Saturday, May 29, 2010

Are Botticelli’s Venus and Mars high on drugs?



London: Regarded as a story of the all-conquering power of love, a scene of pastoral bliss by Botticelli is actually an illustration of the potency of hallucinogenic drugs, claims a new study.



According to experts, a fruit held by a satyr in the bottom right of the painting belongs to Datura stramonium, a plant with a history of sending people mad and making them want to bare all.
Until David Bellingham, a programme director at Sotheby’s Institute of Art, the fruit was overlooked by art historians. David showed it to experts at Kew Gardens, where they have a specimen of the plant, which is also known as Devil’s trumpet.
The National Gallery description of the painting notes: “The scene is of an adulterous liaison, as Venus was the wife of Vulcan, the God of Fire, but it contains a moral message: the conquering and civilizing power of love.”
According to Bellingham, who spotted the detail while researching on a study of Venus in art, Botticelli’s message is more subversive. “This fruit is being offered to the viewer, so it is meant to be significant,” he said. “Botticelli does use plants symbolically. Datura is known in America as poor man’s acid, and the symptoms of it seem to be there in the male figure. It makes you feel disinhibited and hot, so it makes you want to take your clothes off. It also makes you swoon.” ANI

Indians top list of new UK citizens

London: The David Cameron government is committed to reduce migration from non-EU countries like India after official figures showed that Indians topped the list of of people who acquired British citizenship in 2009.


After the figures were released, Damian Green, immigration said: “These figures illustrate the scale of the immigration challenge facing the new government. It is now our duty to control immigration for the benefit of the UK, and that is what I am determined to do”.
Of the top 10 nationalities whose citizens acquired British citizenship in 2009, Indians numbered 26,535, which amounted to 13 per cent of the total number of people who became British citizens, and a 124 per cent rise from the previous year. Pakistan citizens were second in the list of people acquiring British citizenship with 20,945, and Bangladesh third with 12,040.
Persons whose previous nationality was from countries in the Indian sub-continent constituted the largest single regional group with 29 per cent (59,520) of all grants in 2009, the figures show.
Green said: “I believe that immigration has been far too high in recent years, which is why we will reduce net migration back down to the levels of the 1990s — to tens of thousands rather than hundreds of thousands”. Green announced that over the coming weeks and months, “the public will see us tackle this issue head-on by introducing a wide range of new measures to ensure that immigration is properly controlled, including a limit on work permits, actions on marriage and an effective system of regulating the students who come here.”
The new coalition government has announced that placing a cap on numbers of migration from outside the European Union is one of its first priorities of its immigration policy. The proposed cap, however, has been opposed by sections of British trade and industry who believe that business and economy will suffer due to their inability to recruit people with the right skills.
Campaign groups such as the Highly Skilled Migrants Forum have also announced that the proposed cap will be unworkable and was likely to face legal challenges.
More than 200,000 foreign nationals became British citizens last year, with Indians heading the list, followed by people from Pakistan and Bangladesh. “Of those receiving a British passport, more than half came from Africa and the Indian subcontinent, with a surge from India, Pakistan and Bangladesh”, the Home Office said. The figures show that 1.5 million migrants have been given a passport since Labour took office in 1997.
The level of applications in the first three months of this year was slightly higher than in the same period last year, indicating that there is little prospect of a decline. Last year’s figures — the highest since records were first published 47 years ago — climbed thanks to a combination of factors including a backlog caused by moving staff from decision-making to administrative roles. Another cause was the clamour to apply for citizenship before rules linking it to earnings, skills and education take effect.


UK begins process to scrap ID cards

London: Britain’s new coalition government has begun the process of scrapping identity cards and destroying the National Identity Register, measures that the previous Labour governments had initiated to improve security.


The scrapping of the two Labourinspired measures will take place within 100 days under the Identity Documents Bill, which is the first piece of legislation introduced to Parliament by the coalition government. Home secretary, Theresa May, said: “This bill is a first step of many that this government is taking to reduce the control of the state over decent, law-abiding people and hand power back to them. With swift parliamentary approval, we aim to consign identity cards and the intrusive ID card scheme to history within 100 days.”
Deputy prime minister, Nick Clegg said: “The wasteful, bureaucratic and intrusive ID card scheme represents everything that has been wrong with government in recent years. By taking swift action to scrap it, we are making it clear that this government won’t sacrifice people’s liberty for the sake of ministers’ pet projects”. The measures implemented by previous Labour governments were aimed at tackling fraud, illegal immigration and identity theft, but were criticised for being too expensive and an infringement of civil liberties. The cards were designed to hold personal biometric data on an encrypted chip, including name, a photograph and fingerprints. The supporting NIR was designed to hold up to 50 pieces of information.
Clegg said that cancelling the scheme and abolishing the NIR was a major step in dismantling the surveillance state. But he added that ID cards were just the tip of the iceberg. “Today marks the start of a series of radical reforms to restore hard-won British freedoms”, he said. The IDB will form part of a first wave of priority legislation set out in the Queen’s Speech on 25 May. The bill invalidates the identity card, meaning that holders will no longer be able to use them to prove their identity or as a travel document in Europe.
The government aims to have the Bill pass through Parliament and enacted by the parliamentary recess in August, in a move that will save the taxpayer around 86 million pounds over the next four years once all cancellation costs are taken into account.


Friday, May 28, 2010

‘Just 2% in J&K want to join Pak’

Most Favour Relaxed LoC As Border, Finds First-Ever Poll
For those who still think a plebiscite will tilt the status of Kashmir and that most Kashmiris yearn to wave the Pakistan green, there are now numbers for the first time to contradict them.



A survey carried out across both Jammu and Kashmir and Pakistan-occupied Kashmir, that its author claims is the first ever of its kind, shows only 2% of respondents on the Indian side favour joining Pakistan and the view was confined to Srinagar and Budgam districts.
In six of the districts surveyed late last year by researchers from the Londonbased think-tank Chatham House, no one favoured annexation with Pakistan, something that is the bedrock for the hardline separatist campaign.
But the study by Robert Bradnock, a scholar from London’s Kings College, that involved interviewing 3,774 peoplein September-October 2009 showed 44% of people on the Pakistani side favoured independence, compared with 43% in J&K. Bradnock says in the 37-page report on the survey that it would put an end to the plebiscite route as a possible way to resolve Kashmir since the only two options that were envisaged under UN resolutions mooting plebiscite in 1948-49 were for whole of Kashmir to join either India or Pakistan and azadi wasn’t an option. ‘Polls in Kashmir improved chances for peace’
New Delhi: The Kashmir survey showed no support either for joint sovereignty or for maintaining the status quo. However, more than 58% of those surveyed were prepared to accept the Line of Control as a permanent border if it could be liberalised for greater people-to-people contact and trade. Only 8% voted a g a i n s t making the LoC a permanent boundary, with the highest level of opposition in Anantnag district, the report said.
Few people in Kashmir, compared to many more in PoK, believed that violence was likely to resolve the Kashmir issue. In J&K, only 20% thought that militant violence would help solve the problem, compared to nearly 40% who thought it was coming in the way of a resolution. In PoK, 37% of those surveyed held the view that violence was a possible route to resolution.
That both the state legislative elections in 2008 and the Lok Sabha elections in 2009 had helped bring about a change in mindsets was seen in the increasingly high turnouts that Kashmir has posted in recent years. The survey too demonstrated that same trend with more than half the respondents saying that the elections had
improved chances for peace.
“The results aren’t surprising at all. I feel they re-emphasize the need to look beyond traditional positions and evaluate the contours of a solution grounded in today’s realities,’’ said Sajjad Lone, a former ally of the Hurriyat who unsuccessfully contested the 2009 election.
People’s Democratic Party chief spokesman Naeem Akhtar said the azadi aspirations must be factored into any solution. “It can’t be wished away and has to be configured into the future strategy on Kashmir. We’ve always been pleading to provide an alternative to the azadi sentiment.’’


Thursday, May 27, 2010

Now, passports will be issued in three days

The government is all set to issue regular passports in three days and Tatkal ones the same day. As part of the Passport Seva Project, foreign minister S M Krishna will inaugurate four Passport Seva Kendras which will make this possible in Karnataka on Friday.

New Delhi:Government sources said 77 such centres will come up across the country by the end of this financial year. These centres will ensure issuance of Tatkal passports to applicants within hours.
The Passport Seva Project aims to issue passports in three days as against the current 45 days. A parliamentary panel had earlier this month blamed the external affairs ministry for failing to meet the deadline for the project. It was supposed to be first launched in July last year. The contract for implementing the Rs 1,000 crore project was given to TCS in October 2008. Passport Seva Project, based on a public-private partnership model, aims to provide passport-related services to citizens in a speedy, convenient and transparent manner.
In the new system, soon after the application is submitted, the verification list will be forwarded to the district police chief. The same day, it will be segregated station wise and will be forwarded to the respective police stations. Police personnel will download the applications, complete verification, upload it again and send it back to the DCP or SP’s office with digital signature of the station house officer.
Records of the person will be verified again with the city crime information centre and will be forwarded back to the passport office.


Wednesday, May 26, 2010

DILPESH BALCHANDRA PANCHAL v. STATE OF GUJARAT [2010] INSC 400 (29 April 2010)

Judgement
[REPORTABLE]

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION Criminal Appeal No. 2215 OF 2009

Dilpesh Balchandra Panchal .......Appellant
v/s
State of Gujarat .......Respondent

HARJIT SINGH BEDI,J.


1. This appeal by way of special leave arises out of the following facts:




2 th

2. On 16 August 1999 at about 8.30 p.m. Ravubha the complainant and his wife Lilaba along with their son Indrasinh and his wife and children were at their residential Flat No.28, Madhuben Apartments, village Aduput, District Kutch. Indrasinh, however, left the house for purchasing a beedi from the adjoining shop. Ravubha, however, called out to him to return to the house immediately and a few seconds later Ravubha and Lilaba heard Indrasinh seeking help. They rushed out of their apartment and saw that Indrasinh had been caught by the first accused Balchandra Parmanand Panchal and his son Hitesh Balchandra whereas the second son Dilpesh Balchandra, the appellant herein, was inflicting 3 knife blows on him. On seeing Ruvabha and Lilaba the three assailants ran away after throwing the knife and its scabbard on the floor. A neighbour Kishorebhai also reached the place immediately and helped the others in taking Indrasinh to the hospital. Other relatives of Indrasinh and the police were also informed on the phone as to what had happened. A police party reached the place shortly thereafter and PSI Jala, who was on patrol duty was informed on the wireless. The PSI then returned to the Police Station and thereafter proceeded to the Rambagh hospital and recorded the statement of Ravubha whereupon a case under Section 302 and 114 of the IPC and under Section 135 of the Bombay Police Act was registered.

