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Recent Judgments

Principles of appreciation of dying declaration

Varikuppal Srinivas v. State of A.P. CRIMINAL APPEAL NO. 168 OF 2009. Date of Judgment 28-01-09

This case reiterates the principles used while appreciating a dying declaration.

"(i)There is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration. [Munnu Raja & Anr. v. The State of Madhya Pradesh (1976) 2 SCR 764)]

(ii) If the Court is satisfied that the dying declaration is true and voluntary it can base conviction on it, without corroboration. [State of Uttar Pradesh v. Ram Sagar Yadav and Ors. (AIR 1985 SC 416) and Ramavati Devi v. State of Bihar (AIR 1983 SC 164)]

(iii) The Court has to scrutinize the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination. The deceased had an opportunity to observe and identify the assailants and was in a fit state to make the declaration. [K. Ramachandra Reddy and Anr. v. The Public Prosecutor (AIR 1976 SC 1994)]

(iv) Where the dying declaration is suspicious, it should not be acted upon without corroborative evidence. [Rasheed Beg v. State of Madhya Pradesh (1974 (4) SCC 264)]

(v) Where the deceased was unconscious and could never make any dying declaration, the evidence with regard to it is to be rejected. [Kaka Singh v State of M.P. (AIR 1982 SC 1021)]

(vi) A dying declaration which suffers from infirmity cannot form the basis of conviction. [Ram Manorath and Ors. v. State of U.P. (1981 (2) SCC 654)

(vii) Merely because a dying declaration does contain the details as to the occurrence, it is not to be rejected. [State of Maharashtra v. Krishnamurthi Laxmipati Naidu (AIR 1981 SC 617)]

(viii) Equally, merely because it is a brief statement, it is not to be discarded. On the contrary, the shortness of the statement itself guarantees truth. [Surajdeo Oza and Ors. v. State of Bihar (AIR 1979 SC 1505).

(ix) Normally the Court in order to satisfy whether the deceased was in a fit mental condition to make the dying declaration looks up to the medical opinion. But where the eye-witness said that the deceased was in a fit and conscious state to make the dying declaration, the medical opinion
cannot prevail. [Nanahau Ram and Anr. v. State of Madhya Pradesh (AIR 1988 SC 912)].

(x) Where the prosecution version differs from the version as given in the dying declaration, the said declaration cannot be acted upon. [State of U.P. v. Madan Mohan and Ors. (AIR 1989 SC 1519)].

(xi) Where there is more than one statement in the nature of dying declaration, one first in point of time must be preferred. Of course, if the plurality of dying declarations could be held to be trustworthy and reliable, it has to be accepted. [Mohanlal Gangaram Gehani v.State of Maharashtra (AIR 1982 SC 839) and Mohan Lal and Ors. v. State of Haryana (2007 (9) SCC 151)."

Had it been not dismissed on technical grounds, it could have been a landmark decision and a lead to the singur farmers claiming their land back

Yunus (Baboobhai) A Hamid Padvekar v. State of Maharashtra. CIVIL APPEAL NO. 486 OF 2009. Date of Judgment 28-01-09

The present appeal is against the dismissal order of the HC of a writ petition on the reason of delay.

The issue agitated in the writ petition is of phenomenal importance and especially for the Singur farmers. The question is, now that TATA is backed out what will happen to the land. Will the farmers get it back?

In 1972, 38 acres of land of the appellant were acquired by the state for BALCO. The company failed to set up the unit and the license was cancelled. The claim of the petitioner in the writ was for reversion of the property to him.

Regrettably there has been a delay which the HC found inordinate and dismissed the peitition. The appeal is dismissed endorsing the finding of the HC.

Wish it was decided on merits!

Recent Judgments

Exercise of jurisdiction under Article 136

Anurag Kumar v. Mohan Lal CIVIL APPEAL NO.446 Of 2009, Date of Judgment 27-01-09

1. When the litigants feels injustice is done by a court, there is an option to approach the superior court. It is then the discretion of that court to grant leave to appeal. This is the basic principle under Article 136 [ (1996) 1 SCJ 786, 803]

2. Article 136 is a discretionary power and it is not possible to define with precision how this discretion is to be exercised

3. "The limitations whatever they be, are implicit in the nature and character of the power itself. It being an exceptional and over-riding power, naturally, it has to be exercised sparingly and with caution and in special and extraordinary situations"

4. The discretionary power remains with the court even after the special leave is granted. This discretionary power can be used at any stage in the appeal. [ (1999) 2 SCC 321]

Using this discretionary power the court dismissed the present appeal without going into the merits.

Relevant date for ascertaining whether an accused is a juvenile

Eerati Laxman v. State of A.P. Criminal Appeal No. 139 of 2009. Date of Judgment 23-01-09

"The date on which the offence had been committed and not the date when the accused was first produced before the court/competent authority would be the relevant date for the purpose of ascertaining as to whether the accused before it was a juvenile within the meaning of the provisions of the said Act or not."

There is an interesting observation in this case. Court says that, the Juvenile Justice Act is a beneficial legislation but it does not rule out literal interpretation.

Copy right and fair use

Academy of General Education v. B. Malini Mallya. CIVIL APPEAL NO. 389 of 2008. Date of Judgment 23-01-09

The case is based on the alleged violation of copyright by the appellant. Appellant staged a theatrical performance, which has been developed as Yaksha Ranga by the well known literati figure late Dr. Shivarama Karanth. The respondent claimed copyright in respect of the said form of performance by virtue of the Will of Dr. Karanth.

