions   trial   prosecution   examined   34   witnesses   in


support of its case. The ornaments and stolen articles were identified


by   Shashi  Devi  (PW.12)   and  Santosh  Jagwayan  (PW.13).    The  trial





                                                                                   3


court  vide  judgment  and  order  dated  2.11.2002  convicted  8 accused


including   the   two   respondents.   One   accused   named   Ram   Krishan,


died during the trial.  All of them stood convicted under the provisions


of   Sections   395,   396   and   397   IPC.     All   the   accused   were   awarded


punishment to undergo life imprisonment and a fine of Rs. 1,000/- and


in default of payment of fine, to further undergo six months rigorous


imprisonment under Section 396 IPC. All of them were convicted for


the   offence   punishable   under   Section   397   IPC   and   a   sentence   to


undergo rigorous imprisonment for seven years and a fine of Rs.500/-


and   in   default   of   payment   of   fine,   to   further   undergo   three   months


rigorous   imprisonment.     They   were   further   convicted   under   Section


395   IPC,   awarded   life   imprisonment   and   fine   of   Rs.   1,000/-   and   in


default   of   payment   of   fine,   to   further   undergo   six   months   rigorous


imprisonment.     Accused   namely,   Ghurelal,   Chunchu   @   Bhagwan


Singh, Kallu, Rajpal and Samay Singh were further convicted under


Sections 3/25 and 3/27 of the Arms Act and sentence was awarded to


undergo   three   years   rigorous   imprisonment   and   a   fine   of   Rs.   500/-


each of them, in default of payment of fine, to further undergo three


months rigorous imprisonment.





                                                                                     4


F.      Being aggrieved by the said decision, all the accused including


the   two   respondents   preferred   Criminal   Appeal   No.   1579   of   2002,


which has been decided by the High Court vide judgment and order


dated   27.10.2004   acquitting   the   two   respondents/accused   though


maintaining the conviction and sentence in respect of other accused.


Hence, this appeal by the State against their acquittal.




3.      Dr. Manish  Singhvi, learned  Additional  Advocate  General  for


the   State   of   Rajasthan,   has   submitted   that   recovery   of   some   of   the


looted   property   had   been   made   on   the   basis   of   the   disclosure


statements   made   by   the   said   respondents.   The   law   provides   for   a


presumption that they had participated in the crime and, therefore, the


High   Court   has   wrongly   acquitted   the   said   accused   and   thus,   the


appeal deserves to be allowed.




4.      On the contrary, Shri Altaf Hussain, learned counsel appearing


for   the   said   two   accused,   has   vehemently   opposed   the   appeal


contending   that   mere   recovery   of   looted   property   on   the   disclosure


statement of the accused, is not enough to bring home the charges of


offence of loot or dacoity,  when the recovery is made after expiry of


a considerable period from the date of incident and particularly when


the   nature   of   the   looted   property   is   such   which   can   change   hands




                                                                                     5


easily.  Thus, no inference can be drawn against the respondents. The


order of acquittal made by the High Court has been passed on proper


appreciation   of facts   and  application  of  law.  The  appeal   lacks   merit


and is liable to be dismissed.


5.        We have considered the rival submissions made by the learned


counsel for the parties and perused the record.




6.      Admitted facts remained so far as the two respondents/accused


are   concerned,   that   no   test   identification   parade   was   held   at   all.


Further none of the eye witnesses, particularly, Shashi Devi (PW.12),


Santosh   Jagwayan   (PW.13),   Kripa   Dayal   Yadav   (PW.2),   Preeti


(PW.14)   and   Sandhya   (PW.15),   identified   either   of   the   said


respondents   in   the   court.     Therefore,   there   is   no   evidence   so   far   as


their identification is concerned.




7.      Thus, the sole question remains to be decided whether adverse


inference could be drawn against the accused merely on the basis of


recoveries made on their disclosure statements.




7.1.       In  Gulab   Chand   v.   State   of   M.P.,   AIR   1995   SC   1598,   this


Court   upheld   the   conviction   for   committing   dacoity   on   the   basis   of


recovery   of   ornaments   of   the   deceased   from   the   possession   of   the





                                                                                        6


person   accused   of   robbery   and   murder  immediately  after   the


occurrence.




7.2.         In  Geejaganda Somaiah  v. State of Karnataka, AIR 2007


SC 1355,  this Court relied on the judgment in Gulab Chand (supra)


and   observed   that     simply   on   the   recovery   of   stolen   articles,   no


inference   can   be   drawn   that   a   person   in   possession   of   the   stolen


articles is guilty of the offence of murder and robbery. But culpability


for the aforesaid offences will depend on the facts and circumstances


of the case and the nature of evidence adduced.




        It has been indicated by this Court in Sanwat Khan v. State of


Rajasthan, AIR 1956 SC 54,  that no hard and fast rule can be laid


down   as   to   what   inference   should   be   drawn   from   certain


circumstances.




7.3.    In  Tulsiram   Kanu   v.   State,   AIR   1954   SC   1,  this   Court   has


indicated   that   the   presumption   permitted   to   be   drawn   under   Section


114, Illustration (a) of the Evidence Act 1872  has to be drawn under


the  'important   time   factor'.  If   the   ornaments   in   possession   of   the


deceased are found in possession of a person soon after the murder,


a   presumption   of   guilt   may   be   permitted.   But   if   a   long   period   has





                                                                                      7


expired   in   the   interval,   the   presumption   cannot   be   drawn   having


regard to the circumstances of the case.




7.4.     In Earabhadrappa v. State of Karnataka AIR 1983 SC 446,


this Court held that the nature of the presumption under Illustration (a)


of Section 114 of the Evidence Act must depend upon the nature of


evidence adduced. No fixed time-limit can be laid down to determine


whether possession is recent or otherwise. Each case must be judged


on its own facts. The question as to what amounts to recent possession


sufficient to justify the presumption of guilt varies according "as the


stolen article is or is not calculated to pass readily from hand to hand".


If the stolen articles were such as were not likely to pass readily from


hand to hand, the period of one year that elapsed could not be said to


be   too   long   particularly   when   the   appellant   had   been   absconding


during that period.




7.5.   Following such a reasoning, in Sanjay @ Kaka etc. etc. v. The


State   (NCT   of   Delhi),  AIR   2001   SC   979,  this   Court   upheld   the


conviction by the trial court since disclosure statements were made by


the accused persons on the next day of the commission of the offence


and the property of the deceased was recovered at their instance from


the places where they had kept such properties, on the same day. The





                                                                               8


Court   found   that  the   trial   Court   was   justified   in   holding   that   the


disclosure statements of the accused persons and huge recoveries from


them at their instance by itself was   a sufficient circumstance on the


very   next   day   of   the   incident   which   clearly   went   to   show   that   the


accused persons had joined hands to commit the offence of robbery.


Therefore, recent and unexplained possession of stolen properties will


be taken to be presumptive evidence of the charge of murder as well.




7.6.        In  Ronny  Alias   Ronald   James   Alwaris  &   Ors.   v.   State   of


Maharashtra, AIR 1998 SC 1251,  this Court held that apropos the


recovery of articles belonging to the family of the deceased from the


possession of the appellants soon after the robbery and the murder of


the   deceased   remained   unexplained   by   the   accused,   and   so   the


presumption under Illustration (a) of Section 114 of the Evidence Act


would be attracted :




     "It needs no discussion to conclude that the murder and the

     robbery   of   the   articles   were   found   to   be   part   of   the   same

     transaction.   The   irresistible   conclusion   would   therefore,   be

     that the appellants and no one else had committed the three

     murders and the robbery."


(See also:  Baijur v. State of Madhya Pradesh, AIR 1978 SC 522;

and   Mukund  alias   Kundu   Mishra  &   Anr.   v.   State   of   Madhya

Pradesh, AIR 1997 SC 2622).





                                                                                         9


7.7.     Thus, the law on this issue can be summarized to the effect that


where   only   evidence   against   the   accused   is   recovery   of   stolen


properties, then although the circumstances may indicate that the theft


and murder might have been committed at the same time, it is not safe


to   draw   an   inference   that   the   person   in   possession   of   the   stolen


property had committed the murder. It also depends on the nature of


the property so recovered, whether it was likely to pass readily from


hand to hand. Suspicion should not take the place of proof.




