Wednesday, February 29, 2012
INTELLECTUAL PROPERTY APPELLATE BOARD- The plea of non-user is raised to remove the mark and the person defending registration does not plead the facts to show user or bonafide intention to use. Would the person pleading non-user be still bound to adduce evidence of non-user. This is the question in this case.=The fact that applicant filed multiple applications for the mark, or that there is correspondence between applicant and counsel regarding applicant’s applications, hardly establishes a bona fide intent to use the mark. If the filing and prosecution of a trademark application constituted a bona fide intent to use a mark, then in effect, lack of a bona fide intent to use would never be a ground for opposition or cancellation, since an inter partes proceeding can only be brought if the defendant has filed an application. The absence of documentation coupled with applicant’s failure to take testimony or offer any evidence supporting its bona fide intent to use convince us that applicant did not have a bona fide intent to use the mark. Further, that Denny Jaeger, applicant’s chief executive officer, believed BLACK MAIL to be a good mark for future use does not establish a bona fide intent to use. Likewise, applicant’s mere statement that it intends to use the mark, and its denial that it lacked a bona fide intent, do not establish, in fact, that it had a bona fide intent to use the mark in commerce when it filed the involved application. Evidence bearing on bona fide intent is “objective” in the sense that it is evidence in the form of real life facts and by the actions of the applicant, not by the applicant’s testimony as to its subjective state of mind. That is, Congress did not intend the issue to be resolved simply by an officer or applicant later testifying, “Yes, indeed, at the time we filed that application, I did truly intend to use the mark at some time in the future.” 17. This is correct. In this case, there is no pleading rebutting the allegation of non-user. The above passage indicates how bonafide intention is pleaded and if necessary proved. The mere fact that a mark is registered cannot be evidence of use or bonafide intention to use, for then all s. 47 applications must fail. 18. In J.T. McCarthy, McCarthy on Trademarks and Unfair Competition, §19:14 (4th ed. 2009) it is observed “here the complete lack of documentation or testimony clearly outweighs any subjective or sworn intent to use the mark.” 19. In the present case, (a) The deed of assignment of the trade mark cannot take effect for want of compliance of section 42; and (b) The ground of non-user is accepted and the conditions of Section 47(i)(a) are satisfied. 20. The continuance of the mark in the register is without justifiable cause. In these circumstances, the trade mark is liable to be removed/cancelled. The Registrar is therefore directed to remove the impugned trade mark SHELL AUTOSERV under No. 1237451 in class 36 from the register.
INTELLECTUAL PROPERTY APPELLATE BOARD Guna Complex, Annexe-I, 2nd Floor, 443, Anna Salai, Teynampet, Chennai – 600 018 (Circuit Bench Hearing at Mumbai) M.P.No. 182 & 183 of 2009 in ORA/223/2008/TM/MUM and ORA/223/2008/TM/MUM FRIDAY THIS, THE 3rd DAY OF FEBRUARY, 2012 Hon’ble Smt. Justice Prabha Sridevan -- Chairman Hon’ble Ms. S. Usha -- Vice Chairman SHELL TRANSOURCE LIMITED GROUND FLOOR, SHAH INDUSTRIAL ESTATE -- Applicant SAKI VIHAR ROAD, ANDHERI (EAST) MUMBAI – 400 072, MAHARASHTRA (By Advocate Ms. Usha Athreya Chandrasekhar) Vs. SHELL INTERNATIONAL PETROLEUM COMPANY LTD. “SHELL CENTRE” LONDON SE1 7NA E N G L A N D -- Respondent (By Advocate Shri Abhishek Nayar) ORDER No. 31/2012 HON’BLE SMT. JUSTICE PRABHA SRIDEVAN, CHAIRMAN: 1. The plea of non-user is raised to remove the mark and the person defending registration does not plead the facts to show user or bonafide intention to use. Would the person pleading non-user be still bound to adduce evidence of non-user. This is the question in this case. 2. This application has been filed for removing the mark SHELL AUTOSERV under Registration No. 1237451 in class 36. 3. The ground on which the applicant seeks rectification is that the impugned mark has not been used by the respondent in respect of the services for which it is registered. The applicant has been using the mark since February 2003. SHELL is part of their corporate name since 1990. The applicant is the largest growing BPO delivering quality services. They serve fifty of the counters leading banks and are also one of the four major franchisee of NSDL. They have been in the business since 1990 and have registered large and impressive sales of their business under the name SHELL COMPUTERS LIMITED and since 2003 under the name SHELL TRANSOURCE LIMITED. They afford various services in the financial and insurance sectors. Because of extensive floods, the applicant is unable to produce the necessary records. In February 2006, the applicant adopted a distinctive thumb imprint device also. They have achieved an enviable reputation because of the quality of their services. When the Trade Marks Act extended its protection to service marks, the applicant has filed the following applications:- · Application No. 1636283 in respect of Records management services, namely, document indexing for others, Business process outsourcing services, Human capital management outsourcing services, Outsourcing services (business assistance), Management information, Document management and reproduction, sales promotion for others, compiling of statistics, computerized file management system, transcription, Data search services, business research, book keeping services, cost price analysis included in class 35 · Application No. 1636282 in respect of Insurance and financial information and consultancy services, Cheque verification, processing and collection services, Cash management services, Commercial registered and transfer agent services, Telephone calling services included in class 36 · Application No. 1636281in respect of Electronic and physical capture and storage of data and related services included in class 39 · Application No. 1636280 in respect of Electronic imaging, scanning, digitizing, alteration and/or retouching of (indicate type of visual material, e.g. photographic images, artwork, paintings, etc.) included in class 40 and · Application No. 1636279 in respect of Identification verification services, namely, providing authentication of personal identification information, Software development, Data Analysis, Data conversion services included in class 42 of the Trade Marks Act, 1999 claiming use since 2003. They are all pending registrations. The respondent has filed C.S. No. 915/2008 before the Hon’ble Delhi High Court. The respondent has neither used nor do they have a bonafide intention to use the mark. Even after eight years, there is no iota of evidence of use nor a bonafide intention to use. On the date of application, the impugned mark was “proposed to be used”. If there is no evidence of use thereafter then the mark is liable to be struck off. The applicant is “a person aggrieved” as the applications filed by the applicant is opposed by the respondent. The mark must be removed. 4. The respondent’s case is that the registration must stand. The applicant has not proved non-user by way of affidavits from dealers and traders. The applicant must succeed on the strength of this case, not really on the weakness of the other side. Therefore according to the respondent, the mark does not deserve to be removed. 5. Broadly, on the above pleadings, the parties came before us. 6. The Learned Counsel for the applicant submitted that the respondent has not shown how it is entitled to be the proprietor of the registered Trade Mark. The Deed of Assignment contains no recital relating to consideration. The relationship between the assignor and the assignee is not clear. The assignment is without goodwill and is contrary to section 42 of the Trade Marks Act, 1999. No application has been made to the Trade Mark Registry for the change of name. The mark has been never used for the services for which it is registered. The applicant has been in business from 1980. But the civil suit has been filed by the respondent only in 2008. None of the allegations have been specifically traversed in the counter statement. Therefore, they stand un-rebutted and on the ground of non-user, the mark must be removed. 7. The Learned Counsel for the respondent submitted that the documents filed by the applicant only show that they functioned as a BPO and the mark has not been used for services rendered. The applicant’s mark has not been used and has not therefore acquired distinctiveness. SHELL TRANSOURCE is only a trade name and the applicant cannot claim “user” as a trade mark for goods or services. The respondent has intention to use. The applicant is not a person aggrieved. 8. Both sides filed written submissions. In addition, the respondent has filed Miscellaneous Petition No. 182 & 183 of 2009. By these Miscellaneous Petitions, the respondent seeks to file the Deed of Assignment to show that the impugned mark was assigned to SHELL BRANDS INTERNATIONAL AG from the respondent herein and therefore appropriate amendment must be effected. 9. Miscellaneous Petition No. 182/2009 is for amendment of the counter statement in view of the assignment. Miscellaneous Petition No. 183/2009 is for early hearing of the amended affidavit. 10. The impugned mark was registered on 13.06.2006. The user is “proposed to be used”. The Assignment Deed shows that it is without goodwill. Section 42 provides that any assignment of a trade mark whether registered or un-registered if made otherwise than in connection with the goodwill, the assignment will not take effect unless the assignee makes an application to the Registry for directions with respect of the advertisement of the assignment. This application shall be made not later than the lapse of six months from the date on which the assignment is made and at any rate not exceeding three months even if the period is extended. This extended period must be allowed by the Registry. Therefore, for an assignment of trade mark to take effect, the following conditions should be satisfied when it is made “otherwise than in connection with the goodwill of the business”, (a) An application should be made by the assignee to the Registry; (b) This application should seek directions with respect to the advertisement of the assignment to advertise it in such a form and manner and within such period as the Registrar may direct; (c) This application should be made not later than expiration of six months from the date on which the assignment is made; and (d) If it can not be made within those six months the applicant must seek extension of time from the Registrar. (e) The Registrar may allow the extension sought for which shall not exceed three months in all. Therefore, the time within which the application is to be made is prescribed in Section 42 the purpose for which the application is made is also explained, and the manner of compliance with the directions of the Registrar is also set out. 11. In this case, the alleged assignment has been made in 2005 and the Miscellaneous Petitions are filed in 2009. There is no averment in the affidavit in support of the application that the application has been made to the Registry as per Section 42. We cannot give effect to the assignment. This is a peculiar situation where the existing respondent has allegedly transferred their rights over the trade mark and such assignment is not recorded as per section 42. As far as we are concerned, we cannot take note of the assignment. This objection relating to the Assignment Deed raised by the applicant in the Miscellaneous Petition No. 82 and 83 of 2009 deserves acceptance. Therefore amendment cannot be allowed. Therefore the Miscellaneous Petitions will have to be dismissed. 12. The applicant relied on the following judgments:- (a) Trademark Trial and Appeal Board’s judgment in Research In Motion Limited Vs. NBOR Corporation of 12.2.2009 to show with regard to evidence on lack of bonafide intent; (b) Intellectual Property Appellate Board (IPAB)’s judgment in Royal Snacks Food Products Vs. NABISCO Inc. dated 10.1.2005 to show with regard to non-user, the Board has mentioned that “it may be worthwhile to refer to the judgment of the Supreme Court in Milment Oftho Industries & Ors. Vs. Allergan Inc. 2004 (28) PTC 585 (SC):- “However, one note of caution must be expressed. Multinational Corporations who have no intention of coming to India or introducing their product in India should not be allowed to throttle an Indian company by not permitting it to sell a product in India, if the Indian company has genuinely adopted the mark and developed the product and is first in the market. Thus, the ultimate test should be who is first in the market.” 