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    13Feb, 2023
    Hindu Marriage Act Section 9 Writ of habeas corpus Custody of minor child Petitioner is the natural guardian of his minor child But for some bald allegations made against him, there is no reason to be believe that he would not conduct himself as a good and caring father/High Court of Punjab & Haryana

     


    PUNJAB HARYANA HIGH COURT 

    SANDEEP vs STATE OF HARYANA CRLWP 8954/12 16/09/21

    •Hindu Marriage Act Section 9 Writ of habeas corpus Custody of minor child Petitioner is the natural guardian of his minor child But for some bald allegations made against him, there is no reason to be believe that he would not conduct himself as a good and caring father – Divorce and custody battles can become a quagmire and it is heart wrenching to see that the innocent child is the ultimate sufferer who gets caught up in the legal and psychological battle between the parents. The eventful agreement about custody may often be a reflection of the parents’ interests, rather than the child’s. The issue in a child custody dispute is what will become of the child, but ordinarily the child is not a true participant in the process. While the best-interests principle requires that the primary focus be on the interests of the child, the child ordinarily does not define those interests himself nor does he have representation in the ordinary sense Custody of minor child to father.

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    Sandeep Kumar @ Sandeep Chugh Versus State of Haryana and Others FINAL_ORDER

    12Feb, 2023
    Section 302 IPC Murder – Even the evidence of a hostile witness can be considered to the extent, it supports the case of the prosecution Therefore, prosecution has established and proved the motive to that extent/Appeal Allowed

     


    [ SUPREME COURT ]

    MALTI SAHU vs RAHUL CRL-A 471/22 11/07/22 [ Shah JJ ]

    • Section 302 IPC Murder – Even the evidence of a hostile witness can be considered to the extent, it supports the case of the prosecution Therefore, prosecution has established and proved the motive to that extent – Another link in the evidence, which establishes and brings home the guilt of the accused person is the recovery of the knife in three pieces, recovered from the place of occurrence, which was used for commission of the offence – Prosecution has been successful in establishing and proving that it was the accused, who purchased the said knife from one-PW-9 – High Court has committed a grave/serious error in observing that the prosecution has failed to prove the link evidence, which could establish and bring home the guilt of the accused Order of acquittal is set aside Appeal allowed

     

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    Malti Sahu Rahul & Anr. SC Judgement_11-Jul-2022

    6Feb, 2023
    Section 376 IPC Rape Revision against conviction Petitioner committed rape on victim assaulted her and threw her in the paddy field Merely because victim admitted that she had gone to her work for two hours

    Bhagaban vs State of Orissa CRLREV 270/21 25/07/22 [ RATHO JJ ]

    [ ORISSA HIGH COURT ]

    • Section 376 IPC Rape Revision against conviction Petitioner committed rape on victim assaulted her and threw her in the paddy field Merely because victim admitted that she had gone to her work for two hours after the rape does not render her evidence liable for rejection Victim evidence has been corroborated by the evidence of her younger brother, her father who is also the informant and to whom she had shown the accused, her employer who noticed her damaged saree, Medical Officer who had examined her and found minor injuries on her back which was noticed by the I.O No merit in the contention of the learned counsel for the petitioner that he has been prejudiced as he could not cross examine the victim with reference to her statements before the police No reason to interfere with the conviction Petition dismissed. [Paras 2, 9 and 12]

     

    4Feb, 2023
    Order 23 Rule 3A CPC Bar to suit – Initially, the suit was filed by the respondent merely on the strength of consent decree passed in the divorce suit – Subsequently



     

     

     

    [ UTTARAKHAND HIGH COURT ]

    VINEET KUMAR JAIN vs ARCHANA GARG FA 38/15 23/10/19 [ Alok JJ ]

    • Order 23 Rule 3A CPC Bar to suit – Initially, the suit was filed by the respondent merely on the strength of consent decree passed in the divorce suit – Subsequently, various things were stated in the plaint regarding conduct of the parties as well as arrangement of consideration money for the purchase of the house – Suit was not filed claiming herself owner of the house by the respondent. It is important to note that the initial objection of the appellant was also to the effect that terms and conditions of the consent decree passed in Divorce Suit had been violated by the respondent. In fact, on 04.10.2008 the appellant informed the Court that he has no intention to evict the appeal. It has been recorded in the order sheet dated 04.10.2008 of the suit – The settled legal position, as discussed, is that the consent decree is binding. It is an agreement between the parties with the approval of the Court. It may not act as res-judicata but it acts as estoppel. If for the enforcement of a consent decree, a separate suit is permitted to be filed, it will give rise to the multiplicity of the suit. It would be against the intention of the legislature as embodied under Order 23 Rule 3A of CPC. The suit, as such, is not maintainable.