8.     In the instant case, accused Kuniya was arrested on 24.12.1996


and a silver glass and one thousand rupees were alleged to have been


recovered   on   his   disclosure   statement   on   29.12.1996.   Again   on


disclosure   statement   dated   2.1.1997,   a   scooter   alleged   to   have   been


used   in   the   dacoity,   was   recovered.     Similarly,   another   accused


Talevar was arrested on 19.1.1997 and on his disclosure statement on


26.1.1997,   two   thousand   rupees,   a   silver   key   ring   and   a   key   of


Ambassador   car   alleged   to   have   been   used   in   the   crime   were


recovered.   Thus,   it   is   evident   that   recovery   on   the   disclosure


statements   of   either   of   the   respondents/accused   persons   was   not   in


close proximity of time from the date of incident.  More so, recovery


is either of cash, small things or vehicles which can be passed from





                                                                                  10


one person to another without any difficulty.  In such a fact situation,


we   reach   the   inescapable   conclusion   that   no   presumption   can   be


drawn   against   the   said   two   respondents/accused   under   Section   114


Illustration   (a)   of   the   Evidence   Act.   No   adverse   inference   can   be


drawn on the basis of recoveries made on their disclosure statements


to connect them with the commission of the crime.




9.     The  instant   appeal  has   been  prepared   by   the  State  against   the


judgment and order of acquittal of the respondents by the High Court.


The law on the issue is settled to the effect that only in exceptional


cases   where   there   are   compelling   circumstances   and   the   judgment


under appeal is found to be perverse, the appellate court can interfere


with the  order   of  acquittal.  The   appellate  court   should  bear  in mind


the presumption of innocence of the accused and further that the trial


Court's   acquittal   bolsters   the   presumption   of   his   innocence.


Interference   in   a   routine   manner   where   the   other   view   is   possible


should be avoided, unless there are good reasons for interference.


(See : Brahm Swaroop & Anr. v. State of  U.P., AIR 2011 SC 280;

V.S.   Achuthanandan   v.   R.   Balakrishna   Pillai   &   Ors.,   (2011)   3

SCC 317; and Rukia Begum & Ors. v. State of Karnataka, (2011)

4 SCC 779).





                                                                                 11


      10.       In   view   of   the   above,   we   do   not   find   any   reason   to   interfere


      with   the   well   reasoned   judgment   and   order   of   the   High   Court


      acquitting   the   said   respondents.     The   appeal   lacks   merit   and   is


      accordingly dismissed.


                                                                       ....................................

      J.

                                                               (Dr. B.S. CHAUHAN)




                                                                      .....................................J.

                                                               (SWATANTER KUMAR)

      New Delhi,            

      June 17, 2011





 





                                                                                                           12


Thursday, June 16, 2011

a beautiful lesson to the arrogant advocate = Appellant is an advocate practising for last 30 years in the District Court, Etawah (U.P.). On 25.7.1998, he produced one Om Prakash for the purpose of surrender, impersonating him as Ram contempt of court has various kinds, e.g. insult to Judges; attacks upon them; comment on pending proceedings with a tendency to prejudice fair trial; obstruction to officers of Courts, witnesses or the parties; scandalising the Judges or the courts; conduct of a person which tends to bring the authority and administration of the law into disrespect or disregard. Such acts bring the court into disrepute or disrespect or which offend its dignity, affront its majesty or challenge its authority. In a given case, such a conduct be committed "in respect of the whole of the judiciary or judicial system".


                                                                  REPORTABLE


                 IN THE SUPREME COURT OF INDIA

              CRIMINAL APPELLATE JURISDICTION


                  CRIMINAL APPEAL NO. 697 of 2006





Vishram Singh Raghubanshi                                                  ...Appellant


                                       Versus


State of U.P.                                                               ...Respondent





                                J U D G M E N T




Dr. B.S. CHAUHAN, J.


1.      This   appeal   has   been   preferred   under   Section   19   of   the


Contempt   of   Courts   Act,   1971,   (hereinafter   called   the   `Act   1971')


arising out of impugned judgment and order dated 5.5.2006 passed by


the Division Bench of the Allahabad High Court in Contempt of Court


Case No. 13 of 1999.




2.      FACTS:



A)      Appellant   is   an   advocate   practising   for   last   30   years   in   the


District   Court,   Etawah   (U.P.).     On   25.7.1998,   he   produced   one   Om


Prakash   for   the   purpose   of   surrender,   impersonating   him   as   Ram


Kishan S/o Ashrafi Lal who was wanted in a criminal case in the court


of  IInd  ACJM,  Etawah.   There  was  some   controversy  regarding  the


genuineness of the person who came  to surrender and therefore, the


Presiding Officer of the Court raised certain issues.  So, the appellant


misbehaved   with   the   said   officer   in   the   court   and   used   abusive


language.


B)      The  Presiding  Officer  of the  court   vide letter   dated 28.9.1998


made  a complaint against the appellant  to the U.P. Bar Council and


vide letter dated 27.10.1998 made a reference to the High Court for


initiating   contempt   proceedings   under   Section   15   of   the   Act,   1971


against him.   The High Court considered the matter and issued show


cause   notice   on   5.5.1999   to   the   appellant.     In   response   to   the   said


notice, the appellant submitted his reply dated 24.5.1999, denying the


allegations made against him, but, tendering an apology in the form of


an   affidavit   stating   that   he   was   keeping   the   court   in   the   highest


esteem.


C)      The   Bar   Council   of   U.P.   dismissed   the   complaint   referred   by


the   Presiding   Officer   vide   order   dated   18.3.2001,   but   the   Allahabad


High   Court   did   not   consider   it   proper   to   accept   the   explanation


submitted   by   the   appellant   or   accept   the   apology   tendered   by   him,


rather,  it  framed the   charges  against   the  appellant  on  27.9.2004.    In




                                                                                      2


response to the same, the appellant again submitted an affidavit dated


18.10.2005 tendering an apology similar to one in the affidavit filed


earlier.


D)      The   Division   Bench   of   Allahabad   High   Court   considered   the


matter   on   judicial   side,   giving   full   opportunity   to   the   appellant   to


defend himself.   The High Court ultimately held the appellant guilty


of committing the contempt and sentenced him to undergo 3 months


simple imprisonment with a fine of Rs.2,000/-.  Hence this appeal.




3.      This Court vide order dated 26.6.2006 suspended the operation


of sentence and directed the appellant to deposit the fine of Rs. 2,000/-


in this Court, which seems to have been deposited.




4.      Shri   Sanjeev   Bhatnagar,   learned   counsel   appearing   for   the


appellant, has submitted that he would not be in a position to defend


the   contemptuous   behaviour   of   the   appellant   but   insisted   that   the


appellant   is   aged   and   ailing   person   and   had   tendered   absolute   and


unconditional   apologies   several   times.   Thus,   the   apology   may   be


accepted   and   the   sentence   of   three   months   simple   imprisonment   be


quashed.





                                                                                    3


5.     On the contrary, Shri R.K. Gupta, learned counsel appearing for


the   respondent,   has   vehemently   opposed   the   prayer   made   by   Shri


Bhatnagar   and   contended   that   the   appellant   does   not   deserve   any


lenient   treatment   considering   the   language   used   by   him   to   the


Presiding Officer of the court and such a person does not deserve to


remain in a noble profession.   He further contended that the apology


has   not   been   tendered   at   the   initial   stage.   The   first   apology   was


tendered only after receiving show cause notice dated 5.5.1999 from


the High Court and under the pressure. More so, the language of the


apology   is   not   such   which   shows   any   kind   of   remorse   by   the


appellant,   thus,   considering   the   gravity   of   the   misbehaviour   of   the


appellant, no interference is wanted.  Therefore, the appeal is liable to


be rejected.




6.     We   have   considered   the   rival   contentions   made   by   learned


counsel for the parties and perused the record.




7.     Admittedly,   the   case   of   impersonification   of   the   person   to   be


surrendered   is   a   serious   one,   however   we   are   not   concerned   as   to


whether   the   appellant   had   any   role   in   such   impersonification,   but


being an officer of the court, if any issue had been raised in this regard


either by the court or opposite counsel, it was the duty of the appellant




                                                                                   4


to satisfy the Court and establish the identity of the person concerned.


The conduct of the appellant seems to have been in complete violation


and   in   contravention   of   the   "standard   of   professional   conduct   and


etiquette" laid in Section 1 of Chapter 2 (Part-VI) of the Bar Council


of   India   Rules   which,   inter-alia,   provides   that   an   advocate   shall


maintain towards the court a respectful attitude and protect the dignity


of   the   judicial   office.     He   shall   use   his   best   efforts   to   restrain   and


prevent his client from resorting to unfair practices etc. The advocate


would conduct himself with dignity and self respect in the court etc.


etc.


