SC: Defined an attempt to murder & House-trespass – A n act which cause death if done , but left with injury or no injury on the body on prevention amounts to an Attempt to murder.

Head Notes:

1.      Section 452 IPC- There is no doubt that the trespass was into a house and that the appellant entered the office having prepared to assault the victim and in any case for putting him in fear of hurt or of assault. There is nothing in Section 452 IPC to suggest that the use to which the house is put makes any difference. It is not the requirement of Section 452 IPC that for a trespass to be an offence the house must be a private place and not an office. The law protects any house from trespass, vide Section 448 IPC and further protects persons within the house from being assaulted or even put in fear of hurt or wrongful restraint within their own house.

2.    It does not require that the hurt should be grievous or of any particular degree. The intention to cause death is clearly attributable to the accused since the victim was strangulated after throwing a telephone wire around his neck and telling him he should die. We also do not find any merit in the contention on behalf of the appellant that there was no intention to cause death because the victim admitted that the accused were not armed with weapons. Very few persons would normally describe the Thums-up bottle and a telephone wire used as weapons.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL No. 466 OF 2014

[Arising out of SLP (Crl.) No. 7044 of 2007]

PASUPULETI SIVA RAMAKRISHNA RAO                               …. APPELLANT

VERSUS

STATE OF ANDHRA PRADESH & ORS.                            …. RESPONDENTS

JUDGMENT: S. A. BOBDE, J.

1.   Leave granted.

2.    The appellant/defacto complainant has filed this appeal against the judgment dated 1st February, 2007 passed by the learned Single Judge of the High Court of Judicature at Andhra Pradesh. The High Court allowed the appeal in part, and acquitted the accused for the offences under Section 452 read with Section 34 of the Indian Penal Code [hereinafter referred to as “IPC”]. The High Court further modified the conviction and sentence under Section 307 read with Section 34 IPC to one -- under Section 324 IPC and accordingly reduced the sentence of 10 years to rigorous imprisonment for two months each and also to fine of Rs. 2,000/- each, in default to suffer simple imprisonment for a period of six months. Further, an amount of Rs. 4,000/- is directed to be paid by each of the accused collectively as compensation to P.W. 1 (Pasupuleti Siva Ramakrishna Rao) – the victim. Earlier, the Trial Court convicted the accused as follows:

A-1 to A-4 under Section 452 read with Section 34 IPC for rigorous imprisonment for 7 years and fine of Rs. 100/- each, in default, to suffer simple imprisonment for a period of 3 months each and under Section 307 read with Section 34 IPC for rigorous imprisonment for 10 years and fine of Rs. 100/- each, in default, to suffer simple imprisonment for a period of 3 months each.

Aggrieved by the Judgment passed by the High Court, the present appeal is filed.

3.    The prosecution case is that the victim P.W. 1 (Pasupuleti Siva Ramakrishna Rao) was the President of Bhimavaram Taluk Lorry Workers Union. A-1 - Chintha Srinivasa Rao @ Bandi Srinu and A-2 - Chintha Krishna @ Bandi are brothers. A-4 -Chintha Lakshmana Rao is their cousin. A-3 -Addla - Umamaheswara Rao is the close associate of A-1, A-2 and A-4. They are all residents of Bhimavaram. About a fortnight prior to the date of incident – 20.04.1998, the victim P.W. 1 (Pasupuleti Siva Ramakrishna Rao) and some other Lorry Workers collected Rs. 10,000/- as donations to perform the marriage of the daughter of a poor lorry worker. That incensed the accused who believed that P.W. 1 (Pasupuleti Siva Ramakrishna Rao) ought not to have collected donations from their locality. On 20.04.1998 at about 8.00 pm when P.W. 1 (Pasupuleti Siva Ramakrishna Rao) was in the Lorry Workers Union Office near Anakoderu Canal in Undi Road, Bhimavaram, the accused armed with deadly weapons entered the office, abused P.W. 1 (Pasupuleti Siva Ramakrishna Rao) in filthy language and threatened him with death because he had collected donations from their area. They attacked him. A-1 - Chintha Srinivasa Rao hit him on his head with the cool drink bottle causing a grievous injury and instigated other accused to tie a telephone wire around his neck to kill him. He along with A-2 - Chintha Krishna and A-3 - Addla Umamaheswara Rao tied the telephone wire around the neck of P.W. 1 (Pasupuleti Siva Ramakrishna Rao) and pulled it from both sides to strangulate him with the intention to kill him. A-4 - Chintha Lakshmana Rao beat him on his right cheek with an iron rod. A-2 - Chintha Krishna beat him on the forehead and A-3 - Addla Umamaheswara Rao and A-4 - Chintha Lakshmana Rao beat him on the left eye and on the cheek. On making a hue and cry, P.W. 1 (Pasupuleti Siva Ramakrishna Rao) was rescued by others, who were present. On a complaint, Crime No. 85/98 under Sections 307 and 452 IPC read with Section 34 IPC was registered, investigated and a charge sheet was filed against all the accused. Charges were framed and read over to the accused. They did not plead guilty.

4.    P.Ws. 1 to 11 were examined and Exhibits P1 to P17 were marked apart from M.Os. 1 to 5 on behalf of the prosecution. No oral evidence was adduced on behalf of the accused.

5.    The learned trial Judge convicted and sentenced the accused as indicated above.

6.    P.W. 3 (Kotipalli Srinivas) and P.W. 5 (Sunkara Sreenivasa Rao) eye witnesses were declared hostile. P.W. 7 (Marri Sambhasiva) is the circumstantial witness. P.W. 8 (Dirisala Murali) is the photographer. P.W. 9 (Grandhi Sree Rama Murthy) is the panch witness.