The Court in the judgment discussed the differentiation between 'literary work' and 'dramatic work' and held that the performance in issue comes within the purview of dramatic work.

The performance by the appellant, considering the fact situation, was held to be covered under Section 52 of the Act and therefore as not falling under the order of injunction.

Recent Judgments

SC invokes public trust doctrine

Fomento Resorts and Hotels Ltd. v. Minguel Martins, Civil Appeal No. 4154 of 2000. Date of Judgment 20-01-09

An interesting case where the attempt of the petitoner to secure a part of seashore as private beach is set naught by the SC. The court has discussed the 'doctrine of public trust' and found that the action of the petitioner is in violation of the doctrine.

Make sure your driver is having a valid license, or be ready to pay the compensation in case of accident

National Insurance Company Ltd. v. Meena Aggarwal, SLP(C ) No. 19513 of 2006. Date of Judgement 23-01-09

SC reversed the order of the State and National Consumer Disputes Redressal Commissions directing the insurance company to pay compensation to the victims of the accident. The undisputed facts reveal that the driver had no licence and he was plying the vehicle on commercial purpose, whereas it was registered as private vehicle. The holding of the commissions was based on the reasoning that there was no fundamental breach of the terms of the policy.

SC reversed the order highlighting an earlier decision of the court where it was held that "[t]he owner would be liable for payment of compensation in a case where the driver was not having a licence at all. It was the obligation on the part of the owner to take adequate care to see that the driver had an appropriate licence to drive the vehicle."

Apprentice is not an employee in the common parlance of the term

New India Assurance Co. Ltd. v. M/S. Abhilash Jewellery, Civil Appeal No. 7972 OF 2002. Date of Judgment 22-01-09

The respondent had a policy called Jeweller's Block Policy for Rs.1,15,00,000/- with the appellant. During the pendency of the policy the repsondent lodged a claim for the loss of jewellery. The loss was occasioned from the custody of an apprentice . The relevant clause in the contract reads thus

S. 11(a) property insured whilst in the custody of the insured, his partner or his employees.

The decision of the case depended upon the interpretation of the expression 'employee', which was not defined in the contract. The National Commission determined the issue in favour of the respondent holding that an apprentice is an employee as per the Kerala Shops and Commercial Establishments Act and the Employees State Insurance Act.

The SC reversed this decision on the reasoning that "[t]he present case is covered solely by the contract of insurance.That contract of insurance no doubt uses the word 'employee', but it does not say that the word 'employee' in the contract of insurance will have the same meaning as in the Kerala Shops and Commercial Establishments Act or the Employees State Insurance Act or any other enactment."

Since the contract has not defined the term, the term employee has to be understood in the common parlance. In common parlance, an apprentice is not considered as an employee. At the best he is only a trainee and there is no master - servant relationship even if stipend is paid.

Recall Petition

Asit Kumar v. State of W.B. Writ Petition (civil) No. 110 of 2008. Date of Judgment 21-01-09

The SC distinguished between petition under Article 32, review petition and recall petition in the following words

"There is a distinction between a petition under Article 32, a review petition and a recall petition. While in a review petition the Court considers on merits where there is an error apparent on the face of the record, in a recall petition the Court does not go into the merits but simply recalls an order which was passed without giving an opportunity of hearing to an affected party."

On the right of private defence

Ranveer Singh v. State of M.P., Arising out of SLP (Crl.) No.3905 of 2008. Date of Judgment 21-01-09

"Section 96, IPC provides that nothing is an offence which is done in the exercise of the right of private defence. The Section does not define the expression `right of private defence'. It merely indicates that nothing is an offence which is done in the exercise of such right. Whether in a particular set of circumstances, a person legitimately acted in the exercise of the right of private defence is a question of fact to be determined on the facts and circumstances of each case. No test in the abstract for determining such a question can be laid down. In determining this question of fact, the Court must consider all the surrounding circumstances. It is not necessary for the accused to plead in so many words that he acted in self-defence. If the circumstances show that the right of private defence was legitimately exercised, it is open to the Court to consider such a plea. In a given case the Court can consider it even if the accused has not taken it, if the same is available to be considered from the material on record. Under Section 105 of the Indian Evidence Act, 1872 ... the burden of proof is on the accused, who sets up the plea of self-defence, and, in the absence of proof, it is not possible for the Court to presume the truth of the plea of self-defence. The Court shall presume the absence of such circumstances. It is for the accused to place necessary material on record either by himself adducing positive evidence or by eliciting necessary facts from the witnesses examined for the prosecution. An accused taking the plea of the right of private defence is not necessarily required to call evidence; he can establish his plea by reference to circumstances transpiring from the prosecution evidence itself. The question in such a case would be a question of assessing the true effect of the prosecution evidence, and not a question of the accused discharging any burden. Where the right of private defence is pleaded, the defence must be a reasonable and probable version satisfying the Court that the harm caused by the accused was necessary for either warding off the attack or for forestalling the further reasonable apprehension from the side of the accused. The burden of establishing the plea of self-defence is on the accused and the burden stands discharged by showing preponderance of probabilities in favour of that plea on the basis of the material on record."

What amounts to be an extra judicial confession

Shiva Karam Payaswami Tewari v. State of Maharashtra. Arising out of SLP (Crl.) No.1700 of 2008. Date of Judgment 21-01-09