LAW FOR ALL

Friday, January 9, 2015

CRIMINAL APPEAL NO. 242 OF 2012 B.D. Khunte …Appellant Versus Union of India & Ors. …Respondents

REPORTABLE

IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 242 OF 2012

B.D. Khunte …Appellant

Versus

Union of India & Ors. …Respondents

WITH

CRIMINAL APPEAL NO.2328 OF 2014
(@ Special Leave Petition (Crl.) No.8457 of 2014
Crl. M.P. No.15455 of 2014)

J U D G M E N T

T.S. THAKUR, J.

Criminal Appeal No.242 of 2012:

1. High Court of Delhi has, while dismissing writ petition No.4652 of
2010 filed by the appellant, affirmed the orders passed by the Armed Forces
Tribunal, New Delhi and that passed by the Summary General Court
Martial holding the

appellant guilty for an offence punishable under Section 69 of the Army Act
read with Section 302 of the Ranbir Penal Code and sentencing him to
undergo imprisonment for life besides dismissal from service.

2. Enrolled on 30th July, 2004, the appellant was posted at Razdan in
Baramulla Sector of the State Jammu and Kashmir. Deceased Sub Randhir Singh
was serving as a Senior JCO/Post Commander at the very same place of
posting. The prosecution case is that on 28th June, 2006 at about 9.30 p.m.
the appellant while on guard duty shot Subedar (AIG) Randhir Singh dead
with a 5.56 Insas Rifle issued to him. FIR No.137 of 2006 about the
incident was lodged by the Brigade Commander concerned with the
jurisdictional police Station at Bandipur who after completing its
investigation of the incident filed a charge sheet against the appellant
before the Jurisdictional Magistrate for commitment of the case to the
Court of Sessions at Baramulla for trial.

3. The Court of Sessions at Baramulla in turn transferred the case to
the Army Authorities for being dealt with under the Army Act on an
application filed before it by the GOC 15 Corps. A Summary General Court
Martial was accordingly convened for the trial of the appellant who found
the appellant guilty for the commission of offences punishable under
Section 69 of the Army Act and Section 302 of the Ranbir Penal Code and
sentenced him to undergo imprisonment for life and dismissal from service.
Statutory remedies under the Army Act, 1950 having proved ineffective, the
appellant filed OA No.5 of 2009 before the Armed Forces Tribunal, Principal
Bench, New Delhi, which was heard and dismissed by the Tribunal by its
order dated 27th August, 2009. The appellant then filed Writ Petition
No.4652 of 2010 before the High Court of Delhi which too failed and was
dismissed by a Division Bench of the High Court by its order dated 5th
July, 2011. The present appeal assails the correctness of the judgment
passed by the High Court and that passed by the Armed Forces Appellate
Tribunal. It also challenges the conviction of the appellant for the
offence of murder and the sentence awarded to him by the Summary General
Court Martial.

4. Mr. Sisodia, senior counsel appearing for the appellant, raised a
short point before us. He contended that the appellant was, in the facts
and circumstances of the case, entitled to the benefit of Exception 1 to
Section 300 of the IPC. He argued that according to appellant’s version he
was on 28th June, 2006 resting in his bunk after lunch when the deceased
Sub Randhir Singh came to the appellant’s cot in an inebriated state,
slapped him mildly twice and asked the appellant to follow him. Thinking
that he was being called for some kind of duty, the appellant followed the
deceased to the store room where the deceased bolted the door from inside
and asked the appellant to remove his pant suggesting thereby that the
deceased intended to sodomise the appellant. When the appellant declined,
the deceased punched him and kicked him repeatedly and asked him to put up
his hand and hold the side beams of the top berth of the double bunk in the
store room. The appellant’s further case is that the deceased thereafter
made unwelcome and improper advances like kissing his body, cheeks and
stomach. While this was going on, two other personnel viz. Hadgal Vilas and
Anil Gadge knocked at the door of the store room. The deceased opened the
store room door and asked them to go away and shut the door again only to
continue the appellant’s torture for half an hour. The appellant somehow
managed to free himself and return to his barrack, shaken and crying
inconsolably. He is alleged to have shared his grief and sorrow about the
whole episode with his colleagues and immediate superior officers. No
formal report was, however, lodged by the appellant before the superior
officers, although according to the appellant, the superior officers
pacified and advised the appellant to remain calm and keep his cool. The
appellant’s further case is that he and his colleagues planned to gather
near the water heating point in the evening and beat up the deceased. With
that resolve he performed his administrative tasks during the day till it
was time for him to go for night picket guard duty commencing at 2000 hrs.
along with Hadgal Villas carrying his service weapon duly loaded as the
place where he was posted was an operational area. The appellant’s version
is that after taking early dinner he reached his place of night guard duty.
While on duty he saw someone approaching him. As per the prevailing drill
and procedure the appellant claims to have challenged the approaching
person, but the person paid no heed to the warning and continued to
approach till the appellant could recognise him to be Sub Randhir Singh.
Seeing the deceased and still seething with anger he opened fire upon him
from his service weapon. Sub Randhir Singh was hit and dropped dead on the
spot. The appellant was immediately taken into custody handcuffed and tied
to the cot in the barrack. Investigation by the local police into the
incident commenced leading to his trial by the Summary General Court
Martial in which he was found guilty for the murder of Sub Randhir Singh
and sentenced as mentioned earlier.

5. The above factual backdrop, argued Mr. Sisodia, was to bring the
appellant’s case within Exception 1 to Section 300 of the Indian Penal
Code. It was contended that the day time incident in the store room had so
deeply shaken the appellant that he was gravely and suddenly provoked when
the appellant saw the deceased approaching the picket in the evening. Mr.
Sisodia argued that although there was a time gap of several hours between
the attempted commission of an unnatural offence upon the appellant and the
time when he was gunned down by the appellant, yet keeping in view the
nature of the incident and the effect the same had upon the appellant the
interval was not of much consequence in the matter of restoring the
appellant’s equilibrium. The appellant was, according to the learned
Counsel, so deeply disturbed and provoked into a state of complete loss of
self-control that he had taken the extreme step of putting the deceased to
death no sooner the latter came before him while the appellant was on guard
duty armed with his service weapon. Mr. Sisodia contended that the
question: whether an incident was sufficient to result in a provocation so
grave and sudden as would deprive the person so provoked of the power of
self-control will have to be decided in the facts and circumstances of each
case. He urged that the appellant being a young jawan serving in the
Indian Army when beaten up to make him succumb to a possible sexual assault
was bound to provoke any reasonable person in his position especially when
the provocation came from a superior who instead of protecting him had
tried to take undue advantage of his position. The provocation resulting
from the day time store room incident had continued despite the intervening
time gap as the appellant had been all the while seething with anger. His
act of firing at the deceased no sooner he saw him must, therefore, be
taken in the context of the attendant facts and circumstances. It was urged
that an incident of this nature taking place in the Army is usually
underplayed by the authorities by either denying the same totally or
presenting a different picture which is neither true nor realistic.

6. On behalf of the respondents, it was per contra argued by Mr. Attri
that while the question of grave and sudden provocation will have to be
seen in the context of each individual case, the facts of the case at hand
did not support the appellant’s plea for invocation of Exception 1 to
Section 300 of IPC. He urged that the test laid down by the decisions of
this Court to determine whether the deceased had given any provocation to
the accused, whether the provocation was sudden and whether the same was
sufficiently grave so as to deprive the offender of his self-control were
not satisfied in the case at hand. It was contended that even if the
appellant’s version about the day time incident was accepted, a long
interval between the alleged provocation by the deceased and the murderous
assault by the appellant clearly denuded the provocation of its gravity and
spontaneity. A provocation like the one allegedly given by the deceased at
1 p.m. would have sufficiently cooled down after long hours especially when
even according to the appellant he had attended to other duties in the
intervening period. The fact that the appellant and his colleagues had
decided that they will in the evening give a beating to the deceased when
they assembled at the water heating point also showed that the provocation
was far from being sudden and grave enough for the appellant to shoot the
deceased down when he saw him in the evening.