                 There may be a case, where a person is really aggrieved


of misbehaviour/conduct or bias of a judicial officer. He definitely has


a right to raise his grievance, but it should be before the appropriate


forum and  by  resorting  to the  procedure   prescribed  for  it. Under  no


circumstances, such a person can be permitted to become the law unto


himself   and   proceed   in   a   manner   he   wishes,   for   the   reason   that   it


would   render   the   very   existence   of   the   system   of   administration   of


justice at a stake.





                                                                                           5


8.      Before proceeding further with the case, it may be necessary to


make   reference   to   certain   parts   of   the   complaint   lodged   by   the


Presiding Officer to the High Court against the appellant:


(i)      During the course of cross examination in a criminal case on


         22.8.1998,   the   appellant   was   advised   that   he   should   ask


         questions   peacefully   to   the   witness   on   which   the   appellant


         stepped over dias of the court and tried to snatch the paper of


         statement from him and started abusing him that "Madarchod,


         Bahanchod,   make   reference   of   contempt   to   the   High   Court"


         and stepped  out, abusing similarly from the court room.


(ii)     In   another   incident   on   25.7.1998,   three   accused   persons


         namely,   Ram   Krishan,   Ram   Babu   and   Rampal   surrendered


         before   the   court   and   filed   an   application   no.   57Kha   for


         cancellation   for   non-bailable   warrants,   and   the   whole


         proceeding   was   completed   by   him.     Aforesaid   three   accused


         persons,   namely,   Ram   Krishan   and   Ram   Babu   were   real


         brothers   and   sons   of   Ashrafi   Lal.     On   30.7.1998   order   was


         passed   to   release   them   on   bail   but   before   they   could   be


         released,   it   came   to   the   knowledge   of   the   court   that   right


         accused Ram Krishan son of Ashrafi Lal had surrendered and


         sent   to   jail.     This   fact   was   brought   before   the   court   by   the


         mother of the person Om Prakash who was actually sent to jail


         on 1.8.1998, of which enquiry was done and after summoning


         from jail the person in the name of Ram Krishan  stated in the


         court that his name was Om Prakash, son of Sh. Krishan Jatav.


         The   complainant   Bhaidayal   was   also   summoned   who   also


         verified the above fact. Thereafter, an   inquiry was conducted



                                                                                        6


          by   the   Presiding   Officer   who   found   the   involvement   of   the


          appellant in the above case of impersonification.





9.      The   High   Court   examined   the   complaint   and   the   reply


submitted  by the appellant  to show  cause  notice issued by the High


Court.  The High Court did not find the explanation worth acceptable


and,   thus,   vide   order   dated   27.9.2004,   framed   charges   against   the


appellant   in   respect   of   those   allegations   dated   22.8.1998   and


25.7.1998 respectively.




10.       It   is   not   the   case   of   the   appellant   that   he   was   not   given   full


opportunity to defend himself or lead evidence in support of his case.


The   appellant   has   not  chosen   to  defend  himself   on  merit   before   the


High Court, rather he merely tendered apology thrice.  Even before us,


Shri Sanjeev Bhatnagar, learned counsel for the appellant, has fairly


conceded that the appellant had been insisting from the beginning to


accept his apology and let him off. Mr. Bhatnagar's case has been that


in the facts and circumstances of the case, particularly considering the


age   and   ailment   of   the   appellant,   apology   should   be   accepted   and


sentence of three months simple imprisonment be set aside.





                                                                                              7


11.     It   is   settled   principles   of   law   that   it   is   the   seriousness   of   the


irresponsible acts of the contemnor and degree of harm caused to the


administration  of justice, which would decisively determine whether


the matter should be tried as a criminal contempt or not. (Vide:  The


Aligarh Municipal Board & Ors. v. Ekka Tonga Mazdoor Union


& Ors., AIR 1970 SC 1767).


12.     The   court   has   to   examine   whether   the   wrong   is   done   to   the


judge personally or it is done to the public.  The act will be an injury


to the public if it tends to create an apprehension in the minds of the


people   regarding   the   integrity,   ability   or   fairness   of   the   judge   or   to


deter actual and prospective litigants from placing complete reliance


upon   the   court's   administration   of   justice   or   if   it   is   likely   to   cause


embarrassment in the mind of the judge himself in the discharge of his


judicial duties. (See: Brahma Prakash Sharma & Ors. v. The State


of U.P., AIR 1954 SC 10; and Perspective Publications (P.) Ltd. &


Anr. v. The State of Maharashtra, AIR 1971 SC 221).




13.     In the case of  Delhi Judicial Service Association v. State of


Gujarat & Ors., AIR 1991 SC 2176, this Court held that the power to


punish   for   contempt   is   vested   in   the   judges   not   for   their   personal


protection only, but for the protection of public justice, whose interest





                                                                                             8


requires   that  decency  and   decorum is   preserved   in  courts  of  justice.


Those who have to discharge duty in a Court of Justice are protected


by the law, and shielded in the discharge of their duties; any deliberate


interference with the discharge of such duties either in court or outside


the   court   by   attacking   the   presiding   officers   of   the   court   would


amount   to   criminal   contempt   and   the   courts   must   take   serious


cognizance of such conduct.


14.     In E.M.Sankaran Namboodiripad v. T.Narayanan Nambiar,


AIR   1970   SC   2015,   this   Court   observed   that   contempt   of  court   has


various kinds, e.g. insult to Judges; attacks upon them; comment on


pending   proceedings   with   a   tendency   to   prejudice   fair   trial;


obstruction to officers of Courts, witnesses or the parties; scandalising


the Judges or the courts; conduct of a person which tends to bring the


authority   and   administration   of   the   law   into   disrespect   or   disregard.


Such acts bring the court into disrepute or disrespect or which offend


its   dignity,   affront   its   majesty   or   challenge   its   authority.   In   a   given


case,   such   a   conduct   be   committed   "in   respect   of   the   whole   of   the


judiciary or judicial system".


                The   court   rejected   the   argument   that   in   particular


circumstances conduct of the alleged contemnor may be protected by


Article 19(1)(a) of the Constitution i.e. right to freedom of speech and




                                                                                         9


expression,   observing   that   the   words   of   the   second   clause,     of   the


same provision bring any existing law into operation, thus provisions


of the Act 1971 would come into play and each case is to be examined


on its own facts  and the decision must  be reached in the context of


what was done or said.  




15.    Thus, it is apparent that the contempt jurisdiction   is to uphold


majesty and dignity of the law courts and the image of such majesty in


the minds of the public cannot be allowed to be distorted. Any action


taken on contempt or punishment enforced is aimed at protection  of


the   freedom   of   individuals   and   orderly   and   equal   administration   of


laws and not for the purpose of providing immunity from criticism to


the judges. The superior courts have a duty to protect the reputation of


judicial   officers   of   subordinate   courts,   taking   note   of   the   growing


tendency   of   maligning   the   reputation   of   judicial   officers   by


unscrupulous   practising   advocates   who   either   fail   to   secure   desired


orders   or   do   not   succeed   in   browbeating   for   achieving   ulterior


purpose.  Such an issue touches upon the independence of not only the


judicial officers but brings the question of protecting the reputation of


the Institution  as a whole.





                                                                                   10


16.     The dangerous trend of making false allegations against judicial


officers and humiliating them requires to be curbed with heavy hands,


otherwise the judicial system itself would collapse. The Bench and the


Bar have to avoid unwarranted situations on trivial issues that hamper


the cause   of justice and are in the interest of none.   "Liberty of free


expression is not to be confounded or confused with license to make


unfounded   allegations   against   any   institution,   much   less   the


Judiciary".   A lawyer cannot be a mere mouthpiece of his client and


cannot   associate   himself   with   his   client   maligning   the   reputation   of


judicial officers merely because his client failed to secure the desired


order   from   the   said   officer.     A   deliberate   attempt   to   scandalise   the


court which would shake the confidence of the litigating public in the


system,   would   cause   a   very   serious   damage   to   the  Institution   of


judiciary.     An   Advocate   in   a   profession   should   be   diligent   and   his


conduct   should   also   be   diligent   and   conform  to   the   requirements   of


the law by which an Advocate plays a vital role in the preservation of


society   and   justice   system.   Any   violation   of   the   principles   of


professional  ethics   by   an  Advocate  is   unfortunate  and  unacceptable.


(Vide:  O.P. Sharma & Ors. v. High Court of Punjab & Haryana,


(2011) 5 SCALE 518).    