4 PSI Jala also reached the place of incident, made the necessary enquiries and picked up the knife and scabbard from the place where the assailants had thrown them. The accused who were living in Flat No.26 in Madhuben Apartment were also arrested from their residence. On the completion of the investigation, the three accused were charged for the offences mentioned above.


3. The prosecution in support of his case relied on the statement of 14 witnesses, including the two eye witnesses, the parents of the deceased Ravubha and Lilaba, and in addition to the medical evidence and the evidence of the 5 recovery witnesses. The accused in their statements under Section 313 of the Cr.P.C. denied their involvement in the incident and pleaded that they have been falsely roped in as their relations with the complainant party were strained as the appellant herein had earlier been employed by them in their factory but as he had allegedly misbehaved during his employment he had been unceremoniously thrown out from his job.


4. The trial court on a consideration of the evidence convicted all three accused on the charge of murder and sentenced each of them to imprisonment for life and to a fine of Rs.20,000/- and in default thereof to suffer rigorous 6 imprisonment for six months. An appeal was thereafter taken to the High Court of Gujarat, which by the impugned judgment, held that the evidence against Balchandra Parmanand and Dilpesh, the present appellant, was conclusive as to their guilt but insofar Hitesh Balchandra was concerned there was some doubt about his participation in the incident and the possibility that he had been roped in along with the other family members could not be ruled out.

The appeal was accordingly allowed in part. The conviction and sentence of Balchandra Parmanand and Dipesh Balchandra was thus maintained by the High Court but the 7 appeal of Hitesh Balchandra was allowed and he was ordered to be acquitted.


5. At the very outset, it has been brought to our notice by the learned counsel for the parties that SLP No.9381 of 2008 filed by Balchandra Parmanand, one of the accused whose conviction had been maintained by the High Court, has been dismissed in limine on 19th December 2008.


6. Pt.Parmanad Katara, the learned senior counsel for the appellant has raised several pleas during the course of hearing. He has first pointed out that the sentence of rigorous imprisonment for life imposed by the trial court and confirmed by the High Court was not justified nor maintainable in law.

8 We find the plea of the learned counsel to be without any basis. From a bare perusal of the two judgments it is clear that imprisonment for life has been awarded which is permissible under Section 53 of the IPC and there is absolutely no reference or direction that the aforesaid term of imprisonment would be treated as rigorous or simple imprisonment. The argument, therefore, is purely academic and calls for no comment.


7. Faced with this situation, the learned counsel has fallen back on the merits of the case. He has submitted that the prosecution story rested on the statement of only two witnesses PW1 and PW2, the mother and father of the 9 deceased, and in the light of the fact that the incident had happened on the 3rd floor whereas the witnesses were residing on the 4th floor, it would not have been possible for them to have seen the incident. It has also been submitted that as per the ocular evidence only two injuries had been caused on the person of the deceased but the Doctor had found six injuries during the post-mortem examination which clearly falsified both the presence of the witnesses as well as the prosecution story. It has been further highlighted that the witnesses had chosen to implicate the appellant in a false case on account of the enmity as the appellant who had been earlier employed by the complainant party had been thrown out from service on 10 account of misbehaviour. It has finally been pleaded that the recovery of the knife from the place of incident appeared to be unnatural as an assailant would ordinarily not leave the weapon behind while running away.


8. The learned state counsel has, however, supported the judgment of the courts below.


9. We have considered the arguments advanced by the learned counsel for the parties. It is the conceded position that the families of the accused and that of the complainant were close neighbours though living on different floors in small sized flats. It is also the prosecution case that the attack was preceded by a scuffle and shouting and cries for 11 help by the victim which immediately attracted the two witnesses out of their apartment and it was then that they saw the entire incident. It is also relevant that the incident happened between 8.30 - 9.00 p.m. at which time the presence of the witnesses at home would be natural. It is true, as has been contended, that there were 28 flats in the locality and no independent witness has been examined by the prosecution. It is, however, now accepted without any hesitation, that independent witnesses are never forthcoming and the prosecution must, therefore, rely on close associates or relatives of the complainant party in order to support the prosecution story. The mere fact, therefore that no 12 independent witness has been examined, does not in any way cast a doubt on the evidence of the parents of the deceased who would be the last persons to leave out the actual assailants and involve some others instead. It must also be borne in mind that the appellant herein was the person who had allegedly inflicted the knife blows on the deceased. In this view of the matter, there is absolutely no doubt that he was the primary assailant. It is also clear from the record including the statements under Section 313 of the accused that it was the appellant herein who had been thrown out from employment by PW 1. Ipso facto the motive for the attack was to lie primarily on him.

13

10. The plea that the medical evidence falsified the prosecution story and that the number of injuries did not conform to the statements of the eye witnesses, must also be rejected. The submission of the counsel for the appellants that though only two injuries had been caused on the deceased as per the ocular evidence but eight had been found by the doctor, is misplaced. The injuries found on the deceased during post-mortem are reproduced below:

External injuries:


1. From the outer corner of left eyebrow a 9 cm. above a conduce abrasion 2x2 cm size.

14 2. On chest right nipple 5 cm. outward and 12 cm.

below horizontal 3x 1.5 cm. deep thrust stab wound.

3. On right of stomach from right iliac bone 4.5 cm.

above mid auxiliary line horizontal thrust wound of 3x1.5 cm. deep.

Internal injuries:


1. In right chest in 9th inter-costal space thrust wound going downward.

2. A thrust wound going upward in the stomach wall.


3. In right lobe of liver 3 x 1.2 cm. horizontal thrust wound which was near falsi farum liquiment in the liver which pass across liver in inferior veena Cava 5 cm. liner cut.

4. A cut in right kidney artery and vein.


5. In stomach vacuum was 3.25 litre of blood mix fluid.


11. Dr. Hiren Kantilal Mehta, who conducted the post- mortem examination, had also co-related the external with the 15 internal injuries in the course of his evidence. It is significant that injury No.1 is only an abrasion and could easily be caused during a scuffle or a fall that preceded or followed the actual attack. In this view of the matter, there were only two effective injuries (i.e. 2 and 3) and this fits in with the prosecution story that only two injuries had been caused on the person of the deceased as the internal injuries were a result of the two knife blows.


12. The submission that an assailant would not leave the murder weapon behind while running away must again be rejected. The accused herein were not hardened criminals and therefore conscious that the recovery of the murder 16 weapon would strengthen the prosecution story. It is also clear from the evidence that on account of the cries made by the deceased, his parents and two others had come out from the adjoining flats. It is, therefore, probable that appellant in his anxiety to escape had dropped the knife at the place of incident. In the light of the prosecution evidence the involvement of the appellant who is the main accused has been spelt out beyond doubt. It bears repetition that the SLP filed by Balchandra, the father of the appellant, had earlier been dismissed in limine vide order dated 19th December 2008. We, therefore, find no merit in the appeal. It is accordingly dismissed.

17 ..................................

(HARJIT SINGH BEDI) ...................................J.

BAIJ NATH SAH v. STATE OF BIHAR [2010] INSC 348 (29 April 2010)

Judgement

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 1475 OF 2003

BAIJ NATH SAH .. APPELLANT(S)
vs.
STATE OF BIHAR

O R D E R

Four persons in all Parwati Devi, Prabhunath Sah, Baij Nath Sah, the appellant herein, and one Surajdeo Misssir were brought to trial for an offence under Sec.366- A of the Indian Penal Code for having kidnapped Suman Kumari the minor daughter of Arjun Prasad on 24th June, 1984 from her home. The fourth accused i.e. Surajdeo Missir died during the course of the trial. The Trial Court by its judgment dated 5th September, 1991, convicted the accused for the aforesaid offence and sentenced them to five years rigorous imprisonment. An appeal was thereafter taken to the Patna High Court and the learned single Judge altered the conviction from one under Sec.366-A to Sec.363 of the IPC, released Parvati Devi on the basis of the sentence already undergone and reduced the sentence of the appellants Baij Nath Sah and Prabhunath Sah, to one year's R.I.






-2- A special leave petition was subsequently filed in this Court by Baij Nath Sah - the appellant and his brother Prabhunath Sah but as the latter did not surrender to custody, his special leave petition was dismissed. We are told that he has undergone the sentence as of now.

This appeal by special leave filed by Baij Nath Sah is before us.

Mr. Gaurav Aggarwal, the learned counsel for the appellant has argued that there was no evidence whatsoever against the appellant herein. He has pointed out that his name had not figured in the FIR and that the only evidence used by the Courts below to convict the appellant was the statement under Sec.164 of the Cr.P.C. made by Suman Kumari before the Magistrate on the 25th July, 1984. He has further pointed out that this statement was inadmissible in evidence but even if taken into account did not involve or implicate the appellant in any manner.

Mr. Tanmay Mehta, the learned counsel appearing for the State of Bihar has however supported the judgment of the Trial Court and has submitted that in addition to the aforesaid statement the other evidence with regard to the involvement of the accused was also available on record.

-3- We have heard the learned counsel for the parties and have gone through the record. We see from the judgments of the Courts below that the only material that has been used against the appellant is the statement under Sec.164 of the Cr.P.C. This Court in Ram Kishan Singh vs.

Harmit Kaur and Another ((1972) 3 SCC 280) has held that a statement of 164 Cr.P.C. is not substantive evidence and can be utilized only to corroborate or contradict the witness vis-a-vis. statement made in Court. In other words, it can be only utilized only as a previous statement and nothing more. We see from the record that Suman Kumari was not produced as a witness as she had since been married in Nepal and her husband had refused to let her return to India for the evidence. In this light her statement under Section 164 cannot be used against the appellant. Even otherwise, a look at her statement does not involve the appellant in any manner. The allegation against him is that after she had been kidnapped by the other accused she had been brought to their home, where the appellant was also present. In other words, when she had been brought to the appellant's home the kidnapping had already taken place. The appellant could therefore not be implicated in the offence under Sec.363 or 366-A of the IPC de hors other evidence to show his involvement in the events preceding the kidnapping.

We accordingly allow the appeal and set aside the judgment impugned. The appellant is acquitted.

-4- The appellant is on bail. His bail bonds shall stand discharged.

.................J.

(HARJIT SINGH BEDI) .................J.

(C.K. PRASAD) New Delhi, April 29, 2010.

