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Section 123A of the Pakistan Penal Code states :''Condemnation of the creation of the State, and advocacy of abolition of its sovereignty:(1)Whoever, within or without Pakistan, with intent to influence, read more
'' | Condemnation of the creation of the State, and advocacy of abolition of its sovereignty:
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The Supreme Court, while allowing the criminal appeal of the accused-appellant, observed that during a trial, the prosecution could not seek to prove a fact that the witness has not stated in his/her read more
The Supreme Court, while allowing the criminal appeal of the accused-appellant, observed that during a trial, the prosecution could not seek to prove a fact that the witness has not stated in his/her statement under Section 161 (Examination of witnesses by police) of the Code Of Criminal Procedure, 1973.
"Prosecution cannot seek to prove a fact during trial through a witness which such witness had not stated to police during investigation. The evidence of that witness regarding the said improved fact is of no significance." observed a three-judge bench of Justices B. R. Gavai, P.S. Narasimha, and Aravind Kumar.
The Court also expressed its dissatisfaction with the findings of the Punjab & Haryana High Court as it convicted one accused (appellant) for murder but acquitted the other co-accused. The top court observed that if the evidence was not sufficient to prove the case of the co-accused, such evidence could not be used to implicate the appellant.
Brief Factual Background
Court's Observations
At the outset, the Court observed that there was no eye-witness to the incident, and the prosecution's case rested on circumstantial evidence. Thus, the Court observed that the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established. The Court scrutinized the most important circumstance of the appellant and Rani Kaur having been present in the appellant's house on an intervening night.
Thereafter, the Court relied on Trimukh Maroti Kirkan v. State of Maharashtra. Therein, the Court has pointed out two important consequences that play out when an offence is said to have taken place in the privacy of a house.
Firstly, was that in such cases, the burden would be of a comparatively lighter character. Secondly, the appellant would be under a duty to explain the circumstances that led to the death of the deceased. If he remains quiet or offers a false explanation, such a response would become an additional link in the chain of circumstances., the Court explained.
The Court also examined the testimonies given by the prosecution witnesses. The Court doubted the testimonies of the two witnesses, given that there were several omissions in the cross-examination of these witnesses. It may be noted that these two witnesses were the deceased sister and the sister's husband.
Moving on to the testimony given by an independent witness, the Court noted that he had omitted to provide a statement before the police. Based on that, Court opined that if witnesses had failed to mention in their statements, under Section 161 of the CrPC, about the involvement of an accused, their subsequent statement before the court during the trial regarding the involvement of that particular accused could not be relied upon.
Additionally, the Court noted that the appellant had raised a doubt as regards his defence that the deceased had committed suicide and added:
“This Court has held that the standard of proof to be met by an accused in support of the defence taken by him under Section 313 of Code of Criminal Procedure is not beyond all reasonable doubt, as such, a burden lies on the prosecution to prove the charge. The accused has merely to create a doubt and it is for the prosecution then to establish beyond reasonable doubt that no benefit can flow from the same to the accused.”
In view of this, the Court found that the circumstance of the appellant and Rani Kaur being present in the house has not been convincingly proved beyond doubt. The Apex Court observed that there could not be a gap in the chain of circumstances. Elaborating on the same, the Court said that when the conviction is based solely on circumstantial evidence, there should not be any snap in the chain of circumstances.
“If there is a snap in the chain, the accused is entitled to benefit of doubt. If some of the circumstances in the chain can be explained by any other reasonable hypothesis, then also the accused is entitled to the benefit of doubt.”
Case Title: DARSHAN SINGH vs. THE STATE OF PUNJAB., Diary No.- 30701 - 2009
The Supreme Court, in its recent judgment (on January 04), reiterated the well-established law that the statement recorded under Section 313 (Power to examine the accused) of the Code Of Criminal Procedure, read more
The Supreme Court, in its recent judgment (on January 04), reiterated the well-established law that the statement recorded under Section 313 (Power to examine the accused) of the Code Of Criminal Procedure, 1973, cannot form the sole basis of conviction.