7. We must at the threshold point out that there is no challenge to the
finding that it was the appellant who had shot the deceased using the
weapon and the ammunition issued to him. The reason is obvious. Depositions
of PWs 4, 5, 7, 8-12 and 16-18 clearly support the prosecution case that it
was the appellant who had shot the deceased-Randhir Singh and that he was
moments after the incident seen standing near the former’s dead body with
the service rifle in his hand. The evidence also proves that the appellant
was caught by two Jawans on the spot and brought inside the OR Lines and
tied to the bed using ropes. PW-19 has further deposed that after the
appellant was tied to the bed the witness slapped the appellant and asked
him as to why he shot the deceased to which the appellant replied “SAHAB
NEY MERE KO DUPHAAR KO MARA THA, ISLIYE MAINE SAHIB KO MAAR DIYA” (Sahab
had beaten me at noon, therefore, I have killed Sahab). The use of the
rifle issued to the appellant and the fact that 18 empties recovered from
the spot had been fired from the said weapon is also established from the
evidence of PW-18. That 18 bullets fired by the appellant had pierced the
body of the deceased is also not in dispute. Any argument to discredit
this overwhelming evidence or dispute the involvement of the appellant in
the shooting incident would have been specious and futile to say the least.
That is perhaps the reason why no attempt was made by Mr. Sisodia to argue
that the incident did not involve the appellant or that he was falsely
implicated.
8. The only question, as seen earlier, is whether the incident that took
place around 1400 hrs. in the store room could mitigate the offence
committed by the appellant. The answer to that question would in turn
depend upon the nature of the incident and whether the same would
constitute grave and sudden provocation for the appellant to have shot the
deceased long after the store room incident had taken place.
9. That an incident took place at 1400 hrs. in the store room cannot be
denied. Depositions of PWs. 11 and 13 support the appellant's case that
some incident had indeed taken place which had disturbed the appellant for
he was found crying over the same. When asked as to why he was upset and
crying, the appellant had, according to the said two witnesses, told them
that the deceased had beaten him. To the same effect is the deposition of
PW-19, according to whom, the appellant was in the company of the deceased
in a room at around 1400 hrs. where the appellant was crying. Later that
day when the appellant met the witness near the water heating point and was
asked as to why he was crying the appellant is said to have replied “SAHAB
NEY MERE KO BAHUT MARA AUR PANT KHOLNEY KO BATAYA AUR MERE MANA KARNE PAR
MUJHE PHIR PITA” (Sahab beat me up and asked me to open my pant and on my
refusal to do so beat me again).
10. Suffice it to say that the appellant's version gets sufficient
support from the prosecution witnesses themselves that an incident did take
place at 1400 hrs. in the store room in which the appellant was beaten and
humiliated. There is, however, no evidence nor is it the appellant's case
that the deceased had actually sodomised him. Even PW-19 deposed that the
appellant had not complained of having been sodomised by the deceased. The
High Court has also taking note of this aspect held that while the physical
assault on the appellant had humiliated the appellant, but there was
nothing to show that he was actually sodomised. Whether or not the deceased
had sodomised the appellant is not material. The question is whether an
incident had taken place. If so, did the same constitute grave and sudden
provocation? What is proved by the evidence on record is that the deceased
had, by his conduct, humiliated the appellant to an extent that he felt
deeply disturbed and was seen crying by his colleagues in whom he had
confided by telling them the cause for his distress.

11. What is critical for a case to fall under Exception 1 to Section 300
IPC is that the provocation must not only be grave but sudden as well. It
is only where the following ingredients of Exception 1 are satisfied that
an accused can claim mitigation of the offence committed by him from murder
to culpable homicide not amounting to murder:

(1) The deceased must have given provocation to the accused.

(2) The provocation so given must have been grave.

(3) The provocation given by the deceased must have been sudden.

(4) The offender by reason of such grave and sudden provocation must have
been deprived of his power of self-control; and

(5) The offender must have killed the deceased or any other person by
mistake or accident during the continuance of the deprivation of the power
of self-control.

12. Applying the above tests to the case at hand there is no gainsaying
that an able bodied youthful Jawan when physically assaulted by his
superior may be in a state of provocation. The gravity of such a
provocation may be heightened if the physical beating was meant to force
him to submit to unnatural carnal intercourse to satisfy the superior's
lust. The store room incident involving the appellant and the deceased is
alleged to have taken place when the deceased had bolted the door of the
store room to keep out any intruder from seeing what was happening inside.
By any standard the act of a superior to humiliate and force his
subordinate in a closed room to succumb to the lustful design of the former
was a potent recipe for anyone placed in the appellant’s position to revolt
and retaliate against the treatment being given to him. What may have
happened inside the store room if the appellant had indeed revolted and
retaliated against the unbecoming conduct of the deceased is a matter of
conjecture. The appellant or any one in his position may have retaliated
violently to the grave peril of his tormentor. The fact of the matter,
however, is that the appellant appears to have borne the assault without
any retaliation against the deceased-superior and somehow managed to escape
from the room. The critical moment when the appellant could perhaps loose
his cool and equilibrium to take retaliatory action against the deceased
was thus allowed to pass uneventfully, grave and sudden provocation for any
such action notwithstanding.

13. All that the evidence proves is that after the said incident the
appellant was seen crying and depressed and when asked by his colleagues he
is said to have narrated his tale of humiliation at the hands of the
deceased. There is no evidence to prove that after the incident
aforementioned the appellant had continued to suffer a prolonged spell of
grave provocation. By their nature such provocation even when sudden and
grave cool off with passage of time often lapsing into what would become a
motive for taking revenge whenever an opportunity arises. That appears to
have happened in the present case also for the appellant's version is that
he and his colleagues had planned to avenge the humiliation by beating up
the deceased in the evening when they all assemble near the water heating
point. That apart, the appellant attended to his normal duty during the day
time and after the evening dinner, went to perform his guard duty at 2100
hrs. All these circumstances do not betray any signs of grave leave alone
grave and sudden provocation to have continued haunting the appellant and
disturbing his mental equilibrium or depriving him of self control that is
an essential attribute of grave and sudden provocation to qualify as a
mitigating factor under Exception 1 to Section 300 IPC.

14. It was contended by Mr. Sisodia that although between the incident
that happened at noon and the shooting of the deceased at 2130 hrs. were
separated by nearly seven hours interval, the nature of the provocation
continued to be grave within the meaning of Exception 1 to Section 300
IPC. We find it difficult to accept that submission. Grave provocation
within the meaning of Exception 1 is a provocation where judgment and
reason take leave of the offender and violent passion takes over.
Provocation has been defined by Oxford Dictionary, as an action, insult,
etc. that is likely to provoke physical retaliation. The term grave only
adds an element of virulent intensity to what is otherwise likely to
provoke retaliation.

15. In R. v. Duffy [1949] 1 All E.R. 932 provocation has been explained
as under:-

“The whole doctrine relating to provocation depends on the fact that it
cause, or may causes, a sudden and temporary loss of self-control, whereby
malice, which is the formation of an intention to kill or to inflict
grievous bodily harm, is negatived. Consequently, where the provocation
inspires an actual intention to kill, or to inflict grievous bodily harm,
the doctrine that provocation may reduce murder to manslaughter seldom
applies.”

16. The argument that the incident that took place around noon on that
day was a grave provocation that continued to provoke the appellant right
through the day till 9.30 evening when the appellant shot the deceased,
does not, therefore, appeal to us, not only because the appellant had
settled for a lesser act of retaliation like beating of the deceased in the
evening by him and his colleagues when they assembled near the water
heating point, but also because the appellant had performed his normal
duties during the day time and even in the evening except that he and some
of his colleagues appear to have planned beating up the deceased.

17. This Court was in K.M. Nanavati v. State of Maharashtra AIR 1962 SC
605 dealing with a somewhat similar question. In that case the wife of the
accused had confessed her illicit intimacy with the deceased when the
deceased was not present. The prosecution case as proved at the trial was
that after the confession of the wife, the accused had driven her and the
children to a cinema and left them there, gone to his ship to take a
revolver loaded with six rounds and driven his car to the office of the
deceased and then to his flat, gone to his bed room and shot him dead.
This Court held that between 1.30 p.m. when the deceased left his house and
4.20 p.m. when the murder took place there was a gap of three hours which
was sufficient time for him to regain his self control even if he had not
regained it earlier. The following passage from the decision is significant
when it deals with the expression grave within the meaning of Exception 1
to Section 300 IPC:

“86. Bearing these principles in mind, let us look at the facts of this
case. When Sylvia confessed to her husband that she had illicit intimacy
with Ahuja, the latter was not present. We will assume that he had
momentarily lost his self-control. But, if his version is true — for the
purpose of this argument we shall accept that what he has said is true — it
shows that he was only thinking of the future of his wife and children and
also of asking for an explanation from Ahuja for his conduct. This attitude
of the accused clearly indicates that he had not only regained his self-
control, but, on the other hand, was planning for the future. Then he drove
his wife and children to a cinema, left them there, went to his ship, took
a revolver on a false pretext, loaded it with six rounds, did some official
business there, and drove his car to the office of Ahuja and then to his
flat, went straight to the bedroom of Ahuja and shot him dead. Between 1.30
p.m., when he left his house, and 4.20 p.m., when the murder took place,
three hours had elapsed, and therefore there was sufficient time for him to
regain his self-control, even if he had not regained it earlier. On the
other hand, his conduct clearly shows that the murder was a deliberate and
calculated one. Even if any conversation took place between the accused and
the deceased in the manner described by the accused — though we do not
believe that — it does not affect the question, for the accused entered the
bedroom of the deceased to shoot him. The mere fact that before the
shooting the accused abused the deceased and the abuse provoked an equally
abusive reply could not conceivably be a provocation for the murder. We,
therefore, hold that the facts of the case do not attract the provisions of
Exception 1 to Section 300 of the Indian Penal Code.”