S. KHUSHBOO v. KANNIAMMAL & ANR. [2010] INSC 347 (28 April 2010)

Judgement
IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 913 of 2010 [Arising out of SLP (Crl.) No. 4010 of 2008]

S. Khushboo ... Appellant
Versus
Kanniammal & Anr. ... Respondents

WITH Criminal Appeal 914/2010 @SLP (Crl.) No. 6127 of 2008 Criminal Appeal 915/2010 @SLP (Crl.) No. 6257 of 2008 Criminal Appeal 916/2010 @SLP (Crl.) No. 6258 of 2008 Criminal Appeal 917/2010 @SLP (Crl.) No. 6259 of 2008 Criminal Appeal 918/2010 @SLP (Crl.) No. 7049 of 2008 Criminal Appeal 919/2010 @SLP (Crl.) No. 6264 of 2008 Criminal Appeal 920/2010 @SLP (Crl.) No. 6277 of 2008 Criminal Appeal 921/2010 @SLP (Crl.) No. 7052 of 2008 Criminal Appeal 922/2010 @SLP (Crl.) No. 7053 of 2008 Criminal Appeal 923/2010 @SLP (Crl.) No. 7050 of 2008 Criminal Appeal 924/2010 @SLP (Crl.) No. 7051 of 2008 Criminal Appeal 925/2010 @SLP (Crl.) No. 4761 of 2008 Criminal Appeal 926/2010 @SLP (Crl.) No. 4772 of 2008 Criminal Appeal 927/2010 @SLP (Crl.) No. 4767 of 2008 Criminal Appeal 928/2010 @SLP (Crl.) No. 4763 of 2008 Criminal Appeal 929/2010 @SLP (Crl.) No. 4765 of 2008 Criminal Appeal 930/2010 @SLP (Crl.) No. 4762 of 2008 Criminal Appeal 931/2010 @SLP (Crl.) No. 4764 of 2008 Criminal Appeal 932/2010 @SLP (Crl.) No. 4770 of 2008 Criminal Appeal 933/2010 @SLP (Crl.) No. 4769 of 2008

J U D G M E N T


Dr. B.S. CHAUHAN, J

1. Leave granted in all the cases.





2. The appellant is a well known actress who has approached this Court to seek quashing of criminal proceedings pending against her. As many as 23 Criminal Complaints were filed against her, mostly in the State of Tamil Nadu, for the offences contemplated under Sections 499, 500 and 505 of the Indian Penal Code, 1860 [hereinafter `IPC'] and Sections 4 and 6 of the Indecent Representation of Women (Prohibition) Act, 1986 [hereinafter `Act 1986']. The trigger for the same were some remarks made by the appellant in an interview to a leading news magazine and later on the same issue was reported in a distorted manner in another periodical. Faced with the predicament of contesting the criminal proceedings instituted against her in several locations, the appellant had approached the High Court of Madras, praying for the quashing of these proceedings through the exercise of its inherent power under Section 482 of the Code of Criminal Procedure, 1973 [hereinafter `Cr.PC.']. The High Court rejected her plea vide impugned judgment and order dated 30.4.2008. At the same time, in order to prevent the inconvenience of 2 litigating the same subject-matter in multiple locations directed that all the cases instituted against the appellant be consolidated and tried together by the Chief Metropolitan Magistrate, Egmore (Chennai). Aggrieved by the aforesaid judgment, the appellant approached this Court by way of a batch of Special Leave Petitions.


3. Before addressing the legal aspects of the case before us, it would be useful to examine the relevant facts. In September 2005, `India Today' a fortnightly news magazine had conducted a survey on the subject of the sexual habits of people residing in the bigger cities of India. One of the issues discussed as part of this survey was the increasing incidence of pre-marital sex. As a part of this exercise, the magazine had gathered and published the views expressed by several individuals from different segments of society, including those of the appellant. The appellant expressed her personal opinion wherein she had noted the increasing incidence of pre-marital sex, especially in the context of live-in relationships and called for the societal acceptance of the same. However, appellant had also qualified her remarks by observing that girls should take adequate precautions to prevent unwanted pregnancies and the transmission of venereal diseases. This can be 3 readily inferred from the statement which was published, a rough translation of which is reproduced below:

"According to me, sex is not only concerned with the body; but also concerned with the conscious.

I could not understand matters such as changing boyfriends every week. When a girl is committed to her boyfriend, she can tell her parents and go out with him. When their daughter is having a serious relationship, the parents should allow the same. Our society should come out of the thinking that at the time of the marriage, the girls should be with virginity.

None of the educated men, will expect that the girl whom they are marrying should be with virginity. But when having sexual relationship the girls should protect themselves from conceiving and getting venereal diseases."

These remarks were published alongside a survey, the relevant extracts of which are stated below:

"Will you marry a person who had relationship with others? 18% - Yes, 71% - No Is it necessary to be a virgin till the time of marriage? 65% - Yes, 26% - No The remaining percentage of people said: Do not know/Cannot say 82% women had given an opinion that a girl should be a virgin at the time of marriage."


4. Subsequently, `Dhina Thanthi', a Tamil daily carried a news item on 24.9.2005 which first quoted the appellant's statement published in `India Today' and then opined that 4 it had created a sensation all over the State of Tamil Nadu. This news item also reported a conversation between the appellant and a correspondent from `Dhina Thanthi', wherein the appellant had purportedly defended her views in the following manner (rough translation reproduced below):

"The persons who are protesting against my interview, are talking about which culture? Is there anyone who does not know about sex in Tamil Nadu? Is there anyone who does not know about AIDS? How many men and women do not have sex before marriage? Why are people saying that after the marriage the husband and wife should be honest and faithful to each other? One should have confidence in the other, only to avoid the mistakes from being committed. If the husband, without the knowledge of the wife, or the wife, without the knowledge of the husband, have sex with other persons, if a disease is caused through that, the same will affect both the persons. It will also affect the children. Only because of this, they are saying like that."

However, soon after the publication of the above mentioned news item, the appellant had sent a legal notice dated 2.10.2005 to the Editor of `Dhina Thanthi', categorically denying that she had made the statement quoted above. In fact, the appellant had asked the publisher to withdraw the news-item carried on 24.9.2005 and to publish her objections prominently within three days of receipt of the notice, failing which the appellant would be constrained to take appropriate legal action against the newspaper.

5

5. As outlined above, the publication of these statements in `India Today' and `Dhina Thanthi' drew criticism from some quarters and several persons and organisations filed criminal complaints against the appellant. For instance, the complainant in the appeal arising out of SLP (Crl) No.

4010 of 2008 has stated that she is a married woman who is the Treasurer of a District-level unit of the Pattali Makal Katchi [hereinafter `PMK'], a political party, and is also involved in social service. She had quoted some parts of the statements published in `India Today' and `Dhina Thanthi' to allege that the appellant's interview had brought great shame on her since it had suggested that women of her profile had engaged in premarital sex. The complainant further alleged that the appellant's remarks had caused mental harassment to a large section of women, and in particular women from Tamil Nadu were being looked down upon with disrespect and contempt.


6. In the appeal arising out of SLP (Crl.) 4764 of 2008, the complainant is a male advocate who is a District Secretary of the PMK for Salem District. In his complaint, there is no direct reference to the news-item published in `Dhina Thanthi' on 24.9.2005. Instead the complainant has stated that he found second-hand accounts of the same to be 6 quite shocking since the appellant had questioned the need for women to maintain their virginity or chastity. It was alleged that these remarks were an abuse against the dignity of the Tamil women and that they had grossly affected and ruined the culture and morality of the people of the State. It was further submitted that these statements could persuade people to involve themselves in unnatural crimes and that the appellant's acts amounted to commission of offences punishable under Sections 499, 500, 504, 505(1)(b) and 509 IPC read with Section 3 and 4 of Act 1986. Similarly, in the appeal arising out of SLP (Crl.) 6127 of 2008, the complainant is a lady advocate who has been practicing in the Trichy District Courts for more than 10 years. She has quoted some portions from the statements published in `India Today' and `Dhina Thanthi' to submit that the appellant's acts were punishable under Sections 292, 500, 504, 505(1)(b) and (c), 505(2) and 509 IPC read with Section 6 of Act 1986.


7. Likewise, in the appeal arising out of SLP (Crl.) 6259 of 2008, the complainant has stated that she is a married woman belonging to a reputed family and that she is serving as the President of the District Magalir Association of the PMK (in Thiruvarur) and rendering social service. In her 7 complaint, some parts of the appellant's statements have been quoted to allege that she had suffered great mental agony and shame since it was suggested that all women in Tamil Nadu had lost their virginity before marriage. In this respect, the complainant has alleged that the appellant had committed offences punishable under Sections 499, 500, 504, 505(1)(b) and 509 IPC read with Section 6 of Act 1986. It is noteworthy that in most of the other cases filed in various districts of Tamil Nadu, the complainants are functionaries of the PMK and similar allegations have been levelled against the appellant. Oddly enough, one of the complaints had even been filed in Indore, Madhya Pradesh.


8. As mentioned earlier, the appellant approached the High Court of Madras to seek quashing of all the criminal proceedings instituted against her in this connection. In its judgment dated 30.4.2008, the High Court refused to quash the proceedings by exercising its inherent powers under Section 482 Cr.PC, on the premise that the relevant considerations in this case were questions of fact which were best left to be determined by a trial judge. The High Court noted that two basic questions were involved in the case. Firstly, whether the appellant could claim any of the 8 recognised defences against the allegations of having committed defamation, as contemplated by Section 499 IPC.

Secondly, whether the complainants could at all be described as `aggrieved persons' within the meaning of Section 199 Cr.PC since that was linked to the question of whether the complaints had been made in a bona fide manner.

The High Court thought it fit to leave both these questions for consideration by a trial judge, and in a partial reprieve to the appellant it was directed that all the criminal proceedings pending against her be consolidated and tried by the Chief Metropolitan Magistrate at Egmore, Chennai. However, the High Court also proceeded to record its own views regarding the contents of the appellant's statements and even made some strong observations condemning the incidence of premarital sex and live-in relationships.


9. In the proceedings before us, Ms. Pinki Anand, learned counsel appearing for the appellant, has submitted that the complainants (respondents in these appeals) were not `persons aggrieved' within the meaning of Section 199(1)(b) Cr.PC and hence they were not competent to institute private complaints for the alleged offences. It was stated that the appellant had made a fair and reasonable comment 9 as a prudent person, and therefore, the opinion expressed by the appellant is fully protected under Article 19(1)(a) of the Constitution of India which guarantees freedom of speech and expression to all citizens. Furthermore, it was contended that even if the allegations in the various complaints are taken on their face value and accepted in their entirety, the same do not disclose any offence whatsoever and the opinion of the appellant does not, by any means, fall within the ambit of Sections 499, 500 and 505 IPC or Sections 3 and 4 of Act 1986. It was also canvassed that the criminal proceedings had been instituted in a mala fide manner by the workers of a particular political party, with the intention of vilifying the appellant and gaining undue political mileage.