7.    P.W. 10 (Dr. B. Swarajya Lakshmi, C.A.S.) is the medical officer, who examined P.W. 1 (Pasupuleti Siva Ramakrishna Rao) and found the following injuries:

-

“1. Irregular bleeding lacerated injury of 3 cm x ¼ cm x ¼ cm size present on the left parietal region of the scalp.

2. A contusion of 3 cm x size present lateral to the left eye with overlying abrasion of ¼ cm size red in colour.

3. A contusion of 2 cm x 1 cm size present on the left eye upper eye lid.

4. A contusion of 4 cm with abrasion of ¼ cm size present lateral on the right side of the fore head.

5. Ligature mark of 34 cm x 0.5 cm size present below the thyroid cartilage on the front, right side and left side of the neck, red in colour.

6. A contusion of 2 cm x 1 cm size present on the right temple.

7. A contusion of 2 cm x 2 cm size present on the right cheek.

8. An oblique abrasion of 10 cm x 5 cm size present on the ventral aspect of the left arm, red in colour.”

8.    The Medical Officer [MO] opined that Injury No. 5 endangered the life of P.W. 1 (Pasupuleti Siva Ramakrishna Rao). That the other injuries are simple in nature and could have been caused as alleged.

9.    P.W. 1 (Pasupuleti Siva Ramakrishna Rao) deposed that he collected donations for performing the marriage of the daughter of Pasupuleti Satyanarayan, a driver and a poor man. The accused questioned and threatened him about the collection of contribution from their territory and warned him that they would take away his life. On 20.04.1998 at about 8.00 PM when he was in the Lorry Workers Union Office, the accused trespassed into the Union Office and abused him. They told him that he cannot become a leader of their territory and collect donations and they would not leave the Office unless they beat him. A-1 - Chintha Srinivasa Rao beat him on his head with a cool drink (Thums up) bottle and said he should die. He directed others to tie a telephone wire around his neck therefore A-2 - Chintha Krishna beat him on the forehead and A-3 – Addla Umamaheswara Rao tied a telephone wire around his neck and pulled wire. Then A-4 - Chintha Lakshmana Rao beat him with the rod on his right cheek along with abuses. A-2 – Chintha Krishna also beat him with the rod on his forehead and A-3 - Addla Umamaheswara Rao and A-4 - Chintha Lakshmana Rao beat him on the upper side of his eyebrow and his cheek. He named others who were present and intervened to rescue him stating that but for that he would have been killed. His shirt was stained with his blood. They left behind the broken Thums-up bottle, telephone wire and iron rod. He was hospitalized for about 20 days. In cross examination his version was not shaken. He accepted that the accused were not armed with any weapon and said that the Thums-up bottle broke on his head, because of the impact. The deposition of other witnesses support the version of the injured witness - P.W. 1 (Pasupuleti Siva Ramakrishna Rao). We have not referred to the depositions of witnesses who have been declared hostile since such declaration is not of much consequences in this case. The other depositions are in tune with the deposition of PW1, the injured witness.

10.      The Trial Court correctly appreciated the evidence and rejected the argument that the other witnesses were not reliable because they were interested witnesses. As regards charge under Section 34 IPC, the Trial Court relied on the settled position in law that it is not necessary that there should be a clear positive evidence about the meeting of mind before the occurrence and that if there are more than one accused a common intention to kill can be inferred from the circumstances of the case. The prosecution need not prove the overt act of the accused. As regards the charge under Section 452 IPC the Trial Court held that there was clear intention of accused here and that it was clearly established that the accused went to the office of P.W. 1 (Pasupuleti Siva Ramakrishna Rao) in a car and the other circumstances clearly establish that there was preparation for committing the offence. As noticed earlier, the Trial Court convicted and sentenced accused under Section 452 IPC for 7 years and under Section 307 IPC for 10 years read with Section 34 IPC.

11.      The High Court in appeal, referred to the deposition of P.W. 1 (Pasupuleti Siva Ramakrishna Rao) where he had honestly admitted that accused did not come there armed with any weapon. The Appellate Court observed that the injuries were not only simple but were trivial. As regards Injury No. 5, it observed that though the Medical Officer stated that the injury was dangerous to life, it is not clear as to how the witness stated so, meaning thereby that there was no explanation for the medical opinion. Even though the High Court noticed that this injury is a ligature mark of 34 cm x 0.5 cm size around the neck. The High Court accepted that the accused tied a telephone wire around the neck of P.W. 1 (Pasupuleti Siva Ramakrishna Rao) and pulled it from both sides but observed that this act may not actually amount to being dangerous. It was of the opinion that if a knife is used and only a grazing injury is caused but no actual stabbing is done on any vital part of the body, it cannot be said that the injury is dangerous. Further observing that no intention could be attributed to the accused to cause the death of P.W. 1 (Pasupuleti Siva Ramakrishna Rao) since the accused had not come to the scene with dangerous weapon or caused injuries on the vital part of the body, the High Court modified the conviction under Section 307 IPC read with Section 34 IPC to Section 324 IPC.

12.      As regards the charge under Section 452 IPC, the High Court observed that the incident occurred when P.W. 1 (Pasupuleti Siva Ramakrishna Rao) was in the Lorry Workers Union Office and not at any private place and hence ipso facto set aside the conviction and sentence under Section 452 IPC read with Section 34 IPC.

13.      During the pendency of this matter, respondent Nos. 4 & 5, namely, Addla Umamaheswara Rao (accused No. 3) and Chintha Lakshmana Rao (accused No. 4) expired. Hence the special leave petition insofar as those respondents has already abated, vide order dated 04.02.2014.