                                                                                     11


17.      This   Court   in  M.B.   Sanghi   v.   High   Court   of   Punjab   &


Haryana & Ors., (1991) 3 SCC 600, observed as under:


               "The foundation of our system which is based on the

       independence and impartiality  of those who man  it will  be

       shaken   if   disparaging   and   derogatory   remarks   are   made

       against   the   presiding   judicial   officer   with   impunity....It   is

       high   time   that   we   realise   that   much   cherished   judicial

       independence   has   to   be   protected   not   only   from   the

       executive or the legislature   but also from those who are an

       integral   part   of   the   system.   An   independent   judiciary   is   of

       vital importance to any free society".




18.      This   leads   us   to   the   question   as   to   whether   the   facts   and


circumstances     referred   hereinabove   warrant   acceptance   of   apology


tendered by the appellant.


        The   famous   humorist   P.G.   Wodehouse   in   his   work   "The   Man


 Upstairs (1914)" described apology :


                        "The   right   sort   of   people   do   not   want

        apologies, and the wrong sort take a mean advantage of

        them."


                  The   apology   means   a   regretful   acknowledge   or   excuse


for   failure.     An   explanation   offered   to   a   person   affected   by   one's


action that no offence  was intended,  coupled with the expression  of


regret   for   any   that   may   have   been   given.     Apology   should   be


unquestionable   in   sincerity.     It   should   be   tempered   with   a   sense   of





                                                                                         12


genuine   remorse   and   repentance,   and   not   a   calculated   strategy   to


avoid punishment




19.     Clause 1 of Section 12 and Explanation attached thereto enables


the   court   to   remit   the   punishment   awarded   for   committing   the


contempt   of   court   on   apology   being   made   to   the   satisfaction   of   the


court.   However,   an   apology   should   not   be   rejected   merely   on   the


ground that it is qualified or tempered at a belated stage if the accused


makes   it  bona   fide.  There   can   be   cases   where   the   wisdom   of


rendering an apology dawns only at a later stage.





20.     Undoubtedly, an apology cannot be a defence, a justification, or


an appropriate  punishment for an act which is in contempt  of court.


An apology can be accepted in case the conduct for which the apology


is   given   is   such   that   it   can   be   "ignored   without   compromising   the


dignity   of   the   court",   or   it   is   intended   to   be   the   evidence   of   real


contrition.  It should be sincere. Apology cannot be accepted in case it


is hollow; there is no remorse; no regret; no repentance, or if it is only


a device to escape the rigour of the law. Such an apology can merely


be termed as paper apology.





                                                                                         13


21.     In Re: Bal Thackeray, Editor Samna, (1998) 8 SCC 660, this


Court accepted the  apology  tendered  by  the contemnor as  the Court


came   to   conclusion   that   apology   was   unconditional   and   it   gave   an


expression of regret and realisation that mistake was genuine.




22.     In L.D. Jaikwal v. State of U.P., AIR 1984 SC 1374, the court


noted that it cannot subscribe to the 'slap-say sorry- and forget' school


of thought in administration of contempt jurisprudence. Saying 'sorry'


does not make the slapper poorer.


(See also: T.N. Godavarman Thirumulpad v. Ashok Khot & Anr.,

AIR 2006 SC 2007)



       So   an   apology   should   not   be   paper   apology   and   expression   of


sorrow should come from the heart and not from the pen; for it is one


thing to 'say' sorry-it is another to 'feel' sorry.




23.     An apology for criminal contempt of court must be offered at


the earliest since a belated apology hardly shows the "contrition which


is   the   essence   of   the   purging   of   a   contempt".   However,   even   if   the


apology   is   not   belated   but   the   court   finds   it   to   be   without   real


contrition   and   remorse,   and   finds   that   it   was   merely   tendered   as   a


weapon of defence, the Court may refuse to accept it.   If the apology


is offered at the time when the contemnor finds that the court is going





                                                                                      14


to impose punishment, it ceases to be an apology and becomes an act


of  a   cringing   coward.   (Vide   :  Mulkh   Raj   v.   The   State   of   Punjab,


AIR 1972 SC 1197; The Secretary, Hailakandi Bar Association v.


State of Assam & Anr., AIR 1996 SC 1925; C. Elumalai and Ors.


v. A.G.L. Irudayaraj and Anr.,  AIR 2009 SC  2214; and  Ranveer


Yadav v. State of Bihar,  (2010) 11 SCC 493).





24.    In  Debabrata   Bandopadhyay   &   Ors.   v.   The   State   of   West


Bengal & Anr.,  AIR 1969 SC 189, this Court while dealing with a


similar issue observed as under:



         ".....Of course, an apology must be offered and that too

         clearly   and   at   the   earliest   opportunity.   A   person   who

         offers a belated apology runs the risk that it may not be

         accepted   for   such   an   apology   hardly   shows   the

         contrition   which   is   the   essence   of   the   purging   of   a

         contempt.   However,   a   man   may   have   the   courage   of

         his convictions and may stake his on proving that he is

         not in contempt and may take the risk. In the present

         case   the   appellants   ran   the   gauntlet   of   such   risk   and

         may be said to have fairly succeeded."





25.    This Court has clearly laid down that apology tendered is not to


be accepted as a matter of course and the Court is not bound to accept


the same.  The court is competent to reject the apology and impose the


punishment   recording   reasons   for   the   same.   The   use   of   insulting


language does not absolve the contemnor on any count whatsoever. If





                                                                                     15


the words are calculated and clearly intended to cause any insult, an


apology if tendered and lack penitence, regret or contrition, does not


deserve   to   be   accepted.   (Vide:  Shri   Baradakanta   Mishra   v.


Registrar of Orissa High  Court & Anr.,   AIR 1974 SC 710;  The


Bar Council of Maharashtra v. M.V. Dabholkar etc., AIR 1976 SC


242;  Asharam M. Jain v. A.T. Gupta & Ors., AIR 1983 SC 1151;


Mohd. Zahir Khan v. Vijai  Singh & Ors.,    AIR 1992 SC 642; In


Re:   Sanjiv   Datta,   (1995)   3   SCC   619;   and  Patel   Rajnikant


Dhulabhai & Ors. v. Patel Chandrakant Dhulabhai & Ors., AIR


2008 SC 3016).


26.     In   the  instant   case,   the  appellant   has   tendered   the  apology   on


24.5.1999 after receiving the show cause notice from the High Court


as   to   why   the   proceedings   for   criminal   contempt   be   not   initiated


against   him.   It   may   be   necessary   to   make   the   reference   to   the   said


apology, the relevant part of which reads as under:



               "That   from   the   above   facts,   it   is   evident   that   the

       deponent has not shown any dis-regard nor abused the

       Presiding   Officer,   learned   Magistrate   and   so   far   as

       allegations against him regarding surrender of Om Prakash

       is the name of Ram Kishan are concerned, the deponent has

       no knowledge regarding fraud committed by Asharfi Lal in

       connivance with others and deponent cannot be blamed for

       any fraudulent act.



               That notwithstanding mentioned in this affidavit,

       the   deponent   tenders   unconditional   apology   to   Mr.   S.C.



                                                                                        16


        Jain,   IInd   Addl.   Chief   Judicial   Magistrate,   Etawah  if    for

        any conduct of the deponent the feelings of Mr. S.C. Jain

        are hurt. The deponent shall do everything and protect the

        dignity of judiciary.                                 (Emphasis added)





27.      On 24.11.2005, the appellant has submitted an affidavit saying


as under:



              "That the deponent expresses his unqualified remorse

       for   the   incident   giving   rise   to   the   present   contempt

       application. The deponent tenders his unconditional apology

       to this Hon'ble Court and to Shri Suresh Chandra Jain, the

       then A.C.J.M.-2 Etawah for the entire incident without any

       qualification   or   pre-condition.   The   deponent   gives   the

       following   solemn   undertaking   that   no   such   incident   would

       occur in future. The deponent has immense respect for this

       Hon'ble Court and all other Courts of Law in the land.



          The   deponent   also   expresses   bona   fide,   genuine   and

       heart-felt   regret   for   the   occurrence   which   the   deponent

       consider a blot on him".




28.      The   High   Court   considered   the   case   elaborately   examining


every   issue   microscopically   and   held   that   there   was   no   reason   to


disbelieve   the   facts   stated   by   the   judicial   officer   against   the


contemnor/appellant,   the   facts   were   acceptable,   and   it   was   clearly


proved that the contemnor was guilty of gross criminal contempt.  The


charges levelled against the appellant stood proved.   A Judge has to


discharge his duty and   passes order in the manner as he thinks fit to


the best of his capability under the facts and circumstances of the case




                                                                                      17


before him.  No litigant, far less an advocate, has any right to take the


law in his own hands.  The contemnor abused the Judge in most filthy


words  unworthy  of mouthing  by  an ordinary person  and that is true


without any justification for him ascending the dais   during the course


of the proceedings and then abusing the judicial officer in the words


"Maaderchod, Bahanchod, High Court Ko Contempt Refer Kar".  The


courts certainly  cannot be intimidated  to seek the favourable orders.