10. In response, Sh. Kanagaraj, Sr. Adv., Sh. S. Gowthaman, Adv. and Sh. B. Balaji, Adv. appearing for the respondents, submitted that since the High Court has refused to quash the complaints, this Court should not interfere either since the complaints require determination of factual controversies that are best left to be decided by a court of first instance. They have asserted that the complainants in these cases are mostly women belonging to Tamil Nadu, who were personally aggrieved by the appellant's remarks.

10 It was argued that the endorsement of pre-marital sex by a prominent person such as the appellant would have a morally corruptive effect on the minds of young people. Her statement would definitely obscure some basic moral values and expose young people to bizarre ideas about premarital sex, thereby leading to deviant behaviour which would adversely affect public notions of morality. It was contended that the constitutional protection for speech and expression is not absolute and that it is subject to reasonable restrictions based on considerations of `public order', `defamation', `decency and morality' among other grounds.


11. We have considered the rival submissions made by learned counsel for the parties and perused the record.


12. In order to decide this case, it will not be proper for us to either condemn or endorse the views expressed by the appellant. When the criminal law machinery is set in motion, the superior courts should not mechanically use either their inherent powers or writ jurisdiction to intervene with the process of investigation and trial.

However, such forms of judicial review can be exercised to prevent a miscarriage of justice or to correct some grave 11 errors that might have been committed by the subordinate courts. [See decision of this Court in: M/s Pepsi Foods 1998 SC 128]. In the past, this Court has even laid down some guidelines for the exercise of inherent power by the High Courts to quash criminal proceedings in such exceptional cases. We can refer to the decision in State of to take note of two such guidelines which are relevance for the present case :- "(1). Where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.

... (7). Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."


13. It is of course a settled legal proposition that in a case where there is sufficient evidence against the accused, which may establish the charge against him/her, the proceedings cannot be quashed. In M/s Medchl Chemicals SC 1869, this Court observed that a criminal complaint or a charge sheet can only be quashed by superior courts in 12 exceptional circumstances, such as when the allegations in a complaint do not support a prima facie case for an offence. Similarly, in M/s Zandu Pharmaceutical Works Ltd.

Court has held that criminal proceedings can be quashed but such a power is to be exercised sparingly and only when such an exercise is justified by the tests that have been specifically laid down in the statutory provisions themselves. It was further observed that superior courts "may examine the questions of fact" when the use of the criminal law machinery could be in the nature of an abuse of authority or when it could result in injustice. In SCC 466, this Court relied on earlier precedents to clarify that a High Court while exercising its inherent jurisdiction should not interfere with a genuine complaint but it should certainly not hesitate to intervene in appropriate cases. In fact it was observed:

"One of the paramount duties of the superior courts is to see that a person who is apparently innocent is not subjected to prosecution and humiliation on the basis of a false and wholly untenable complaint."


14. There can be no quarrel about this Court's competence to quash criminal proceedings pending before the 13 subordinate courts. However, this power must be exercised sparingly and with circumspection. In light of the position summarized above, we can examine the present case with two considerations in mind, namely whether the allegations made against the appellant support a prima facie case for the offences mentioned in the respective complaints, and whether the complaints were made in a bona fide manner.


15. Perusal of the complaints reveals that most of the allegations have pertained to offences such as defamation (Sections 499, 501 and 502 IPC), obscenity (Section 292 IPC), indecent representation of women and incitement among others. At the outset, we are of the view that there is absolutely no basis for proceeding against the appellant in respect of some of the alleged offences. For example, the Act, 1986 was enacted to punish publishers and advertisers who knowingly disseminate materials that portray women in an indecent manner. However, this statute cannot be used in the present case where the appellant has merely referred to the incidence of pre-marital sex in her statement which was published by a news magazine and subsequently reported in another periodical. It would defy logic to invoke the offences mentioned in this statute to proceed against the appellant, who cannot be described as an `advertiser' or 14 `publisher' by any means. Similarly, Section 509 IPC criminalises a `word, gesture or act intended to insult the modesty of a woman' and in order to establish this offence it is necessary to show that the modesty of a particular woman or a readily identifiable group of women has been insulted by a spoken word, gesture or physical act. Clearly this offence cannot be made out when the complainants' grievance is with the publication of what the appellant had stated in a written form. Likewise, some of the complaints have mentioned offences such as those contemplated by Section 153A IPC (`Promoting enmity between different groups etc.,') which have no application to the present case since the appellant was not speaking on behalf of one group and the content of her statement was not directed against any particular group either.


16. Coming to the substance of the complaints, we fail to see how the appellant's remarks amount to `obscenity' in the context of Section 292 IPC. Clause (1) to Section 292 states that the publication of a book, pamphlet, paper, writing, drawing, painting, representation, figure, etc., will be deemed obscene, if - 7 It is lascivious (i.e. expressing or causing sexual desire) or 15 7 Appeals to the prurient interest (i.e. excessive interest in sexual matters), or 7 If its effect, or the effect of any one of the items, tends to deprave and corrupt persons, who are likely to read, see, or hear the matter contained in such materials.

In the past, authors as well as publishers of artistic and literary works have been put to trial and punished under this section. In the present case, the appellant takes full responsibility for her statement which was published in `India Today', a leading news magazine. It would be apt to refer back to the decision of this Court in Ranjit D.

it was held that if a mere reference to sex by itself is considered obscene, no books can be sold except those which are purely religious. It was observed that in the field of art and cinema, the adolescent is shown situations which even a quarter of a century ago would be considered derogatory to public morality, but having regard to changed conditions, the same are taken for granted without in any way tending to debase or debauch the mind. What is to be considered is whether a class of persons, not an isolated case, into whose hands the book, article or story falls will suffer in their moral outlook or become depraved by reading it or might have impure and lecherous thoughts 16 aroused in their minds. Even though the decision in that case had upheld a conviction for the sale of a literary work, it became clear that references to sex cannot be considered obscene in the legal sense without examining the context of the reference.

Amal Mitra, AIR 1986 SC 967, where the Court held that in judging the question of obscenity, the judge in the first place should try to place himself in the position of the author and from the viewpoint of the author, the judge should try to understand what is it that the author seeks to convey and whether what the author conveys has any literary and artistic value. Judge should thereafter place himself in the position of a reader of every age group in whose hands the book is likely to fall and should try to appreciate what kind of possible influence the book is likely to have on the minds of the reader.


18. There are numerous other decisions, both from India and foreign country which mandate that `obscenity' should be gauged with respect to contemporary community standards that reflect the sensibilities as well as the tolerance levels of an average reasonable person. Owing to the clear 17 formulation on this issue it is not necessary for us to discuss these precedents at length. In the present case, the appellant has merely referred to the increasing incidence of pre-marital sex and called for its societal acceptance. At no point of time appellant described the sexual act or said anything that could arouse sexual desires in the mind of a reasonable and prudent reader.

Furthermore, the statement has been made in the context of a survey which has touched on numerous aspects relating to the sexual habits of people in big cities. Even though this survey was not part of a literary or artistic work, it was published in a news magazine thereby serving the purpose of communicating certain ideas and opinions on the above- mentioned subject. In the long run, such communication prompts a dialogue within society wherein people can choose to either defend or question the existing social mores. It is difficult to appreciate the claim that the statements published as part of the survey were in the nature of obscene communications.


19. We must also respond to the claim that the appellant's remarks could have the effect of misguiding young people by encouraging them to indulge in premarital sex. This claim is a little far-fetched since the appellant had not 18 directed her remarks towards any individual or group in particular. All that the appellant did was to urge the societal acceptance of the increasing instances of premarital sex when both partners are committed to each other. This cannot be construed as an open endorsement of sexual activities of all kinds. If it were to be considered so, the criminal law machinery would have to take on the unenforceable task of punishing all writers, journalists or other such persons for merely referring to any matter connected with sex in published materials. For the sake of argument, even if it were to be assumed that the appellant's statements could encourage some people to engage in premarital sex, no legal injury has been shown since the latter is not an offence.

20. "Offence" means `an act or instance of offending';

`commit an illegal act' and illegal means, `contrary to or forbidden by law'.

"Offence" has to be read and understood in the context as it has been prescribed under the provisions of Sections 40, 41 and 42 IPC which cover the offences punishable under I.P.C. or under special or local law or as defined under Section 2(n) Cr.P.C. or Section 3(38) of the General Clauses Act, 1897 (vide Proprietary Articles Trade 19 of Enforcement & Ors. AIR 2006 SC 1301).


21. While it is true that the mainstream view in our society is that sexual contact should take place only between marital partners, there is no statutory offence that takes place when adults willingly engage in sexual relations outside the marital setting, with the exception of `adultery' as defined under Section 497 IPC. At this juncture, we may refer to the decision given by this Court wherein it was observed that a live-in relationship between two consenting adults of heterogenic sex does not amount to any offence (with the obvious exception of `adultery'), even though it may be perceived as immoral. A major girl is free to marry anyone she likes or "live with anyone she likes". In that case, the petitioner was a woman who had married a man belonging to another caste and had begun cohabitation with him. The petitioner's brother had filed a criminal complaint accusing her husband of offences under Sections 366 and 368 IPC, thereby leading to the 20 commencement of trial proceedings. This Court had entertained a writ petition and granted relief by quashing the criminal trial. Furthermore, the Court had noted that `no offence was committed by any of the accused and the whole criminal case in question is an abuse of the process of the Court'.


22. It would also be instructive to refer to a decision of Wisbech Area Health Authority, (1985) 3 All ER 402. In that case, mother of a teenage girl had questioned the decision of the National Health Service (NHS) to issue a circular to local area health authorities which contained guidelines for rendering advice about contraceptive methods to girls under the age of 16 years. Objections were raised against this circular on the ground that the health service authorities had no competence to render such advice and that doing so could adversely affect young children while at the same time interfering with parental autonomy in the matter of bringing up children. The majority decision rejected the challenge against the circular by clarifying that the rendering of advice about contraceptive methods and their provision by medical professionals did not amount to a sexual offence. Among the several aspects discussed in 21 that case, it was held that the provision of information about contraceptive facilities to girls under the age of 16 years could not be opposed on the ground that such information could potentially encourage more sexual activity by the teenagers. For the purpose of the present case, this decision supports the reasoning that we must fully understand the context and the purpose for which references to sex have been made in any given setting.