14.      Shri Altaf Ahmed, senior advocate, appearing for respondents 2 to 5 vehemently supported the Judgment of the High Court to the extent that it has rightly held that Section 307 IPC is not attracted and neither was Section 452 IPC. He also opposed the conviction under Section 324 IPC on the ground that no dangerous weapon or means were used for causing the injury which according to the learned counsel was simple in nature.

15.      As regards the act of the tying the telephone wire around the neck and pulling it on both sides and causing an injury thereby, the learned counsel for the accused, heavily relied on a statement in the cross examination of the Medical Officer that the Injury No. 5 is simple in nature and the further statement that if the strangulation is of high nature the thyroid bone may be dislocated and ruptured and that there is no danger to life unless there is dislocation or rupture of the thyroid bone.

16.      It is not possible to accept this contention in the circumstances of the case that the act of strangulating a person by the throat by a telephone wire and pulling it from both sides, which is proved here, does not amount to the commission of the offence of attempt to commit murder under Section 307 IPC. The first part makes any act committed with the intention or knowledge that it would amount to murder if the act caused death punishable with imprisonment up to ten years. The second part makes such an act punishable with imprisonment for life if hurt is caused thereby. Thus even if the act does not cause any injury it is punishable with imprisonment up to 10 years. If it does cause an injury and therefore hurt, it is punishable with imprisonment for life. The Section reads as under:

-

“307. Attempt to murder.-- Whoever does any act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and if hurt is caused to any person by such act, the offender shall be liable either to [imprisonment for life], or to such punishment as is hereinbefore mentioned.

Attempts by life convicts. - When any person offending under this section is under sentence of [imprisonment for life], he may, if hurt is caused, be punished with death.]

Illustrations

(a) A shoots at Z with intention to kill him, under such circumstances that, if death ensued A would be guilty of murder. A is liable to punishment under this section.

(b) A, with the intention of causing the death of a child of tender years, exposes it in a desert place A has committed the offence defined by this section, though the death of the child does not ensue.

(c) A, intending to murder Z, buys a gun and loads it. A has not yet committed the offence. A fires the gun at Z. He has committed the offence defined in this section, and, if by such firing he wounds Z, he is liable to the punishment provided by the latter part of [the first paragraph of] this section.

(d) A, intending to murder Z by poison, purchases poison and mixes the same with food which remains in A' s keeping; A has not yet committed the offence in this section. A places the food on Z's table or delivers it to Z's servants to place it on Z's table. A has committed the offence defined in this section.”

17.     There is no merit in the contention that the statement of Medical Officer that there is no danger to life unless there is dislocation or rupture of the thyroid bone due to strangulation means that the accused did not intend, or have the knowledge, that their act would cause death. The circumstances of this case clearly attract the second part of this Section since the act resulted in injury No.5 which is a ligature mark of 34 cm x 0.5 cm. It must be noted that Section 307 IPC provides for imprisonment for life if the act causes ‘hurt’. It does not require that the hurt should be grievous or of any particular degree. The intention to cause death is clearly attributable to the accused since the victim was strangulated after throwing a telephone wire around his neck and telling him he should die. We also do not find any merit in the contention on behalf of the appellant that there was no intention to cause death because the victim admitted that the accused were not armed with weapons. Very few persons would normally describe the Thums-up bottle and a telephone wire used as weapons. That the victim honestly admitted that the accused did not have any weapons cannot be held against him and in favour of the accused.

18.      We are thus of the view that this is a clear case of intention to commit the murder of P.W. 1 (Pasupuleti Siva Ramakrishna Rao) the appellant and the accused acted in concert and committed an offence under Section 307 IPC. As regards the setting aside of the conviction by the High Court under Section 452 IPC, we find the reasoning completely unacceptable and untenable. The High Court has simply set aside the conviction of the accused under Section 452 IPC read with Section 34 IPC only on the ground that the victim was sitting at the Lorry Workers Union Office and not at any private place. Section 452 of the IPC reads as follows:

“452. House-trespass after preparation for hurt, assault or wrongful restraint.- Whoever commits house-trespass, having made preparation for causing hurt to any person or for assaulting any person, or for wrongfully restraining any person, or for putting and person in fear of hurt, or of assault, or of wrongful restraint, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.”

19.      There is no doubt that the trespass was into a house and that the appellant entered the office having prepared to assault the victim and in any case for putting him in fear of hurt or of assault. There is nothing in Section 452 IPC to suggest that the use to which the house is put makes any difference. It is not the requirement of Section 452 IPC that for a trespass to be an offence the house must be a private place and not an office. The law protects any house from trespass, vide Section 448 IPC and further protects persons within the house from being assaulted or even put in fear of hurt or wrongful restraint within their own house.

20.      We thus find that the accused were not entitled to be acquitted for the offences under Section 452 IPC read with Section 34 IPC.

21.      We accordingly set aside the judgment of the High Court and restore the Judgment of the Trial Court dated 31st July, 2003 passed by the learned Assistant Sessions Judge, Bhimavaram in Sessions Case No. 234 of 1999. The respondent Nos. 2 [A-1- Chintha Srinivasa Rao] and 3 [A-2-Chintha Krishna] are sentenced to undergo rigorous imprisonment for a period of seven years and to pay a fine of Rs. 100/- each, in default to suffer simple imprisonment for a period of three months each for the offence under Section 452 with Section 34 IPC. The respondent Nos. 2 [A-1-Chintha Srinivasa Rao] and 3 [A-2- Chintha Krishna] are also sentenced to undergo rigorous imprisonment for ten years and to pay a fine of Rs. 100/- each, in default simple imprisonment for a period of three month each for the offence under Section 307 read with Section 34 IPC. Both the sentences shall run concurrently. Sentence already undergone, if any, shall be set off.