13. The respondent relied on the following judgments:- (a) AIR 2009 SC892 (Kabushiki Kaisha Toshiba Vs. TOSIBA Appliances Co. and Ors.), it was held that “Nature of evidence required for filing non-use rectification: Since non user is a negative fact, it can be proved by affidavit evidence. The affidavit should clearly state the details of investigation made by the deponent regarding non user, the persons whom he contacted and the trade directories or other published documents he has consulted and names of individuals contacted who are potential customers of the goods in question and so on. The applicant has to establish that the mark sought to be removed has not been used in relation to the goods during the relevant period. Once a prima facie case of non use is established, the onus shifts to the registered proprietor to prove his case.” “Applying this to the present case, it is submitted that the present rectification has been filed by the applicant without any use of its mark SHELL TRANSOURCE in relation to the services for the mark SHELL AUTOSERV in class 36 under registration No. 1237451. Thus, the applicant it is not the person aggrieved under the Act as required under section 47 of the Act which is a pre-requisite for filing the rectification application. It is further submitted that the Applicant is not a person aggrieved since he has not used the mark SHELL TRANSOURCE and no practical damage or injury would be caused to the applicant if SHELL AUTOSERV stands in the register. ” (b) In Wright, Crossley, and Co. (1898) 15 RPC 131 it was held that…….”an applicant, in order to show that he is a person aggrieved, must show that in some possible way he may be damaged or injured if the trade mark is allowed to stand; and by ‘possible’ I mean possible in a practical sense, and not merely a fantastic view’. (c) In Revlon Vs. Rajendra Kumar 1995 AIPC 30 at 34-37 (Cal) where it was held that only after satisfactory evidence is filed to establish non-user then the onus will shift to the registered proprietor. (d) AIR 1993 Bom 185 Eagle Potteries Private Ltd. Vs. Eagle Flask Industries Private Ltd., it was held “There can be no doubt that the burden of proving non-user will always be on the party making the averments in the Petition. No other evidence either by way of Affidavits from dealers and traders or oral evidence has been lead to show that there has been no use by the 1st Respondent or that these are not goods of the same description. The Court held that merely making an averment is not sufficient. If a party wants to prove a particular fact, the burden is on that party and in cases like the present where the valuable rights of a registered owner are sought to be taken away, the burden must be strictly discharged. (e) State of Rajasthan and Ors. Vs. Nandlal and Ors. 1993 (Suppl.) 1 SCC 681 the Hon’ble Supreme Court held that the allegations made by each of the petitioners have to be established by him. It is settled proposition of law that burden of proof always lies upon the party who makes certain allegations and seeks relief on it. The Court has to address itself whether the party, which has made the allegations, has discharged the burden of proving the allegations. Further, the party must succeed on the strength of its own case rather than on the weakness of the case of the other side. Such a party is under a legal obligation to prove its case irrespective of the fact whether the opposite party has proved its case or not. A mere destruction of the case of the defendant in absence of establishment of his own case, carried the petitioner nowhere. 14. We have considered the rival submissions and the materials before us. There is no disagreement with the position that he who pleads non-user must prove it. But when the applicant has pleaded non-user, the respondent must specifically deny it stating the facts on which he denies non-user. In the absence of specific denial we can only hold that the allegations stands admitted. This is the spirit of Order 8 Rule 3 and Rule 5 (CPC). There must be pleading of a fact and then there must be acceptable evidence to prove the same. The respondent should have pleaded that they have in fact used the mark after registration and set out the details regarding that. If the respondent does not plead that they had in fact used the mark it would be difficult for the applicant to prove non user. In fact it is unnecessary. Not having pleaded that they had used the mark the respondent cannot let in evidence to show how they have used the mark. Let us take the example of a suit on a promissory note. The plaintiff sues because of non-payment. The defendant can plead non-execution of course. But if he accepts execution then he should plead the facts to show when he returned the loan. Then the plaintiff can prove that the repayment is false. But if the defendant merely denies non-payment, the plaintiff would find it very difficult to prove non-payment. The task is many times more difficult in a case of non-user. 15. The applicant has shown that they have been trading in the name of SHELL TRANSOURCE with regard to financial services. They are aggrieved because of the Suit filed by the respondent. The main defence of the respondent regarding the pleading of non-user is that the applicant has not proved that the respondent has not used the mark. 16. The Revlon case (cited supra) is used to defeat rectification applications on the ground that there is no evidence let in by the applicant seeking rectification that the registered proprietor has not used the mark. In the present case, apart from stating that “The applicant has miserably failed to show how the respondent has registered the mark SHELL AUTOSERV without a bonafide intention to use the mark in relation to the services in respect of which it is registered” the respondent has not pleaded that they have used it. We have gone through the counter statement and we found that in the primary objections, para 3 (iii) the above averment is found and in the para-wise reply, in para 7, it is stated that viz-a-viz the applicant’s submission in para 22 the respondent submitted that they had registered the mark with a bonafide intention to use the said mark in India in relation to the services for which it is registered. There is absolutely no pleading that they are using the mark after registration. Unless the respondent had pleaded that they are in fact using the mark, there is no duty cast on the applicant to prove that they are not using. Without pleading to that effect, the applicant’s case is as good as admitted and the respondent cannot in fact let any evidence of user and has not in fact let in any evidence. The mark remains as a “proposed to be used mark”. As regards bonafide intention too, the respondent must state the facts to show such intention, otherwise it would be difficult for the applicant to let in any evidence or file affidavits to show bonafide intention i.e. what transpires in the minds of the persons that who run the respondent company. For that, there must be intrinsic evidence on the side of the respondent like internal correspondence or advertisements etc., to show that there was some intention to use. There is no pleading regarding the user. If so, the applicant need not prove non-user. It is for the respondent to first plead bonafide intention; which they have not done. Therefore, in the absence of pleading regarding use or bonafide intention to use, we have to accept the applicant’s case. In this case, we may look at the order of the Trademark Trial and Appeal Board in Research In Motion Limited Vs. NBOR Corporation of 12.2.2009, where it is held that “In sum, applicant has no documentation to demonstrate that it had the requisite bona fide intent to use the mark BLACK MAIL in commerce when it filed the present application. As evidenced by its responses to discovery requests, applicant has no plans relating to use of the mark, no plans relating to trade channels or target customers, and no plans for expansion and growth of its product line to be sold under the mark. So as to be clear, the record it completely devoid or any evidence such as product design efforts, test marketing, correspondence with prospective licenses, preparation or marketing plans or business plans, creation of labels, marketing or promotional materials, and the like. Applicant has not rebutted opposer’s showing that applicant lacked the requisite bona fide intent. The fact that applicant filed multiple applications for the mark, or that there is correspondence between applicant and counsel regarding applicant’s applications, hardly establishes a bona fide intent to use the mark. If the filing and prosecution of a trademark application constituted a bona fide intent to use a mark, then in effect, lack of a bona fide intent to use would never be a ground for opposition or cancellation, since an inter partes proceeding can only be brought if the defendant has filed an application. The absence of documentation coupled with applicant’s failure to take testimony or offer any evidence supporting its bona fide intent to use convince us that applicant did not have a bona fide intent to use the mark. Further, that Denny Jaeger, applicant’s chief executive officer, believed BLACK MAIL to be a good mark for future use does not establish a bona fide intent to use. Likewise, applicant’s mere statement that it intends to use the mark, and its denial that it lacked a bona fide intent, do not establish, in fact, that it had a bona fide intent to use the mark in commerce when it filed the involved application. Evidence bearing on bona fide intent is “objective” in the sense that it is evidence in the form of real life facts and by the actions of the applicant, not by the applicant’s testimony as to its subjective state of mind. That is, Congress did not intend the issue to be resolved simply by an officer or applicant later testifying, “Yes, indeed, at the time we filed that application, I did truly intend to use the mark at some time in the future.” 17. This is correct. In this case, there is no pleading rebutting the allegation of non-user. The above passage indicates how bonafide intention is pleaded and if necessary proved. The mere fact that a mark is registered cannot be evidence of use or bonafide intention to use, for then all s. 47 applications must fail. 18. In J.T. McCarthy, McCarthy on Trademarks and Unfair Competition, §19:14 (4th ed. 2009) it is observed “here the complete lack of documentation or testimony clearly outweighs any subjective or sworn intent to use the mark.” 19. In the present case, (a) The deed of assignment of the trade mark cannot take effect for want of compliance of section 42; and (b) The ground of non-user is accepted and the conditions of Section 47(i)(a) are satisfied. 20. The continuance of the mark in the register is without justifiable cause. In these circumstances, the trade mark is liable to be removed/cancelled. The Registrar is therefore directed to remove the impugned trade mark SHELL AUTOSERV under No. 1237451 in class 36 from the register. (Ms. S. USHA) (JUSTICE PRABHA SRIDEVAN) Vice-Chairman Chairman (Disclaimer: This order is being published for present information and should not be taken as a certified copy issued by the Board.)
INTELLECTUAL PROPERTY APPELLATE BOARD=A person who has used the trade mark before the use of the mark by the registered proprietor is a person aggrieved. Lord Watson held in Powels Trade Mark case ; “In my opinion, any trader is, in the sense of the statute, “aggrieved” whenever the registration of a particular trade mark operates in restraint of what would otherwise have been his legal rights. Whatever benefit is gained by registration must instant a corresponding disadvantage upon a trader who might possibly have had occasion to use the mark in the course of his business.” 14. The marks are identical in respect of identical goods. The use of the trade mark by the applicant is prior to that of the respondents. The applicants are not only prior user but are also the registered proprietor of the trade mark even before the respondents use. The applicant is therefore a person aggrieved. 15. In the case on hand, the applicant has been using the mark since 1965 and is a registered proprietor as of the year 1993, whereas the respondent has used the trade mark since 2001 as seen from the impugned application for registration. Though the respondent claims use of the mark since 1965, there is nothing in proof of the same. The respondent has filed few documents like the gift deed, certificate issued by the Registrar of firms, few assessment orders, deed of partnership, copy of order passed by the Hon’ble High Court of Bombay, Nagpur Bench in the appeal against the order passed by the 7th Adhoc District Judge, Nagpur and the Memorandum of Articles of Association. These documents are filed to support their case that they are carrying on business since 1950’s. No doubt the respondent is carrying on business since 1956 but it is their own case that their use of the trade mark SHAKTI is since 2001. The applicant as seen from the records is the prior user of the trade mark SHAKTI. 16. We find that there is nothing on record to prove the respondents use as a trade mark. The respondent have stated in their counter statement that they are using the mark since 1965 but have stated in their application for registration that they are using the trade mark since 2001. Even if we consider the respondents use since 2001, there is no cogent evidence to prove their use. 17. The applicants are the prior user of the trade mark in our view. The applicant’s rights are therefore to be protected. Consequently, the application for rectification is allowed with a direction to the Registrar of Trade Marks to cancel the trade mark registered under No.1038628 in class 16. There shall be no order as to costs.