    1Feb, 2023
    Section 438 and 439 CRPC Bail Process of criminal law cannot be utilised for arm-twisting and money recovery, particularly while opposing the prayer for bail

    BIMLA vs STATE OF BIHAR SLCRL 834/23 16/01/23

    [ SUPREME COURT ]

    • Section 438 and 439 CRPC Bail Process of criminal law cannot be utilised for arm-twisting and money recovery, particularly while opposing the prayer for bail – Question as to whether pre-arrest bail, or for that matter regular bail, is to be granted or not is required to be examined and the discretion is required to be exercised by the Court with reference to the material on record and the parameters governing bail considerations – Bail could be declined even if the accused has made payment of the money involved or offers to make any payment – Held that there is no justification in adopting such a course that for the purpose of being given the concession of pre-arrest bail, the person apprehending arrest ought to make payment – Recovery of money is essentially within the realm of civil proceedings. [Paras 9 to 11]

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    BIMLA TIWARI PETITIONER VERSUS STATE OF BIHAR & ORS._Judgement_16-Jan-2023

     

    22Jan, 2023
    Accused was rightly acquitted in cheque bounce case as complainant’s ITR proved his financial incapacity to give loan: SC


    FEMA, BANKING & INSURANCE :     SC upholds acquittal in cheque bounce case as Trial Court’s order had considered complainant’s ITR, non-production of pro-notes, witnesses & all circumstances
    • After analyzing all pieces of evidence, the learned Trial Court found that the Income Tax Returns of the complainant did not disclose that he lent amount to the accused, and that the declared income was not sufficient to give loan of Rs.3 lakh. Therefore, the case of the complainant that he had given a loan to the accused from his agricultural income was found to be unbelievable by the learned Trial Court. The learned Trial Court found that it was highly doubtful as to whether the complainant had lent an amount of Rs.3 lakh to the accused.
    • The learned Trial Court also found that the complaint had failed to produce the promissory note alleged to have been executed by the accused on 25th October 1998.
    • After taking into consideration the defence witnesses and the attending circumstances, the learned Trial Court found that the defence was a possible defence and as such, the accused was entitled to benefit of doubt.
    • The standard of proof for rebutting the presumption is that of preponderance of probabilities. Applying this principle, the learned Trial Court had found that the accused had rebutted the presumption on the basis of the evidence of the defence witnesses and attending circumstances. The scope of interference in an appeal against acquittal is limited. Unless the High Court found that the appreciation of the evidence is perverse, it could not have interfered with the finding of acquittal recorded by the learned Trial Court. In that view of the matter, the High Court was not justified in reversing the order of acquittal of the appellant.

    Adv Megha

    SUPREME COURT OF INDIA
    Rajaram
    v.
    Maruthachalam
    B.R. GAVAI AND M. M. SUNDRESH, JJ.
    CRIMINAL APPEAL NOS. 1978 AND 1990 OF 2013
    CIVIL APPEAL NOS. 10500 AND 10501 OF 2013
    JANUARY 18, 2023
    JUDGMENT

    22Jan, 2023
    Sections 302 and 34 IPC Appeal against conviction Murder Dying declaration Deceased in her dying declaration deposed that accused persons


    Judgment.Cr.Apeal.47.2000.doc

    [ BOMBAY HIGH COURT ]

    Kanaji vs State of Maharashtra

    _*• Sections 302 and 34 IPC Appeal against conviction Murder Dying declaration Deceased in her dying declaration deposed that accused persons, her husband and his first wife poured kerosene and set her on fire First dying declaration immediately recorded at hospital in presence of Doctor, Special Executive Officer and PSI One can containing Kerosene, one burnt saree, and one burn quilt, were found in the kitchen and the flooring was cleaned Accused persons had not taken the defence that the Ratna had committed suicide Evidence of PSI showing that deceased alone came to Police Station in burnt condition and one Constable was deputed to shift her to hospital – Doctor also stated that deceased was brought to hospital by one Constable – Plea of accused that he carried deceased to hospital, unacceptable – Deceased died homicidal death Conviction proper. [Paras 23, 25, 26, 27, 28 and

     

    23. Firstly, we consider the issue that the death of Ratna being accidental or homicidal ? Learned Trial Court has dealt with this issue in detail in paragraph 7, 8 and 9 of the judgment. It is not in dispute that the deceased Ratna was residing with accused nos. 1 and 2 under same roof. It is also not in dispute that on 04.09.1997 Ratna was in the house of accused no. 1 and at about 04.30 a.m she sustained 100% burns in the house of accused no. 1. Dr. Ansari (PW 1), the MedicalOfficer in IGM Hospital, Bhiwandi stated that Ratna was brought by police constable D.M. Shirsat to the hospital. Then Ratna gave the history to him that her husband i.e. accused no. 1 and his first wife poured kerosene and set her on fire on 04.09.1997 at about 04.30 a.m. Considering this evidence, it is proved that the Ratna died homicidal death.