18. The position in the case at hand is no different. Between 1400 hrs.
when the appellant was given a grave provocation and 2130 hrs., the time
when the appellant shot the deceased there were seven hours which period
was sufficient for the appellant to cool down. A person who is under a
grave and sudden provocation can regain his cool and composure. Grave
provocation after all is a momentary loss of one’s capacity to
differentiate between what is right and what is not. So long as that
critical moment does not result in any damage, the incident lapses into
realm of memories to fuel his desire to take revenge and thus act a s a
motivation for the commission of a crime in future. But any such memory of
a past event does not qualify as a grave and sudden provocation for
mitigating the offence. The beating and humiliation which the accused had
suffered may have acted as a motive for revenge against the deceased who
had caused such humiliation but that is not what falls in Exception 1 to
Section 300 of the IPC which is identical to Exception 1 to Section 300 of
the Ranbir Penal Code applicable to the State of Jammu & Kashmir where the
offence in question was committed by the appellant. We may, in this
regard, extract the following passage from Mancini v. Director for Public
Prosecutor [1941] 3 All E.R. 272 :

“it is not all provocation that will reduce the crime of murder to
manslaughter. Provocation to have that result, must be such as temporarily
deprive the person provoked of the power of self-control as result of which
he commits the unlawful act which caused death. The test to be applicable
is that of the effect of the provocation on a reasonable man, as was laid
down by the Court of Criminal Appeal in Rex v. Lesbini so that an unusually
excitable or pugnacious individual is not entitled to rely on provocation
which would not have led ordinary person to act as he did. In applying the
test, it is of particular importance to (a) consider whether a sufficient
interval has elapsed since the provocation to allow a reasonable man time
to cool, and (b) to take into account the instrument with which the
homicide was effected, for to retort, in the heat of passion induced by
provocation, by a simple blow, is very different thing from making use of a
deadly instrument like a concealed dagger. In short, the mode of resentment
must bear a reasonable relationship to the provocation if the offence is to
be reduced to manslaughter.”

19. The contention that the day time incident being such that the
appellant could get a grave provocation, the moment he saw the deceased
coming towards the place where he was on guard duty, also has not appealed
to us. It is not the case of the appellant that the deceased had come
close to him or tried to act fresh with him so as to give to the appellant
another provocation that could possibly justify his losing self-control and
using his weapon. The appellant's version that he had called halt as all
Jawans on guard duty are trained to do in operational areas but when the
person approaching him did not stop and when he recognised the person to be
none other than the deceased shot him, clearly suggests that the deceased
was not in close physical proximity to the appellant. The appellant may
have been angry with the deceased for his act of misdemeanour. But any
such anger would only constitute a motive for taking revenge upon the
deceased. It could not be described as a grave and sudden provocation for
which deceased could have been shot the moment he came in front of the
appellant. The deceased, at any rate, could not be accused of having given
any provocation to the appellant by moving towards the place where the
appellant was on guard duty for the deceased was well within the sphere of
his duty to keep an eye on those who were performing the guard duty. The
very act of appearance of the deceased near the picket/post where the
appellant was on duty could not, therefore, constitute a provocation within
the meaning of Exception 1 to Section 300 IPC.

20. In the result this appeal fails and is hereby dismissed.

Criminal Appeal No.2328 OF 2014
(@ Special Leave Petition (Crl.) No. 8457 of 2014 Crl M.P.
No.15455/2014)

Delay condoned

Leave granted.

In view of our order of even date passed in Criminal Appeal No.242 of
2012, this appeal, filed by the appellant-B.D. Khunte, also fails and is,
hereby, dismissed.

………………………………….…..…J.
(T.S. THAKUR)

………………………………….…..…J.
(ADARSH KUMAR GOEL)

…………………………..……………..J.
New Delhi, (R. BANUMATHI)
October 30, 2014

CRIMINAL APPEAL NO. 2327 OF 2014 (Arising out of SLP (Crl.) No. 9751/2011) BINOD KUMAR & ORS. .. Appellant Versus STATE OF BIHAR & ANR. ..Respondents-2014 S.C.OCT.MONTH

REPORTABLE

IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 2327 OF 2014
(Arising out of SLP (Crl.) No. 9751/2011)

BINOD KUMAR & ORS. .. Appellant

Versus

STATE OF BIHAR & ANR. ..Respondents

J U D G M E N T

R. BANUMATHI, J.

Leave granted.
2. Whether the charges under Section 406 IPC and the criminal
complaint for criminal breach of trust for allegedly retaining the bill
amount payable to respondent No.2 is liable to be quashed is the point
falling for consideration in this appeal.
3. Payment of bill pertaining to the contract executed by the
second respondent in Tilka Manjhi Bhagalpur University had a chequered
history. Case of second respondent is that contract was entered into
between him and K.S.S. College on 4.9.1990 for the construction of building
of K.S.S. College, Lakhisarai, a constituent unit of Tilka Manjhi Bhagalpur
University. According to second respondent, since money and requisite
materials were not given to him in time, the work was not completed within
stipulated period. The university vide letter dated 9.5.1995, informed
the respondent No.2 that his contract is terminated and all his dues
including final bill, earnest money and security deposit etc. will be
released after consultation with the College Development Committee. The
University Engineer vide letter dated 4.6.1996, addressed to the Principal
of the college, informed that a payment of Rs.48,505/- is payable to the
contractor; but the respondent No.2 was not paid the aforesaid bill amount.
Finally, the respondent was paid Rs.14,000/- vide cheque No. EMGCO-OP.Z
No. 0127627, as per the direction of the College Development Committee and
balance amount of Rs.34,505/- was not paid to him. Aggrieved by the said
non-payment of entire amount, respondent No.2 filed a criminal complaint
case No.196-C/1997 in the Court of Sub Divisional Judicial Magistrate,
Lakhisarai for criminal breach of trust, alleging that the amount of
Rs.34,505/- was not paid to him and that the amount was utilized by the
appellants in some other work.
4. The appellants filed an application under Section 227
Cr.P.C. before the Court of Sub Divisional Judicial Magistrate, Lakhisarai
seeking their discharge from the criminal case. The Court of Sub Divisional
Judicial Magistrate, Lakhisarai vide its order dated 2.12.2002 dismissed
the said petition and directed the appellants to remain present in the
court on 8.1.2003 for framing of charges under Section 406/120B IPC. The
appellants filed petition under Section 482 Cr.P.C. before the Patna High
Court for quashing the said order and by the impugned order dated
18.2.2011, the High Court dismissed the petition. Aggrieved by the same,
the appellants are before us.
5. Dr. Manish Singhvi, learned counsel appearing for the
appellants, contended that the act of withholding of payment to the second
respondent was as per the direction issued by the Vice-Chancellor and no
case is made out for misappropriation of funds under Section 406 IPC. It
was contended that the act of the appellants was done in the discharge of
their public duties and there was no dishonest intention to misappropriate
the amount and the essential ingredients of criminal breach of trust are
not made out and the High Court has not properly appreciated the matter.
6. Ms. Prerna Singh, learned counsel for respondent No.1 - State
of Bihar, submitted that the instant petition does not relate to any
police case and the matter was never subjected to police investigation. It
was, however, submitted that on examination of four witnesses, Magistrate
found that a prima facie case was made out against the appellants and
therefore, High Court rightly dismissed the petition filed under Section
482 Cr.P.C.
7. Mr. Rajiv Kumar, learned counsel appearing for the second
respondent contended that the application for discharge was rightly
rejected by the Magistrate as the case filed by the second respondent is a
warrant case instituted other than on police report and since prima-facie
case was made out, the discharge application was rightly dismissed by
the trial court. It was also contended that as per the terms and
conditions of the contract, the second respondent had executed the work and
the same was also measured and verified by the University Engineer and
while so, the appellants with malafide intention withheld the second
respondent’s dues and thus, committed criminal breach of trust and the High
Court rightly dismissed the petition filed under Section 482 Cr.P.C.
8. We have carefully considered the rival contentions and also
perused the impugned order and the materials on record.
9. In proceedings instituted on criminal complaint, exercise of
the inherent powers to quash the proceedings is called for only in case
where the complaint does not disclose any offence or is frivolous. It is
well settled that the power under Section 482 Cr.P.C. should be sparingly
invoked with circumspection, it should be exercised to see that the process
of law is not abused or misused. The settled principle of law is that at
the stage of quashing the complaint/FIR, the High Court is not to embark
upon an enquiry as to the probability, reliability or the genuineness of
the allegations made therein. In Smt. Nagawwa vs. Veeranna Shivalingappa
Konjalgi, (1976) 3 SCC 736, this Court enumerated the cases where an
order of the Magistrate issuing process against the accused can be quashed
or set aside as under:
“(1) where the allegations made in the complaint or the statements of the
witnesses recorded in support of the same taken at their face value make
out absolutely no case against the accused or the complainant does not
disclose the essential ingredients of an offence which is alleged against
the accused;
where the allegations made in the complaint are patently absurd and
inherently improbable so that no prudent person can ever reach a
conclusion that there is a sufficient ground for proceeding against the
accused;
where the discretion exercised by the Magistrate in issuing process is
capricious and arbitrary having been based either on no evidence or on
materials which are wholly irrelevant or inadmissible; and
where the complaint suffers from fundamental legal defects such as, want of
sanction, or absence of a complaint by legally competent authority and the
like.”