INTELLECTUAL PROPERTY APPELLATE BOARD Guna Complex Annexe-I, 2nd Floor, 443, Anna Salai, Teynampet, Chennai-600018 CIRCUIT BENCH SITTING AT MUMBAI ORA/37/2007/TM/MUM FRIDAY, THIS THE 3RD DAY OF FEBRUARY, 2012 Hon'ble Smt. Justice Prabha Sridevan … Chairman Hon'ble Ms. S. Usha … Vice-Chairman Ramesh G. Hirani & Ramkumar, Assudaram Khubchandani, M/s. Shakti Traders, 11, G.M. Market, Gandhibagh, Nagpur – 440 002, Maharashtra … Applicant (By Advocate – Shri Ashok Keyser) Vs. Shakti Press Limited, Shakti House, Wardha Road, Nagpur – 440 012, Maharashtra. … Respondent (By Advocate – None) ORDER (No.32 of 2012) Hon’ble Ms. S. Usha, Vice-Chairman: The original rectification application has been filed to cancel the trade mark “SHAKTI” registered under No.1038628 in class 16 under the provisions of the Trade Marks Act, 1999 (hereinafter referred to as the Act). 2. The applicants are the registered proprietors of the trade mark “SHAKTI” under No.610757 in class 16 in respect of office files, index files, ruled and plain registers, printed registers, cash books, exercise books, ledger books, account books of all types, envelopes, chalk sticks, paper pin, letter pads, writing pads, computer files, diaries of all kinds, duplicate books, gem clips, sign and marker pens, ball pens and ball pen refills. The applicants has openly, honestly, continuously, extensively and uninterruptedly used the trade mark SHAKTI since 1965. The trade mark has acquired distinctiveness by long and extensive user. 3. The impugned trade mark was registered with an ulterior motive of infringing upon the applicants registered trade mark. The registration has been wrongly obtained. The respondents are not the proprietors of the trade mark. The impugned trade mark may be removed from the register in order to maintain the purity of the register. 4. The respondents filed their counter statement opposing the application for rectification. The respondent had denied all the averments made in the application for rectification. The respondents are the market leaders in printing and packaging industry in Central India. The main object is to set up, purchase or otherwise acquire and printing machines and to carry on the business of printing, publishing’s, lithographers, offset printers, stereo types, electro types, photographic printers, engravers, dies sinkers, numerical printers, box makers, paper bag and account book makers, cardboard package and container manufacturers, type founders, manufacturers of and dealers in playing, visiting railway, festivals complementary and fancy cards and other stationery products and Note Book and Exercise Books etc. 5. The respondent stated that one Late Shri Kashiram Dhote, the founder of the Shakti Group of companies commenced the business of Litho and offset printing in 1950’s by the name Shakti Offset Works. Thereafter by a Gift Deed, gifted the said business along with goodwill to his sons namely Sadanand Kashiram Dhote and Gajanan Kashiram Dhote. In November, 1956 a partnership firm was formed and registered with the Registrar of Firms on 13.12.1956. Therefore from 1950’s the respondent had been using the trade mark and is known to the public at large. M/s. Shakti Offset Press Private Limited was subsequently converted into public limited company. The word Shakti has become a part of their corporate name – “Shakti group of Companies”. 6. The respondents are using the trade mark on their products and they are the aggrieved person and have filed rectification application against the applicant’s trade mark. The respondents have spent huge amount towards promotional activities. The applicant has filed no evidence regarding confusion or deception. The respondents sales turnover runs to `.314,14,114.70 and `.286,16,674.73 for the periods 2004-2005 and 2006-2007 respectively. The applicant has acquiesced the respondent’s use of the mark. The applicant has not opposed the registration before the Registrar. 7. The applicant filed a civil suit for injunction against the respondent which was declined by the 7th Adhoc D & S Judge against to an appeal has been preferred before the Hon’ble High Court of Bombay. The respondent therefore prayed that the rectification application be dismissed and the impugned registration to continue on the register. 8. The applicant filed their reply to the counter statement denying the averments made in the counter statement. 9. We have heard Shri. Ashok Keyser, counsel for the applicant and none appeared for the respondent despite service of notice and were therefore set ex-parte. 10. The learned counsel for the applicant submitted that they adopted and used the trade mark SHAKTI since 1965. They are the registered proprietors of the trade mark under No.610757 in class 16 as of 01.11.1993 claiming user since 01.05.1965. The applicant filed a civil suit against the respondent. 11. The respondent applied for registration of the impugned trade mark on 21.08.2001 claiming user since 01.04.2001 who are therefore subsequent to the applicants. The respondents though claim user since 2001 in their application for registration, have falsely claimed user since 1950 in their counter statement to the application for rectification. The respondent has not filed any evidence as to use of the trade mark. 12. We have heard and considered the applicants arguments and have gone through the pleadings and documents. 13. The main issue for consideration is whether the applicant is a person aggrieved. A person who has used the trade mark before the use of the mark by the registered proprietor is a person aggrieved. Lord Watson held in Powels Trade Mark case ; “In my opinion, any trader is, in the sense of the statute, “aggrieved” whenever the registration of a particular trade mark operates in restraint of what would otherwise have been his legal rights. Whatever benefit is gained by registration must instant a corresponding disadvantage upon a trader who might possibly have had occasion to use the mark in the course of his business.” 14. The marks are identical in respect of identical goods. The use of the trade mark by the applicant is prior to that of the respondents. The applicants are not only prior user but are also the registered proprietor of the trade mark even before the respondents use. The applicant is therefore a person aggrieved. 15. In the case on hand, the applicant has been using the mark since 1965 and is a registered proprietor as of the year 1993, whereas the respondent has used the trade mark since 2001 as seen from the impugned application for registration. Though the respondent claims use of the mark since 1965, there is nothing in proof of the same. The respondent has filed few documents like the gift deed, certificate issued by the Registrar of firms, few assessment orders, deed of partnership, copy of order passed by the Hon’ble High Court of Bombay, Nagpur Bench in the appeal against the order passed by the 7th Adhoc District Judge, Nagpur and the Memorandum of Articles of Association. These documents are filed to support their case that they are carrying on business since 1950’s. No doubt the respondent is carrying on business since 1956 but it is their own case that their use of the trade mark SHAKTI is since 2001. The applicant as seen from the records is the prior user of the trade mark SHAKTI. 16. We find that there is nothing on record to prove the respondents use as a trade mark. The respondent have stated in their counter statement that they are using the mark since 1965 but have stated in their application for registration that they are using the trade mark since 2001. Even if we consider the respondents use since 2001, there is no cogent evidence to prove their use. 17. The applicants are the prior user of the trade mark in our view. The applicant’s rights are therefore to be protected. Consequently, the application for rectification is allowed with a direction to the Registrar of Trade Marks to cancel the trade mark registered under No.1038628 in class 16. There shall be no order as to costs. (S. Usha) (Justice Prabha Sridevan) Vice-Chairman Chairman (Disclaimer: This order is being published for present information and should not be taken as a certified copy issued by the Board.)
The Apex court confirm the high court judgment -i) The prosecution did not examine the material witnesses like the investigating officer as well as other witnesses who, as per the case of the prosecution, were actually present at the time of occurrence of the incident. ii) According to the prosecution, PW-1 and PW-2 both are eye- witnesses but they are the widow and brother of the deceased, and therefore, are interested witnesses and their statement cannot be relied upon by the Court. iii) The accused persons themselves had lodged a counter report against the deceased, PW-2 and other relations of the deceased, alleging attack/aggression. This was not a counter blast but a true and correct happening of events as reported by the accused, against the complainants, in which the accused Ram Dutt had suffered injuries. For these reasons, the accused should be entitled to the benefit of doubt and consequently, to an order of acquittal. 10
REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.77 OF 2007 Mano Dutt & Anr. ... Appellants Versus State of U.P. ... Respondent J U D G M E N T Swatanter Kumar, J. 1. The present appeal is directed against the judgment and order dated 21st March, 2006 of the High Court of Judicature at Allahabad, Lucknow Bench, which had partially accepted the appeal by acquitting the accused persons of the offence under Section 323 read with Section 34 of the Indian Penal Code, 1860 (hereafter, `IPC'), but affirmed the imposition of life imprisonment for the offence under Section 302 read with Section 34, IPC as awarded by the learned trial court vide its judgment dated 6th January, 1982. The trial court had found the four accused Ram Dutt (now dead), Thakur Prasad, Mano Dutt and Ram Narain guilty of an offence under Section 302, read with Section 34, IPC and also offence under Section 323, read with Section 34, IPC and had awarded them life imprisonment for the first offence and a fine of Rs.1,000/- for the second, in default of which, to undergo rigorous imprisonment for three months. 2. This is a case where the incident, on 22nd October, 1977, which resulted in the death of Siya Ram, is admitted between the parties. The primary question that falls for determination is, as to which of the parties was the aggressor, besides determining the merits of the contentions raised on behalf of the appellant. Before noticing the prosecution version, we may notice that in the present case, six accused were charged and tried for an offence under Sections 302 and 323, both read with Section 34 IPC. Learned trial court, vide its judgment dated 6th January, 1982 had acquitted accused Sher Bahadur and Jagdish, while it convicted Ram Dutt, Thakur Prasad, Mano Dutt and Ram Narain for both the afore- 2 stated offences. During the pendency of the appeal before the High Court, Ram Dutt died and the Court convicted the other accused vide its judgment under appeal. 3. Thakur Prasad had filed a separate appeal challenging the said judgment of the High Court, being SLP (Crl.) No.3929 of 2006 titled Thakur Prasad v. State of U.P. which came to be dismissed by order of this Court dated 18th August, 2006. In other words, the conviction of the accused Thakur Prasad under Section 302 read with Section 34 IPC attained finality. However, vide the same order, this Court granted leave to appeal in the case of Mano Dutt and Ram Narain. This is how the present appeal has come up for final hearing before us. 4. The case of the prosecution is that Mano Dutt, Ram Narain and Jagdish are real brothers while Ram Dutt and Thakur Prasad are their cousins. On 22nd October, 1977 during day time, Siya Ram was doing earth filling in front of his sariya (a place of tethering cattle). The four accused, namely, Ram Dutt, Thakur Prasad, Ram Narain and Mano Dutt out of the six named accused had come there and asked Siya Ram not to do earth filling. Siya 3 Ram told them that it was his land and he would not stop the work of land filling. Thereupon, Siya Ram called certain villagers. The matter was discussed with the villagers, all of whom said that the land was that of Siya Ram and he could carry on with land filling on his own land. After deciding this, the villagers went away and Siya Ram resumed the filling of the earth. Accused Ram Dutt, Thakur Prasad, Mano Dutt, Ram Narain, Jagdish and Sher Bahadur, armed with lathis, came there and chased Siya Ram. They said that they would finish Siya Ram. Siya Ram was able to run for a short distance away, whereafter all the accused surrounded him in front of the house of one Fateh Mohmad. Accused Ram Dutt, Thakur Prasad, Mano Dutt and Ram Narain started beating Siya Ram with their lathis. The father of Siya Ram, Nankoo and brother Salik Ram rushed towards Siya Ram to rescue him. Accused Sher Bahadur and Jagdish intercepted them in front of one Chiddan's door and beat them with their lathis. Siya Ram fell down after getting the lathi blows. Siya Ram raised alarm, but still these accused persons continued to beat him and in the meanwhile, Smt. Sangam Devi, Bhurey and Pradhan came there. The Pradhan snatched the lathis of the four accused, who then fled away from the scene. Siya Ram 4 sustained serious injuries. Nankoo and Salik Ram also sustained injuries. Pradhan and the other villagers took the injured to the Police Station. 5. The incident was narrated in the form of a report of occurrence, by the deceased Siya Ram, who was in an injured state at that time. The same was transcribed by Panna Lal Pandey, PW3 and submitted to the Police Station, where a First Information Report (hereafter, `FIR') Exhibit Ka7 was prepared. 