The   appellant   intimidated   the   presiding   officer   of   the   court   hurling


filthiest   abuses   and   lowered   the   authority   of   the   Court,   which   is


tantamount   to   interfere   with   the   due   course   of   judicial   proceedings.


The   charge   which   stood   proved   against   the   appellant   could   not   be


taken lightly and in such a fact-situation the apology tendered by him,


being not bona fide, was not acceptable.




29.    We   have   considered   the   facts   and   circumstances   of   the   case.


The show cause notice was given by the High Court on 5.5.1999. The


appellant submitted his reply on 24.5.1999.  The charges were framed


against him on 27.9.2004 and in his first affidavit dated 18.10.2005,


the appellant had denied all the allegations made against him. The so-


called apology contained ifs and buts.  Appellant is not even sure as to


whether   he   has   committed   the   criminal   contempt   of   the   court   or





                                                                                  18


whether   the   most   filthy   abuses   could   hurt   the   Presiding   Officer.


Appellant   has been of the view that the Officer was a robot and has


no heart at all, thus incapable of having the feelings of being hurt.




             The appellant filed second affidavit dated 24.11.2005 tendering


apology.   The apology has been tendered under pressure only   after


framing   of the charges by the High Court in the Criminal Contempt


when appellant realised that he could be punished.   The apology was


not tendered at the earliest opportunity, rather  tendered belatedly just


to   escape   the   punishment   for   the   grossest   criminal   contempt


committed by him.  The language used by the Advocate for a judicial


officer where he practices  regularly  and earns his  livelihood  is such


that   any   apology   would   fall   short   to   meet   the   requirement   of   the


statutory provisions. There has been no repent or remorse on the part


of the appellant at an initial stage.  Had it been so, instead of making


grossest and scandalous allegations against the judicial officer, writing


complaint against him to the Administrative Judge in the High Court


of Allahabad, the appellant could have gone to the concerned judicial


officer and tendered apology in open court.




         The   appellant   instead   of   yielding   to   the   court   honestly   and


 unconditionally, advanced a well guarded defence by referring to all




                                                                                  19


 the facts that led to the incident. Apology tendered by the appellant


 gives an impression that the same was   in the alternative and not a


 complete surrender before the law. Such attitude has a direct impact


 on the court's independence, dignity and decorum. In order to protect


 the   administration   of   public   justice,   we   must   take   action   as   his


 conduct and utterances cannot be ignored or pardoned. The appellant


 had no business to overawe the court.




            Thus,   we   are   of   the   view   that   the   apology   tendered   by   the


 appellant had neither been sincere nor bona fide and thus, not worth


 acceptance.




30.       The appeal lacks merit and is, accordingly, dismissed. A copy


of   the   judgment   and   order   be   sent   to   the   Chief   Judicial   Magistrate,


Etawah, for taking the appellant into custody and send him to the jail


to serve out the sentence.




                                                             ....................................

J.

                                                         (Dr. B.S. CHAUHAN)




                                                             .....................................

J.

                                                         (SWATANTER KUMAR)

New Delhi,            

June 15, 2011





                                                                                         20


Tuesday, June 14, 2011

circumstantial evidence - This incident had occurred in a broad day light at 9.30 a.m. in the month of August in the agricultural field surrounded by agricultural field of others. Therefore, the presence of a large number of persons in the close vicinity of the place of occurrence can be presumed and it is apparent also from the statement of Aliful Rahmal (PW.6). Thus, had the deceased been with the appellant, somebody could have seen her at the place of occurrence. It cannot be a positive evidence as concluded by the courts below that none other than the appellant could commit her murder because no one else had been there at the place of occurrence. In fact, nobody had ever seen the deceased at the place of occurrence. Digging the earth by a single person to the extent that a dead body be covered by earth requires a considerable time and there was a possibility that during such period somebody could have seen the person indulged in any of these activities, though no evidence is there to that extent. The circumstances from which the conclusion of guilt is to be drawn in such a case should be fully established. The circumstances concerned "must or should" and "not and may be" established. In the instant case, the circumstances have not been established.


                                                                REPORTABLE




                IN THE SUPREME COURT OF INDIA

              CRIMINAL APPELLATE JURISDICTION


                 CRIMINAL APPEAL NO. 831 of 2007




SK. Yusuf                                                                ...Appellant


                                      Versus


State of West Bengal                                                      ...Respondent





                               J U D G M E N T




Dr. B.S. CHAUHAN, J.




1.            This criminal appeal has been preferred against the judgment


and order dated 28.06.2006 passed by the High Court of Calcutta in


C.R.A.No.   229   of   2000,   by   which   it   dismissed   the   appeal   of   the


appellant   against   the   judgment   and   order   of   conviction   dated


26.5.2000   passed   by   the   Additional   Sessions   Judge,   First   Court,


Burdwan   in   Sessions   Trial   No.   7   of   1999,   convicting   the   appellant


under   Sections   302   and   201   of   the   Indian   Penal   code,   1860


(hereinafter referred to as `IPC') and appellant has been imposed the


sentence   to   suffer   rigorous   imprisonment   for   life   under   Section   302


IPC   and   sentence   of   one   year   under   Section   201   IPC.     Both   the


sentences have been directed to run concurrently.




2.     The facts and circumstances giving rise to this case are that:


(A)    On   31.08.1991,   Sahanara   Khatun,   daughter   of   Abdul   Rajak,


resident   of   village   Batrish   Bigha,   PS:   Jamalpur,   aged   13   years,   had


gone to pluck jhinga at about 9.30 A.M. from her jhinga field. She did


not return till 10.30 A.M., her father Abdul Rajak alongwith Habibur


Rahaman   and   Sirajul   Islam   went   to   search   her,   however,   could   not


trace her in the jhinga field. They looked for her in bamboo grove  in


nearby graveyard and found a freshly dug earth, thus, they removed


the soil and found the dead body of Sahanara Khatun.


(B)    Imdad   Ali   (PW.1)   lodged   the   FIR   on   the   same   day   at     12.05


hours   under   Sections   302   and   201   IPC   at   Police   Station   Jamalpur,


District   Burdwan   at   a   distance   of   8   kilometres   from   the   place   of


occurrence,   wherein   the   appellant   was   named   as   accused   on   the


suspicion   that   appellant   was   seen   by   Abdul   Rashid   (PW.5)   and


Swapan  Murmu catching  fish in  the canal  adjoining   his  jhinga  field


and was also seen talking with deceased.  The appellant was having a


spade in his hand, when it is inquired from the appellant, he replied


that he had gone to catch the fish near railway track.   Subsequently,





                                                                                    2


the   appellant   absconded.   In   the   FIR,   it   had   already   been   mentioned


before   committing   the   murder,  Yusuf,   the   appellant   tried   to   commit


rape and on being resisted by the deceased, the appellant assaulted her


on her head with spade and murdered and buried her in the graveyard.


Thus, investigation ensued. The appellant was arrested on 7.9.1991 by


the villagers in the paddy fields near Batrish Bigha and handed over to


the police. It was on his disclosure that an old spade, one ghuni and


one   enamel   thala   (plate)   were   recovered.     After   completing   the


investigation, chargesheet was filed against the appellant. He denied


his involvement in the crime pleading not guilty. Thus, he was put to


trial.  The prosecution examined 19 witnesses to prove its case.


(C)    After   conclusion   of   the   trial,   the   Additional   Sessions   Judge,


Burdwan,   vide   judgment   and   order   dated   26.5.2000   found   the


appellant   guilty   of   offences   punishable   under   Sections   302   and   201


IPC   and   sentenced   him   to   life   imprisonment   and   fine   of   Rs.1,000/-


under   Section   302   IPC   and   further   sentenced   to   one   year   rigorous


imprisonment and fine of Rs.500/- under Section 201 IPC.