The Supreme Court pointed out that the cases mentioned are purely
illustrative and provide sufficient guidelines to indicate contingencies
where the High Court can quash the proceedings.
10. In Indian Oil Corporation vs. NEPC India Ltd. And Ors., (2006)
6 SCC 736, this Court has summarized the principles relating to exercise of
jurisdiction under Section 482 Cr.P.C. to quash complaints and criminal
proceedings as under:-
“The principles relating to exercise of jurisdiction under Section 482 of
the Code of Criminal Procedure to quash complaints and criminal proceedings
have been stated and reiterated by this Court in several decisions. To
mention a few—Madhavrao Jiwajirao Scindia v. Sambhajirao Chandrojirao Angre
(1988) 1 SCC 692, State of Haryana v. Bhajan Lal,1992 Supp (1) SCC 335;
Rupan Deol Bajaj v. Kanwar Pal Singh Gill (1995) 6 SCC 194, Central Bureau
of Investigation v. Duncans Agro Industries Ltd (1996) 5 SCC 591; State of
Bihar v. Rajendra Agrawalla (1996) 8 SCC 164, Rajesh Bajaj v. State NCT of
Delhi,(1999) 3 SCC 259; Medchl Chemicals & Pharma (P) Ltd. v. Biological E.
Ltd(2000) 3 SCC 269 [pic]Hridaya Ranjan Prasad Verma v. State of Bihar
(2000) 4 SCC 168, M. Krishnan v. Vijay Singh (2001) 8 SCC 645 and Zandu
Pharmaceutical Works Ltd. v. Mohd. Sharaful Haque( 2005) 1 SCC 122. The
principles, relevant to our purpose are:
(i) A complaint can be quashed where the allegations made in the
complaint, even if they are taken at their face value and accepted in their
entirety, do not prima facie constitute any offence or make out the case
alleged against the accused.
For this purpose, the complaint has to be examined as a whole, but
without examining the merits of the allegations. Neither a detailed inquiry
nor a meticulous analysis of the material nor an assessment of the
reliability or genuineness of the allegations in the complaint, is
warranted while examining prayer for quashing of a complaint.
(ii) A complaint may also be quashed where it is a clear abuse of the
process of the court, as when the criminal proceeding is found to have been
initiated with mala fides/malice for wreaking vengeance or to cause harm,
or where the allegations are absurd and inherently improbable.
(iii) The power to quash shall not, however, be used to stifle or
scuttle a legitimate prosecution. The power should be used sparingly and
with abundant caution.
(iv) The complaint is not required to verbatim reproduce the legal
ingredients of the offence alleged. If the necessary factual foundation is
laid in the complaint, merely on the ground that a few ingredients have not
been stated in detail, the proceedings should not be quashed. Quashing of
the complaint is warranted only where the complaint is so bereft of even
the basic facts which are absolutely necessary for making out the offence.
(v) A given set of facts may make out: (a) purely a civil wrong; or
(b) purely a criminal offence; or (c) a civil wrong as also a criminal
offence. A commercial transaction or a contractual dispute, apart from
furnishing a cause of action for seeking remedy in civil law, may also
involve a criminal offence. As the nature and scope of a civil proceeding
are different from a criminal proceeding, the mere fact that the complaint
relates to a commercial transaction or breach of contract, for which a
civil remedy is available or has been availed, is not by itself a ground to
quash the criminal proceedings. The test is whether the allegations in the
complaint disclose a criminal offence or not.”

11. Referring to the growing tendency in business circles to
convert purely civil disputes into criminal cases, in paragraphs (13) and
(14) of the Indian Oil Corporation’s case (supra), it was held as under:-
“13. While on this issue, it is necessary to take notice of a growing
tendency in business circles to convert purely civil disputes into criminal
cases. This is obviously on account of a prevalent impression that civil
law remedies are time consuming and do not adequately protect the interests
of lenders/creditors. Such a tendency is seen in several family disputes
also, [pic]leading to irretrievable breakdown of marriages/families. There
is also an impression that if a person could somehow be entangled in a
criminal prosecution, there is a likelihood of imminent settlement. Any
effort to settle civil disputes and claims, which do not involve any
criminal offence, by applying pressure through criminal prosecution should
be deprecated and discouraged. In G. Sagar Suri v. State of U.P., (2000) 2
SCC 636 this Court observed: (SCC p. 643, para 8)
“It is to be seen if a matter, which is essentially of a civil nature, has
been given a cloak of criminal offence. Criminal proceedings are not a
short cut of other remedies available in law. Before issuing process a
criminal court has to exercise a great deal of caution. For the accused it
is a serious matter. This Court has laid certain principles on the basis of
which the High Court is to exercise its jurisdiction under Section 482 of
the Code. Jurisdiction under this section has to be exercised to prevent
abuse of the process of any court or otherwise to secure the ends of
justice.”

14. While no one with a legitimate cause or grievance should be prevented
from seeking remedies available in criminal law, a complainant who
initiates or persists with a prosecution, being fully aware that the
criminal proceedings are unwarranted and his remedy lies only in civil law,
should himself be made accountable, at the end of such misconceived
criminal proceedings, in accordance with law. One positive step that can be
taken by the courts, to curb unnecessary prosecutions and harassment of
innocent parties, is to exercise their power under Section 250 CrPC more
frequently, where they discern malice or frivolousness or ulterior motives
on the part of the complainant. Be that as it may.”

12. Coming to the facts of this case, it is no doubt true that the
dispute relates to the non-payment of bill amount of Rs.34,505/- pertaining
to the contract executed by respondent No.2. It is also pertinent to note
that respondent No.2 preferred CWJC No.5803/1999 wherein an order dated
5.4.2000 was passed by Patna High Court directing the Vice-Chancellor of
Bhagalpur University to release the balance amount of Rs.34,505/- with
interest at the rate of 18% w.e.f. 1.10.1994 till the date of payment and
pay the interest at the rate of 11% on the sum of Rs.14,000/- from
1.10.1994 till 9.12.1996. Aggrieved by the said order, Bhagalpur
University preferred LPA No.716/2000 wherein it was directed that since it
was not a statutory contract, no direction for payment of money could be
issued and the respondent No.2 can pursue other remedies available in law
for the recovery of money. Aggrieved by the said order, respondent No. 2
filed SLP(C) No. CC 4832/2001 which was dismissed as withdrawn by this
Court by Order dated 30.7.2001 granting him liberty to approach the
appropriate forum. Respondent No.2 thereafter filed Money Suit No. 2/2002
before the Court of Sub Judge 1st Court, Lakhisarai on 20.4.2002 for
recovery of Rs. 69,010/- i.e. double the amount of Rs.34,505/- and the said
suit is pending. Second appellant representing the university had also
filed Money Suit No.2/2006 before the same Court on 4.2.2006 claiming a sum
of Rs.1,44,437/- with interest against the second respondent-contractor.
These acts of the parties show that the parties have already had recourse
to the civil remedies that are available to them in law.
13. Appellant Nos.1 and 2 were then employed as Principal and
Professor respectively in KSS College, Lakhisarai and appellant No.3 as
Bursar of the said college. The appellants have stated that they had no
intention to cheat or dishonestly misappropriate the amount of Rs. 34,505/-
. The appellants have stated that there were disputes regarding the
quality of work done and also non-return of some cement bags by the second
respondent. It is stated that in view of the dispute between the
university and the contractor and stoppage of further construction by the
second respondent and with the direction and approval of the Vice-
Chancellor, contract of the appellant was terminated and his bill was
placed before the College Development Committee. In its meeting dated
8.12.1995, the Committee considered the claim of the second respondent and
rejected his certain claims and the same was informed to the Vice-
Chancellor. The university vide letter No. E/243 dated 25.3.1998 directed
to stop final payment to the second respondent and the university requested
the Executive Engineer for verification of quality of work done.
Appellants have stated that the amount of Rs. 34,505/- has
been lying in the account of the university and only on instruction from
the Vice-Chancellor, the amount was not paid to the second respondent and
no dishonest intention could be attributed to the appellants.
14. At this stage, we are only concerned with the question whether
the averments in the complaint taken at their face value make out the
ingredients of criminal offence or not. Let us now examine whether the
allegations made in the complaint when taken on their face value, are true
and constitute the offence as defined under Section 406.
15. Section 405 IPC deals with criminal breach of trust. A careful
reading of the Section 405 IPC shows that a criminal breach of trust
involves the following ingredients:
(a) a person should have been entrusted with property, or entrusted with
dominion over property;
(b) that person should dishonestly misappropriate or convert to his own
use that property, or dishonestly use or dispose of that property or
wilfully suffer any other person to do so;
(c) that such misappropriation, conversion, use or disposal should be in
violation of any direction of law prescribing the mode in which such trust
is to be discharged, or of any legal contract which the person has made,
touching the discharge of such trust.