6. On this statement, the officer present at the police station had registered a case under Section 308, IPC and the investigation was taken over by C.R. Malviya. During investigation, C.R. Malviya recorded the statements of a number of witnesses as well as sent Siya Ram to the hospital. Siya Ram succumbed to his injuries on 24th October, 1977 at about 8.00 a.m. in the District Hospital, Faizabad. Upon his death, the offence was converted to one under Section 302, IPC. The Investigating Officer visited the spot, recovered blood-stained earth, Ex. Ka-8 and prepared the site plan, Ext. Ka-9 and examined various witnesses. After completion of the investigation, the charge sheet was filed before the court of 5 competent jurisdiction. The trial Court vide its order dated 30th July, 1980 charged the accused with offences under Sections 147, 304/149 and 323/149. However, subsequently, the charge was amended and all the accused were charged with offences under Sections 302/149-147 and 323/149, IPC. The accused pleaded not guilty and faced trial before the Court of Sessions. As already noticed, out of the six accused, four were convicted by the trial court. One accused, namely Ram Dutt, died during pendency of the appeal before the High Court and all the other accused were acquitted of the offences under Section 323/34 IPC, but convicted for offences under Section 302/34 IPC. For the reasons afore- recorded in the present appeal, we are only concerned with the two accused, namely Mano Dutt, and Ram Narain. 7. The prosecution had examined Smt. Sangam Devi, PW-1 (wife of the deceased), Salik Ram, PW-2 (injured witness). Panna Lal Pandey, PW-3 (scribe of Siya Ram's statement) and two doctors, Dr. S.N. Rai (P.W.-4) and Dr. Surya Bhan Singh (P.W. 5), besides examining the formal witnesses. 6 8. Dr. Surya Bhan Singh, PW-5 had examined Salik Ram when he was brought to the hospital on the evening of 22nd October, 1977 at about 4.30 p.m. He had noticed lacerated bone-deep wound, 3 cm x 0.5 cm, on the frontal region of the scalp, from which blood was oozing. The doctor described the injuries on the body of the deceased as follows:- "(1) Lacerated wound mark 3 cm x 0.5 cm on the left side of head on the parietal region. (2) Bruise 9 cm x 1.5 cm in the left scapula region. (3) Bruise 12 cm x 1.5 cm in the right scapula region of scalp. (4) Bruise 9 cm x 2 cm in the right scapular region of scalp. (5) Bruise 19 cm x 2 cm in the right scapular region of scalp." 9. This very doctor had examined Salik Ram, son of Nankoo and had noticed as many as five injuries on his body. He had also examined Nankoo and noticed four injuries on his person. The 7 injuries on the bodies of Nankoo and Salik Ram both were found to be simple injuries and were caused with blunt object like lathi, while Siya Ram was transferred to the specialist for obtaining expert opinions on his injuries and for his treatment. 10. After the death of Siya Ram on 24th October, 1977, the post- mortem on the body of the deceased was performed by Dr. S.N. Rai, PW-4, who noticed four ante-mortem injuries as follows:- "(1) Lacerated wound 2.5 cm x > cm x bone deep, on Rt. side head, 6.5 cm above the eyebrow of right eye. (2) Lacerated wound 2.5 cm x 1 cm x bone deep injures 1-2 cm on the left side of the head. (3) Contusion 6 cm x 4 cm in the right side of the face involving whole orbital area. (4) Diffused, swelling on the Rt. Side of head parietal region." 11. Upon internal examination of the body of the deceased, he also found the following internal injuries:- "1. Comminuted fracture in the area of 11.5 cm x 10 cm on the right Parietal Region of the skull. 8 2. Comminuted fracture in the area of 6.5 cm x 6.5 cm in the frontal Bone was found. 3. Comminuted fracture in the area of 10 cm x 4 cm on the left side of temporo parietal Region was found. 4. Large quantity of blood was accumulated on the right side of head between skin and bone." 12. The doctor stated that, in his opinion, the cause of death was a shock due to ante-mortem injuries and loss of blood. He specifically stated that all the injuries are possible by blows of lathis. In his cross-examination, he clearly stated that these injuries are ordinarily sufficient to cause death. 13. It needs to be noticed that one of the appellants, namely Ram Dutt, had also allegedly lodged a report against the deceased Siya Ram, injured Nankoo, and two other sons of Nankoo, i.e., Salik Ram and Ram Dhiraj. After registering the FIR, the Investigating Officer in his report had also stated that the accused Ram Dutt had sustained some injuries on his person. 9 14. The conviction of the accused and the impugned judgment have been challenged inter alia, but primarily, on the following grounds:- i) The prosecution did not examine the material witnesses like the investigating officer as well as other witnesses who, as per the case of the prosecution, were actually present at the time of occurrence of the incident. ii) According to the prosecution, PW-1 and PW-2 both are eye- witnesses but they are the widow and brother of the deceased, and therefore, are interested witnesses and their statement cannot be relied upon by the Court. iii) The accused persons themselves had lodged a counter report against the deceased, PW-2 and other relations of the deceased, alleging attack/aggression. This was not a counter blast but a true and correct happening of events as reported by the accused, against the complainants, in which the accused Ram Dutt had suffered injuries. For these reasons, the accused should be entitled to the benefit of doubt and consequently, to an order of acquittal. 10 iv) Even if the entire prosecution story is assumed to be correct, even then it does not constitute an offence under Section 302, IPC. In the facts and circumstances of the case, at the worst, the accused could be held guilty of an offence punishable under Section 304, Part-I, IPC. v) The deceased had only three injuries, therefore, on the one hand, the story that six accused had assaulted him with lathis even when he was lying on the ground is not physically possible and on the other hand, the prosecution has failed to explain the injuries suffered by Ram Dutt, accused. Thus, it creates a specific doubt in the story of the prosecution. vi) Lastly, it is contended that the dismissal of the other Special Leave Petition filed by Thakur Prasad does not have any bearing on the fate of the present appeal, inasmuch as the Court is vested with wide powers in terms of Section 38, IPC, to deal with the case of the present appellants on distinct and different footing. Even if Thakur Prasad's conviction for an offence under Section 302 read with 11 Section 34 IPC has attained finality, the appellants may still be acquitted. 15. We have already noticed that the incident in question is admitted. According to the accused, the fight was started by the deceased and his relations and they had exercised their right of private self-defence, to protect themselves. To the contrary, according to the witnesses of the prosecution as well as according to the version given by the deceased, the accused were aggressive and had attacked the deceased and his family members after deliberately planning to assault and kill them. It is not a case where the circumstances, even remotely, can be construed to have satisfied the ingredients of self-defence. We may examine few of the circumstances in this case. From the record, it appears that Ram Dutt had lodged a complaint of the incident that took place on 22nd October, 1977 at about 12.00 p.m. According to this report the accused in that complaint (i.e., the deceased and his family members) had been putting earth on Ram Dutt's sariya, which he had forbade. There was verbal altercation between the parties and then the accused in that complaint (i.e., the deceased herein) 12 started assaulting him with lathis and it was only by raising an alarm that the people of the village came to the place of occurrence and his life was saved. According to this complaint, he had suffered injuries on his head. 16. Firstly, this complaint had not been proved by Ram Dutt during the trial. Accordingly, the concurrent view taken by the courts below, that this document cannot be relied in evidence, cannot be faulted with. Furthermore, Ram Dutt did not examine a single witness in his defence to prove that he was attacked by the deceased and his family members or that they were putting earth at the door of Ram Dutt's sariya. No doubt, Ram Dutt was subjected to medical examination by the Medical Officer vide Ex.Kha 1. It was noticed that he had suffered lacerated wounds on the central and other regions of skull, and had complained of pain in left leg. This would show that Ram Dutt had suffered some injuries but where and how these injuries were suffered, was for him to establish, particularly when he had taken a specific stand that the deceased and his family members were at fault and were aggressive. He claims that they had caused serious injuries to his person and 13 this incident happened in the presence of the villagers. It is a settled canon of evidence jurisprudence that one who alleges a fact must prove the same. It is also his case that the prosecution has not explained the injuries on his person and, therefore, the argument impressed upon the Court is that the attack with lathis was in exercise of self-defence and the failure of the prosecution to explain injuries on the person of Ram Dutt is a circumstance which creates a serious doubt in the story of the prosecution. We are not impressed with this contention primarily for the above reasons and also because of the fact that if the police was not investigating into the complaint, Ram Dutt was not helpless or remediless in law. He could have filed an application before the concerned Magistrate in accordance with the provisions of Code of Criminal Procedure, 1973 (Cr.P.C.) for directing the police to investigate and even to summon the accused in that complaint. But none of the accused, including Ram Dutt, took any of the steps available to them in law. When a person claims exercise of private self-defence, the onus lies on him to show that there were circumstances and occasions for exercising such a right. In other words, these basic facts must be established by the accused. Just because one circumstance exists amongst the 14 various factors, which appears to favour the person claiming right of self-defence, does not mean that he gets the right to cause the death of the other person. Even the right of self-defence has to be exercised directly in proportion to the extent of aggression. 17. As per the medical report, the injuries on the body of Ram Dutt were found to be `simple in nature'. On the other hand, we have a complete version of the prosecution, duly supported by witnesses, out of which PW1 and PW2 are eye-witnesses to the occurrence. The bone of contention between the parties was the statement of the deceased, that he was filling the earth over some land, which he claimed to be his land; according to the accused, the earth-filling was carried out in front of the door of Ram Dutt. According to both the parties, the villagers came to the spot. Out of the two versions, the one put forward by the prosecution and the other in the defence of the accused, the version of the prosecution, as has been disclosed by the eye-witnesses, is trustworthy, reliable and entirely plausible in the facts and circumstances of the case. The mere fact that the Investigating Officer has not been produced, or that there is no specific explanation on record as to how Ram 15 Dutt suffered these injuries, would not vitiate the trial or the case of the prosecution in its entirety. These claims of the accused would have been relevant considerations, provided the accused had been able to establish the other facts alleged by them. It is not always mandatory for the prosecution to examine the Investigating Officer, provided it can establish its case beyond reasonable doubt even in his absence. The present case certainly falls in the latter class. Where the accused lead no defence, they cannot take benefit of the fact that the prosecution did not examine any independent witnesses. The accused would be deemed to have been aware of the consequences in law when they gave a statement admitting the occurrence but attributing aggression and default to the deceased and his family members. 18. Accused Thakur Prasad is also stated to own a sariya and was also allegedly using his lathi in self-defence, as according to their story, four persons with the deceased and his family members had attacked them. Strangely, Thakur Prasad suffered no injury. These are the circumstances which, examined cumulatively, would provide support to the case of prosecution. 