22.      Accordingly this appeal is allowed. The respondent Nos. 2 [A-1-Chintha Srinivasa Rao] and 3 [A-2-Chintha Krishna] are directed to surrender before Judicial Magistrate/Superintendent of Police concerned forthwith. In case, they failed to do so within one month, steps be taken, in accordance with law, to apprehend them.

.....................………………..J.

[H.L. Dattu]

…..............………………………J.

[S.A. Bobde]

New Delhi,

February 20, 2014

  

SC : Service matter – Whether the High court can direct to regularize the temporary employees having service of 10 years or more

Head Notes:

1. There is no fundamental right in those who have been employed on daily wages or temporarily or on contractual basis, to claim that they have a right to be absorbed in service. As has been held by this Court, they cannot be said to be holders of a post, since, a regular appointment could be made only by making appointments consistent with the requirements of Articles 14 and 16 of the Constitution. The right to be treated equally with the other employees employed on daily wages, cannot be extended to a claim for equal treatment with those who were regularly employed. That would be treating unequals as equals. It cannot also be relied on to claim a right to be absorbed in service even though they have never been selected in terms of the relevant recruitment rules. 
2.       Mere continuation of service by a temporary or ad hoc or daily-wage employee, under cover of some interim orders of the court, would not confer upon him any right to be absorbed into service, as such service would be “litigious employment”. Even temporary, ad hoc or daily-wage service for a long number of years, let alone service for one or two years, will not entitle such employee to claim regularisation, if he is not working against a sanctioned post. Sympathy and sentiment cannot be grounds for passing any order of regularisation in the absence of a legal right.

3. Part-time employees are not entitled to seek regularisation as they are not working against any sanctioned posts. There can not be a direction for absorption, regularisation or permanent continuance of part-time temporary employees.
4. Part-time temporary employees in government run institutions cannot claim parity in salary with regular employees of the Government on the principle of equal pay for equal work. Nor can employees in private employment, even if serving full time, seek parity in salary with government employees. The right to claim a particular salary against the State must arise under a contract or under a statute.

Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOs. 2726-2729 OF 2014

(Arising out of SLP (C) Nos. 5681-5684/2014)

@ CC. 19326-19329/2013)

Secretary to Government, School Education Department, Chennai

                                                                                                  … Appellant

Versus

Thiru R. Govindaswamy & Ors.                                           …Respondents

WITH

CIVIL APPEAL NOs. 2730-2731 OF 2014

(Arising out of SLP (C) Nos. 5686-5687/2014)

@ CC. 19982-19983/2013)

O R D E R : Dr. B.S. CHAUHAN, J.

1.     These appeals have been preferred against the impugned judgments and orders dated 21.11.2012 and 16.11.2012 in Writ Appeal Nos. 2402, 2403 2404, 2405 of 2012 and 2555, 2556 of 2012 passed by the High Court of Madras, by which the High Court has regularised the services of part-time sweepers (respondents herein).

2.     Facts and circumstances giving rise to these appeals are that:

The respondents had been appointed as part-time sweepers by appellant from 1987 till 1993 as their initial appointments had been issued to the respondents and others on 1.12.1987, 2.5.1991, 1.4.1993, 10.4.1993, 27.5.1999 and 19.1.2001. As the respondents and others had been working for more than 10 years, they filed Writ Petition Nos. 17468, 17470, 17472, 17473, 17469 and 17471 of 2012 before the High Court of Madras for seeking regularisation of their services. The said Writ Petitions were allowed by the common judgment and order dated 23.7.2012 with the direction to regularise the services of the respondents on full time basis based on the individual representation after verifying their service particulars from the date of completion of 10 years of service with time scale of pay.

Aggrieved, the appellant preferred the writ appeals which were dismissed.

Hence, these appeals.

3.     Shri P.P. Rao, learned senior counsel appearing for the appellant has submitted that a direction to regularise the part-time employees itself is contrary to law and the said direction could not have been issued. It has further been submitted that as the impugned judgments and orders had been complied with and the appellant is not going to disturb any of the respondents and others, the law should be clarified on the issue so that in future the High Court may not use the impugned judgment as a precedent.

4.     Per contra, Shri P.R. Kovilan P, learned counsel appearing for the respondents has submitted that as the respondents had been working as part-time sweepers for a very long time and not regularising their services would tantamount to exploitation.

Therefore, no interference is called for in these appeals.

5.     The issue involved here remains restricted as to whether the services of the part-time sweepers could have been directed by the High Court to be regularized. The issue is no more res integra.

          In State of Karnataka & Ors. v. Umadevi & Ors., AIR 2006 SC 1806, this Court held as under:

“There is no fundamental right in those who have been employed on daily wages or temporarily or on contractual basis, to claim that they have a right to be absorbed in service. As has been held by this Court, they cannot be said to be holders of a post, since, a regular appointment could be made only by making appointments consistent with the requirements of Articles 14 and 16 of the Constitution. The right to be treated equally with the other employees employed on daily wages, cannot be extended to a claim for equal treatment with those who were regularly employed. That would be treating unequals as equals. It cannot also be relied on to claim a right to be absorbed in service even though they have never been selected in terms of the relevant recruitment rules.”