23. We now turn to the question whether the appellant's remarks could reasonably amount to offence of defamation as defined under Section 499 IPC. In the impugned judgment dated 30.4.2008, the High Court observed that as to whether the appellant could claim a defence against the allegations of defamation was a factual question and thus would be decided by a trial Court. However, even before examining whether the appellant can claim any of the statutory defences in this regard, the operative question is whether the allegations in the impugned complaints support a prima facie case of defamation in the first place. It is our considered view that there is no prima facie case of defamation in the present case. This will become self- evident if we draw attention to the key ingredients of the 22 offence contemplated by Section 499 IPC, which reads as follows:

"499. Defamation.- Whoever, by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person, is said, except in the cases hereinafter expected, to defame that person.

Explanation 1. - It may amount to defamation to impute anything to a deceased person, if the imputation would harm the reputation of that person if living, and is intended to be hurtful to the feelings of his family or other near relatives.

Explanation 2. - It may amount to defamation to make an imputation concerning a company or an association or collection of persons as such.

Explanation 3. - An imputation in the form of an alternative or expressed ironically, may amount to defamation.

Explanation 4.- No imputation is said to harm a person's reputation, unless that imputation directly or indirectly, in the estimation of others, lowers the moral or intellectual character of that person, or lowers the character of that person in respect of his caste or of his calling, or lowers the credit of that person, or causes it to be believed that the body of that person is in a loathsome state, or in a state generally considered as disgraceful. ..."

(emphasis supplied) The definition makes it amply clear that the accused must either intend to harm the reputation of a particular person 23 or reasonably know that his/her conduct could cause such harm. Explanation 2 to Section 499 further states that `It may amount to defamation to make an imputation concerning a company or an association or collection of persons as such.'

24. With regard to the complaints in question, there is neither any intent on part of the appellant to cause harm to the reputation of the complainants nor can we discern any actual harm done to their reputation. In short, both the elements i.e. mens rea and actus reus are missing. As mentioned earlier, the appellant's statement published in `India Today' (in September 2005) is a rather general endorsement of premarital sex and her remarks are not directed at any individual or even at a `company or an association or collection of persons'. It is difficult to fathom how the appellant's views can be construed as an attack on the reputation of anyone in particular. Even if we refer to the remarks published in `Dhina Thanthi' (dated 24.9.2005) which have been categorically denied by the appellant, there is no direct attack on the reputation of anyone in particular. Instead, the purported remarks are in the nature of rhetorical questions wherein it was asked if people in Tamil Nadu were not aware of the incidence of 24 sex. Even if we consider these remarks in their entirety, nowhere has it been suggested that all women in Tamil Nadu have engaged in premarital sex. That imputation can only be found in the complaints that were filed by the various respondents. It is a clear case of the complainants reading in too much into the appellant's remarks.


25. This takes us to the question of whether the impugned complaints were made in a bona fide manner. As we have already noted, most of the complainants are associated with the PMK, a political party which is active in the State of Tamil Nadu. This fact does add weight to the suggestion that the impugned complaints have been filed with the intention of gaining undue political mileage. It may be reiterated here that in respect of the offence of defamation, Section 199 Cr.PC mandates that the Magistrate can take cognizance of the offence only upon receiving a complaint by a person who is aggrieved. This limitation on the power to take cognizance of defamation serves the rational purpose of discouraging the filing of frivolous complaints which would otherwise clog the Magistrate's Courts. There is of course some room for complaints to be brought by persons other than those who are aggrieved, for instance when the aggrieved person has passed away or is 25 otherwise unable to initiate legal proceedings. However, in given facts of the present case, we are unable to see how the complainants can be properly described as `persons aggrieved' within the meaning of Section 199(1)(b) Cr.PC.

As explained earlier, there was no specific legal injury caused to any of the complainants since the appellant's remarks were not directed at any individual or a readily Commissioner of Excise, Kerala & Ors., (2000) 7 SCC 552, this Court observed as under:

"The `person aggrieved' means a person who is wrongfully deprived of his entitlement which he is legally entitled to receive and it does not include any kind of disappointment or personal inconvenience. `Person aggrieved' means a person who is injured or one who is adversely affected in a legal sense."


26. We can also approvingly refer to an earlier decision of 1972 SC 2609. In that case a controversy had arisen after `The Hindu', a leading newspaper had published a report about a resolution passed by the Dravida Kazhagham, a political party, in its conference held on January 23-24, 1971. Among other issues, the resolution also included the following words:

"It should not be made an offence for a person's wife to desire another man."

26 The Hindu, in its report, gave publicity to this resolution by using the following words:

"The Conference passed a resolution requesting the Government to take suitable steps to see that coveting another man's wife is not made an offence under the Indian Penal Code."

A complaint under Sections 499, 500 and 501 IPC was filed in response to this report. Like the present case, the Court had to consider whether the complainant had the proper legal standing to bring such a complaint. The Court did examine Section 198 of the Code of Criminal Procedure, 1898 (analogous to Section 199 of the Cr.PC. 1973) and observed that the said provision laid down an exception to the general rule that a criminal complaint can be filed by anyone irrespective of whether he is an "aggrieved person"

or not. But there is a departure from this norm in so far as the provision permits only an "aggrieved person" to move the Court in case of defamation. This section is mandatory and it is a settled legal proposition that if a Magistrate were to take cognizance of the offence of defamation on a complaint filed by one who is not an "aggrieved person", the trial and conviction of an accused in such a case by the Magistrate would be void and illegal. This Court further noted that the news-item in question did not mention any individual person nor did it contain any 27 defamatory imputation against any individual. Accordingly, it was held that the complainant was not a `person aggrieved' within the meaning of Section 198 CrPC, 1898.

The Court also took note of Explanation 2 to Section 499 IPC which contemplates defamation of `a company or an association or any collection of persons as such'.

Undoubtedly, the explanation is wide but in order to demonstrate the offence of defamation, such a collection of persons must be an identifiable body so that it is possible to say with precision that a group of particular persons, as distinguished from the rest of the community stood defamed. In case the identity of the collection of persons is not established so as to be relatable to the defamatory words or imputations, the complaint is not maintainable. In case a class is mentioned, if such a class is indefinite, the complaint cannot be entertained. Furthermore, if it is not possible to ascertain the composition of such a class, the criminal prosecution cannot proceed.

While deciding the case, this Court placed reliance on Express Newspaper Ltd. (1944) 1 ALL ER 495, wherein it had been held that it is an essential element of the cause of action for defamation that the words complained of should be published "of the complainant/plaintiff". Where he is 28 not named, the test would be whether the words would reasonably lead people acquainted with him to the conclusion that he was the person referred to.

In fact, it is the reputation of an individual person which must be in question and only such a person can claim to have "a legal peg for a justifiable claim to hang on".


27. Coming back to the facts of the present case, the complainants have alleged defamation in respect of imputations against the character of Tamil-speaking women, which could perhaps be viewed as a class of persons.

However, we have already explained, the appellant's remarks did not suggest that all women in Tamil Nadu have engaged in premarital sex. In fact her statement in `India Today' did not refer to any specific individual or group at all. If we refer to one of the questions asked as part of the concerned survey, one of the answers shows that 26% of the people who responded to the same did not think that it was necessary for women to retain their virginity till the time of marriage. Clearly the appellant was not alone in expressing such a view, even though it may be unpopular or contrary to the mainstream social practices. Even if it were assumed that the news-item carried in `Dhina Thanthi' caused mental agony to some sections of women in Tamil 29 Nadu, there is no prima facie case for any offence. What is interesting to note is that not all of the complainants are women, and in fact almost all the complainants are associated with a particular political party.


28. We are of the view that the institution of the numerous criminal complaints against the appellant was done in a mala fide manner. In order to prevent the abuse of the criminal law machinery, we are therefore inclined to grant the relief sought by the appellant. In such cases, the proper course for Magistrates is to use their statutory powers to direct an investigation into the allegations before taking cognizance of the offences alleged. It is not the task of the criminal law to punish individuals merely for expressing unpopular views. The threshold for placing reasonable restrictions on the `freedom of speech and expression' is indeed a very high one and there should be a presumption in favour of the accused in such cases. It is only when the complainants produce materials that support a prima facie case for a statutory offence that Magistrates can proceed to take cognizance of the same. We must be mindful that the initiation of a criminal trial is a process which carries an implicit degree of coercion and it 30 should not be triggered by false and frivolous complaints, amounting to harassment and humiliation to the accused.


29. Even though the constitutional freedom of speech and expression is not absolute and can be subjected to reasonable restrictions on grounds such as `decency and morality' among others, we must lay stress on the need to tolerate unpopular views in the socio-cultural space. The framers of our Constitution recognised the importance of safeguarding this right since the free flow of opinions and ideas is essential to sustain the collective life of the citizenry. While an informed citizenry is a pre-condition for meaningful governance in the political sense, we must also promote a culture of open dialogue when it comes to societal attitudes. Admittedly, the appellant's remarks did provoke a controversy since the acceptance of premarital sex and live-in relationships is viewed by some as an attack on the centrality of marriage. While there can be no doubt that in India, marriage is an important social institution, we must also keep our minds open to the fact that there are certain individuals or groups who do not hold the same view. To be sure, there are some indigenous groups within our country wherein sexual relations outside the marital setting are accepted as a normal occurrence.

31 Even in the societal mainstream, there are a significant number of people who see nothing wrong in engaging in premarital sex. Notions of social morality are inherently subjective and the criminal law cannot be used as a means to unduly interfere with the domain of personal autonomy.

Morality and Criminality are not co-extensive. In the present case, the substance of the controversy does not really touch on whether premarital sex is socially acceptable. Instead, the real issue of concern is the disproportionate response to the appellant's remarks. If the complainants vehemently disagreed with the appellant's views, then they should have contested her views through the news media or any other public platform. The law should not be used in a manner that has chilling effects on the `freedom of speech and expression'. It would be apt to refer to the following observations made by this Court in which spell out the appropriate approach for examining the scope of `reasonable restrictions' under Art. 19(2) of the Constitution that can be placed on the freedom of speech and expression:- " ... Our commitment of freedom of expression demands that it cannot be suppressed unless the situations created by allowing the freedom are pressing and the community interest is endangered. The anticipated danger should not be remote, conjectural or far-fetched. It should 32 have proximate and direct nexus with the expression. The expression of thought should be intrinsically dangerous to the public interest.