16 19. Another contention raised on behalf of the accused/appellants is that only family members of the deceased were examined as witnesses and they being interested witnesses cannot be relied upon. Furthermore, the prosecution did not examine any independent witnesses and, therefore, the prosecution has failed to establish its case beyond reasonable doubt. This argument is again without much substance. Firstly, there is no bar in law in examining family members, or any other person, as witnesses. More often than not, in such cases involving family members of both sides, it is a member of the family or a friend who comes to rescue the injured. Those alone are the people who take the risk of sustaining injuries by jumping into such a quarrel and trying to defuse the crisis. Besides, when the statement of witnesses, who are relatives, or are parties known to the affected party, is credible, reliable, trustworthy, admissible in accordance with the law and corroborated by other witnesses or documentary evidence of the prosecution, there would hardly be any reason for the Court to reject such evidence merely on the ground that the witness was family member or interested witness or person known to the affected party. There can be cases where it would be but inevitable 17 to examine such witnesses, because, as the events occurred, they were the natural or the only eye witness available to give the complete version of the incident. In this regard, we may refer to the judgments of this Court, in the case of Namdeo v. State of Maharashtra, [(2007) 14 SCC 150]. This Court drew a clear distinction between a chance witness and a natural witness. Both these witnesses have to be relied upon subject to their evidence being trustworthy and admissible in accordance with the law. This Court, in the said judgment, held as under: "28. From the aforesaid discussion, it is clear that Indian legal system does not insist on plurality of witnesses. Neither the legislature (Section 134 of the Evidence Act, 1872) nor the judiciary mandates that there must be particular number of witnesses to record an order of conviction against the accused. Our legal system has always laid emphasis on value, weight and quality of evidence rather than on quantity, multiplicity or plurality of witnesses. It is, therefore, open to a competent court to fully and completely rely on a solitary witness and record conviction. Conversely, it may acquit the accused in spite of testimony of several witnesses if it is not satisfied about the quality of evidence. The bald contention that no conviction can be recorded in case of a solitary eyewitness, therefore, has no force and must be negatived. 18 29. It was then contended that the only eyewitness, PW 6 Sopan was none other than the son of the deceased. He was, therefore, "highly interested" witness and his deposition should, therefore, be discarded as it has not been corroborated in material particulars by other witnesses. We are unable to uphold the contention. In our judgment, a witness who is a relative of the deceased or victim of a crime cannot be characterised as "interested". The term "interested" postulates that the witness has some direct or indirect "interest" in having the accused somehow or the other convicted due to animus or for some other oblique motive." 20. It will be useful to make a reference of another judgment of this Court, in the case of Satbir Singh & Ors. v. State of Uttar Pradesh, [(2009) 13 SCC 790], where this Court held as under: "26. It is now a well-settled principle of law that only because the witnesses are not independent ones may not by itself be a ground to discard the prosecution case. If the prosecution case has been supported by the witnesses and no cogent reason has been shown to discredit their statements, a judgment of conviction can certainly be based thereupon. Furthermore, as noticed hereinbefore, at least Dhum Singh (PW 7) is an independent witness. He had no animus against the accused. False implication of the accused at his hand had not been suggested, far less established." 19 21. Again in a very recent judgment in the case of Balraje @ Trimbak v. State of Maharashtra [(2010) 6 SCC 673], this Court stated that when the eye-witnesses are stated to be interested and inimically disposed towards the accused, it has to be noted that it would not be proper to conclude that they would shield the real culprit and rope in innocent persons. The truth or otherwise of the evidence has to be weighed pragmatically. The Court would be required to analyse the evidence of related witnesses and those witnesses who are inimically disposed towards the accused. But if after careful analysis and scrutiny of their evidence, the version given by the witnesses appears to be clear, cogent and credible, there is no reason to discard the same. 22. As per PW5, Dr. Surya Bhan Singh, he had examined Salik Ram Yadav as well as Nankoo on 22nd October, 1977 itself and noticed as many as five injuries on Salik Ram and four injuries upon the person of Nankoo. He stated that the deceased was the son of Nankoo, while Salik Ram was his brother. These injuries were suffered by them from a blunt object. Salik Ram was 20 examined as PW2 and his statement is cogent, coherent, reliable and fully supports the case of the prosecution. However, the other injured witness, Nankoo, was not examined. 23. In our view, non-examination of Nankoo, to which the accused raised the objection, would not materially affect the case of the prosecution. Normally, an injured witness would enjoy greater credibility because he is the sufferer himself and thus, there will be no occasion for such a person to state an incorrect version of the occurrence, or to involve anybody falsely and in the bargain, protect the real culprit. We need not discuss more elaborately the weightage that should be attached by the Court to the testimony of an injured witness. In fact, this aspect of criminal jurisprudence is no more res integra, as has been consistently stated by this Court in uniform language. We may merely refer to the case of Abdul Sayeed v. State of Madhya Pradesh [(2010) 10 SCC 259], where this Court held as under: "28. The question of the weight to be attached to the evidence of a witness that was himself injured in the course of the occurrence has been extensively discussed by this Court. Where a witness to the occurrence has himself been injured in the incident, the testimony of 21 such a witness is generally considered to be very reliable, as he is a witness that comes with a built-in guarantee of his presence at the scene of the crime and is unlikely to spare his actual assailant(s) in order to falsely implicate someone. "Convincing evidence is required to discredit an injured witness." [Vide Ramlagan Singh v. State of Bihar, Malkhan Singh v. State of U.P., Machhi Singh v. State of Punjab, Appabhai v. State of Gujarat, Bonkya v. State of Maharashtra, Bhag Singh, Mohar v. State of U.P. (SCC p. 606b-c), Dinesh Kumar v. State of Rajasthan, Vishnu v. State of Rajasthan, Annareddy Sambasiva Reddy v. State of A.P. and Balraje v. State of Maharashtra.] 29. While deciding this issue, a similar view was taken in Jarnail Singh v. State of Punjab, where this Court reiterated the special evidentiary status accorded to the testimony of an injured accused and relying on its earlier judgments held as under: (SCC pp. 726-27, paras 28-29) "28. Darshan Singh (PW 4) was an injured witness. He had been examined by the doctor. His testimony could not be brushed aside lightly. He had given full details of the incident as he was present at the time when the assailants reached the tubewell. In Shivalingappa Kallayanappa v. State of Karnataka this Court has held that the deposition of the injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies, for the reason that his presence on the scene stands established in case it is 22 proved that he suffered the injury during the said incident. 29. In State of U.P. v. Kishan Chand a similar view has been reiterated observing that the testimony of a stamped witness has its own relevance and efficacy. The fact that the witness sustained injuries at the time and place of occurrence, lends support to his testimony that he was present during the occurrence. In case the injured witness is subjected to lengthy cross-examination and nothing can be elicited to discard his testimony, it should be relied upon (vide Krishan v. State of Haryana). Thus, we are of the considered opinion that evidence of Darshan Singh (PW 4) has rightly been relied upon by the courts below." 30. The law on the point can be summarised to the effect that the testimony of the injured witness is accorded a special status in law. This is as a consequence of the fact that the injury to the witness is an inbuilt guarantee of his presence at the scene of the crime and because the witness will not want to let his actual assailant go unpunished merely to falsely implicate a third party for the commission of the offence. Thus, the deposition of the injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies therein." 24. To the similar effect is the judgment of this Court in the case of Balraje @ Trimbak (supra). 23 25. Another argument with regard to appreciation of evidence is that the material witness having not been examined and the entire prosecution story being based upon the statements of PW1 and PW2, who are the interested witnesses, the entire prosecution evidence suffers from a patent infirmity in law. 26. Again, we are not impressed by this contention, primarily for the reasons afore-recorded. Furthermore, it may also be noticed that non-examination of any independent witness, in the facts of the present case, is not fatal to the case of the prosecution. The Court can convict an accused on the statement of a sole witness, even if he was a relative of the deceased and thus, an interested party. The condition precedent to such an order is that the statement of such witness should satisfy the legal parameters stated by this Court in a catena of judgments. Once those parameters are satisfied and the statement of the witness is trustworthy, cogent and corroborated by other evidence produced by the prosecution, oral or documentary, then the Court would not fall in error of law in relying upon the statements of such witness. It is only when the Courts find that the single eye-witness is a 24 wholly unreliable witness that his testimony is discarded in toto and no amount of corroboration can cure its defect. Reference in this regard can be made to the judgment of this Court, in the case of Anil Phukan v State of Assam [(1993) 3 SCC 282]. 27. Now we may examine as to the place and manner in which the incident occurred. It is a very important aspect of this case that the FIR itself was lodged by the deceased along with PW3 Panna Lal Pandey who transcribed the same at the police station itself. The deceased was seriously injured, but was fully aware of what he was doing and he had no reason to falsely implicate any person. His father and brother had also been injured in the occurrence. It is specifically recorded in the statement of these witnesses that when the appellant Mano Dutt and other accused came for the second time, to the place where the deceased was filling the earth at the sariya, they gave a lalkar `Maro sale ko' and then assaulted him with lathis. When he tried to run away, he fell to the ground near the house of one Fateh Mohd. The blood-stained earth was collected from the front of Fateh Mohd. doors by the Investigating Officer vide Ext. Ka-8. Thereafter, the villagers had come and taken 25 the lathis away from the accused persons. The deceased was taken to the police station and then to the hospital, where he died on 24th October, 1977. It is evident that all the accused persons had come prepared, mentally and physically, to assault the deceased and in furtherance to their common intention, had even given a lalkar to kill the deceased. This incident was witnessed by natural witnesses Nankoo and PW2 Salik Ram, as well as PW1 Smt. Sangam Devi. Nankoo and Yadav even intervened and tried to protect their son/brother, but in the process, they also received number of injuries, as is clear from the medical evidence produced on record. During the course of argument, the learned counsel for the appellant tried to take advantage of the fact that the deceased ought to have suffered a number of injuries, if six people had, at the same time, attacked him with lathis, but he had actually received only three injuries. Thus, the story of the prosecution was improbable. 28. We have no hesitation in rejecting this argument, primarily for the reason that, as per the medical report and statement of PW5 Dr. Surya Bhan Singh, the deceased had suffered a number of injuries and not only three. The collection of the bloodstained earth itself is 26 a relevant piece of evidence and provides the link in the commission and the place of crime. In the case of Kartar Singh v. State of Punjab [AIR 1961 SC 1787] this Court took the following view: "13. It follows therefore that the finding of the courts below that the appellant's party formed an unlawful assembly and that the appellant is constructively liable of the offences under ss. 302 and 307 IPC, in view of Section 149, is correct. 