The Court underscored that such a statement of an accused is not evidence. The reasons are twofold. Firstly, it is not on oath, and secondly, the other party, i.e., the prosecution, does not get an opportunity to cross-examine the accused.
A three-judge bench of Justices B. R. Gavai, P.S. Narasimha, and Aravind Kumar made these observations while allowing a criminal appeal of the accused applicant who was convicted for the murder of his wife.
As per the prosecution case, the deceased, Amrik Kaur, was married to Darshan Singh (appellant). However, their marital relationship was strained as Darshan Singh had developed an illicit partnership with one Rani Kaur. The illicit relationship between Darshan Singh and Rani Kaur is said to have lasted for at least three years. Prosecution alleged that on the intervening night of 18.05.1999 and 19.05.1999, Darshan Singh and Rani Kaur, with the motive of eliminating the deceased, administered poison and intentionally caused the death of Amrik Kaur.
The Court, after perusing the evidence, found that there were crucial omissions in the testimonies of the witnesses. Apart from this, the Court also addressed the prosecution's arguments that no specific plea of alibi was taken in the appellant's statement recorded under Section 313 CrPC. Further, it was also submitted that there is an implicit admission regarding the appellant's presence in the house.
“Further, this Court has previously considered the consequences when a particular defence plea was not taken by accused u/s 313 CrPC and held that mere omission to take a specific plea by accused when examined u/s 313 CrPC, is not enough to denude him of his right if the same can be made out otherwise.”
Against this backdrop, the Court found that the circumstance of the appellant and Rani Kaur being present in the house has not been convincingly proved beyond doubt. While setting the impugned order aside, the Court stressed that when the conviction is based solely on circumstantial evidence, there should not be any snap in the chain of circumstances.
Case Title: DARSHAN SINGH vs. THE STATE OF PUNJAB., Diary No.- 30701 - 2009
The Supreme Court on Tuesday (February 20) observed that when the case of the prosecution is entirely based on the extra-judicial confession being circumstantial in nature then the accused cannot be convicted read more
The Supreme Court on Tuesday (February 20) observed that when the case of the prosecution is entirely based on the extra-judicial confession being circumstantial in nature then the accused cannot be convicted for the offence unless the chain of circumstances is completed by the prosecution.
Reversing the findings of the High Court, the Bench Comprising Justices Bela M. Trivedi and Satish Chandra Sharma observed that when the inference drawn by the prosecution based on the chain of circumstances is not explained by the prosecution, then the task of fixing criminal liability upon a person on the strength of an inference must be approached with abundant caution.
It was a case of the prosecution that the appellant-accused made a voluntary extra-judicial confession to PW 1 (father of the deceased child) that he murdered his 2.5-year-old child and threw the body of the deceased child in the well.
Based on the extra-judicial confession, PW 1 took the appellant-accused to the police station, and after discovering the dead body floating in the well based on the accused confession, the Police registered the FIR against the accused under the provisions of the Indian Penal Code.
However, the High Court has reversed the findings of the Trial Court and convicted the appellant-accused.
It is against the decision of the High Court that the appellant-accused preferred a criminal appeal before the Supreme Court.
Submissions Made by the Parties
Per contra, it was submitted by the respondent state that the High Court has rightly re-appreciated the entire evidence as the extra-judicial confession led to the discovery of the object/dead body. Further, it submitted that the minor discrepancies must not be allowed to demolish the entire testimony of a witness.
Supreme Court's Observation
Agreeing to the submissions made by the accused, the Supreme Court observed that the High Court has erred in convicting the accused by re-appreciating the evidence and relying on the extra-judicial confession made by the accused to the PW 1 (an interested witness being a father of deceased child).
The Supreme Court noted several discrepancies in the depositions made by PW 1 related to the arrest of the appellant-accused and found evidentiary aspects of such depositions as doubtful.
