There is no requirement that an application is required to be filed in terms of Section 65(c) of the Evidence Act before the secondary evidence is led. A party to the lis may choose to file an application which is required to be considered by the trial court but if any party to the suit has laid foundation of leading of secondary evidence, either in the plaint or in evidence, the secondary evidence cannot be ousted for consideration only because an application for permission to lead secondary evidence was not filed. Dhanpat v. Sheo Ram, (2020) 16 SCC 209.
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The expression “honourable acquitta” was considered by the Hon’ble Supreme Court in Deputy Inspector General of Police v. S. Samuthiram, (2013) 1 SCC 598. In that case the Hon’ble Court was concerned with a situation where disciplinary proceedings were initiated against a police officer. Criminal case was pending against him under Section 509 IPC and Section 4 of the Eve Teasing Act. He was acquitted in that case because of the non-examination of key witnesses. There was a serious flaw in the conduct of the criminal case. Two material witnesses turned hostile. Referring to the judgment of the Hon’ble Supreme Court in RBI v. Bhopal Singh Panchal, (1994) 1 SCC 541, wherein in somewhat similar fact situation, the Hon’ble Court upheld a bank’s action of refusing to reinstate an employee in service on the ground that in the criminal case he was acquitted by giving him benefit of doubt and, therefore, it was not an honourable acquittal. It was further held that the High Court was not justified in setting aside the punishment imposed in the departmental proceedings. It was observed that the expressions “honourable acquittal”, “acquitted of blame” and “fully exonerated” are unknown to the Criminal Procedure Code or the Indian Penal Code. They are coined by judicial pronouncements. It is difficult to define what is meant by the expression “honourably acquitted”. The Hon’ble Court expressed that when the accused is acquitted after full consideration of the prosecution case and the prosecution miserably fails to prove the charges leveled against the accused, it can possibly be said that the accused was honorably accused.” State of Madhya Pradesh v. Abhijit Singh Pawar, 2018 (4) ESC 782.
While appreciating the evidence of a witness, the approach must be to assess whether the evidence of a witness read as a whole appears to be truthful. Once the impression is formed, it is necessary for the court to evaluate the evidence and the alleged discrepancies and then, to find out whether it is against the general tenor of the prosecution case. If the evidence of eyewitness is found to be credible and trustworthy, minor discrepancies which do not affect the core of the prosecution case, cannot be made a ground to doubt the trustworthiness of the witness. Mallikarjun v. State of Karnataka, (2019) 8 SCC 359.
The law clearly recognizes a difference between simple payment/investment of money and entrustment of money or property. A mere breach of a promise, agreement or contract does not, ipso facto, constitute the offence of the criminal breach of trust contained in Section 405 Indian Penal Code without there being a clear case of entrustment. In the context of contracts, the distinction between mere breach of contract and cheating would depend upon the fraudulent inducement and mens rea. The mere inability of a party to return the loan amount cannot give rise to a criminal prosecution for cheating unless fraudulent or dishonest intention is shown right at the beginning of the transaction, as it is this mens rea which is the crux of the offence. The legislature intended to criminalise only those breaches which are accompanied by fraudulent, dishonest or deceptive inducements, which resulted in involuntary and inefficient transfers, under Section 415 Indian Penal Code. Satishchandra Ratanlal Shah v. State of Gujarat, (2019) 9 SCC 148.
In State of Maharashtra v. Sayyed Hassan, the accused was prosecuted under Sections 26 and 30 of the Food Safety and Standards Act, 2006 as well as Sections 188,272,273 and 328 IPC for transportation and sale of prohibited gutka/pan masala. The Hon’ble Bombay High Court in Ganesh Pandurang Jadho v. State of Maharashtra, 2016 CrLJ 2401 held that Section 55 of the Food Safety and Standards Act, 2006 being a specific provision made in a special enactment, Section 188 IPC was inapplicable. The Hon’ble Supreme Court remanded the matter to the High Court and held as under:
“There is no bar to a trial or conviction of an offender twice for the offence. Where an act or an omission constitutes an offence under two enactments, the offender may be prosecuted and punished under either or both enactments but shall not be liable to be punished twice for the same offence. The same set of facts, in conceivable cases, can constitute offences under two different laws. An act or an omission can amount to and constitute an offence under Indian Penal Code and at the same time, an offence under any other law.” In State of Rajasthan v. Hat Singh, (2003) 2 SCC 152, the Hon’ble Supreme Court discussed the doctrine of double jeopardy and Section 26 of the General Clauses Act to observe that prosecution under two different Acts is permissible if the ingredients of the provisions are satisfied on the same facts. State of Arunachal Pradesh v. Ramchandra Rabidas, (2019) 10 SCC 75.
It is undisputed that the evidence of an injured witness stands on a higher level but at the same time, it is equally true that receiving the injuries in an incident is a fact which merely proves the presence of the injured witness at the place of incident but the same is no guarantee of the fact that whatever the injured witness deposes is gospel truth. Shyam Singh v. State of U.P., 2020 (110) ACC 498.