14. The second contention that in a free fight each is liable for an individual act cannot be accepted in view of the decision of this Court in Gore Lal v. State of U.P. This Court said in that case: "In any event, on the finding of the court of first instance and of the High Court that both the parties had prepared themselves for a free fight and had armed themselves for that purpose, the question as to who attacks and who defends is wholly immaterial," and confirmed the conviction under Section 307 read with Section 149 IPC It may, however, be noted that it does not appear to have been urged in that case that each appellant could be convicted for the individual act committed by him. When it is held that the appellant's party was prepared for a fight and to have had no right of private defence, it must follow that their intention to fight and cause injuries to the other party amounted to their 27 having a common object to commit an offence and, therefore, constituted them into an unlawful assembly. The injuries they caused to the other party are caused in furtherance of their common object. There is then no good reason why they be not held liable, constructively, for the acts of the other persons of the unlawful assembly, in circumstances which makes s. 149 IPC, applicable to them. 15. Even if the finding that there were more than five persons in the appellant's party be wrong, we are of opinion that the facts found that the appellant and his companions who were convicted had gone from the village armed and determined to fight, amply justified the conclusion that they had the common intention to attack the other party and to cause such injuries which may result in death. Darshan had two incised wounds and one punctured wound. Nand Lal had two incised wounds and one punctured wound and two abrasions. The mere fact that Kartar Singh was not connected with the dispute about the plot of land is not sufficient to hold that he could not have formed a common intention with the others, when he went with them armed. The conviction under ss. 302 and 307 read with s. 149, can be converted into one under ss. 302 and 307 read with s. 34 IPC 16. We, therefore, see no force in this appeal and accordingly dismiss it." 29. The question, raised before this Court for its consideration, is with respect to the effect of non-explanation of injuries sustained by 28 the accused persons. In this regard, this Court has taken a consistent view that the normal rule is that whenever the accused sustains injury in the same occurrence in which the complainant suffered the injury, the prosecution should explain the injury upon the accused. But, it is not a rule without exception that if the prosecution fails to give explanation, the prosecution case must fail. Before the non-explanation of the injuries on the person of the accused, by the prosecution witnesses, may be held to affect the prosecution case, the Court has to be satisfied of the existence of two conditions: (i) that the injuries on the person of the accused were also of a serious nature; and (ii) that such injuries must have been caused at the time of the occurrence in question. 30. Where the evidence is clear, cogent and creditworthy; and where the court can distinguish the truth from falsehood, the mere fact that the injuries on the person of the accused are not explained by the prosecution cannot, by itself, be a sole basis to reject the testimony of the prosecution witnesses and consequently, the whole case of the prosecution. Reference in this regard can be made to 29 Rajender Singh & Ors. v. State of Bihar, [(2000) 4 SCC 298], Ram Sunder Yadav & Ors. v. State of Bihar, [(1998) 7 SCC 365, and Vijayee Singh v. Stateo of U.P. [(1990) 3 SCC 190]. 31. PW4 had clearly noticed that injury on the person of the deceased, Salik Ram Yadav and Nankoo were all caused by a blunt weapon. He had specifically observed that the injuries were sufficient, in the ordinary course of time, to cause death and had, in fact, resulted in the death of the deceased. 32. The High Court and the trial court have recorded reasons for returning the concurrent finding of guilt. The learned counsel for the appellant strenuously argued that one of the accused, namely Ram Dutt, who is now dead, had in his statement under Section 313 Cr.P.C., stated that the land in between the house of the parties was his and that despite his protest, Salik Ram, Siya Ram, Ram Dhiraj and Nankoo were putting earth on that land when he again objected, all of them ran after him, rounded him up at the door of Fateh Mohd. and started beating him. Thakur Prasad, cousin of Ram Dutt, came and in response, wielded the lathi in his defence. To similar effect is the statement of Thakur Prasad. In 30 view of this stand, the other accused cannot be said to have been involved in the commission of the crime. This argument is a self- serving submission. All the accused are related to each other. Once the plea of self-defence is disbelieved, then a statement of a co-accused under Section 313 CrPC cannot be of any advantage to the co-accused, as the prosecution has been able to establish its case beyond any reasonable doubt. In the present case, in the chain of events, nowhere does the plea of self-defence as sought to be raised by the appellant-accused or other accused, fit in. The defence has miserably failed to prove any fact or any need for resorting to commission of the offence in self-defence. To begin with, the police had charged this accused for an offence under Section 302 read with Section 149 and 323 of the IPC. However, two of the accused were acquitted by the trial court and the remaining were convicted of an offence under the said Sections 302/34 and 323/34, IPC. The High Court acquitted all the accused of offence under Section 302/34 IPC and unfortunately, Ram Dutt died during the pendency of that appeal. Because the alleged number of accused had become less than five, nature of the offences were changed from offence under Section 149 to Section 31 34, IPC. In face of the acquittal of the two accused, which was not assailed by the State, it must be taken that they were not present. Then remain three accused, Thakur Dass and the present appellants. Thus, in the circumstances of the case, the possibility of presence of all other persons in the appellants' party cannot be excluded. It is also not quite possible that the accused have deposed incorrectly before the Court in regard to the number of persons and their participation. Even where there are less than five persons who are accused, but the facts and the evidence of the case is convincing as in the present case, where the accused had returned to the place of occurrence with complete preparedness and after giving lalkar had attacked the deceased there, they have to be held liable for commission of the crime (Refer : Kartar Singh vs. State of Punjab, AIR 1961 SC 1787). The learned counsel for the respondent-State also relied upon the judgment in the Yunis @ Kariya v. State of M.P. [(2003) 1 SCC 425] to contend that an overt act on the part of one of the accused is immaterial when his presence, as part of the unlawful assembly, is established. This case was for an offence under Section 302/149 IPC and, therefore, would not squarely apply to the present case as it has been held by 32 the Court that the accused was not constituting an unlawful assembly of five or more persons. However, it cannot be ignored that the extent of participation, even in a case of common intention covered under Section 34 IPC would not depend on the extent of overt act. If all the accused have committed the offence with common intention and inflicted injuries upon the deceased in a pre-planned manner, the provisions of Section 34 would be applicable to all. 33. The learned counsel had also relied upon the judgment of this Court in Marimuthu & Ors. v. State of Tamil Nadu [(2008) 3 SCC 205] to contend that this was a fight at the spur of the moment and the conviction of the appellants could be converted into that under Section 304, Part I of the IPC. This judgment is distinguishable on facts and has no application to the present case. It was not a dispute which arose at the spur of the moment as the evidence clearly shows that the accused had gone again to the site in question with a common intention and with the preparedness to assault and even kill the deceased. Even the site plan, Ex.Ka9 clearly shows that all these places, i.e. the land on which the 33 deceased was putting the earth, the house of Fateh Mohd., the house of the accused and that of the deceased were all nearby. This is even fully corroborated by the oral evidence. Thus, on the basis of the documentary and ocular evidence, we are fully satisfied that the prosecution has been able to prove its case beyond reasonable doubt and has brought home the guilt of the accused under Section 302 read with Section 34, IPC. 34. Having come to the above finding, we do not consider it necessary to dwell on the question as to what is the effect in law of dismissal of Thakur Prasad's Special Leave Petition by this Court, vide Order dated 18th August, 2006. 35. What shall be the correct interpretation of Section 34 with reference to Section 38 IPC, in view of the facts of the present case, or even otherwise, is left undecided. 36. For the reasons afore-recorded, this appeal is dismissed. .................................J. (A.K. Patnaik) 34 .................................J. (Swatanter Kumar) New Delhi, February 29, 2012 35
Rape and murder - who took a female child on pretext of getting biscuits took the child and in isolated place brutally raped and killed her left the body with out any coverage. Apex court confirmed the death penalty as the accused is deserved for it
REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NOS.145-146 OF 2011 Rajendra Pralhadrao Wasnik ... Appellant Versus The State of Maharashtra ... Respondent J U D G M E N T Swatanter Kumar, J. 1. The present appeals are directed against the judgment dated 26th March, 2009 passed by the High Court of Bombay, Nagpur Bench affirming the conviction of the accused under Sections 376(2)(f), 377 and 302 of the Indian Penal Code, 1860 (hereafter `IPC') and the sentence of death awarded to the accused-appellant 1 herein vide judgment of the First Additional Sessions Judge, Amrawati, dated 10th September, 2008. 2. The facts giving rise to the present appeal fall within a narrow compass and are as follows : Mahendra Namdeorao Wasnik, PW12, was living with his wife, three children and parents in Village Asra. He used to go to Village Tarkheda for earning his livelihood at the thresher of one Zafarbhai. Normally, he used to return to his village at about 10.00 p.m. after doing his day's work. On 2nd March, 2007, he left his house at 7.00 a.m. and returned from his work at about 9.00 p.m. Upon his arrival, he was informed by his wife Kantabai Wasnik that at about 4.00 p.m. one person, whose name she did not know, had come to the house and after taking tea, he left. The said person had again come at about 6.30 p.m. On his second visit, he told that he would take out their daughter, namely Vandana, to get her biscuits. After talking to the mother of Vandana, the accused had taken Vandana for purchasing biscuits but never brought her back to her house. Having learnt this, PW12 started searching for his daughter Vandana along with others, but they were unable to find her. On 2 3rd March, 2007 at about 8.00 a.m. when he was going to the Police Station for lodging the report, he saw that some persons had gathered in the fields of Pramod Vitthalrao Mohod. He went there and saw the dead body of his daughter in that field. The dead body of Vandana was lying in a nude condition and there were injuries on her person. It has come in evidence that the accused had visited the house of PW12, Mahendra Namdeorao Wasnik to see his ailing father. He left after a cup of tea. It was on this information received from his wife that PW12 suspected that the accused was the person who was a resident of Village Parlam and had taken away his daughter. Consequently, PW12 lodged the report with the Police, Exhibit 71 in respect of the incident. As the body of the deceased minor girl, Vandana, had been recovered, an FIR was registered being Crime Case No.23/2007 under Sections 376(2)(f), 377 and 302 IPC. The Investigating Officer started the investigation, prepared the inquest panchnama in respect of the dead body of the deceased Vandana vide Exhibit 11. Sample of soil, soil mixed with urine and clothes of the deceased Vandana were seized from the spot under Panchanama Exhibit 12. The Investigating Officer had also drawn a sketch map of the spot of the incident on 16th June, 3 2007 vide Exhibit 64. At the request of the Police, the Judicial Magistrate recorded statement of the witnesses, namely, Bhimrao Gulhane, Nilesh Gedam, Ravindra Borkar and Sumit Ramteke under Section 164 of the Code of Criminal Procedure, 1973 (hereafter `Cr.P.C.') The accused was arrested on 10th April, 2007 his clothes were seized vide Exhibit 14. He was subjected to medical examination. The doctor had taken blood and semen sample of the accused. These samples and the viscera were sent for medical examination vide Exhibits 21 and 22. The reports thereof are Exhibits 76 to 79. 3. The accused was produced before the Court and was committed to the Court of Sessions where he was charged with the offences punishable under Sections 376(2)(f), 377 and 320 IPC. He was tried for these offences. Learned Trial Court found him guilty of all the offences and awarded him punishments as follows : Offences Punishment/Sentence 302 IPC Sentenced to death and he shall be hanged by neck till he is dead subject to confirmation by the Hon'ble High Court, Bombay, Bench at Nagpur as per the provisions of Section 366 of Cr.P.C. 376(2)(f) IPC Sentenced to imprisonment for life and to 4 pay fine of Rs.1,000 (one thousand), in default to suffer rigorous imprisonment for six months. 377 IPC Sentenced to rigorous imprisonment for 10 (ten) years and to pay fine of Rs.1,000 (one thousand) in default to suffer further rigorous imprisonment for six months. 4. Aggrieved by the said judgment, the accused preferred an appeal before the High Court which, as already noticed, came to be dismissed. The High Court upheld the conviction and sentence of the accused giving rise to the filing of the present appeals. 