16. Section 406 IPC prescribes punishment for criminal breach of
trust as defined in Section 405 IPC. For the offence punishable under
Section 406 IPC, prosecution must prove:
(i) that the accused was entrusted with property or with dominion over
it and

(ii) that he (a) misappropriated it, or (b) converted it to his
own use, or (c) used it, or (d) disposed of it.

The gist of the offence is misappropriation done in a dishonest manner.
There are two distinct parts of the said offence. The first involves the
fact of entrustment, wherein an obligation arises in relation to the
property over which dominion or control is acquired. The second part deals
with misappropriation which should be contrary to the terms of the
obligation which is created.
17. Section 420 IPC deals with cheating. Essential ingredients of
Section 420 IPC are:- (i) cheating; (ii) dishonest inducement to deliver
property or to make, alter or destroy any valuable security or anything
which is sealed or signed or is capable of being converted into a
valuable security, and (iii) mens rea of the accused at the time of
making the inducement.
18. In the present case, looking at the allegations in the
complaint on the face of it, we find no allegations are made attracting
the ingredients of Section 405 IPC. Likewise, there are no allegations as
to cheating or the dishonest intention of the appellants in retaining the
money in order to have wrongful gain to themselves or causing wrongful loss
to the complainant. Excepting the bald allegations that the appellants did
not make payment to the second respondent and that the appellants utilized
the amounts either by themselves or for some other work, there is no iota
of allegation as to the dishonest intention in misappropriating the
property. To make out a case of criminal breach of trust, it is not
sufficient to show that money has been retained by the appellants. It must
also be shown that the appellants dishonestly disposed of the same in some
way or dishonestly retained the same. The mere fact that the appellants
did not pay the money to the complainant does not amount to criminal breach
of trust.
19. Even if all the allegations in the complaint taken at the
face value are true, in our view, the basic essential ingredients of
dishonest misappropriation and cheating are missing. Criminal proceedings
are not a short cut for other remedies. Since no case of criminal breach
of trust or dishonest intention of inducement is made out and the essential
ingredients of Sections 405/420 IPC are missing, the prosecution of the
appellants under Sections 406/120B IPC, is liable to be quashed.
20. The impugned order of the High Court is set aside and this
appeal is allowed. Parties are at liberty to work out their remedy in the
civil suits which they have already had recourse to.

……………………….J.
(T.S. Thakur)

……………………….J.
(R. Banumathi)

New Delhi;
October 30, 2014

CRIMINAL APPEAL NO. 1381 OF 2011 Mallella Shyamsunder … Appellant (s) Versus State of Andhra Pradesh … Respondent (s)2014-S.C. OCT.MONTH.

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1381 OF 2011

Mallella Shyamsunder … Appellant (s)

Versus

State of Andhra Pradesh … Respondent (s)

J U D G M E N T

KURIAN, J.:

Nemo moriturus praesumitur mentire literally means no one at the point of
death is presumed to lie. Nobody normally may lie and die for fear of
meeting his maker.
Acceptability and reliability of statement made by a person who is about to
die, which statement, in common parlance, is known as dying declaration,
has been the subject matter of several reported decisions of this Court
and, therefore, it is not necessary to add one more to the same. However,
for the purpose of understanding the first principles, we shall refer to a
Constitution Bench decision in Laxman v. State of Maharashtra[1], wherein
at paragraph-3, it is held as follows:

“3. The juristic theory regarding acceptability of a dying declaration is
that such declaration is made in extremity, when the party is at the point
of death and when every hope of this world is gone, when every motive to
falsehood is silenced, and the man is induced by the most powerful
consideration to speak only the truth. Notwithstanding the same, great
caution must be exercised in considering the weight to be given to this
species of evidence on account of the existence of many circumstances which
may affect their truth. The situation in which a man is on the deathbed is
so solemn and serene, is the reason in law to accept the veracity of his
statement. It is for this reason the requirements of oath and cross-
examination are dispensed with. Since the accused has no power of cross-
examination, the courts insist that the dying declaration should be of such
a nature as to inspire full confidence of the court in its truthfulness and
correctness. The court, however, has always to be on guard to see that the
statement of the deceased was not as a result of either tutoring or
prompting or a product of imagination. The court also must further decide
that the deceased was in a fit state of mind and had the opportunity to
observe and identify the assailant. …”

Appellant is the first accused in Sessions Case No. 197 of 2002 on the file
of the Court of Second Additional Sessions Judge, Mahabubnagar, Andhra
Pradesh. He was sentenced to undergo rigorous imprisonment for life under
Section 302 of the Indian Penal Code (45 of 1860) (hereinafter referred to
as ‘IPC’). He was also sentenced to undergo rigorous imprisonment for one
year under Section 498A of IPC. The second accused who is the mother of the
first accused, was convicted under Section 498A of IPC and sentenced to
undergo one year rigorous imprisonment. The High Court, however, taking
note mainly of the age of the second accused, maintaining the conviction
under Section 498A of IPC, reduced the sentence to the period already
undergone.
The victim, Smt. Kalyani, since deceased, was married to the appellant on
26.04.2000. The allegation is that on account of non-payment of balance of
the promised dowry, she was being ill treated and harassed by both the
accused. On 23.08.2001, the appellant sent her out of the matrimonial home
demanding the balance amount of dowry. However, PW-1-mother of the deceased
took her to the house of the accused and gave him Rs.1,000/-, gold ear
studs, gold ring and returned; but the second accused took the postela
chain (mangalsutra) of the deceased and when PW-1 requested to return the
same, he replied that the same would be returned when PW-1 pays the balance
of the dowry. On 31.08.2001, PW-1 received a telephone call from the
appellant to the effect that the deceased had set fire to herself and she
was admitted in Srinivasa Hospital, Nagar Kurnool. In the hospital, PWs- 1
and 2 were told by the deceased that the appellant had beaten her and set
her on fire after pouring kerosene. At about 10.35 a.m., PW-10, Sub-
Inspector of Police visited the hospital and recorded the statement of the
deceased marked as Exhibit-P5 and, on the basis of it, he registered Crime
No. 104 of 2001 and he also sent Exhibit-P-6-requisition for JFCM for
recording dying declaration. On 31.08.2001 itself, PW-13, JFCM, Nagar
Kurnool visited the hospital and recorded the dying declaration marked as
Exhibit-P10. Thereafter, the deceased was shifted to Osmania General
Hospital. However, she died on 09.09.2001. PW-10, who investigated the
case, recorded the statement of PWs- 1 to 4 and others, visited the scene
of offence, prepared scene observation report-Exhibit-P7, seized the
kerosene tin(MO-1), the match box-(MO-2) and the burnt towel and the
saree-(MOs-3 and 4, respectively) and got the scene of offence
photographed. PW-11-Assistant Professor, Department of Medicine, Osmania
Medical College, conducted the autopsy and opined that the cause of death
was due to 70% burns on the body. The post-mortem report is marked as
Exhibit-P8.
The accused took a defence of total denial.
On behalf of the prosecution, PWs-1 to 13 were examined, Exhibits-P1 to P10
were marked apart from MOs-1 to 4.
The High Court, after elaborately considering the evidence on record,
maintained the conviction and sentence of the appellant. However, while
maintaining the conviction of the second accused under Section 498A of IPC,
the Court reduced the sentence to the period already undergone. There is no
appeal by the second accused.
Having regard to the evidence on record, the High Court confirmed the
finding of the Sessions Court that it is a case of homicide. For connecting
the appellant solely to the homicide, mainly Exhibits-P5 and P10 – dying
declarations were relied on in addition to the oral evidence of PWs-1 to 4.