    25. At the cost of repetition, we may state that Ratna was firstly taken to IGM Hospital, Bhiwandi, where PSI Shendage (PW 8) recorded dying declaration in presence of Special Executive Officer and Medical Officer. Dr. Ansari (PW 1). Ratna stated that her husband i.e. accused no. 1 and his first wife poured kerosene and set her on fire on 04.09.1997 at about 04.30 a.m. It also came on record that in the Register at Exh. 15, maintained in IGM Hospital, Bhiwandiwherein it has been recorded that burns were caused by husband and his first wife by pouring kerosene.
    26. In the spot panchnama, it can be seen that panchnama was drawn up in the morning and at that time there was kerosene smell in the kitchen. One can containing kerosene, one burnt saree, and one burnt quilt, were found in the kitchen and the flooring was cleaned. If we consider this aspect of the matter, it can be said that Ratna did not sustain 100% burns accidentally or her attempt was to commit suicide. It is important to note that both the accused persons had not taken the defence that the Ratna had committed suicide. It was further found that floor was cleaned.
    27. It is the the submission of learned Counsel appearing for the Appellant that the deceased was tutored by Sumanbai (PW 3) and Vimal (PW 5). In their evidence, it is reflected that both the witnesses were called by police. Vimal (PW 5) in her deposition stated that she was at Bhiwandi, and police informed her about the incident and then she went to Ratna at Thane Civil Hospital on second day. The first dying declaration was immediately recorded at IGM Hospital,Bhiwandi only in presence of Dr. Ansari (PW 1), Special Executive Officer and PSI Shendage (PW 8). Thus, it can safely be said that deceased had no occasion to meet with these two witnesses and was not tutored. Considering this aspect, we are unable to accept the submission that the dying declarations are doubtful or victim was tutored.
    28. The accused no. 1 in his statement under Section 313 of Cr.P.C. stated that he had carried deceased Ratna to hospital but, there is no supportive evidence to it. On the contrary, the evidence of PSI Shendage (PW 8) clearly shows that Ratna alone came to Bhiwandi Town Police Station in burnt condition and he deputed one constable to shift her to IGM, Hospital. Dr. Ansari (PW 1) also stated in his evidence that the deceased Ratna was brought to hospital by one constable Shirsat.
    29. Considering the above referred material and evidence, it can be stated that the death of deceased Ratna is a homicidal death and the Appellants are the author of crime.

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    Kanaji Laxman Chavan & Smt. Hansa Kanji Chavan vs state of Maharastra Judgment

    Adv Vaibhav Tomar (All Rights Reserved)

     

    19Jan, 2023
    Section 326 IPC Section 82 CRPC Appeal against acquittal – For offence of voluntary causing grievous hurt by dangerous weapons or means –


    BOMBAY HIGH COURT

    State of Goa vs Venkatesh CRL-A 37/01

    Section 326 IPC Section 82 CRPC Appeal against acquittal – For offence of voluntary causing grievous hurt by dangerous weapons or means – Appellant/State was expected to serve respondent(original accused) – But the record shows that State was unable to serve respondent, as a consequence of which nonbailable warrants were issued against respondent – Despite number. of opportunities granted, appellant-State has not been able to serve notice to respondent or to execute non-bailable warrant – Appeal pending for 21 years – Held, no purpose would be served by keeping appeal pending Appeal dismissed in default. [Paras and 8]

    4. Thereafter execution of the non-bailable warrant was awaited and the subsequent orders show that on number of occasions time was granted to the appellant/State to take necessary steps in the matter, on a few occasions recording that the adjournment was granted as a matter of last chance.
    5. By order dated 24.6.2019, this Court recorded that several attempts were made to serve the respondent and to trace him, including by issuing a proclamation for person absconding under Section 82 of the Cr.P.C., yet the respondent could not be served. By the said order, fresh non-bailable warrant was issued to be executed by the Superintendent of Police, District Warangal, which was the last known place of residence of the respondent.

    28/02/22

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    Judgment Bombay HC display_pdf (33)

    Adv Saba Hasan ( All rights reserved)