(D)    Being   aggrieved   from   the   aforesaid   judgment,   the   appellant


preferred   Criminal   Appeal   No.   229   of   2000   in   the   High   Court   of


Calcutta   which   has   been   dismissed   vide   judgment   and   order   dated


28.6.2006. Hence, this appeal.




                                                                                   3


3.      Shri R.K. Gupta, learned Amicus Curiae, has submitted that it


is a case of circumstantial evidence.   There is no evidence on record


that   Sahanara   Khatun,   deceased,   was   seen   with   the   appellant   at   the


place of occurrence. The spade recovered by the Investigating Officer


during investigation had not been sent for chemical analysis.  The trial


court   as   well   as   the   High   Court   placed   a   very   heavy   reliance   upon


extra-judicial confession allegedly made by the appellant before Nurul


Islam (PW.11) and Ali Hossain (PW.13) and others though there was


no such confession.  Nurul Islam is the brother-in-law of Abdul Rajak


(PW.2), father of the deceased.  Ali Hossain (PW.13) is a resident of


the village of Nurul Islam (PW.11).  He did not support the version of


extra-judicial confession put forward by Nurul Islam (PW.11).  There


are contradictory statements regarding catching hold of the appellant


at Jamalpur after one week of the incidence.  There is  no evidence of


sexual   assault   on   the   deceased.   Dr.   Samudra   Chakraborty   (PW.18),


who   conducted   the   post-mortem   on   the   body   of   Sahanara   Khatun


(deceased) did not mention in his report that any sexual assault was


made on the deceased  prior to her death.  Thus, the appeal deserves to


be allowed.





                                                                                      4


4.      On   the   contrary,   Shri   Tara   Chandra   Sharma,   learned   counsel


appearing   for   the   State,   has   vehemently   opposed   the   appeal


contending   that   there   are   concurrent   findings   of   fact   which   do   not


require any interference by this Court.  Undoubtedly, the case is based


on   circumstantial   evidence   but   chain   is   complete   and   the


circumstantial evidence is so strong that it unmistakably points to the


guilt   of   the   appellant   and   that   circumstances   are   incapable   of


explanation upon any other reasonable hypothesis  that of the guilt of


the   appellant.     There   have   been   sufficient   material   on   the   basis   of


which the two courts below have convicted the appellant and the said


judgments do not require any interference.  The appeal lacks merit and


is liable to be dismissed.




5.      We   have   considered   the   submissions   made   by   the   learned


counsel   for   the   parties   and   perused   the   record.       Before   proceeding


further, it may  be necessary to refer to the findings recorded  by  the


courts below briefly.




6.      Trial Court's findings:


I.      It appears  from the evidence  of Nurul  Islam (PW.11)  and Ali


Hossain (PW.13)  that the accused  made  an extra-judicial  confession


before   them  and   also   before   other   villagers   when   he  was   caught  by




                                                                                     5


them   about   7   days   after   his   leaving   away   from   his   village   after   the


date   of  occurrence.     The   court   further   held   that   there   was  no   direct


evidence and it was a case of circumstantial evidence and there was


enough evidence on record, particularly, of Imdad Ali (PW.1), Abdul


Rajak   (PW.2),   Habibar   Rahaman   (PW.3),   Abdul   Majid   Mallick


(PW.4),   Abdul   Rashid   (PW.5),   Alirul   Rahmal   (PW.6)   and   Abdul


Salam   Mallick   (PW.7)   that   accused   was   present   near   the   place   of


occurrence at the relevant time when Sahanara Khatun, deceased went


to jhinga field and the accused was carrying at that time one spade.




II.     It   appears   from   the   evidence   of   Abdul   Rashid   (PW.5)   and


Alirul   Rahmal   (PW.6)   that   there   was   no   one   else   at   the   place   of


occurrence adjacent to jhinga field and the accused was carrying one


spade   on   the   basis   of   which   the   trial   Court   came   to   the   following


conclusion:


       "So there may be a reasonable inference that the accused,

       who   had   one   spade   in   his   hand   and   who   was   engaged   in

       catching  fish near  the  P.O.,  suddenly   attacked  the victim-

       Sahanara when she came to the jhinga field and thereafter

       attempted to rape her and when he was resisted by her he

       became violent and murdered Sahanara with the help of his

       spade.     The   medical   evidence   given   by   Dr.   Samudra

       Chakraborty   (PW.18)   will   corroborate   that   Sahanara   was

       murdered   by   Yusuf   with   a   sharp-cutting   weapon,   which

       may be a spade and also by suffocation. The accused only

       had the opportunity to assault Sahanara in such a way as he

       carried   the   spade   with   him   at   that   time   and   there   is   no




                                                                                         6


         evidence   from   any   side   that   except   the   accused   such   a

         spade was carried at that time by anybody else. Moreover,

         the   accused   himself   had   admitted   in   his   extra-judicial

         confession   before     Nurul   Islam   (PW.11)   and   Ali   Hossain

         (PW.13)   and   others   that   he   murdered   Sahanara   at   the

         relevant time when he was resisted by her from committing

         rape upon her at the relevant time".  




III.     Extra-judicial confession came from the mouth of the witnesses


who   appeared   to   be   unbiased   and   not   even   remotely   inimical   to   the


accused. Undoubtedly,   Nurul Islam (PW.11) was a maternal uncle of


the deceased but another witness in this regard i.e. Habibar Rahaman


(PW.3) had no relationship with the family of the victim. Therefore, his


evidence to the extent of extra-judicial confession would be legally and


validly   taken   into   consideration.   The   trial   Court   basically   found   the


incriminating   circumstance   against   the   appellant   as   he   is   absconding


and   ultimately   it   found   that   there   was   cogent   evidence   against   the


appellant.




7.              High Court's findings:


        The High Court has  accepted  the judgment  of the trial  Court in


 toto   observing   that   depositions   of   the   witnesses,   particularly,   Abdul


 Majid Mallick (PW.4) and Abdul Rashid (PW.5) remained unshaken


 to the extent that at the material time  they found the accused near the


 place   of   graveyard   with   spade   in   his   hand.   Another   circumstance




                                                                                     7


which swayed with the High Court had been that just after the incident


the   appellant   ran   away.   The   High   Court     has   accepted   non-


examination of some material witnesses, particularly, Swapan Murmu,


Rejaul   and   Sirajul,   accepting   the   explanation   furnished   by   Abdul


Majid Mallick (PW.4) that at the relevant point of leading evidence,


none   of   these   persons   was   available   in   that   area.   The   extra-judicial


confession   made   by   the   appellant-accused   before   Nurul   Islam


(PW.11) and Ali Hossain (PW.13) in presence of others has also been


accepted.   Further,   the   High   Court   had   accepted   the   explanation


furnished by the prosecution that in case there has been some laches


on the part of the Investigating Officer in sending the spade etc. for


chemical analysis, no adverse presumption can be drawn against the


prosecution.   The motive had been found as to the possibility of the


accused   trying   to   commit   sexual   assault.   All   these   factors   had   been


found by the High Court of the conclusive nature as to exclude every


other possibility except the accused being guilty of the offence.




8.      The   case   requires   to  be   examined   as   to  whether   the  aforesaid


findings are sustainable in the eyes of law.




LAST SEEN THEORY:





                                                                                     8


9.       The   courts   below   have   concluded   that   there   was   sufficient


material on record to show that the deceased and the appellant were


seen   together   at   the   place   of   occurrence.   Abdul   Rashid   (PW.5)   is


alleged   to   have   stated   in   this   regard.     The   relevant   part   of   his


statement  reads as under:


       "When  I  was  returning   from  my  field  at  9.00  A.M.,  I  saw

       Yusuf, appellant, catching fish near the jhinga field adjacent

       to   the   graveyard.     I   talked   with   him   there   and   thereafter

       returned home.  I did not see anybody else near that place.

       At   about   10.45   A.M.,   I   heard   that   the   dead   body   of   the

       Sahanara Khatun was recovered from the graveyard as  she

       had   been   murdered   by   someone.     I   went   to   graveyard

       alongwith   others.     When   the   police   officer  asked   me   as   to

       who was the person, I told  him that I saw Yusuf, appellant,

       catching fish in a nala near the graveyard."(Emphasis added)




10.      Another star witness Abdul Majid Mallick (PW.4)  stated :


       "I   alongwith   Rezwan   Ali   went   to   the   house   of   Yusuf,

       appellant.   We   saw   at   the   time   that   Yusuf,   appellant,   was

       going to his house with a spade and thala.  Yusuf, appellant

       reported   to   us   that   he   went   to   catch   fish   beside   the   nala.

       Rasid and Swapan firmly stated that they saw Yusuf,   near

       the jhinga field.  I again went to the house of Yusuf, and saw

       he fled away. Therefore, we could not apprehend Yusuf, in

       our village."




11.      Abdul   Majid   Mallick   (PW.4),   a   resident   of   the   same   village


deposed   that   alongwith   other   persons   particularly   Rezwan   Ali,   he


went to the house of Yusuf, appellant, and saw that he was going to





                                                                                            9


his house with a spade and thala and Yusuf had told them that he had


gone to catch fish beside the nala.  He stated as under:


       "I do not know as to why Sahanara Khatun was murdered.