There is no eye-witness. However, according to PW-4, the landlord, where
the appellant and his deceased wife stayed as tenants in the adjacent
room, has given evidence to the effect that on 31.08.2001, at about 08.00
or 08.30 a.m., he heard a galata (quarrel) at the residence of appellant
and some time later, he saw the deceased coming out in flames. The deceased
tried to douse the fire by pouring water on herself and the accused also
did the same. When he reprimanded the appellant, the appellant brought an
autorickshaw and shifted her to the hospital. PW-1-mother of the deceased,
PW-2-son-in-law of PW-1, PW-3-neighbour of PW-2, all had visited the
deceased in the hospital and, according to them, the deceased had told them
that the appellant had set her on fire on account of non-payment of balance
dowry. However, PW-9-Dr. Narhari, working in Government Hospital, where the
deceased was taken immediately after the burns and who administered first
aid to the deceased, had a version that on his inquiry from the deceased,
she had told him that the injuries were self-inflicted.
Exhibit-P5 is the first dying declaration recorded by the Sub-Inspector of
Police based on which the First Information Report was registered.
According to her, on 30.08.2001 also, there was a quarrel between the
appellant and the deceased regarding non-payment of the balance dowry. On
31.08.2001, at 08.30 a.m., when she tried to wake the appellant up, he beat
her with chappal on her back and, immediately thereafter, he poured
kerosene on her and set her on fire. Exhibit-P10 is the dying declaration
recorded by JFCM, Nagar Kurnool at around 01.25 p.m. on 31.08.2001. With
regard to the incident, there is no major inconsistency.
Learned Counsel for the appellant submits that the case is entirely based
on circumstantial evidence and there is no direct evidence to connect the
appellant. It is not necessary to refer in extenso to this argument for the
following reasons:
a. Exhibits-P5 and P10 – dying declarations are confidence bearing,
truthful, consistent and credible. There was no room or chance for tutoring
or prompting. Nor is there a case that it is the product of her
imagination. Though no corroboration is necessary, yet, there is evidence
of PWs-1 to 3 to whom also, the deceased is said to have narrated the
incident. There is no serious attempt in defence to shake the credibility
and reliability of the dying declarations.
b. We have seen the scene mehazar and photograph of the scene. It is a
small rented accommodation and the picture of the kitchen shows that there
was LPG gas connection and, therefore, it was not normally required to keep
kerosene in such quantity.
c. The post-mortem report refers to the following injuries:
“9. Injuries:
Ante mortem dermo epidermal burns present over lower half of face,
neck, chest, upper third of abdomen, both upper extremities, both thighs,
part of back of both legs and part of back of trunk amounting to 70% of
total body surface area.
Skin peeled off at many places over burnt area and peeled off areas
are red in colour.
Part of the burns are infected.”
(Emphasis supplied)

It is very significant to note that the antemortem dermo
epidermal burns are over lower half of face, neck and then down the body to
the legs. If one is to pour kerosene on oneself, it is the normal human
conduct to pour it over the head, and in any case, not to pour it on the
face sparing the head.
d. The indifferent conduct of the appellant, as spoken about by PW-4,
in not taking prompt action to move the deceased to the hospital is also a
situation to be taken note of.
e. There was nobody else in the house and, hence, it was for the
appellant to offer explanation as to the cause of death. His theory of
suicide, on the face of overwhelming evidence to the contrary, is not at
all acceptable.
f. Only PW-9 has given a different version regarding the injury being
self-inflicted. His version cannot be believed at all in the background of
the overwhelming evidence we have discussed above and particularly in the
background of the injuries noted in the post-mortem report.
Learned Counsel for the appellant has also made a submission that the
charge be reduced to one under Section 304 Part II.
As rightly held by the Sessions Court and the High Court, setting fire on
another person after pouring kerosene is an act likely to cause death of
such person. It is a matter of simple and common knowledge that in the
process, the victim is likely to suffer death on account of the burns.
Therefore, the offence of murder is complete and, hence, we have no
hesitation in our mind in reaffirming the conviction of the appellant under
Section 302 of IPC.
Hence, we find no merit in the appeal and it is accordingly dismissed.

..………………………J. (VIKRAMAJIT
SEN)

....……………………J.
(KURIAN JOSEPH)
New Delhi;
October 29, 2014.
-----------------------
[1]
(2002) 6 SCC 710

-----------------------
REPORTABLE

-----------------------
9

CIVIL APPEAL NO. 9951 OF 2014 (Arising out of Special Leave Petition (Civil) No.15445 of 2010) HUDA & Anr. ... Appellants Versus Kedar Nath ... Respondent-2014 Oct.Month - S.C.

NON-REPORTABLE

IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 9951 OF 2014
(Arising out of Special Leave Petition (Civil) No.15445 of 2010)

HUDA & Anr. ... Appellants

Versus

Kedar Nath ... Respondent

J U D G M E N T

ANIL R. DAVE, J.

1. Leave granted.

2. Being aggrieved by the judgment dated 10th December, 2009 in R.S.A.
No.790 of 2008 delivered by the High Court of Punjab & Haryana at
Chandigarh, this appeal has been filed by the original defendant – Haryana
Urban Development Authority, through its Chief Administrator.

3. The facts giving rise to the present litigation in a nutshell are as
under :-

The present respondent had participated in an auction conducted
by the appellants for disposal of certain booths situated in Sector 9 at
Panchkula and had offered the highest bid of Rs.4 lakhs for booth no.103
situated in the said sector. As he was the highest bidder, subject to the
conditions of the auction, he was allotted the said booth vide Memo
No.12351 dated 14th September, 1988. The respondent had deposited
Rs.40,000/-, being 10% of the amount of bid, immediately and thereafter he
had further deposited a sum of Rs.60,000/- so as to make 25% of the total
amount offered by him.

4. The balance amount of Rs.3 lakhs was to be paid by the respondent to
the appellant authorities in 10 half yearly instalments along with interest
@ 10% per annum. There was a condition in the auction sale that in case
of default in payment, the respondent had to pay interest @ 10% per annum
on the unpaid amount and it was also open to the appellant to impose
further amount of penalty and to resume possession of the booth.

5. It is an admitted fact that the respondent committed several
irregularities in making payment of the remaining amount. As he did not
pay the remaining instalments, he was called upon to pay the same along
with interest @ 18% per annum, compounded quarterly. In the aforestated
circumstances, the respondent had filed a suit challenging the validity of
the action of the appellant of charging 18% compound interest and
resumption of the booth.

6. It was mainly contended in the suit filed by the respondent that it
was not open to the appellant to charge 18% compound interest. According
to the respondent, the appellant could have charged only 10% interest on
the delayed payments.

7. After considering relevant evidence, the trial court had decreed the
suit, especially on the ground that it was not open to the appellant to
charge 18% compound interest.

8. Being aggrieved by the final outcome of the suit, the appellant had
filed first appeal, but the same had been dismissed.

9. In the aforestated circumstances, the appellant had filed Regular
Second Appeal No.790 of 2008 before the High Court.

10. After considering the facts and submissions made by the learned
counsel, the High Court dismissed the second appeal by observing that the
appellant was entitled to charge only 10% interest and not 18% interest
compounded quarterly, as demanded by the appellant.

11. The learned counsel appearing for the appellant authority had
submitted that though the respondent had succeeded in the suit as well as
in the first appeal and the second appeal, till the date of admission of
the present appeal, the respondent had not made payment and it had also
been submitted that the respondent’s bona fides were doubtful.

12. In the aforestated circumstances, so as to see whether the respondent
was in fact interested in retaining the booth in question, this Court had
passed an order on 17th February, 2014, directing the appellant as well as
the respondent to place on record their calculations with regard to the
amount payable by the respondent on the basis of interest @ 10% per annum
on the unpaid instalments. In pursuance of the aforestated direction, the
appellant had given a statement giving details about the amount payable by
the respondent with 10% interest on the unpaid instalments. The respondent
had been directed to make the payment from time to time so as to know his
bona fides.

13. Finally, on 5th September, 2014, this Court had passed an order
directing the respondent to pay at least Rs.13 lakhs before 10th October,
2014 and the said amount was, in fact, much lesser than the amount which
was payable by the respondent even as per his own statement of accounts.

14. In spite of the aforestated direction, the respondent did not pay any
amount towards the unpaid instalments and interest thereon.

15. With the passage of time, value of the property has increased
substantially and it is clear that the respondent is not inclined to pay
the unpaid amount along with interest thereon even at the rate of 10% per
annum, which was agreeable to him. It is also an admitted fact that
without taking any permission from the concerned authorities, the
respondent has put up construction on the booth in question. In the
aforestated circumstances, it had been submitted by the learned counsel
appearing for the appellant that the impugned order passed by the High
Court is unjust and improper for the reason that the respondent had not
even paid the amount payable by him, though several opportunities had been
given to him. He had further submitted that as the respondent had not
paid the amount, the appellant had a right to recover possession of the
booth in question but the appellant could not take possession due to
interim orders passed by the Courts below. He had, therefore, submitted
that the impugned judgment deserves to be quashed and set aside.

16. On the other hand, the learned counsel appearing for the respondent
had expressed financial difficulties of the respondent and submitted that
he was prepared to make some payment on account, though it could not be
denied by the learned counsel appearing for the respondent that the
appellant was lawfully entitled to take possession of the booth in question
on account of non-payment of the unpaid instalments and interest thereon.
He had, therefore, submitted that in the interest of justice, the appeal
should be dismissed and some more time should be granted to the respondent
to make the payment.