5. Learned counsel appearing for the appellant-accused contended that the complete chain of events leading to the involvement of the appellant in the crime, in question, have not been established by the prosecution. According to him, the prosecution has failed to prove its case beyond reasonable doubt. The case is one of circumstantial evidence and the onus to prove the case by leading cogent, appropriate and linking evidence is on the prosecution. The prosecution has failed to establish the charge against the appellant. All witnesses are interested witnesses as they are the relatives of the informant or the deceased and as such 5 cannot be safely relied upon by the Court to hold the appellant guilty of the alleged offences. Lastly, it is also contended that it was not a case which fell in the category of `rarest of rare' cases where the Court would find that any other sentence except death penalty would be inadequate and unjustifiable. Thus, the imposition of penalty of death imposed by the High Court calls for interference by this Court. Though the accused, in his statement under Section 313 Cr.P.C., while replying to question No.9 about the death of Vandana and injuries on her body, had stated that it was false but from the evidence led by the prosecution, it is clear that the death of the deceased Vandana was homicidal. One can get the idea of the torture and brutality that the minor girl suffered at the hands of the accused from the injuries found on her person in the post- mortem report. They have been described by the doctor as follows: "External Vaginal Swelling present Vaginal wall lacerated, wound extending from labia mejora to inside vaginal canal in lower 1/3rd on both side 1=" x <" x muscle deep Stains of semen present on inner side of thigh. Hymen absent, one finger easily pass. Swelling present on anal region. 6 Multiple abrasions with Contusions present on body on face, chest back & both shoulders and knees Interiorly. Bite mark on chest (L) side around Nipple elliptical with diameters 1=" x 1<". Right Lung collapsed, 150 gm, Congested on section collapsed. Left Lung Collapsed, 100 gm, Congested on section collapsed. Large vessels - contained blood." 6. Exhibit 11, the inquest panchnama is admitted while the post mortem report Exhibit 71 has been proved in accordance with law. Both these documents demonstrate, beyond reasonable doubt, that it was a case of homicidal death and as per the post mortem report, the cause of death was rape and asphyxia. 7. There is no doubt that it is not a case of direct evidence but the conviction of the accused is founded on circumstantial evidence. It is a settled principle of law that the prosecution has to satisfy certain conditions before a conviction based on circumstantial evidence can be sustained. The circumstances from which the conclusion of guilt is to be drawn should be fully 7 established and should also be consistent with only one hypothesis, i.e. the guilt of the accused. The circumstances should be conclusive and proved by the prosecution. There must be a chain of events so complete as not to leave any substantial doubt in the mind of the Court. Irresistibly, the evidence should lead to the conclusion which is inconsistent with the innocence of the accused and the only possibility is that the accused has committed the crime. To put it simply, the circumstances forming the chain of events should be proved and they should cumulatively point towards the guilt of the accused alone. In such circumstances, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. Furthermore, the rule which needs to be observed by the Court while dealing with cases of circumstantial evidence is that the best evidence must be adduced which the nature of the case admits. The circumstances have to be examined cumulatively. The Court has to examine the complete chain of events and then see whether all the material facts sought to be established by the prosecution to bring home the guilt of the accused, have been proved beyond 8 reasonable doubt or not. It has to be kept in mind that all these principles are based upon one basic cannon of our criminal jurisprudence that the accused is innocent until proven guilty and that the accused is entitled to a just and fair trial. [Ref. Dhananajoy Chatterjee alias Dhana vs. State of W.B. [JT 1994 (1) SC 33]; Shivu & Anr. v. R.G. High Court of Karnataka & Anr. [(2007) 4 SCC 713]; and Shivaji @ Dadya Shankar Alhat v. State of Maharashtra [(AIR 2009 SC 56]. 8. Now, we will revert to the facts of the present case in light of the above-stated principles. We must spell out the circumstances which would show that for the undisputable rape and murder of the deceased minor girl, the accused is not only the suspect but is also the person who has committed the crime. These circumstances are: 1. The accused had taken Vandana from her home on the pretext of purchasing her biscuits. 2. Neither Vandana nor the accused returned to the house. 9 3. Accused was seen with the deceased Vandana on 2nd March, 2007 at about 6.00 p.m. at the bus stand where, in the normal course of life, such shops are situated. 4. Thereafter, the nude body of Vandana was found in the field of Pramod Vitthalrao Mohod on 3rd March, 2007. 5. Exhibit 11 and 71, show beyond reasonable doubt that the three year old girl was subjected to rape, injuries and then murdered. 9. The above circumstances and the chain of events is complete with regard to the commission of crime and undoubtedly points towards the accused. Now, we have to examine whether the prosecution has provided these facts as required in law. 10. PW2, Kanta, is the mother of the deceased Vandana. In her statement she has stated that she was living along with her husband, one daughter and two sons. According to her, her in-laws were residing in the same house, though separately. Vandana was three years old at the time of her death. According to her, the occurrence took place on the day of Holi festival. She identified the 10 accused, who was present in the court and stated that he had come to their house earlier and then on the date of the incident as well. Supporting the case of the prosecution, she stated that he had come to the house at about 3.00 p.m. and then left after having tea by saying that he wanted to meet his friends and thereafter, he again came back at 6.00 p.m. Vandana was playing in front of the house at that time. The accused told her that he would purchase biscuits for the child and took Vandana with him. They had gone towards the bus-stand and thereafter, neither Vandana nor the accused returned home. She had told her husband, PW1, about the incident on his return from work. PW2 also stated that on the next day body of deceased was found in the fields. There was blood in her nostrils and mouth. Marks of bites were found on her breast. There was swelling in the private parts of her body. She came to know the name of the accused subsequently. Her statement remained uncontroverted or nothing material came in her cross-examination. The accused was also seen in the house of PW12 by PW3, Preeti, who is the niece of PW12. She also corroborated the statements of PW12 and PW2. PW4, is the other material witness, Ravindra, who stated that on the day of the 11 incident, i.e. 2nd March, 2007, he was present at the S.T. Bus stand of Asra and he had seen the accused along with Vandana in hotel Rajendra Bhojane. She was on the waist of the accused and they had purchased a packet of biscuits. Thereafter, he saw the accused going on the road which goes to Amrawati. Thereafter, he even searched for Vandana along with Vikram Meshram. PW5, Bhimrao Pundlik Gulhane is a witness who owns 13 acres of agricultural land at Village Khargodi in Village Nagthana. For the purposes of cultivating his land, he used to engage labourers, and the accused was engaged by him for doing the work on his agricultural field and he disclosed the name of accused as Sanjay Manohar Wankhede. According to this witness, he maintained a regular register for marking `presence' and `payment of wages' to the labourers he engaged. The said witness deposed that on the date of occurrence, i.e. 2nd March, 2007, the accused did not come for duty. However, on that day in the morning, the accused came to him and demanded Rs. 500/- saying that he wanted to go to Asra and thereafter, he did not come back. He produced the register which had been seized by the police earlier and had the signatures and it was exhibited as Ex.36. PW7, is another witness, who had seen the 12 accused holding Vandana when he was going back to his house from the S.T. bus stand Asra. 11. The accused was subjected to medical examination and was examined by Dr. Ravindra Ruprao Sirsat, PW9 and he noticed no injuries on his person. Father of the deceased minor girl was examined as PW12 and he provided the complete chain of events, right from the time he got the information that his daughter had been taken away till the time when her dead body was recovered from the fields. Dr. K.V. Wathodkar, Dr. (Mrs.) V.K. Wathodkar and Dr. Varsha S. Bhade had prepared the postmortem report, Ex.- 17, which clearly shows that the cause of death of the three-year old girl was rape and asphyxia. All these factors have been proved by the prosecution both by documentary as well as oral evidence. The accused admitted the documents i.e. the sketch map, Ex.64, spot panchnama, Ex.10, inquest panchnama, Ex.11, seizure panchnamas Exihibits 12, 13 and 14 in respect of the seizure of clothes of the accused and in respect of blood sample, public hair sample, semen sample of the accused, arrest panchnama, Ex.16, postmortem report Ex.17 and letters Ex.19 to 27. 13 12. Once these crucial pieces of documentary evidence have been admitted by the accused and other factual links in the story of the prosecution have been duly proved by the witnesses by circumstantial or direct evidence, there is no occasion for this Court to doubt that the prosecution has not been able to prove its case beyond reasonable doubt. 13. It has been vehemently argued on behalf of the appellant that the report of the FSL does not connect the accused to the commission of the crime. This, being a very material piece of evidence which the prosecution has failed to establish, the accused would be entitled to the benefit of doubt. There were two kinds of Exhibits which were sent by the Police to the Forensic Science Laboratory for examination - one, the blood-stained clothes of the deceased and second, the sample of blood, semen and pubic hair sample of the accused which were sent vide Exhibit 57. The reports of the laboratory are Exhibits 76, 77, 78 and 79. As far as the reports in respect of the appellant's sample of semen and blood are concerned, they were inconclusive as was stated by the FSL in Exhibit 76. His clothes which were seized by the Police did not bear 14 any blood or semen stains and that was duly recorded in Exhibit 78. Exhibit 77 were the clothes of the deceased which were blood stained. The clothes contained blood group `O' which was the blood group of the deceased girl. From the report of the experts, it is clear that there is no direct evidence connecting the appellant to the commission of the crime but it is not the case of the defence that the FSL report was in the negative. Merely because the report was inconclusive, it is not necessary that the irresistible conclusion is only one that the accused is not guilty, particularly where the prosecution has been able to establish its case on circumstantial evidence as also by direct oral evidence. It is a settled principle of law that the evidence has to be read in its entirety. If, upon reading the evidence as such, there are serious loopholes or lacking in the case of the prosecution and they do not prove that the accused is guilty, then the Court would be justified in giving the benefit of doubt to the accused on the strength of a weak FSL report. The FSL report Exhibit P77 had clearly established that the blood of group `O' was found on the clothes of the deceased and that was her blood group. The prosecution has been able to establish not only by substantial evidence but clearly by medical evidence as well, that 15 the minor girl had suffered serious injuries on her private parts and there were bite marks on her chest. 14. An attempt was also made to cast certain doubts as to the very identity of the accused but we find this submission without any substance. The accused has been identified by PW2, PW3 and PW4. Besides them, even PW7 Sumeet Ramteke had also stated that he had seen the victim minor girl with the appellant in the house of PW2, Kantabai and then again seen him with the victim going towards the ST bus stand. Statement of these four witnesses successfully stood the lengthy cross-examination conducted on behalf of the defence. There cannot be any doubt in these circumstances that the accused had taken away the victim from the house of PW2 and was seen at the ST stand. 15. In our considered opinion, the tests laid down by this Court in Baldev Singh v. State of Haryana, AIR 2009 SC 963 in relation to cases of circumstantial evidence are completely satisfied in the present case. The circumstances and the chain of events proved by the prosecution is fully established and the circumstances which were required to be proven by the prosecution, have been proved by 16 them successfully. The cumulative effect of the entire prosecution evidence is that it points unmistakably towards the guilt of the accused. It is not only a case of circumstantial evidence simpliciter but also the `last seen together' principle. There are witnesses who had seen the accused at the house of PW2 with the deceased minor girl. Thereafter, he was again seen with the child at the ST bus stand, Asra and lastly while going away from the ST bus stand with the minor child. Thus, once the evidence had successfully shown that the accused was last seen with the minor girl, it was for the accused to explain the circumstances. The accused in his statement under Section 313 Cr.P.C., in response to all the 68 questions put to him, answered only one simple answer - `it is false'. He also stated that the Police had registered a false case against him and that he did not want to lead any defence. It is very difficult to assume that as many as 13 witnesses from the same village, the Police and doctors would falsely implicate the accused. There are no circumstances which can even remotely suggest that this plea taken by the accused even deserves consideration. Ex facie this is an incorrect stand. 