       Swapan Murmu is not a resident of our village.  I cannot say

       where he is now residing.   Rejowan Ali is an ailing person.

       Sirajul is now residing in Punjab. I saw Yusuf coming to his

       house carrying spade and a plate in his hand.   I heard from

       Rashid and Swapan that they had seen the accused near the

       place of occurrence."




12.      Imdad   Ali   (PW.1),   informant   has   deposed   that   Abdul   Rashid


(PW.5)   and   Swapan   Murmu   (not   examined)   saw   that   Yusuf   was


talking   with   the   deceased,   Sahanara   Khatun.     Abdul   Rajak   (PW.2),


father of the deceased had deposed as under:


              "I came to know that Yusuf murdered my daughter ...

       I   cannot   say   what   was   the   reason   for   murder   of   my

       daughter".




13.      The persons particularly Rezwan Ali and Sirajul who had told


these   witnesses   that   they   had   seen   the   appellant-accused   near   the


jhinga field at the relevant time had not been examined.   More so, it


has not been   stated by any of the aforesaid witnesses or persons not


examined   that   Sahanara   Khatun   (deceased)   was   also   seen   there


alongwith   Yusuf,   appellant.     It   has   not   been   deposed   by   any   of   the


witnesses that deceased was seen talking with the appellant at all.


 





                                                                                     10


14.     The   last   seen   theory   comes   into   play   where   the   time   gap


between the point of time when the accused and deceased were last


seen   alive   and   when   the   deceased   is   found   dead   is   so   small   that


possibility  of any  person other  than the accused  being the  author of


the   crime   becomes   impossible.   (Vide:  Mohd.   Azad  alias   Samin  v.


State of West Bengal, (2008) 15 SCC  449; and  State thr.  Central


Bureau of Investigation v. Mahender Singh Dahiya, (2011) 3 SCC


109).  




15.     From the above, it is evident that neither Abdul Majid Mallick


(PW.4)  nor Abdul Rashid (PW.5) had stated that either of them  had


seen Sahanara Khatun (deceased) alongwith Yusuf,  near the place of


occurrence in close proximity of time.  All the witnesses deposed that


appellant  alone was seen near the place of occurrence with spade   as


he had gone there for catching the fish.  Thus, there is no evidence to


the  extent  that  the  deceased  and   appellant   were  seen   together  at   the


place of occurrence or nearby the same in close proximity of  time.




16.     While   the   appellant-accused   was   examined   by   the   trial   Court


under Section 313 of Code of Criminal Procedure, 1973 (hereinafter


called   as   Cr.P.C.),   he   was   asked   the   question   that   during   that   time


Abdul Rashid  (PW.5)  and Swapan Murmu (not  examined)  had seen




                                                                                     11


him   talking   with   the   deceased.     The   appellant   replied   that   he   was


innocent.




17.       We   fail   to   understand   as   no   witness   had   deposed   seeing


Sahanara   Khatun,   deceased   talking   with   the   appellant/accused,   how


such a question could be put to the accused.


EXTRA-JUDICIAL CONFESSION:


18.       Nurul Islam (PW.11), maternal uncle of the deceased, resident


of village Rupsona, is not a witness of incident, rather deposed that he


was the person who chased and apprehended the appellant after about


7   days   of   the   incident.   The   relevant   part   of   his   statement   reads   as


under:


           "After 6-7 days, when I went to Shyamsundar Bazar for

           my business, I saw Yusuf on the roof of a bus.   He got

           down from the bus after seeing me.   He told me that he

           did   the   wrong   and   begged   apology   for   that  and

           pleaded   not   to   assault   him   but   take   him   to   Jamalpur

           Police   Station.   I     took   Yusuf   towards   Batrish   Bigha

           village by boat and when we  crossed the river Damodar,

           Yusuf   started   running.   I   chased   him   but   failed   to   catch

           him   and   then   cried   for   help.     Thereafter,   public   caught

           Yusuf   at   Jamalpur   Poolmatha.    When   we   took   him   to

           the village, Yusuf admitted to him and others that he

           murdered Sahanara Khatun and, thereafter, he asked

           the   persons   to   take   him   to   Jamalpur   Police   Station.

           Yusuf   told  them  that  he   attempted   to   commit   rape

           upon   Sahanara   Khatun  and   when   she   resisted,   he

           assaulted  her with the spade on her head and killed  her

           and concealed the dead body in the graveyard".          

                                                                         (Emphasis added)




                                                                                              12


            In his cross-examination, PW.11 repeated the same about the


confession made by Yusuf, appellant before him in presence of other


persons of the village.




19.      Ali Hossain (PW.13) is a resident of the village of Nurul Islam


(PW.11) and deposed :


        "......I   went   to   Shyamsundar   Bazar   for   purchasing   goats.

        At that time, we see the accused on the roof of a bus.  My

        friend Nurul Islam who was with me asked the accused to

        come down and he came down from the roof of the bus and

        requested us not to assault him and to take him at the Police

        Station   Jamalpur   and   thereafter   Nurul   Islam   took   the

        accused towards Jamapur Police Station."

 


 In the cross examination, his deposition is as under:


       "I   did   not   state   to   I.O.   that   after   crossing   the   river   at

       Karalaghat   the   accused   ran   towards   Jamalpur.     I   did   not

       chase the accused by crying - catch, catch. I did not state to

       I.O. that some persons of Jamalpur caught the accused. ....  I

       alone went to Shyamsundar Bazar.   Thereafter I purchased

       goats from Shyamsundar Bazar. I cannot say anything more

       about the occurrence."




20.      By  comparison of the statements  of Nurul Islam (PW.11) and


Ali Hossain, (PW.13), it is evident that Nurul Islam (PW.11) did not


state   anywhere   in   his   statement   in   the   court   that   at   the   time   of


apprehending the accused, Ali Hossian (PW.13) was also with him.  It





                                                                                           13


is  only  Ali  Hossain  (PW.13)  who  stated  that  his   friend  Nurul  Islam


(PW.11) was with him.  He further stated that it was Nurul Islam who


asked   the   accused   to   come   down   from   the   roof   of   the   bus   and   the


accused   came   down.     The   statement   of     Nurul   Islam   (PW.11)   is


otherwise that he saw Yusuf, appellant, on the roof of the bus. Yusuf,


appellant, got down from the bus after seeing him and told him that he


did the wrong and begged apology for that.  Ali Hossain (PW.13) did


not speak anywhere regarding any confession, though stated that the


accused   requested   them   not   to   assault,   rather   to   take   him   to   police


station.       The   material   contradictions   are   there   in   respect   of   the


manner   in   which   the   appellant   had   been   apprehended.     Ali   Hossain


(PW.13) did not state that appellant made an attempt to runaway after


making the said witness.




21.     Digambar   Mondal   (PW.19),   the   Investigating   Officer   has


deposed   that   he   had   noticed   the   marks   of   injury   on   the   cheek,


forehead and head of the deceased. The wearing apparels of the victim


were   not   soaked   with   blood.   He   only   sent   the   wearing   pant   of   the


victim for chemical examination. He seized spade but did not sent it


for chemical analysis. In his cross-examination he has stated as under:


              "The   witness   Nurul   Islam   stated   to   me   that   the

       accused   was   caught   by   some   persons   at   Jamalpur   Pool-




                                                                                     14


       matha   and   thereafter   police   came   and   at   that   time   the

       accused   stated  before   those   persons   and   police  that   he

       tried to commit rape Sahanara on 31.8.1998 and when she

       resisted the accused hit her with a spade and thereafter  hid

       her body in the court-yard by digging some earth there".

                                                                          (Emphasis added)


22.     Both,   Nurul   Islam   (PW.11)   and   Ali   Hossain   (PW.13)     are


chance witnesses as they alleged to be in Shyamsundar Bazar on that


date   for   marketing   and   none   of   them   had   regular   business   in   that


bazar.   The Court while dealing with a circumstance of extra-judicial


confession must keep in mind that it is a very weak type of evidence


and require appreciation with great caution.


              Extra-judicial confession must be established to be true and


made voluntarily and in a fit state of mind.  The words of the witness


must   be   clear,   unambiguous   and   clearly   convey   that   accused   is   the


perpetrator   of   the   crime.     The   "extra-judicial   confession   can   be


accepted and can be the basis of a conviction if it passes the test of


credibility".  (See:  State   of  Rajasthan   v.  Raja  Ram,  (2003)  8  SCC


180;   and  Kulvinder   Singh   &   Anr.   v.   State   of   Haryana,   (2011)   5


SCC 258).