17. We have heard the learned counsel for the parties at length and have
considered the facts of the case. After hearing the concerned counsel and
looking at the facts of the case, we find that it is an admitted fact that
the respondent did not make payment of the unpaid instalments and also that
the appellant has a right to resume possession of the booth in the event of
non-payment of the auction price of the booth. The auction had taken place
in September, 1988. The balance amount of Rs.3 lakh was to be paid in ten
half-yearly instalments. Hence, the entire amount ought to have been paid
within five years thereafter i.e. by the end of 1993.

18. Even if we come to a conclusion that the High Court was right in not
permitting the appellant to recover compound interest @ 18% per annum, it
is an admitted fact that the respondent did not pay interest even @ 10% per
annum, to which he could not have objected.

19. In spite of the fact that the amount was to be paid before 1993, even
today in 2014, neither the respondent has paid the unpaid amount along with
interest thereon, nor has he shown willingness to make the payment when
ample opportunities were given to him by this Court for making payment
along with interest @ 10% per annum on the amount due and payable.

20. The above facts clearly show that the respondent is not having bona
fide intention and is merely trying to remain in possession without making
payment of the bid amount, which he had agreed to pay. It is not in
dispute that the appellant authority is entitled to take possession in the
event of non-payment of the entire price of the booth, which the
respondent, as an auction purchaser, had agreed to pay. Thus, the
respondent has been committing default continuously. The respondent has
also put up illegal construction on the booth/land allotted to him without
taking any permission from the concerned authority.

21. Looking at the fact that the appellant is entitled to resume
possession of the booth on account of non-payment of the price, but still
the respondent is in possession of the same.

22. Though sufficient opportunities were given to the respondent to make
payment of the price, the respondent has not paid the same. Hence, in our
opinion, the Courts below had become more lenient than necessary towards
the respondent by permitting him to retain possession and make payment
along with 10% interest on the amount due and payable by him.

23. Upon looking at the overall facts, in our opinion, it would not be
proper to grant any further accommodation to the respondent, who has
admittedly not paid the amount due and therefore, we allow the appeal by
quashing and setting aside the orders passed by the courts below. It would
be open to the appellant to take possession of the booth in question in
accordance with law.

24. The appeal is, accordingly, allowed with no order as to costs.

………..……………….J
(ANIL R. DAVE)

………..……………….J
(KURIAN JOSEPH)

…..…………………….J
(R.K. AGRAWAL)
NEW DELHI;
OCTOBER 29, 2014.

MURDER - NOT SUICIDE - there was only a strangulation mark from the right side of the neck to the left side of the neck on the front side alone and therefore there would have been no scope for the appellant to have used a rope to tie around the neck to strangulate the deceased is concerned, the said contention has to be rejected at the very threshold since if the appellant had used the cable from behind the deceased on her neck and thereby suffocated the deceased, there would have been no scope at all for any cable mark on the backside of the neck.

Reportable

IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.2475 of 2009

Munni @ Syed Akbar …. Appellant
VERSUS

State of Inspector Of Police,
All Women Police Station,
Gobichettipalayam,
Erode ….Respondent(s)

J U D G M E N T

Fakkir Mohamed Ibrahim Kalifulla, J.

1. This appeal at the instance of A1, who is the appellant herein, is
directed against the judgment of the Division Bench of the Madras High
Court dated 16.08.2007, passed in Criminal Appeal No.434 of 2006.

2. Brief facts which are required to be stated are that the appellant is
the husband of the deceased Gulsara Banu. Along with the appellant, his
parents were also proceeded against, who were arrayed as A2 and A3. All
the three accused were charged for offences under Sections 498(A), 302 and
201 of I.P.C. The parents of the appellant viz., A2 and A3 were found
guilty of the offences under Section 498(A) of I.P.C. as well as under
Section 4 of the Dowry Prohibition Act, 1961. A2 who was also charged
under Sections 302 and 201 of I.P.C. was acquitted of those charges. A2 and
A3 have already undergone the sentence, even while the appellant’s appeal
was preferred before the High Court. The High Court therefore dealt with
the case of the appellant alone.

3. As far as the occurrence is concerned, the appellant got married to
the deceased on 27.07.1997. They were living in a rented premises
belonging to P.W.3 at Kurumanthur. It was a portion of the house. The
occurrence took place in the morning hours of 12.08.2004. P.W.1 is the
complainant who is the father of the deceased. According to him, he
received a phone call from the accused at 3.00 p.m. stating that the
deceased complained of stomach pain and wanted him to come over to
Kurumanthur immediately. Such information was also passed on to P.W.2,
uncle of the deceased, by around 3.30 p.m. and he also immediately rushed
to Kurumanthur which was just 50 kms away from his place. After P.W.1
reached the place of occurrence at around 10.00 p.m., he found
strangulation marks on the neck of the deceased. He preferred Ex.P-1-
Complaint, before the All Women Police Station, Gobichetipalayam. The
Complaint was lodged with P.W.13, the Inspector of Police of the said
police station.

4. P.W.13 registered the said complaint in Crime No.5 of 2004 for the
offences under Section 498(A) of I.P.C. and Section 174 of Cr.P.C. and sent
the Express Report to the Judicial Magistrate No.II, Gobichetipalayam. She
stated to have inspected the place of occurrence and conducted the Inquest
over the dead body between 2.30 a.m and 5.30 a.m. in the presence of
Panchayatdars and prepared Ex.P-17-Inquest report. She recorded the
statements of P.Ws.1 to 4 and other witnesses and sent the dead body of the
deceased along with Ex-P-4 requisition through P.W.11 woman police
constable to the Government Hospital, Gobichetipalayam for postmortem. She
recovered M.Os.1 to 4 and M.O.7 in the presence of witness P.W.7. She
forwarded M.Os.9 to 14 along with Form-95 through P.W.11. After examining
P.W.1, P.W.3, P.W.4 and P.W.5 on 15.08.2004 and after recording their
statements it came to light that it was not a case of suicide and therefore
P.W.13 altered the offences under Sections 498(A), 302 r/w 201 of I.P.C.
and prepared Ex.P.18-Special Report and forwarded the same to the Court
again. The accused were arrested thereafter on 16.08.2004 at 9.45 p.m.
With the admissible portion of the confession of the appellant in Ex.P-9,
P.W.13 recovered T.V.S.50 brake cable wire M.O.8 from the workshop of the
appellant. She also recovered green colour wire M.O.7 at the instance of
the appellant in the presence of P.W.10.

5. P.W.9 who conducted the postmortem, issued Ex.P-8- Postmortem Report
on 13.08.2004. In Ex.P-8, P.W.9 reserved his opinion awaiting chemical
analysis report. Chemical analysis report Ex.P-6 was issued by the
Professor of Forensic Medicine and District Police Surgeon, Coimbatore in
which inter alia it was stated “HPE poison was detected Hyoid Bone intact.
Death may be due to Asphyxia due to Straglets.” After the receipt of the
aforesaid report, P.W.9 expressed his opinion that the death was due to
strangulation. The appellant along with A2 and A3 were charged for offences
under Sections 498(A), 302 read with 201 as well as Section 4 of the Dowry
Prohibition Act, 1961. As stated earlier, we are concerned only with the
appellant who was the first accused.

6. The trial Court based on the evidence placed before it, convicted the
appellant for offences under Sections 302, 498(A) read with Section 201 of
I.P.C. He was sentenced to life imprisonment for an offence under Section
302 of I.P.C. apart from fine of Rs.1,000/- and in default to undergo
rigorous imprisonment for one year. He was sentenced to undergo 3 years
imprisonment for an offence under Section 201 apart from fine of Rs.500/-
and in default to undergo rigorous imprisonment for six months. He was
also sentenced under Section 498(A) to undergo two years rigorous
imprisonment and to pay a fine of Rs.500/- and in default to undergo six
months rigorous imprisonment. The sentences were to run concurrently.

7. On appeal the Division Bench of the High Court having confirmed the
conviction and sentence imposed on the appellant, the appellant is before
us.

8. We heard Dr.Sushil Balwada, learned counsel for the appellant and Mr.
M. Yogesh Kanna, learned standing counsel for the respondent State.

9. Dr. Balwada, learned counsel in his submissions, after referring to
the evidence of P.W.13 the investigating officer submitted that there was
great doubt as to whether the occurrence had taken place as narrated by the
prosecution before the Courts below, in as much as, though P.W.1 stated to
have lodged the complaint at 11.00 p.m. on 12.08.2004, the case was
registered for offence(s) under Section(s) 498(A) I.P.C. and Section 174 of
Cr.P.C. and for no reason, much later on 16.08.2004, the case was altered
as one under Section(s) 302 r/w Section 201 of I.P.C. and Section 498(A) of
I.P.C.

10. According to the learned counsel, there was nothing to show that the
Express Report was immediately forwarded to the Judicial Magistrate.
Learned counsel further submitted that going by the evidence of P.W.3 and
P.W.4 since the body of the deceased was found hanging with the aid of a
saree and there being no eye witness to the occurrence, the case of the
appellant that the deceased committed suicide by hanging herself should
have been accepted and the appellant should have been acquitted from all
the charges.