6.     In Union of India & Ors. v. A.S. Pillai & Ors., (2010) 13 SCC 448, this Court dealt with the issue of regularisation of part-time employees and the court refused the relief on the ground that parttimers are free to get themselves engaged elsewhere and they are not restrained from working elsewhere when they are not working for the authority/employer. Being the part-time employees, they are not subject to service rules or other regulations which govern and control the regularly appointed staff of the department. Therefore, the question of giving them equal pay for equal work or considering their case for regularisation would not arise.

7.     This Court in State of Rajasthan & Ors. v. Daya Lal & Ors., AIR 2011 SC 1193, has considered the scope of regularisation of irregular or part-time appointments in all possible eventualities and laid down well-settled principles relating to regularisation and parity in pay relevant in the context of the issues involved therein. The same are as under:

“8(i) The High Courts, in exercising power under Article 226 of the Constitution will not issue directions for regularisation, absorption or permanent continuance, unless the employees claiming regularisation had been appointed in pursuance of a regular recruitment in accordance with relevant rules in an open competitive process, against sanctioned vacant posts. The equality clause contained in Articles 14 and 16 should be scrupulously followed and Courts should not issue a direction for regularisation of services of an employee which would be violative of the constitutional scheme. While something that is irregular for want of compliance with one of the elements in the process of selection which does not go to the root of the process, can be regularised, back door entries, appointments contrary to the constitutional scheme and/or appointment of ineligible candidates cannot be regularised.

(ii) Mere continuation of service by a temporary or ad hoc or daily-wage employee, under cover of some interim orders of the court, would not confer upon him any right to be absorbed into service, as such service would be “litigious employment”. Even temporary, ad hoc or daily-wage service for a long number of years, let alone service for one or two years, will not entitle such employee to claim regularisation, if he is not working against a sanctioned post. Sympathy and sentiment cannot be grounds for passing any order of regularisation in the absence of a legal right.

(iii) Even where a scheme is formulated for regularisation with a cut-off date (that is a scheme providing that persons who had put in a specified number of years of service and continuing in employment as on the cut-off date), it is not possible to others who were appointed subsequent to the cut-off date, to claim or contend that the scheme should be applied to them by extending the cut-off date or seek a direction for framing of fresh schemes providing for successive cut-off dates.

(iv) Part-time employees are not entitled to seek regularisation as they are not working against any sanctioned posts. There can not be a direction for absorption, regularisation or permanent continuance of part-time temporary employees.

(v) Part-time temporary employees in government run institutions cannot claim parity in salary with regular employees of the Government on the principle of equal pay for equal work. Nor can employees in private employment, even if serving full time, seek parity in salary with government employees. The right to claim a particular salary against the State must arise under a contract or under a statute.”  (Emphasis added)

8.     The present appeals are squarely covered by clauses (ii), (iv) and (v) of the aforesaid judgment. Therefore, the appeals are allowed. However, in light of the facts and circumstances of the case as Shri P.P. Rao, learned senior counsel has submitted that the appellant has already implemented the impugned judgments and does not want to disturb the services of the respondents, the services of the respondents which stood regularised should not be affected.

          With the aforesaid observations, the appeals stand disposed of accordingly. No order as to costs.

…………………………….J.

(Dr. B.S. CHAUHAN

………………………………...J.

(A.K. SIKRI)

New Delhi,

February 21, 2014

Circumstantial Evidence : “Last seen theory” – In the absence of first link in the chain , the question of Last seen theory does not arise

Head Note: 

Circumstantial Evidence - Last seen theory - in the absence of first link in the chain , the question of Last seen theory does not arise . Merely because the High Court disagreed (without giving reasons why  it  did so) with the  reasonable  and  possible  view  of  the  Trial  Court,  on  a completely independent analysis of the evidence on record, is  not  a  sound basis to set aside the order of acquittal given by the  Trial  Court. In the absence of perversity, stupidity, incompetence , distorted conclusions, No appellant court should disturb the acquittal order of trial court

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1490 OF 2008

Shyamal Saha & Anr.                                                 ....Appellants

Versus

State of West Bengal                                                ....Respondent

J U D G M E N T: Madan B. Lokur, J.

1.    This appeal questions the limits of interference by the High Court in an appeal against the acquittal of an accused by the Trial Court. In our opinion, the High Court ought not to have interfered in the appeal before it with the acquittal of the appellants by the Trial Court.

Facts:

2.    The sequence of events, as it has unfolded from the evidence of the witnesses, is that on 19th May, 1995 a thermal plant of the Calcutta Electric Supply Company had opened across the river Ganges in Mauza Bhabanipur Char, District Hooghly, West Bengal.

3.    Paritosh Saha was with his mother Bidyutprava Saha (PW-5) at about 5.00/5.30 p.m. on 19th May, 1995. Thereafter, he and his nephew Animesh Saha (CW-1) aged about 10 years went for a walk on the banks of the river Ganges where they met Gopal Saha, with whom they struck a conversation. At that time, the appellants Shyamal Saha and Prosanta @ Kalu Kabiraj also came there and called Paritosh to go across the river to see the Char (island). Animesh also expressed his desire to go to the Char but Shyamal asked him to return home.

4.    When the three of them (Paritosh, Shyamal and Prosanta) were about to board Asit Sarkar’s boat, they were joined by Dipak Saha (PW-6) and Panchu Sarkar (PW-11). The five of them then went across the river Ganges and, according to Animesh, when they reached the other side of the river, Dipak and Panchu went towards the thermal plant while Paritosh, Shyamal and Prosanta went in a different direction towards the jungle. Thereafter, Animesh came back to his house.

5.    According to Bidyutprava Saha, at about 8.00 or 8.30 p.m. Shyamal and Prosanta came to her house and asked the whereabouts of Paritosh.