23.     Nurul Islam (PW.11) who is maternal uncle of the deceased had


deposed   about   extra-judicial   confession   made   by   the   accused   in


presence of  others,  though he was not able to explain who were the





                                                                                               15


other  persons as  no  other  person  has  been  examined   in this  respect.


Digambar   Mondal   (PW.19)   had   deposed   that   Nurul   Islam   (PW.11)


had told him about the confession by the accused in presence of other


persons and police personnel. The accused had told him also that dead


body was buried in the courtyard.  Thus, the theory of extra-judicial


confession   revealed   by   Nurul   Islam   (PW.11)   does   not   get


corroboration from the statement of Ali Hossain (PW.13) or any other


independent witness or police personnel. Nor the body of the deceased


was   recovered   from   the  courtyard.   While   considering   the   material


contradictions   in   the   statement   of   Nurul   Islam   (PW.11)   and   Ali


Hossain (PW.13), we do not consider that it would be safe to accept


his version in this respect.




24.      Dr. Samudra Chakraborty (PW.18), who conducted the autopsy


on the body of Sahanara Khatun found the following injuries:


       i)      One incised wound 4" x 0.2" x scalp deep over middle


               3rd  of   left   parietal   region   (vault   of   the   scalp)   cutting


               through   the   skin,   pussa,   muscle,   vessel   and   nerve   and


               being placed 1.2" left on mid-line of the body;


       ii)     Bruises over 1" x 0.6" x over left side of forehead and


               being placed 0.5" left of mid-line of the body;





                                                                                    16


                 iii)      One lacerated wound 0.6" x 0.4" muscle and bone deep


                           over left molar region with extra-vesation of blood and


                           blood-clot in around the wound;


                 iv)       Haema toma (red) 3.2" x 1.5" in area over left temporal


                           parietal region;


                 v)        Subdural haemorrhage of both sides of tempero parietal


                           region of the brain.


         

                         In   the   opinion   of   the   doctor,   death   was   due   to   combine


      effect of injuries and suffocation. The incised wound could be caused


      by   a   hit   of   sharp   edge   of   the   spade.   The   haema   toma   on   the   victim


      could be caused by a hit of  heavy blunt weapon.  This witness did not


      speak of any sign of sexual assault on the deceased  before or after her


      death.




      ABSCONDANCE:


      25.     Both   the   courts   below   have   considered   the   circumstance   of


      abscondance of the appellant as a circumstance on the basis of which


      an adverse inference could be drawn against him. It is a settled legal


      proposition   that   in   case   a   person   is   absconding   after   commission   of


      offence of which he may not even be the author, such a circumstance


      alone may not be enough to draw an adverse inference against him as it


      would go against the doctrine of innocence.  It is quite possible that he


      may   be   running   away   merely   being   suspected,   out   of   fear   of   police




                                                                                               17


arrest   and   harassment.     (Vide:  Matru   @   Girish   Chandra   v.     The


State   of   U.P.,   AIR   1971   SC   1050;  Paramjeet   Singh  @   Pamma  v.


State of Uttarakhand  AIR 2011 SC 200; and  Rabindra Kumar Pal


@ Dara Singh v. Republic of India, (2011) 2 SCC 490)




               Thus,   in   view   of   the   law   referred   to   hereinabove,   mere


abscondance of the appellant cannot be taken as a circumstance which


give rise to draw an adverse inference against him.





26.    CIRCUMSTANTIAL EVIDENCE:


               Undoubtedly,   conviction   can   be   based   solely   on


circumstantial  evidence. However, the court must bear in mind while


deciding  the  case  involving   the  commission   of serious   offence   based


on circumstantial evidence that the prosecution case must stand or fall


on its own legs and cannot derive any strength from the weakness of


the   defence   case.     The   circumstances   from   which   the   conclusion   of


guilt is to be drawn should be fully established. The facts so established


should   be   consistent   only   with   the   hypothesis   of   the   guilt   of   the


accused   and   they   should   not   be   explainable   on   any   other   hypothesis


except   that   the   accused   is   guilty.   The   circumstances   should   be   of   a




                                                                                     18


conclusive nature and tendency. There must be a chain of evidence so


complete   as   not   to   leave   any   reasonable   ground   for   the   conclusion


consistent with the innocence of the accused and must show that in all


human probability the act must have been done by the accused. (Vide:


Sharad Birdhichand Sarda  v.  State of Maharashtra, AIR 1984 SC


1622,  Krishnan  v.  State represented by Inspector of Police, (2008)


15 SCC 430; and  Wakkar & Anr. v. State of Uttar Pradesh, (2011)


3 SCC 306).




27.         No   presumption   could   be   drawn   on   the   issue   of   last   seen


together     merely   on   the   fact   that   Abdul   Rajak   (PW.2),   father   of   the


deceased had stated that Sahanara Khatun had gone to pluck the jhinga


and her dead body was recovered from there. The witnesses     merely


stated that the accused was present in the close proximity of that area.


That does not itself establish the last seen theory because none of the


witnesses said that the accused and deceased were seen together.  Most


of the witnesses had deposed that   the accused was having spade.   It


may connect the appellant to the factum of digging the earth. A person


going for catching fish normally does not take a spade with him.


        The nature of the admissibility of the facts discovered pursuant


to  the   statement   of  the   accused   under   Section   27   of  Indian   Evidence





                                                                                      19


Act, 1872 is very limited. If an accused deposes to the police officer


the   fact   as   a   result   of   which   the   weapon   with   which   the   crime   is


committed is discovered, and as a result of such disclosure, recovery of


the weapon is made, no inference can be drawn against the accused, if


there is no evidence connecting the weapon with the crime alleged to


have been committed by the accused.


        Be   that   as   it   may,   the   spade   had   not   been   sent   for   chemical


analysis as  admitted by Digambar Mondal (PW.19), I.O. himself and


there was no explanation furnished as for what reason it was not sent.


In   case   of   circumstantial   evidence,   not   sending   the   weapon   used   in


crime   for   chemical   analysis   is   fatal   for   the   reason   that   the


circumstantial evidence may not lead to the only irresistible conclusion


that the appellant was the perpetrator  of the crime and none else and


that   in   the   absence   of   any   report   of   Serologist   as   to   the   presence   of


human blood on the weapon may make the conviction of the accused


unsustainable. (Vide:  Akhilesh Hajam v. State of Bihar  (1995) Supp


3 SCC 357).


        There is no medical evidence or suggestion by any person as to


the sexual assault on the deceased. Therefore, it merely remained the


guesswork   of   the   people   at   large.   Mere   imagination   that   such   thing


might have happened is not enough to record conviction.




                                                                                           20


28.     This incident had occurred in a broad day light at 9.30 a.m. in


the month of August in the agricultural field surrounded by agricultural


field of others. Therefore,  the presence of a large number of persons in


the close vicinity of the place of occurrence can be presumed and it is


apparent also from the statement of Aliful Rahmal (PW.6). Thus,  had


the deceased been with the appellant, somebody could have seen her at


the place of occurrence. It cannot be a positive evidence as concluded


by  the  courts  below that  none other   than  the  appellant  could  commit


her   murder   because   no   one   else   had   been   there   at   the   place   of


occurrence. In fact, nobody had ever seen the deceased at the place of


occurrence.   Digging   the  earth   by   a   single   person   to   the   extent  that   a


dead body be covered by earth requires a considerable time and there


was a possibility that during such period somebody could have seen the


person indulged in any of these activities, though no evidence is there


to that extent.  The circumstances from which the conclusion of guilt is


to   be   drawn   in   such   a   case   should   be   fully   established.   The


circumstances   concerned   "must   or   should"   and   "not   and   may   be"


established.   In   the   instant   case,   the   circumstances   have   not   been


established.





                                                                                       21


29.      In view of the above, we are of the considered opinion that the


courts below convicted the appellant on a mere superfluous approach


without in depth analysis of the relevant facts.




30.      In the facts and circumstances of the case, the appeal succeeds


and is allowed. The appellant is given benefit of doubt and acquitted of


the   charges   of   offences   punishable   under   Sections   302   and   201   IPC.


Appellant   is  in  jail.    He  be   released  forthwith  unless  his   detention   is


required in any other case.


                                                                ....................................J.

                                                      (Dr. B.S. CHAUHAN)




                                                              .....................................

 J.

                                                      (SWATANTER KUMAR)

 New Delhi,            

 June 14, 2011              





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