In other words, the expression should be inseparably locked up with the action contemplated like the equivalent of a `spark in a powder keg'.

The Court further held:

" ... The standard to be applied by the Board or courts for judging the film should be that of an ordinary man of common sense and prudence and not that of an out of the ordinary or hypersensitive man ... The different views are allowed to be expressed by proponents and opponents not because they are correct, or valid but because there is freedom in this country for expressing even differing views on any issue. ... Freedom of expression which is legitimate and constitutionally protected, cannot be held to ransom by an intolerant group of people. The fundamental freedom under Article 19(1)(a) can be reasonably restricted only for the purposes mentioned in Article 19(2) and the restriction must be justified on the anvil of necessity and not the quicksand of convenience or expediency.

Open criticism of government policies and operations is not a ground for restricting expression. We must practice tolerance of the views of others. Intolerance is as much dangerous to democracy as to the person himself."


30. Thus, dissemination of news and views for popular consumption is permissible under our constitutional scheme.

The different views are allowed to be expressed by the proponents and opponents. A culture of responsible reading is to be inculcated amongst the prudent readers. Morality and criminality are far from being co-extensive. An expression of opinion in favour of non-dogmatic and non- 33 conventional morality has to be tolerated as the same cannot be a ground to penalise the author.


31. Before saying omega, it is necessary for us to point out certain unwarranted developments that have taken place ever since the matter was heard till date. In fact, during the course of hearing, certain queries were put to the learned counsel appearing for parties so as to clarify the legal issue involved in the matter but unfortunately, those queries have been highly misunderstood not only by media but also by common man. As a result thereof, we have been flooded with several letter petitions making a prayer for review of the order passed by us. It is pertinent to mention here that no order was passed by us and only during the course of hearing, we had either given some instances or put some questions to the learned counsel which were answered by them. Thus, this hyper active attitude of the common man was, indeed, not called for. Some have even gone to the extent of telling us that we should have known the Indian mythology before putting such question. Thus, whatever we have said during the course of the hearing should be reviewed. We fail to understand how such an attitude could be adopted by those learned persons who were involved in sending various letter petitions to us.

34 Admittedly, all those persons who have sent letters to us were not present on that particular date but must have gathered information from the print and electronic media which evoked their sentiments to such an extent that they prayed for review.


32. It is, therefore, not only desirable but imperative that electronic and news media should also play positive role in presenting to general public as to what actually transpires during the course of the hearing and it should not be published in such a manner so as to get unnecessary publicity for its own paper or news channel. Such a tendency, which is indeed growing fast, should be stopped.

We are saying so as without knowing the reference in context of which the questions were put forth by us, were completely ignored and the same were misquoted which raised unnecessary hue and cry.


33. We hope and trust in future, they would be little more careful, responsible and cautious in this regard.


34. In conclusion, we find that the various complaints filed against the appellant do not support or even draw a prima facie case for any of the statutory offences as alleged. Therefore, the appeals are allowed and the 35 impugned judgment and order of the High Court dated 30.4.2008 is set aside. The impugned criminal proceedings are hereby quashed.

............................CJI.

............................. J.

(DEEPAK VERMA) ............................. J.


Tuesday, May 25, 2010

SHAUKAT v. STATE OF UTTARANCHAL [2010] INSC 346 (22 April 2010)

Judgement
IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.757 OF 2005

Shaukat ... Appellant
Versus
State of Uttaranchal ...Respondent

WITH CRIMINAL APPEAL NO.758 OF 2005
State of Uttaranchal ... Appellant
Versus
Shaukat ...Respondent

J.M. PANCHAL, J.



1. The appellant in Criminal Appeal No.757 of 2005 with his father Sabbir, son of Ilahi Bux was charged for commission of offences punishable under Section 302 read 2 with Section 34 Indian Penal Code (IPC) and Section 307 read with Section 34 IPC for causing death of Wilayat and attempting to commit murder of Rahmat. The learned Sessions Judge, Nainital by judgment dated September 18, 1982 passed in Criminal Sessions Trial No.17 of 1981 convicted the appellant under Sections 302 and 307 for causing murder of deceased Wilayat and for making attempt to murder Rahmat and sentenced him to life imprisonment for commission of offence punishable under Section 302 as well as R.I. for ten years for commission of offence punishable under Section 307 IPC. His father Sabbir was convicted under Section 302 read with Section 34 IPC and Section 307 read with Section 34 IPC. Mr. Sabbir was sentenced to life imprisonment for commission of offence under Section 302 read with Section 34 IPC and R.I. for seven years for commission of offence under Section 307 read with Section 34 IPC.


2. Feeling aggrieved, the appellant and his father preferred Criminal Appeal No.1034 of 2001 in the High Court of Uttaranchal at Nainital. During the pendency of the said appeal, Sabbir, who was father of the appellant, 3 expired. Therefore, the appeal filed by the appellant was considered by the High Court. The Division Bench of the High Court, by judgment dated December 24, 2004, held the appellant guilty for commission of offence of culpable homicide not amounting to murder punishable under Section 304 Part-I IPC and sentenced him to undergo R.I.

for 10 years and a fine of Rs.5,000/- in default R.I. for one year. The High Court also found the appellant guilty for commission of offence under Section 308 IPC and sentenced him to R.I. for two years and fine of Rs.1,000/- in default R.I. for three months. Feeling aggrieved, the appellant has filed Criminal Appeal No.757 of 2005 by Special Leave.


3. As noticed earlier, the appellant was acquitted of the offences punishable under Sections 302 IPC and Section 307 IPC. Therefore, feeling aggrieved by the said acquittal, the State of Uttaranchal has filed Criminal Appeal No.758 of 2005 by Special Leave.


4. Both the appeals arise out of the common judgment dated December 24, 2004 rendered by the Division Bench of the High Court of Uttaranchal at Nainital. Therefore, this 4 Court proposes to dispose them of by this common judgment.


5. The facts emerging from the record of the case lie in narrow compass. The appellant is resident of Village Darauki Madhaia, P.S. Kichha, District Nainital. In the village, there is a Panchayat pond. The length of the pond from east to west is about 40 to 50 paces whereas its width from north to south is about 25 to 30 paces. The said pond is meant for common use of all the villagers. The people of the village used to take earth from the said pond for maintenance of their houses and other household purposes.

The field of the appellant is located on the southern side of the pond. Between the pond and the field of the appellant, there is a palm tree. The boundary of the field belonging to the appellant is extended upto the said palm tree after which the boundary of the pond begins. On the western side of the pond, there is a house of one Sagir and on the west side of the said house, there is a passage whereas on the west side of the passage there is abadi of the village.

Injured Rahmat and deceased Wilayat were also residents of this very village. From the place which is near to the field of 5 the appellant, deceased Wilayat used to dig and take earth from the pond. This was not approved by Sabbir who was father of the appellant and he used to object to the digging of soil from the pond on the ground that the field belonging to him would get damaged. The incident in question took place on October 13, 1980. On that day, in the morning at about 5.00 a.m., Rahmat, with his deceased brother Wilayat and Chhote went for offering prayers in a mosque. After offering Namaz, they came out from the mosque at about 5.30 a.m. Rahmat and his brother Chhote were residing in the same house and the house of deceased Wilayat was situated leaving one house from their house. The appellant with his father was residing near the mosque. The appellant and his father stopped Wilayat and Rahmat and told that they had taken earth from the place near their field and if earth was again taken from the same place, they would be appropriately dealt with. Thereupon deceased Wilayat replied the appellant and his father that their field was upto the palm tree whereas pond was common for the villagers and he would bring soil from the pond even on that day. On hearing such reply, the appellant told Wilayat that 6 he would see Wilayat on the spot. Thereafter, the three brothers came to their respective houses. Deceased Wilayat, after taking a spade, went towards the pond for bringing soil at about 5.45 a.m. After some time, Chhote came out from his house and witnessed that deceased Sabbir and the appellant were going speedily towards the pond. As Chhote saw the appellant and his father going speedily towards the pond, he decided to go to the place where his deceased brother Wilayat was digging the earth to see that nothing untoward happened to him. Chhote was also accompanied by his brother Rahmat. When they reached the pond, they saw that their brother Wilayat was digging earth in the pond from 10 to 12 paces away from the field of the appellant. Accused Sabbir forbade Wilayat from digging the soil but Wilayat continued digging the soil.

Thereupon a scuffle ensued between accused Sabbir and deceased Wilayat. When scuffle was so going on, the accused Sabbir asked the appellant to kill Wilayat by saying as to what he was looking at. On this, the appellant who was already armed with a knife, took out the same from his pant's pocket and gave one blow on the back of Wilayat. On 7 receipt of the knife blow, Wilayat immediately turned.

Thereupon, the appellant inflicted another injury by knife on left side of chest of Wilayat from the front side. On sustaining injuries, Wilayat fell down in the mud. Rahmat tried to catch hold of the appellant but the appellant inflicted injuries by knife on Rahmat also. Chhote also tried to catch hold of the appellant but accused Sabbir caught hold of collar of the shirt of Chhote and in the meantime the appellant made his escape good from the place of incident.

Because of the hubbub created by the incident, Ms. Banu Begum, Pattu Wilayat, Mohd. Yasin, Bafati Shah etc.

reached the place of incident. They found that Wilayat had died on the spot. They also noticed that Rahmat who had attempted to rescue his brother Wilayat was also assaulted by the appellant with knife as a result of which Rahmat had fallen down. Accused Sabbir had also made attempt to flee from the place of incident but Md. Yasin with others had caught hold of the legs of Sabbir and, therefore, Sabbir had also fallen down and dashed with another palm tree and sustained superficial injuries. Thereafter, those people who had gathered near the place of incident had tied Sabbir with 8 the tree. A cart was summoned at the place of incident and Chhote along with injured Rahmat had gone to Kichha where he had met Sayed Mohammed Saleem who had reduced the information into writing. After the complaint was scribed, Chhote had put his thumb mark thereon and went to the Police Station. At the Police Station, the complaint was presented. In view of the contents of the First Information Report, offences punishable under Section 302 read with Section 34 IPC and Section 307 read with Section 34 IPC were registered and investigation commenced. The Investigating Officer went to the place of incident and held inquest on the dead body of Wilayat in the presence of Panchas. He also made arrangement for sending the dead body of the deceased to hospital for post mortem examination. He recorded the statements of those persons who were found to be conversant with the facts of the case. Incriminating articles were seized from the place of incident. Injured Rahmat was referred to hospital for treatment. His condition was precarious and, therefore, his statement could not be recorded. The accused Sabbir was arrested from the spot. The appellant was also arrested on 9 the same day. After investigation was over and chargesheet was submitted, the case was committed to the Court of learned Sessions Judge, Nainital for trial.


