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Sunday, January 26, 2020

When the document is in the custody of a party - it has to produce the same without relying on the principle of burden of proof . The State is the largest litigant as often noted. It stands in a category apart having a solemn and constitutional duty to assist the court in dispensation of justice. The State cannot behave like a private litigant and rely on abstract theories of the burden of proof. National Insurance Co. Ltd. vs. Jugal Kishore, (1988) 1 SCC 626, observing as follows: ­ “10. Before parting with the case, we consider it necessary to refer to the attitude often adopted by the Insurance Companies, as was adopted even in this case, of not filing a copy of the policy before the Tribunal and even before the High Court in appeal. In this connection what is of significance is that the claimants for compensation under the Act are invariably not possessed of either the policy or a copy thereof. This Court has consistently emphasised that it is the duty of the party which is in possession of a document which would be helpful in doing justice in the cause to produce the said document and such party should not be permitted to take shelter behind the abstract doctrine of burden of proof. This duty is greater in the case of instrumentalities of the State such as the appellant who are under an obligation to act fairly. In many cases even the owner of the vehicle for reasons known to him does not choose to produce the policy or a copy thereof. We accordingly wish to emphasise that in all such cases where the Insurance Company concerned wishes to take a defence in a claim petition that its liability is not in excess of the statutory liability it should file a copy of the insurance policy along with its defence. Even in the instant case had it been done so at the appropriate stage necessity of approaching this Court in civil appeal would in all probability have been avoided. Filing a copy of the policy, therefore, not only cuts short avoidable litigation but also helps the court in doing justice between the parties. The obligation on the part of the State or its instrumentalities to act fairly can never be over­emphasised.”

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When the document is in the custody of a party - it has to produce the same without relying on the principle of burden of proof .  The Sta...

Contempt Petition = When the directions were to act in terms of the report of Bhatnagar Committee - the basic foundation of contempt petition projecting issuance of Notification does not survive as the matter was pending before High Court for consideration - when all these issues need to be gone into in a substantive challenge and will be beyond the scope of contempt jurisdiction - and as such contempt petition was closed. As a matter of fact, the directions issued by this Court in para 48 were clear that the State and its authorities were to act in terms of the report of the Bhatnagar Committee in accordance with the decisions in M. Nagraj and Suraj Bhan Meena1 . The basic foundation of the present contempt petitions projecting the issuance of Notification dated 11.09.2011 to be in contempt of the directions issued by this Court, thus, does not survive. In any case, challenge to said Notification and the report of the Bhatnagar Committee is still pending consideration before the High Court where the correctness and validity thereof will be gone into in accordance with law. With the decision of this Court in Jarnail Singh the matter also stands on a slightly modified footing. As concluded by this Court in Jarnail Singh the conclusion in M. Nagraj that the State has to collect quantifiable data showing backwardness of SC/ST, being contrary to the 9 Judges Bench decision in Indra Sawhney , was held to be invalid. The challenge to the recommendations given by the Bhatnagar Committee and the quantifiable data adverted to by the Committee will therefore have to be seen by the High Court in the light of the directions issued by this Court in Jarnail Singh. It is, thus, clear that all these issues need to be gone into in a substantive challenge and will be beyond the scope of contempt jurisdiction.

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Contempt Petition  = When the directions were to act in terms of the report of Bhatnagar Committee - the basic foundation of contempt petit...

In the absence of Evidence of his presence and participation in the offence - mere recovery of blood stained lathi at the instance of Accused , not held him as Guilty of offence. Even though alibi was not accepted - lack of corboration of Accused participation in the offence along with other accused as only one witness stated accused name in the re examination - even though non blood stained lathi was recovered at the instance of this accused - Still he is entitled for benifit of doubt. So far as the appellant Khemuram (A-8) is concerned, we find it difficult to endorse his conviction. Though one name ‘Hemu’ has occurred in the reexamination of PW-5 Prahlad Yadav but not specifically the name of this accused Khemuram8 . The prosecution has not taken any steps to clarify if there was any discrepancy in regard to the statement of this witness PW-5. No other eye-witness has named this accused Khemuram as one of the members of the mob that assaulted the deceased Govind Singh nor any other act of this accused has come on record which could connect him with the assembly in question and the place of incident. Though the lathi recovered at the instance of this accused (vide Ex. P/19) allegedly carried blood-stains but his conviction cannot be based on this recovery alone. For want of cogent and convincing evidence about his presence at the scene of crime and his participation in assaulting the deceased, in our view, this accused Khemuram (A-8) is entitled to the benefit of doubt and the findings in his relation cannot be sustained. As regards the appellant Lakhan (A-13), again, it is noticed that PW-5 Prahlad Yadav stated his name in the re-examination but then, no other eyewitness named him as one of the members of the mob that assaulted the deceased Govind Singh nor any other act of this accused has come on record which could connect him with the assembly in question and the place of incident. Thus, there had been want of corroboration of the statement of PW-5 by other witnesses in regard to the involvement of this accused Lakhan. The alleged weapon lathi said to have been recovered at the instance of this accused (vide Ex. P/26) is also not shown carrying blood-stains. Though this accused also led in defence evidence in the form of DW-3 Barsan who deposed that this accused was in other village Bhururenga and left his village on 15.10.1998 at about 5.00-5.30 and that the distance of the two villages was about 15 kms but then, there had been discrepancies regarding the dates and time in his testimony and no such specific plea of alibi was taken by this accused in his defence version. However, even if the defence evidence in his regard is not accepted, as noticed, a reasonable doubt still remains if this accused Lakhan was a part of the assembly in question. In the given circumstances, we are of the view that this accused Lakhan (A-13) is also entitled to benefit of doubt. However, in our view, the prosecution has failed to prove its case beyond reasonable doubt against the accused-appellants Khemuram (A-8) and Lakhan (A-13), who deserve to be acquitted on benefit of doubt.

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In the absence of Evidence of his presence and participation in the offence - mere recovery of blood stained lathi at the instance of Accus...