6.    According to Paritosh’s brother Amaresh Saha (PW-1) at about 10.00 p.m. Shyamal and Prosanta came to his house and enquired about Paritosh.

7.    Early next morning on 20th May, 1995 Bidyutprava Saha noticed that Paritosh had not eaten his dinner which she had kept for him. She mentioned this to Amaresh and also informed him that Shyamal and Prosanta had come and met her the previous evening at about 8.00 or 8.30 p.m. During the course of this conversation, Animesh revealed to his father Amaresh that he had seen Paritosh cross the river Ganges the previous evening in a boat along with Shyamal and Prosanta.

8.    On receiving this information Amaresh enquired from Shyamal and Prosanta the whereabouts of Paritosh but they informed him that they had seen him across the river with some boys. Later in the day, Amaresh was informed by Dipak and Panchu that they had crossed the river along with Paritosh, Shyamal and Prosanta. After crossing the river, Dipak and Panchu had gone to see the thermal plant and the others had gone in another direction towards the jungle. Dipak and Panchu pleaded ignorance of the subsequent movements of Paritosh.

9.    Later in the evening at about 7.30 p.m. Amaresh Saha lodged a First Information Report regarding the disappearance of Paritosh.

10.      Sometime in the morning of 21st May, 1995 the corpse of Paritosh was found in the river tied to two iron chairs with a napkin around his neck. The police were informed about the recovery of the dead body and an inquest was carried out and the iron chairs and napkin were seized in the presence of some witnesses. It was noticed that a part of Paritosh’s skin was burnt perhaps due to pouring of acid.

11.      On these broad facts, investigations were carried out and Shyamal and Prosanta were charged with having abducted Paritosh and thereafter having murdered him.

Decision of the Trial Court:

12.      In its judgment and order dated 29th July, 1998 the Trial Court held that neither the charge of abduction nor the charge of murder was proved against Shyamal and Prosanta and therefore they were acquitted. As far as the charge of abduction is concerned, that is not in issue before us and need not detain us any further.

13.      The acquittal by the Trial Court was primarily in view of the absence of consistency in the testimony of Amaresh, Bidyutprava Saha, Animesh, Dipak and Panchu. For example, it was observed that if Animesh had in fact informed Amaresh and Bidyutprava Saha that he had gone to the banks of the river with Paritosh, it would have been reflected in their testimony. Similarly, Bidyutprava Saha did not say anything about Paritosh going to the river although she saw him at about 5.00 or 5.30 p.m. on 19^th May, 1995. The Investigating Officer, Sub-Inspector Debabrata Dubey (PW-16) had yet another version of the events. His testimony indicated that many of the facts stated in the oral testimony of the witnesses were not put across to him at any time, suggesting considerable padding and embellishments in their testimony. As such, it was not possible to lend credence to the testimony of the prosecution witnesses and the accused were entitled to the benefit of doubt. Additionally, the Trial Court noted that it was a case of circumstantial evidence and also that there was no motive for Shyamal and Prosanta to have murdered Paritosh.

Decision of the High Court:

14.      Feeling aggrieved by their acquittal, the State preferred an appeal before the Calcutta High Court against Shyamal and Prosanta. The appeal was allowed by a judgment and order dated 11th March, 2008. The decision of the Trial Court was reversed and they were convicted for the murder of Paritosh and sentenced to imprisonment for life and a fine of Rs.5000/- each and in default of payment to undergo rigorous imprisonment of one year each.

15.      According to the High Court, the case of the prosecution hinged, essentially, on the evidence of Dipak and Panchu, as well as of Animesh. The High Court considered their evidence and held that all five (Dipak, Panchu, Paritosh, Shyamal and Prosanta) crossed the river in a boat in the evening at about 5.30 p.m. on 19th May, 1995. This was supported by the testimony of Animesh who also wanted to go along with all of them but was prohibited from doing so by Shyamal.

16.      It was also held, on the basis of the post mortem report given by Dr. P.G. Bhattacharya (PW-15) and his testimony that Paritosh died soon after 5.30 p.m. on 19th May, 1995. The High Court came to this conclusion on the basis of the doctor’s statement that the death took place between 65 and 70 hours before he conducted the post mortem examination. Since the post mortem examination was conducted at about 12.00 noon on 22nd May, 1995 working backwards, it appeared that Paritosh died soon after 5.30 p.m. on 19th May, 1995.

17.      Finally, the High Court held that Paritosh was last seen with Shyamal and Prosanta and therefore they had to explain the events that had occurred after they were last seen together. In the absence of any explanation offered by them, the last seen theory would apply and it must be held that Shyamal and Prosanta had murdered Paritosh.

Discussion on the law:

18.      Aggrieved by their conviction and sentence, Shyamal and Prosanta have preferred this appeal. The primary submission made on their behalf was to the effect that the High Court ought not to have interfered in the acquittal by the Trial Court particularly, in a case of circumstantial evidence. It was also submitted that the evidence on record points to the fact that they were made scapegoats by the prosecution. Of course, this was opposed by learned counsel for the State.

19.      The crucial issue for consideration, therefore, relates to interference by the High Court in an acquittal given by the Trial Court. Recently, in Joginder Singh v. State of Haryana (MANU/SC/1096/2013) it was held, after referring to Sheo Swarup v. King Emperor  (AIR 1934 PC 227) that

“Before we proceed to consider the rivalised contentions raised at the bar and independently scrutinize the relevant evidence brought on record, it is fruitful to recapitulate the law enunciated by this Court pertaining to an appeal against acquittal. In Sheo Swarup (supra), it has been stated that the High Court can exercise the power or jurisdiction to reverse an order of acquittal in cases where it finds that the lower court has "obstinately blundered" or has "through incompetence, stupidity or perversity" reached such "distorted conclusions as to produce a positive miscarriage of justice" or has in some other way so conducted or misconducted himself as to produce a glaring miscarriage of justice or has been tricked by the defence so as to produce a similar result.”