6. The learned Sessions Judge framed charge against the appellant for commission of offences punishable under Sections 302 and 307 IPC and against accused Sabbir for commission of offences punishable under Section 302 read with Section 34 IPC and Section 307 read with Section 34 IPC. The charge was read over and explained to the appellant and his father. Both of them pleaded not guilty to the same. Therefore, the prosecution examined witnesses and produced documents to prove its case against the appellant and his father. After recording of evidence of the prosecution witnesses was over, the learned Judge explained to the appellant and his father the circumstances appearing against them in the evidence of prosecution and recorded their further statements as required by Section 313 of the Code of Criminal Procedure, 1973. In their further statements, the appellant and his father pleaded that they were innocent. However, no witness was 10 examined by any of them in support of their defence that they were innocent.


7. On appreciation of the evidence adduced by the prosecution, the learned Judge held that it was proved by the prosecution beyond reasonable doubt that the deceased Wilayat had died a homicidal death. The learned Judge considered the eye-witness account tendered by the first informant Chhote, injured Rahmat as well as witness Md.

Yasin and found that their evidence was reliable. Placing reliance on the testimony of the abovementioned witnesses, the learned Judge held that the appellant had committed murder of deceased Wilayat and had made attempt to murder injured Rahmat and was, therefore, liable to be convicted under Section 302 and 307 IPC. The learned Judge further held that accused Sabbir had shared common intention with the appellant to cause death of the deceased Wilayat and had attempted to murder injured Rahmat and, therefore, he was liable to be convicted for commission of offences punishable under Section 302 read with Section 34 IPC and Section 307 read with Section 34 IPC. Accordingly, the appellant and his father were convicted. Thereafter, the 11 appellant and his father were heard on the question of sentence. After hearing the appellant and his father as well as learned Additional Public Prosecutor and the defence counsel, the appellant was sentenced to life imprisonment for commission of offence punishable under Section 302 as well as R.I. for ten years for commission of offence punishable under Section 307 IPC whereas his father Sabbir was sentenced to life imprisonment for commission of offence punishable under Section 302 read with Section 34 IPC and R.I. for seven years for commission of offence punishable under Section 307 read with Section 34 IPC.


8. Feeling aggrieved, the appellant and his father preferred Criminal Appeal No.1034 of 2001. During the pendency of the appeal, the father of the appellant, i.e., Sabbir expired and, therefore, the case of the appellant alone was considered by the Division Bench of the High Court of Uttaranchal at Nainital. The High Court found that there was no enmity between the parties nor there was premeditation between the appellant and his father for committing the crime. According to the High Court, the quarrel took place suddenly under the heat of passion 12 because the time between the quarrel and the fight was stated to be few minutes. The High Court was of the view that the quarrel had taken place on account of sudden provocation in which the appellant had caused injuries to the deceased with knife and, therefore, the appellant had committed the offence of culpable homicide not amounting to murder punishable under Section 304, Part I of the IPC.

The appellant was accordingly convicted and was sentenced to undergo R.I. for ten years and a fine of Rs.5,000/- in default R.I. for one year. The High Court was further of the view that the injuries on the person of Rahmat indicated that Rahmat had tried to apprehend the appellant when the appellant was trying to make his escape good from the place of occurrence and, therefore, it was natural for the appellant to inflict injuries on the person of Rahmat in order to make his escape good. The High Court, therefore, concluded that the appellant had, in fact, no intention to make an attempt to commit murder of Rahmat and had committed offence punishable under Section 308 IPC. Accordingly, the High Court convicted the appellant under Section 308 IPC and sentenced him to R.I. for two years and a fine of Rs.1,000/- 13 in default R.I. for three months by judgment dated December 24, 2004. The above judgment has given rise to the two appeals.


9. This Court has heard learned counsel for the parties at length and considered the documents forming part of the appeal as well as original record summoned from the Trial Court.


10. The fact that deceased Wilayat died a homicidal death is not disputed before this Court. The said fact stands amply proved by the testimony of PW9, Dr. S.C. Mishra.

According to the Medical Officer, Haldwani, he had conducted autopsy on the dead body of deceased Wilayat on October 14, 1980 and found a stab wound measuring about 8 cm x 4 cm x cavity deep over left side of chest about 2 cm below left nipple and one incised wound measuring about 6 cm x 2 cm x muscle deep in left luminar region about 8 cm above head of femur. The injuries mentioned by Dr. Mishra are also noted in the post mortem report prepared by him and produced on the record of the case at Exhibit KA-19. It is nobody's case that the deceased received the 14 abovementioned injuries accidentally. Nor it is the case of anyone that the deceased had received those injuries in an attempt to commit suicide. On the facts and in the circumstances of the case, this Court is of the definite opinion that the fact that the deceased had died a homicidal death is firmly established.


11. The evidence of the three eye-witnesses, namely, Chhote, who was the first informant as well as that of injured Rahmat and witness Md. Yasin would indicate that when the deceased was digging earth, he was prevented from doing so by accused Sabbir whereupon a scuffle had ensued between the deceased and accused Sabbir. All the witnesses have specifically stated that accused Sabbir had told his son, i.e., the appellant not to be a passive spectator and kill the deceased. According to the witnesses, the appellant had thereupon taken out knife from his pant's pocket and inflicted first blow on the back of the deceased.

Their evidence further shows that on receipt of the blow on his back, the deceased had immediately turned and, therefore, another blow was inflicted by the appellant on the chest of the deceased whereupon the deceased had fallen 15 down on the ground and died on the spot. The eye-witness account further establishes that injured Rahmat had tried to save his brother Wilayat but the appellant had also injured him with the knife. As per the medical evidence on record, injured Rahmat had received as many as six injuries. This is amply proved by PW4, Dr. Yogesh Mishra, who was the then surgeon, Primary Health Centre, Kichha.

On reappraisal of the testimony of the three witnesses, this Court finds that the version presented by them before the Court inspires confidence. Though each of them was subjected to searching cross-examination, nothing could be brought on record to impeach credibility of any of them. It is relevant to notice that one of the eye-witnesses was injured Rahmat himself. Therefore, his presence at the place of incident can hardly be doubted. He being real brother of the deceased and he himself having received injuries, would not allow the real culprit to go scot free and involve innocent persons falsely. The evidence of the eye- witnesses further makes it clear that there are no major contradictions or omissions. Under the circumstances, this Court is of the opinion that neither the Trial Court nor the 16 High Court committed any error in placing reliance on the testimony of the three eye-witnesses for the purpose of coming to the conclusion that the appellant was the author of the injuries sustained by the deceased and injured Rahmat.


12. The learned counsel for the appellant in Criminal Appeal No.757 of 2005 argued that the accused Sabbir had received two injuries whereas the appellant had sustained one injury and, therefore, injuries having been caused to the deceased in exercise of right of self-defence, the conviction of the appellant under Section 304, Part-I for the death of the deceased and under Section 308 IPC for causing injuries to Rahmat should be set aside. On the other hand, the learned Additional Public Prosecutor vehemently argued that the Trial Court had given cogent and convincing reasons for the purpose of coming to the conclusion that the appellant is guilty under Section 302 IPC for causing murder of the deceased Wilayat and under Section 307 for attempting to commit murder of injured Rahmat and the High Court was not justified in coming to the conclusion that the appellant had committed offence punishable under 17 Section 304, Part I IPC as far as murder of the deceased was concerned and offence punishable under Section 308 IPC for causing injuries to injured Rahmat.


13. In order to determine whether the appellant is guilty under Section 302 for causing murder of the deceased and under Section 307 for attempting to commit murder of injured Rahmat, it would be necessary to consider the relevant facts which have emerged from the record of the case.


14. The learned counsel for the appellant would argue that the injuries sustained by the appellant and his father would indicate that the appellant had murdered deceased Wilayat and injured witness Rahmat, in exercise of right of self- defence as a result of which conviction under Section 304, Part-I for murder of the deceased and under Section 308 IPC for causing injuries to the injured Rahmat should not be interfered with by this Court in State appeal. While considering these submissions, this Court finds that PW4, Dr. Yogesh Mishra had examined accused Sabbir on October 13, 1980 and had found the following injuries :

18 "(i) Contusion 2 cm x 1 cm present on the noce, = cm below the bridge of nose.

(ii) Contusion 2 cm x 3 cm present on the right of face 1 cm below the right eye."

The testimony of Dr. Yogesh Mishra further makes it very clear that on the same day he had also examined the appellant and found following injury :

(i) Incised wound 3 cm x 0.5 cm x skin deep present on the right palm on middle side 6 cm above ulnar styloid process."

The doctor has stated in his testimony that the two injuries sustained by accused Sabbir were simple and could have been caused by dash with the palm tree. As far as injury sustained by the appellant is concerned, it was mentioned by the same medical officer that the injury could have been caused by sharp weapon like knife or could have been self-inflicted. This medical officer was cross-examined on behalf of the appellant and a suggestion was made to him that the injury sustained by the appellant could have been caused by a sharp side of the spade. It may be 19 mentioned that this suggestion was made because according to the prosecution witnesses, the deceased was digging earth with a spade. However, the medical officer has in terms stated that the injuries sustained by the appellant could not have been caused by the sharp side of a spade as it could have been caused by a sharper weapon than spade and that the spade was not sharp enough to cause the injury sustained by the appellant. From the record, it is clear that the learned Sessions Judge had put a question to the witness to elicit answer from him as to whether the sharp edged spade used by the deceased for digging the earth, produced as Exhibit-I could have caused the injury sustained by the appellant. The medical Officer, after looking to the spade, answered that its sharpness was not such so as to cause injury sustained by the appellant.

The medical officer was further questioned by the learned counsel for the appellant and it was replied by him that if the spade had been used to cause injury to the appellant, it would have caused an abrasion and not the incised wound.

After explaining the difference between incised wound and an abrasion, namely, that incised wound contains edge and 20 also intermediary tissue and all those are clean cut whereas in case of an abrasion, skin tissues slough superficially, it was mentioned by the medical officer that Exhibit-I was not that sharp so as to cause incised wound sustained by the appellant. It was suggested to the medical officer that Exhibit-I, spade, before it was opened in the court was kept at different places for a period of about 1= years and, therefore, its edge might have become blunt, but this suggestion was emphatically denied by him. As far as injuries sustained by accused Sabbir are concerned, it was mentioned by this witness in cross-examination that both the injuries sustained by Sabbir could have been caused by only one dash with any blunt object.