11. The learned counsel also contended that there were variations in the
statement of Postmortem Doctor P.W.9 and Forensic Science Laboratory report
which also disclose that there was no overt act to be attributed to the
appellant for the alleged killing of the deceased by strangulation with the
aid of a cable wire.

12. As against the above submissions, Mr. M. Yogesh Kanna learned
standing counsel for the respondent State by drawing our attention to the
evidence of P.W.9-Postmortem Doctor and Ex.P-6, the report of the Forensic
Science Laboratory as well as that of P.Ws.1 to 4 contended that the
offence alleged against the appellant of homicidal death by strangulating
his wife with the aid of a cable wire was conclusively proved and there was
no reason to doubt the said conclusion reached by the trial Court as well
as the High Court.

13. The learned counsel also drew our attention to M.O.5-the photographs
which were marked through P.W.8-the photographer which also disclose the
case of the prosecution that the appellant strangulated his wife with the
aid of a cable wire and the cause of her death was fully established.

14. The learned counsel submitted that merely because a mark was noted on
the neck of the deceased, which did not have a full circle on the neck, it
cannot be concluded that the appellant did not cause her death. The
learned counsel was at pains to show that the cable mark was visible to the
naked eye as noted by the Postmortem Doctor P.W.9 as well as Ex.P-6-
Forensic Science Laboratory report apart from strangulation mark found on
the neck of the deceased which all show without any iota of doubt that it
was a case of murder and that all the other attendant circumstances
conclusively prove that it was the appellant who had caused the death of
the deceased.

15. Having heard the learned counsel appearing for the appellant and the
learned standing counsel for the respondent State and having perused the
impugned judgments of the High Court and the trial Court as well as the
material documents marked in the case, at the very outset, it will be
relevant to note the incriminating circumstances which were found
established against the appellant.

16. The appellant and the deceased were living together in a portion let
out by P.W.3. On the fateful day in the early morning around 3.00 a.m.
according to P.W.3, he heard shrieking noise of the deceased and when the
wife of P.W.3 went and tapped the door, she heard the appellant uttering
something in Urdu to the deceased and the deceased herself informed that
she suffered a minor electric shock. Thereafter, the deceased was seen by
P.W.4 in the godown where he was working, to which place, the deceased went
and enquired about the owner of the godown which is a tobacco godown.
Subsequently, P.W.4 along with one of his friends heard the shouts of the
appellant and rushed to the house of the appellant and the house was locked
from inside and they saw the appellant crying and also shouting that his
wife hanged herself from the roof with the aid of a saree. According to
P.W.4, they saw her hanging from the roof and she was in a kneeled down
position. P.W.4 and his friend called upon the appellant to open the door
to enable them to get inside in order to rescue the deceased. After they
entered, they brought the body of the deceased to the floor and found that
she was already dead, though the appellant claimed that she was alive. It
was also stated by P.W.4 that before entering the house, they saw the
appellant on the roof top removing some of the tiles.

17. P.W.2 who is the uncle of the deceased stated that he was living 50
kms away from the place of appellant and the deceased and that he got
information from the appellant that the deceased was suffering from stomach
pain. On hearing the said information, he along with his wife rushed to
the place of the appellant where they found the deceased lying dead on the
floor. P.W.2 also stated that his wife on seeing the body of the deceased
noted strangulation marks on her neck, because of which P.W.2 developed
some suspicion and upon the arrival of P.W.1, the father of the deceased,
they decided to lodge a complaint and that is how the Ex.P-1 came to be
lodged through P.W.1 at around 10.30 p.m. on 12.08.2004.

18. The evidence of P.W.9-the Postmortem Doctor who issued Ex.P-8-
Postmortem Report deposed that initially when he examined the body of the
deceased, he could not offer any definite opinion as he wanted to verify
the Forensic Science Laboratory report. Subsequently, after receipt of
Ex.P-6, the report from Forensic Science Laboratory, P.W.9 gave the opinion
that the death of the deceased was due to asphyxia. In other words, the
theory of hanging by the deceased on her own, propounded by the appellant
was found to be not true. The report of the Forensic Science Laboratory
also confirmed that there was strangulation marks on the neck of the
deceased and that substance like cable was used for such strangulation.
Based on the appellant’s information, M.Os.7 and 8 cable wires were also
recovered. When the above circumstances were all put to the appellant,
there was only a simple denial and nothing more was stated on behalf of the
appellant.

19. In the above stated background, when we consider the contention of
the appellant, it was mainly two fold. In the first instance, it was
contended that as per the medical evidence what was noted on the neck of
the deceased was a cable mark from the right side to the left side of the
neck and not all around the neck of the deceased which would not support
the theory of strangulation. It was then contended that even as per the
version of P.W.4 and his friend who helped the appellant to lower down the
body, which was hanging from the roof top, they found the deceased hanging
with the aid of a saree around her neck. By referring to the said
evidence, it was contended that it was a definite case of suicide and not a
homicidal death. Though in the first blush such a contention appears to be
appealing, on a deeper scrutiny, we find that the same was wholly
unbelievable and does not merit any consideration.

20. It has come out in scientific evidence and expert opinion without any
scope of ambiguity that there was strangulation marks on the neck of the
deceased and that there was also a rope mark which could have been caused
with the aid of the cable wire viz., M.Os.7 and 8. When such scientific
evidence was found to be existing the story spun by the appellant that his
wife was hanging from the roof with the aid of a saree has been found to be
nothing but a concocted one designed to escape from his culpability. The
further fact that the appellant was found sitting on the roof top removing
certain tiles found to be another well thought out drama played by the
appellant to make P.W.4 and his friend to believe as though he was innocent
and he had nothing to do with the killing of his deceased wife. On the
whole the episode was attempted by the appellant to show as though his wife
committed suicide while it has come out in evidence through P.W.4 that the
deceased was found in a kneel down position as there was hardly four feet
gap in between the top of the cot and the roof. The appellant having
successfully carried out his evil design in the killing of the deceased
with the use of M.O.8 cable, however, made an unsuccessful effort to make
it appear as though the deceased was hanging from the roof top with the aid
of a saree.

21. If really the deceased had hanged herself with the aid of a saree,
there was absolutely no scope for a cable mark on her neck. There was also
no breaking of the hyoid bone or the trachea. As far as the contention
that there was only a strangulation mark from the right side of the neck to
the left side of the neck on the front side alone and therefore there would
have been no scope for the appellant to have used a rope to tie around the
neck to strangulate the deceased is concerned, the said contention has to
be rejected at the very threshold since if the appellant had used the cable
from behind the deceased on her neck and thereby suffocated the deceased,
there would have been no scope at all for any cable mark on the backside of
the neck. P.W.9- Postmortem Doctor with the aid of Ex.P-6-Forensic Science
Laboratory report was able to confirm without any scope for contradiction
that the death of the deceased was due to asphyxia by strangulation and
ligature marks were found on the neck of the deceased. It was the
appellant who was very much present at the time when the deceased breathed
her last. Therefore, the best person who could have come forward with
appropriate explanation to clear the doubt about those factors found
established through expert and scientific evidence could have been only the
appellant and none else. The appellant having failed to clear those vital
circumstances found proved against the appellant, the ultimate conclusion
of the trial Court as well as the confirmation by the High Court of the
guilt of the appellant in the killing of the deceased falling under Section
302 of I.P.C could have been the only conclusion, more so, when the
appellant was found guilty of the offence under Sections 498(A) as well as
Section 201 of I.P.C.

22. We have, therefore, no hesitation in confirming the conviction and
the sentence imposed on the appellant. The appeal fails and the same is
dismissed.

...……….…….………………………………J. [Fakkir Mohamed Ibrahim Kalifulla]

...…….……….……………………………J. [Abhay Manohar Sapre]

New Delhi;
October 29, 2014.

LAW FOR ALL

LawforAll

advocatemmmohan

Just for legal information but not form as legal opinion

Friday, January 9, 2015

CRIMINAL APPEAL NO. 242 OF 2012 B.D. Khunte …Appellant Versus Union of India & Ors. …Respondents

CRIMINAL APPEAL NO. 2327 OF 2014 (Arising out of SLP (Crl.) No. 9751/2011) BINOD KUMAR & ORS. .. Appellant Versus STATE OF BIHAR & ANR. ..Respondents-2014 S.C.OCT.MONTH

CRIMINAL APPEAL NO. 1381 OF 2011 Mallella Shyamsunder … Appellant (s) Versus State of Andhra Pradesh … Respondent (s)2014-S.C. OCT.MONTH.

CIVIL APPEAL NO. 9951 OF 2014 (Arising out of Special Leave Petition (Civil) No.15445 of 2010) HUDA & Anr. ... Appellants Versus Kedar Nath ... Respondent-2014 Oct.Month - S.C.