17 16. Having dealt with the contentions of the learned counsel appearing for the appellant on the merits of the case, now we would proceed to discuss the last contention raised on behalf of the appellant that this is not one of the rarest of rare cases where awarding death sentence is justified. We have already held that the prosecution has been able to bring home the guilt of the accused for the offences under Sections 376(2)(f), 377 and 302 of the IPC. In order to deal with this contention raised on behalf of the appellant, we may, at the very outset, refer to the basic principles that are to be kept in mind by the Court while considering the award of death sentence to an accused. This very Bench in a recent judgment, considered various judgments of this Court by different Benches right from Bachan Singh's case, in relation to the canons governing the imposition of death penalty and illustratively stated the aggravating circumstances, mitigating circumstances and the principles that would be applied by the Courts in determining such a question. It will be useful to refer to the judgment of this Bench in the case of Ramnaresh vs. State of Chattisgarh, Crl. Appeal No. 166-167/2010 decided on February 28, 2012 wherein it was held as under: - 18 "The above judgments provide us with the dicta of the Court relating to imposition of death penalty. Merely because a crime is heinous per se may not be a sufficient reason for the imposition of death penalty without reference to the other factors and attendant circumstances. Most of the heinous crimes under the IPC are punishable by death penalty or life imprisonment. That by itself does not suggest that in all such offences, penalty of death should be awarded. We must notice, even at the cost of repetition, that in such cases awarding of life imprisonment would be a rule, while `death' would be the exception. The term `rarest of rare case' which is the consistent determinative rule declared by this Court, itself suggests that it has to be an exceptional case. The life of a particular individual cannot be taken away except according to the procedure established by law and that is the constitutional mandate. The law contemplates recording of special reasons and, therefore, the expression `special' has to be given a definite meaning and connotation. `Special reasons' in contra-distinction to `reasons' simplicitor conveys the legislative mandate of putting a restriction on exercise of judicial discretion by placing the requirement of special reasons. Since, the later judgments of this Court have added to the principles stated by this Court in the case of Bachan Singh (supra) and Machhi Singh (supra), it will be useful to re- state the stated principles while also bringing them in consonance, with the recent judgments. 19 The law enunciated by this Court in its recent judgments, as already noticed, adds and elaborates the principles that were stated in the case of Bachan Singh (supra) and thereafter, in the case of Machhi Singh (supra). The aforesaid judgments, primarily dissect these principles into two different compartments - one being the `aggravating circumstances' while the other being the `mitigating circumstance'. The Court would consider the cumulative effect of both these aspects and normally, it may not be very appropriate for the Court to decide the most significant aspect of sentencing policy with reference to one of the classes under any of the following heads while completely ignoring other classes under other heads. To balance the two is the primary duty of the Court. It will be appropriate for the Court to come to a final conclusion upon balancing the exercise that would help to administer the criminal justice system better and provide an effective and meaningful reasoning by the Court as contemplated under Section 354(3) Cr.P.C. Aggravating Circumstances : 1. The offences relating to the commission of heinous crimes like murder, rape, armed dacoity, kidnapping etc. by the accused with a prior record of conviction for capital felony or offences committed by the person having a substantial history of serious assaults and criminal convictions. 20 2. The offence was committed while the offender was engaged in the commission of another serious offence. 3. The offence was committed with the intention to create a fear psychosis in the public at large and was committed in a public place by a weapon or device which clearly could be hazardous to the life of more than one person. 4. The offence of murder was committed for ransom or like offences to receive money or monetary benefits. 5. Hired killings. 6. The offence was committed outrageously for want only while involving inhumane treatment and torture to the victim. 7. The offence was committed by a person while in lawful custody. 8. The murder or the offence was committed, to prevent a person lawfully carrying out his duty like arrest or custody in a place of lawful confinement of himself or another. For instance, murder is of a person who had acted in lawful discharge of his duty under Section 43 Cr.P.C. 9. When the crime is enormous in proportion like making an attempt of murder of the entire family or members of a particular community. 21 10. When the victim is innocent, helpless or a person relies upon the trust of relationship and social norms, like a child, helpless woman, a daughter or a niece staying with a father/uncle and is inflicted with the crime by such a trusted person. 11. When murder is committed for a motive which evidences total depravity and meanness. 12. When there is a cold blooded murder without provocation. 13. The crime is committed so brutally that it pricks or shocks not only the judicial conscience but even the conscience of the society. Mitigating Circumstances : 1. The manner and circumstances in and under which the offence was committed, for example, extreme mental or emotional disturbance or extreme provocation in contradistinction to all these situations in normal course. 2. The age of the accused is a relevant consideration but not a determinative factor by itself. 3. The chances of the accused of not indulging in commission of the crime again and the probability of the accused being reformed and rehabilitated. 4. The condition of the accused shows that he was mentally defective and the defect 22 impaired his capacity to appreciate the circumstances of his criminal conduct. 5. The circumstances which, in normal course of life, would render such a behavior possible and could have the effect of giving rise to mental imbalance in that given situation like persistent harassment or, in fact, leading to such a peak of human behavior that, in the facts and circumstances of the case, the accused believed that he was morally justified in committing the offence. 6. Where the Court upon proper appreciation of evidence is of the view that the crime was not committed in a pre-ordained manner and that the death resulted in the course of commission of another crime and that there was a possibility of it being construed as consequences to the commission of the primary crime. 7. Where it is absolutely unsafe to rely upon the testimony of a sole eye-witness though prosecution has brought home the guilt of the accused. While determining the questions relateable to sentencing policy, the Court has to follow certain principles and those principles are the loadstar besides the above considerations in imposition or otherwise of the death sentence. Principles : 1. The Court has to apply the test to determine, if it was the `rarest of rare' case for imposition of a death sentence. 23 2. In the opinion of the Court, imposition of any other punishment, i.e., life imprisonment would be completely inadequate and would not meet the ends of justice. 3. Life imprisonment is the rule and death sentence is an exception. 4. The option to impose sentence of imprisonment for life cannot be cautiously exercised having regard to the nature and circumstances of the crime and all relevant circumstances. 5. The method (planned or otherwise) and the manner (extent of brutality and inhumanity, etc.) in which the crime was committed and the circumstances leading to commission of such heinous crime. Stated broadly, these are the accepted indicators for the exercise of judicial discretion but it is always preferred not to fetter the judicial discretion by attempting to make the excessive enumeration, in one way or another. In other words, these are the considerations which may collectively or otherwise weigh in the mind of the Court, while exercising its jurisdiction. It is difficult to state, it as an absolute rule. Every case has to be decided on its own merits. The judicial pronouncements, can only state the precepts that may govern the exercise of judicial discretion to a limited extent. Justice may be done on the facts of each case. These are the factors which the Court may consider in its endeavour to do complete justice between the parties. 24 The Court then would draw a balance- sheet of aggravating and mitigating circumstances. Both aspects have to be given their respective weightage. The Court has to strike a balance between the two and see towards which side the scale/balance of justice tilts. The principle of proportion between the crime and the punishment is the principle of `just deserts' that serves as the foundation of every criminal sentence that is justifiable. In other words, the `doctrine of proportionality' has a valuable application to the sentencing policy under the Indian criminal jurisprudence. Thus, the court will not only have to examine what is just but also as to what the accused deserves keeping in view the impact on the society at large. Every punishment imposed is bound to have its effect not only on the accused alone, but also on the society as a whole. Thus, the Courts should consider retributive and deterrent aspect of punishment while imposing the extreme punishment of death. Wherever, the offence which is committed, manner in which it is committed, its attendant circumstances and the motive and status of the victim, undoubtedly brings the case within the ambit of `rarest of rare' cases and the Court finds that the imposition of life imprisonment would be inflicting of inadequate punishment, the Court may award death penalty. Wherever, the case falls in any of the exceptions to the `rarest of rare' cases, the Court may exercise its judicial discretion while imposing life imprisonment in place of death sentence." 25 17. We shall tentatively examine the facts of the present case in light of the above principles. First and foremost is that the crime committed by the accused is heinous. In fact, it is not heinous simplicitor, but is a brutal and inhuman crime where a married person, aged 31 years, chooses to lure a three year old minor girl child on the pretext of buying her biscuits and then commits rape on her. Further, obviously intending to destroy the entire evidence and the possibility of being identified, he kills the minor child. On the basis of the `last seen together' theory and other direct and circumstantial evidence, the prosecution has been able to establish its case beyond any reasonable doubt. It can hardly be even imagined that what torture and brutality the minor child must have faced during the course of commission of this crime. All her private parts were swollen and bleeding. She was bleeding through her nose and mouth. The injuries, as described in EX.P17 (the post mortem report) shows the extent of brutal sexual urge of the accused, which targeted a minor child, who still had to see the world. He went to the extent of giving bites on her chest. The pain and agony that he must have caused to the deceased minor girl is 26 beyond imagination and is the limit of viciousness. This Court has to examine the conduct of the accused prior to, at the time as well as after the commission of the crime. Prior thereto, the accused had been serving with PW5 and PW6 under a false name and took advantage of his familiarity with the family of the deceased. He committed the crime in the most brutal manner and, thereafter, he opted not to explain any circumstances and just took up the plea of false implication, which is unbelievable and unsustainable. When the Court draws a balance-sheet of the aggravating and mitigating circumstances, for the purposes of determining whether the extreme sentence of death should be imposed upon the accused or not, the scale of justice only tilts against the accused as there is nothing but aggravating circumstances evident from the record of the Court. In fact, one has to really struggle to find out if there were any mitigating circumstances favouring the accused. Another aspect of the matter is that the minor child was helpless in the cruel hands of the accused. The accused was holding the child in a relationship of `trust-belief' and `confidence', in which capacity he took the child from the house of PW2. In other words, the accused, by his conduct, has belied the human relationship of trust and 27 worthiness. 18. The accused left the deceased in a badly injured condition in the open fields without even clothes. This reflects the most unfortunate and abusive facet of human conduct, for which the accused has to blame no one else than his own self. 19. Thus, for the reasons afore-recorded, we find that the learned trial court was fully justified in law and on the facts of the present case, in awarding the extreme penalty of death for an offence under Section 302 IPC along with other punishments for other offences. We find no justifiable reason to interfere with the judgment of conviction and order of sentence under the impugned judgment. The appeals are dismissed. ...................................,J. [A.K. Patnaik] ...................................,J. [Swatanter Kumar] New Delhi; February 29, 2012 28