15. A fair reading of the testimony of the medical officer makes it abundantly clear that the accused Sabbir had sustained two superficial injuries when he had hit the palm tree whereas the injury sustained by the appellant was self- inflicted one. The evidence on record does not indicate that any assault was mounted either on the appellant or his father by the deceased or injured Rahmat. On the contrary, the evidence shows that the appellant and his father had 21 gone to the place where deceased was digging earth and accused Sabbir had picked up quarrel with him. On the facts and in the circumstances of the case, this Court finds that plea of self-defence is not made out by the appellant and, therefore, contention that the finding recorded by the High Court that he is guilty under Section 304, Part-I IPC for causing death of the deceased and under Section 308 IPC for causing injuries to Rahmat should be sustained cannot be accepted.


16. As far as the High Court is concerned, this Court finds that the High Court has recorded a finding that there was no enmity between the appellant and his father on one hand and the deceased and the injured on the other nor was there premeditation on the part of the appellant and his father to murder the deceased and as the quarrel had taken place all of a sudden under the heat of passion, the appellant would be guilty under Section 304, Part I IPC for causing death of the deceased and under Section 308 for causing injuries to injured Rahmat. However, this Court notices that several important aspects of the matter have been totally lost sight of and ignored by the High Court 22 while recording abovementioned findings. To begin with, the reliable testimony of three witnesses has established that in the morning at about 5.30 a.m. on the date of the incident, the accused Sabbir and the appellant had asked the deceased not to dig earth from the place which was near their field whereupon the deceased had told him that pond was meant for general public and, therefore, he would dig the earth from the same place. Two brothers of the deceased, namely, Chhote and Rehmat have in terms stated that the accused Sabbir had threatened that he would not spare the deceased. The evidence of the witnesses would further show that the deceased had gone in the early morning to dig the earth and thereupon the appellant and his father had followed him. What is relevant to mention is that the appellant was carrying a knife in his pant's pocket and this fact was known to his father Sabbir, who had asked him to kill the deceased. As soon as the appellant was asked by his father to kill the deceased, he had taken out the knife from his pant's pocket and inflicted a blow on the back of the deceased. The evidence further establishes that on receipt of the blow, the deceased had turned and 23 the appellant who was bent upon obeying directions of his father to kill the deceased had inflicted another blow on the chest of the deceased. The testimony of Dr. S.C. Mishra, who performed autopsy on the dead body of the deceased would indicate that during the internal examination, heart was found to be pale, empty and punctured whereas the fifth rib of the left side was found fractured. This establishes that the blow with knife on chest of the deceased was inflicted with a great force. According to the doctor, the puncture of heart and fracture of the fifth rib was corresponding to injury No.1. The doctor further mentioned that injury No.1 could have been caused by knife which was produced as Exhibit-3 and that the said injury was sufficient in the ordinary course of nature to cause death of the deceased immediately. This assertion made by the medical officer was not challenged during his cross- examination at all. The evidence on record, thus, shows that before reaching the place of incident, the appellant had armed himself with a dangerous weapon and had caused injury by using that weapon with such a great force on vital part of the body of the deceased that it had resulted into 24 instant death of the deceased on the spot. It is not the case of the appellant that he had intended to inflict injury No.1 on other part of the body of the deceased and due to movement of the deceased, the blow had landed on the chest of the deceased which had punctured his heart and fractured his rib. The eye-witness account of assault on the deceased by the appellant read with medical evidence makes it more than clear that the act of the appellant, by which the death of the deceased was caused, was done with the intention of causing such bodily injury to the deceased as found by medical evidence in this case and that the bodily injury intended to be inflicted was sufficient in the ordinary course of nature to cause death of the deceased.

Thus the facts proved, bring the case of the appellant within four corners of clause Thirdly of Section 300 IPC and it will have to be held that the appellant had committed murder of the deceased punishable under Section 302 IPC.


17. As observed earlier, the High Court has held that there was no enmity between the parties nor there was premeditation on the part of the appellant and his father to murder the deceased and as the quarrel had taken place all 25 of a sudden under the heat of passion, the appellant would be guilty under Section 304 Part I IPC. In view of this finding, it has become necessary for this Court to examine the question whether Exception 4 to Section 300 IPC would be applicable to the facts of this case.

Exception 4 to Section 300 IPC would be attracted only if four requirements are satisfied, namely, (1) it was a sudden fight; (2) there was no premeditation; (3) the act was not done in a heat of passion; and (4) the assailant had not taken any undue advantage or acted in a cruel manner.

The facts of the instant case establish beyond pale of doubt that there was premeditation between the appellant and his father to cause the death of the deceased and to execute the threat given by accused Sabbir to the deceased near the mosque at about 5.30 in the morning. Thus, both of them had followed the deceased who had gone to the pond for the purpose of digging the earth and ultimately the appellant had murdered him. Further, the appellant had carried with him lethal weapon like knife while following the deceased.

The record would show that the father of the appellant had asked the deceased to stop digging the earth but the 26 deceased had continued to dig the earth because the pond was meant for the benefit of all the villagers including the deceased and thereupon a scuffle had ensued between the father of the appellant and the deceased. The evidence does not indicate at all that any scuffle had taken place between the appellant and the deceased. It is also established that the father of the appellant had asked the appellant not to look at the scuffle as a passive spectator and kill the deceased and thereupon the appellant had first of all given blow with knife on the back of the deceased and thereafter on the chest of the deceased. If the intention of the appellant had not been to murder the deceased, the appellant would not have inflicted second blow with knife with such a great force on vital part of the body of the deceased which resulted into puncture of heart and fracture of rib and ultimately into death of the deceased within no time. Further, the evidence of the injured, i.e., Rahmat would show that he had tried to save his brother but as many as six injuries were caused to him by the appellant.

The record amply establishes that motive for the crime was digging of earth by the deceased near the field of the 27 appellant. There is nothing on the record of the case to suggest even remotely that a sudden quarrel had taken place either between the appellant and the deceased or between the father of the appellant and the deceased. On the contrary, the evidence establishes that the appellant and his father had followed the deceased who had gone to the pond for the purpose of digging earth and after picking up quarrel with him, the appellant had murdered him. This cannot be said to be a sudden quarrel within the meaning of Exception IV to Section 300 IPC at all. Further, the appellant had taken disadvantage of the situation in the sense that after inflicting one blow on the back of the deceased, he was not contented and had caused another fatal injury on the chest as well and also caused as many as six injuries to injured Rahmat who had made attempt to save his brother. There is nothing on the record of the case even to remotely suggest that a sudden fight had taken place between the appellant and the deceased.

Premeditation to cause death of the deceased stands proved by reliable evidence adduced by the prosecution. Nothing is brought on record of the case to show that the act of 28 mounting fatal attack on the deceased was done by the appellant in a heat of passion. The evidence adduced positively proves that the appellant had taken undue advantage while delivering fatal blow to the deceased. The four requirements for applicability of Exception 4 to Section 300 IPC are not satisfied at all and, therefore, the conclusion of the High Court that the appellant would be guilty under Section 304 Part I IPC, being erroneous in law, is liable to be set aside. Therefore, the appellant will have to be found guilty under Section 302 IPC for causing murder of the deceased.


18. As far as conviction of the appellant recorded under Section 308 IPC for attempting to commit culpable homicide by causing injuries on the person of Rahmat is concerned, this Court finds that the medical officer had found following six injuries on the person of the injured Rahmat when he was examined at 7.50 a.m. on October 13, 1980 :

"(i) An incised wound 10 cm x 7 cm x bone deep with fracture of left side ribs with surgical empty semi with tear of pleura on the left side of chest, posturaly 8 cm lateral to left nipple.

29 (ii) An incised wound 6 cm x 4 cm x bone deep with fracture of under lying bone present on left side of back just at the iliac crest.

(iii) Incised wound 4 cm x 1 cm x bone deep present on the left hand 2 cm below the left index finger base.

(iv) An incised wound 2 cm x 0.5 cm x muscle deep present on the left thumb in the aspect 2 cm above the base of right thumb (v) Incised wound 1 cm x 0.2 cm x skin deep present on the inner aspect of right thumb just at the nail root.

(vi) An incised wound 4 cm x 2 cm present on the ventral aspect of left tercunum 6 cm above the left writ joint."

The medical officer has in terms stated that the first two injuries sustained by the injured were grievous whereas injuries 3, 4, 5 and 6 were simple. According to the doctor, all the injuries could have been caused by a sharp object.

What is relevant to notice is that the doctor had conducted operation of injured Rahmat with regard to injury No.1 and, for that purpose, the injured was admitted in the hospital.

The assertion made by the doctor that injury Nos. 1 and 2 sustained by the injured were grievous in nature has gone unchallenged and was never disputed by the defence.

30 Causing an incised wound 10 cm x 7 cm x bone deep with fracture of left side rib with surgical empty semi with tear of pleura on the left side chest, and another incised wound 6 cm x 4 cm bone deep with fracture of under lying bone on left side of back just at the iliac crest, cannot be regarded as bringing the case of the appellant within the purview of Section 308 IPC. There is no manner of doubt that the injuries were caused to injured Rahman with a view to committing his murder. The finding recorded by the High Court that the appellant had caused injuries to Rahmat in an attempt to escape, is not borne out from the record of the case at all. Even no suggestion was made to any of the eye-witnesses that the appellant had caused injuries to injured Rahmat while making attempt to make his escape good. On the contrary, reliable evidence of Rahmat satisfactorily proves that the appellant had caused injuries to this witness when the witness had made attempt to save his brother. The findings recorded by the High Court are not only not borne out from the record of the case but are contrary to the positive evidence on record. Therefore, this Court is of the firm opinion that the appellant could not 31 have been convicted under Section 308 for causing injuries to injured Rahmat and is liable to be convicted under Section 307 IPC.


19. For the foregoing reasons, Criminal Appeal No.757 of 2005 filed by the appellant Shaukat is dismissed whereas Criminal Appeal No.758 of 2005 filed by the State of Uttaranchal is accepted. The appellant is held guilty under Section 302 IPC for commission of murder of deceased Wilayat and under Section 307 for attempting to commit murder of injured Rahmat. The sentences, as imposed on the appellant by the Trial Court for commission of offences under Sections 302 and 307 IPC, are restored. Both the appeals accordingly stand disposed of.

..............................J.

[J.M. Panchal] ..............................J.

[Deepak Verma] New Delhi;