Unfortunately, the paraphrasing of the concerned passage from Sheo Swarup gave us an impression that the High Court can reverse an acquittal by a lower court only in limited circumstances. Therefore, we referred to the passage in Sheo Swarup and find that what was stated was as follows:

“There is in their opinion no foundation for the view, apparently supported by the judgments of some Courts in India, that the High Court has no power or jurisdiction to reverse an order of acquittal on a matter of fact, except in cases in which the lower Court has "obstinately blundered," or has "through incompetence, stupidity or perversity" reached such "distorted conclusions as to produce a positive miscarriage of justice," or has in some other way so conducted itself as to produce a glaring miscarriage of justice, or has been tricked by the defence so as to produce a similar result.”

The legal position was reiterated in Nur Mohammad v. Emperor (AIR 1945 PC 151)

 after citing Sheo Swarup and it was held:

“Their Lordships do not think it necessary to read it all again, but would like to observe that there really is only one principle, in the strict use of the word, laid down there; that is, that the High Court has full power to review at large all the evidence upon which the order of acquittal was founded, and to reach the conclusion that upon that evidence the order of acquittal should be reversed.”

We are mentioning this only to dispel the possibility of anyone else getting an impression similar to the one that we got, though nothing much turns on this as far as this case is concerned.

20.      The entire case law on the subject was discussed in Chandrappa v. State of Karnataka (2007) 4 SCC 415 beginning with perhaps the first case decided by this Court on the subject being Prandas v. State. AIR 1954 SC 36  It was held in Chandrappa as follows:

“(1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded.

(2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law.

(3) Various expressions, such as, ‘substantial and compelling reasons’, ‘good and sufficient grounds’, ‘very strong circumstances’, ‘distorted conclusions’, ‘glaring mistakes’, etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of ‘flourishes of language’ to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion.

(4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court. (5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court.”

21.      The principles laid down in Chandrappa were generally reiterated but mainly reformulated in Ganpat v. State of Haryana (2010) 12 SCC 59  though without reference to Chandrappa and by referring to decisions not considered therein. The reformulation of the principles in Ganpat is as follows:

“(i) There is no limitation on the part of the appellate court to review the evidence upon which the order of acquittal is founded and to come to its own conclusion.

(ii) The appellate court can also review the trial court’s conclusion with respect to both facts and law.

(iii) While dealing with the appeal preferred by the State, it is the duty of the appellate court to marshal the entire evidence on record and by giving cogent and adequate reasons may set aside the judgment of acquittal.

(iv) An order of acquittal is to be interfered with only when there are “compelling and substantial reasons” for doing so. If the order is “clearly unreasonable”, it is a compelling reason for interference.

(v) When the trial court has ignored the evidence or misread the material evidence or has ignored material documents like dying declaration/report of ballistic experts, etc. the appellate court is competent to reverse the decision of the trial court depending on the materials placed. (Vide Madan Lal v. State of J&K (1997) 7 SCC 677, Ghurey Lal v. State of U.P. (2008) 10 SCC 450, Chandra Mohan Tiwari v. State of M.P. (1992) 2 SCC 105 and Jaswant Singh v. State of Haryana(2000) 4 SCC 484.)”

22.      Undoubtedly, we are suffering from an overdose of precedents but be that as it may, from the principles laid down, it appears at first blush that the High Court is entitled to virtually step into the shoes of the Trial Court hearing submissions of learned counsel and then decide the case as a court of first instance. Perhaps this is not what is intended, notwithstanding the broad language used in Chandrappa and Ganpat. Otherwise, the decision of the Trial Court would be a meaningless exercise and this Court would become a first appellate court from a decision of the High Court in a case of acquittal by the Trial Court. Realistically speaking, although the principles stated are broad, it is the obligation of the High Court to consider and identify the error in the decision of the Trial Court and then decide whether the error is gross enough to warrant interference. The High Court is not expected to merely substitute its opinion for that of the Trial Court only because the first two principles in Chandrappa and Ganpat permit it to do so and because it has the power to do so – it has to correct an error of law or fact significant enough to necessitate overturning the verdict of the Trial Court. This is where the High Court has to exercise its discretion very cautiously, keeping in mind the acquittal of the accused and the rights of the victim (who may or may not be before it). This is also where the fifth principle laid down in Chandrappa and Ganpat comes into operation.

Discussion on facts:

23.      Looked at from this perspective, it was submitted by learned counsel for the State that there cannot be two reasonable views of the events that took place. It was submitted that there was no doubt that Paritosh crossed the river Ganges with Shyamal and Prosanta and they went to a secluded and uninhabited place across the river. This was witnessed by Dipak, Panchu and Animesh. Paritosh then went missing and his corpse was found a couple of days later. It was submitted that on these facts there can be only one conclusion, namely that Shyamal and Prosanta caused the death of Paritosh.

24.      In this context, the evidence of Dipak, Panchu, Animesh and the Investigating Officer assumes significance. Disputing the testimony given by Dipak and Panchu in Court, the Investigating Officer stated that when they were examined under Section 161 of the Criminal Procedure Code they neither told him that they had gone to the opposite side of the river nor that Shyamal and Prosanta had gone with Paritosh towards the jungle. There was also no mention of the attendance of Animesh or the dress worn by Paritosh. In other words, they did not mention any of the events said to have taken place in their presence on the evening of 19th May, 1995. From this, it is quite clear that the subsequent statements made by them on oath appear to be add-ons and make believe. This casts serious doubt on their credibility.