Section 86 Indian Penal Code, enunciates presumption that despite intoxication which is not covered by the last limb of the provision, the accused person cannot ward of the consequences of his act. A dimension however about intoxication may be noted. Section 86 begins by referring to an act which is not an offence unless done with a particular knowledge or intent. Thereafter, the law giver refers to a person committing the act in a state of intoxication. It finally attributes to him knowledge as he would have if he were not under the state of intoxication except undoubtedly, in cases where the intoxicant was administered to him against his will or without his knowledge. What about an act which becomes an offence if it is done with a specific intention by a person who is under the state of intoxication? Section 86 does not attribute intention as such to an intoxicated man committing an act which amounts to an offence when the act is done by a person harbouring a particular intention. Paul v. State of Kerala, (2020) 3 SCC 115.
Common object is different from common intention as it does not require a prior concert and a common meeting of minds before the attack. It is enough if each has the same object in view and their number is five or more and that they act as an assembly to achieve that object. The common object of an assembly is to be ascertained from the acts and language of the members composing it, and from a consideration of all the surrounding circumstances. It may be gathered from the course of conduct adopted by the members of the assembly. What the common object of the unlawful assembly is at a particular stage of the incident is essentially a question of fact to be determined keeping in view the nature of the assembly, the arms carried by the members and the behavior of the members at or near the scene of the incident. It is not necessary under law that in all cases of unlawful assembly, with an unlawful common object, the same must be translated into action or be successful. Under the explanation to section 141, an assembly which was not unlawful when it was assembled, may subsequently become unlawful. It is not necessary that the intention or the purpose, which is necessary to render an assembly an unlawful one comes into existence at the outset. The time of forming an unlawful assembly is not material. An assembly which, at its commencement or even for sometime thereafter, is lawful may subsequently become unlawful. In other words it can develop during the course of incident at the spot eo instante. Ram Lal v. State of U.P., 2016 (92) ACC 399.
In Bachan Singh v. State of Punjab, (1980) 2 SCC 684, the court referred to the decision in Furman v. Georgia, 33 L Ed 2d 346 : 408 US 238 and noted the suggestion about the aggravating and mitigating circumstances as under:
Aggravating Circumstances.— A court may, however, in the following cases impose the penalty of death in its discretion:
(a) If the murder has been committed after previous planning and involves extreme brutality; or
(b) If the murder involves exceptional depravity; or
(c) If the murder is of a member of any of the armed forces of the Union or of a member of any police force or of any public servant and was committed—
(i) While such member or public servant was on duty; or
(ii) In consequence of anything done or attempted to be done by such member or public servant in the lawful discharge of his duty as such member or public servant whether at the time of murder he was such member or public servant, as the case may be, or had ceased to be such member or public servant; or
(d) If the murder is of a person who had acted in the lawful discharge of his duty under Section 43 of the Code of Criminal Procedure, 1973, or who had rendered assistance to a Magistrate or a police officer demanding his aid or requiring his assistance under Section 37 and Section 129 of the Code of Criminal Procedure.”
Mitigating Circumstances.—In the exercise of its discretion, the court shall take into account the following circumstances:
(a) That the offence was committed under the influence of extreme mental or emotional disturbance.
(b) The age of the accused. If the accused is young or old, he shall not be sentenced to death.
(c) The probability that the accused would not commit criminal acts of violence as would constitute a continuing threat to society.
(d) The probability that the accused can be reformed and rehabilitated.
(e) That in the facts and circumstances of the case, the accused believed that he was morally justified in committing the offence.
(f) That the accused acted under the duress or domination of another person.
(g) That the condition of the accused showed that he was mentally defective and that the said defect impaired his capacity to appreciate the criminality of his conduct.” Vasanta Sampat Dupare v. State of Maharashtra, (2015) 1 SCC 253.
Nature of the injuries is to be determined taking into consideration the intense suffering to which it gives rise and the serious disability which it causes to the sufferer. However, in clause Seventhly of Section 302 Indian Penal Code, as the term “fracture”, has been referred to, it may be necessary that the bone is broken. Mere abrasion would not amount to fracture. Even a cut that does not go across the bone cannot be termed as a fracture of the bone. But if the injury is grave even a partial cut of the skull vault (root or chamber) may amount to a fracture. However, Clause Eighthly of Section 302 Indian Penal Code refers to the injuries which are not covered under any of the above clauses Firstly to Seventhly of the Section. However, it labels the injuries as grievous if it endangers life or it causes the sufferer to be during the space of 20 days in severe bodily pain or which causes the sufferer to be during the space of 20 days unable to follow his ordinary pursuits and all the three clauses have to be read independently. There is a very thin and subtle demarcation line between “hurt which endangers life” and “injury as is likely to cause death”. Sompal Singh and another v. State of Uttar Pradesh, (2014) 7 SCC 316.