25.      An independent witness Swapan Kabiraj (PW-8) who is supposed to have seen Dipak, Panchu, Paritosh, Shyamal and Prosanta board the boat to cross the river, turned hostile and denied having made any statement before the Investigating Officer. Snehalata Sarkar (PW-7), wife of the boat owner Asit Sarkar also turned hostile and stated that their boat was, as usual, tied to the ghat and she could not say whether it was taken by any person on that date.

26.      However, what is even more important is that Animesh stated in Court that on the morning of 20th May, 1995 he had told his father Amaresh and Bidyutprava Saha that he had seen the abovementioned five persons cross the river in a boat the previous evening. He also stated that he was taken by Amaresh to the police station and he had even mentioned this to the police. However, Amaresh does not depose anything about having taken Animesh to the police station. The Investigating Officer deposed that Animesh had not been cited as a witness and “had it been known to me that Animesh is a material witness who saw the victim together with the accused, during investigation, he would have been cited as a witness in the charge sheet”. Therefore, the possibility of Animesh having been tutored cannot be completely ruled out.

27.      It is clear that there is considerable padding in the testimony of the three crucial witnesses namely, Dipak, Panchu and Animesh and there are unexplained additions made by them. In this state of the evidence on record, the Trial Court was entitled to come to a conclusion that the prosecution version of the events was doubtful and that Shyamal and Prosanta were entitled to the benefit of doubt and to be acquitted. We also find from the record that a number of independent witnesses have turned hostile and, as mentioned above, three important witnesses have added much more in their oral testimony before the Court than what was stated before the Investigating Officer during investigations.

28.      The High Court believed the testimony of Dipak and Panchu and came to the conclusion that they had crossed the river along with Paritosh, Shyamal and Prosanta. However, the High Court did not take into consideration the view of the Trial Court, based on the evidence on record, that it was doubtful if the five persons mentioned above boarded the boat belonging to Asit Sarkar to cross the river as alleged by the prosecution. The High Court also did not consider the apparently incorrect testimony of Animesh who had stated that he had gone to the police station and given his version but despite this, he was not cited as a witness. The version of Animesh was specifically denied by the Investigating Officer.

29.      When the basic fact of Paritosh having boarded a boat and crossing the river with Shyamal and Prosanta is in doubt, the substratum of the prosecution’s case virtually falls flat and the truth of the subsequent events also becomes doubtful. Unfortunately, the High Court does not seem to have looked at the evidence from the point of view of the accused who had already secured an acquittal. This is an important perspective as noted in the fourth principle of Chandrappa. The High Court was also obliged to consider (which it did not) whether the view of the Trial Court is a reasonable and possible view (the fifth principle of Chandrappa) or not. Merely because the High Court disagreed (without giving reasons why it did so) with the reasonable and possible view of the Trial Court, on a completely independent analysis of the evidence on record, is not a sound basis to set aside the order of acquittal given by the Trial Court. This is not to say that every fact arrived at or every reason given by the Trial Court must be dealt with – all that it means is that the decision of the Trial Court cannot be ignored or treated as non-existent.

30.      What is also important in this case is that it is one of circumstantial evidence. Following the principles laid down in several decisions of this Court beginning with Sharad Birdhi Chand Sarda v. State of Maharashtra (1984) 4 SCC 116 it is clear that the chain of events must be so complete as to leave no room for any other hypothesis except that the accused were responsible for the death of the victim. This principle has been followed and reiterated in a large number of decisions over the last 30 years and one of the more recent decisions in this regard is Majenderan Langeswaran v. State (NCT of Delhi) and Another. (2013) 7 SCC 192  The High Court did not take this into consideration and merely proceeded on the basis of the last seen theory.

31.      The facts of this case demonstrate that the first link in the chain of circumstances is missing. It is only if this first link is established that the subsequent links may be formed on the basis of the last seen theory. But the High Court overlooked the missing link, as it were, and directly applied the last seen theory. In our opinion, this was a rather unsatisfactory way of dealing with the appeal.

32.      Under the circumstances, we are unable to agree with learned counsel for the State and are of the opinion that there was really no occasion for the High Court to have overturned the view of the Trial Court which was not only a reasonable view but a probable view of the events.

33.      Learned counsel for Shyamal and Prosanta raised some issues such as the failure of the prosecution to examine Gopal Saha and Asit Sarkar. He also submitted that there was no motive for Shyamal and Prosanta to murder Paritosh. In the view that we have taken, it is not necessary to deal with these submissions.

34.      Learned counsel for the State relied on the evidence of Dr. Bhattacharya to submit that Paritosh died between 65 and 70 hours before the post mortem examination was conducted. As observed by High Court, this placed Paritosh’s death soon after 5.30 p.m. on 19th May, 1995. The significance of this is only with respect to the time of death and has no reference to the persons who may have caused the death of Paritosh. The evidence of Dr. Bhattacharya, therefore, does not take the case of the State any further.

Conclusion:

35.      The view taken by the Trial Court was a reasonable and probable view on the facts of the case. Consequently, there was no occasion for the High Court to set aside the acquittal of Shyamal and Prosanta. Accordingly, their conviction and sentence handed down by the High Court is set aside. Their appeal against their conviction and sentence is allowed.

….…………………………..J.

 (Ranjana Prakash Desai)

….……………………….......J.

(Madan B. Lokur)

New Delhi;

February 24, 2014