“The confession was followed by two things – the arrest of the appellant and recovery of dead body of the deceased. The evidentiary aspects concerning these facts are equally doubtful. As per the testimony of PW-1, he had taken the appellant to the police station and he was arrested there. Contrarily, PW-16/I.O. deposed that after recording the complaint, he had arrested the appellant from his house. The mode and manner of arrest, especially the place of arrest, is doubtful. It also raises a question on the aspect of confession – whether the confession was recorded when the appellant himself visited the police station with PW-1 or when he was arrested from his house and was taken to the police station by PW-16. The confessions, one made after a voluntary visit to the police station and the other made after arrest from the house, stand on materially different footings from the point of view of voluntariness. The likelihood of the latter being voluntary is fairly lesser in comparison to the former.”
Further, the Supreme Court also noted the inconsistencies in the statements made by PW 1 related to the recovery of the dead body, therefore the case of the prosecution is not free from doubts.
“The description of the deceased given by PW-1 in his complaint Ex.P1 did not match with the description of the dead body. The clothes found on the dead body were substantially different from the clothes mentioned by PW-1 in his complaint. The presence of ornaments was not mentioned in the complaint. Furthermore, identification of the dead body by face was not possible as the body had started decomposing due to lapse of time. Admittedly, the dead body was recovered after 12 days of the incident from a well. Sensitive body parts were found bitten by aquatic animals inside the well. The theory of ornaments has already been held to be a figment of imagination by the Trial Court and the High Court in an unequivocal manner. Therefore, the prosecution case regarding the identity of the dead body is not free from doubts.”
Extra-Judicial Confession Being a Weak Type Of Evidence Should Be Accepted With Great Care and Caution
The court records that the conviction of the appellant is largely based on the extra-judicial confession allegedly made by him before PW-1. Further, it stated that the extra-judicial is a weak type of evidence and should be accepted with great care and caution.
“It is no more res integra that an extra-judicial confession must be accepted with great care and caution. If it is not supported by other evidence on record, it fails to inspire confidence and in such a case, it shall not be treated as a strong piece of evidence for the purpose of arriving at the conclusion of guilt. Furthermore, the extent of acceptability of an extra-judicial confession depends on the trustworthiness of the witness before whom it is given and the circumstances in which it was given. The prosecution must establish that a confession was indeed made by the accused, that it was voluntary in nature and that the contents of the confession were true. The standard required for proving an extra-judicial confession to the satisfaction of the Court is on the higher side and these essential ingredients must be established beyond any reasonable doubt. The standard becomes even higher when the entire case of the prosecution necessarily rests on the extra-judicial confession.”
Accused Acquittal Can't Be Reversed Merely On The Existence Of Different View
The Supreme Court observed that the findings of the trial court to acquit the accused cannot be reversed merely because a different view appears to be recorded by the High Court after re-appreciating the evidence.
“This Court cannot lose sight of the fact that the Trial Court had appreciated the entire evidence in a comprehensive sense and the High Court reversed the view without arriving at any finding of perversity or illegality in the order of the Trial Court. The High Court took a cursory view of the matter and merely arrived at a different conclusion on a re-appreciation of evidence. It is settled law that the High Court, in exercise of appellate powers, may reappreciate the entire evidence. However, reversal of an order of acquittal is not to be based on mere existence of a different view or a mere difference of opinion.”, the Supreme Court observed.
“to reverse an order of acquittal in appeal, it is essential to arrive at a finding that the order of the Trial Court was perverse or illegal; or that the Trial Court did not fully appreciate the evidence on record; or that the view of the Trial Court was not a possible view.”, the Supreme Court added.
According to the court, if two views are possible then the view favoring the innocence of accused must be taken in to account.
When Case Is Entirely Based On Circumstantial Evidence, The Chain Of Events Must Be Completely Established
The Supreme Court stressed the importance of establishing a complete chain of evidence when the prosecution relies solely on circumstantial evidence and in the absence of direct evidence.
“For proving a case on the basis of circumstantial evidence, it must be established that the chain of circumstances is complete chain of circumstances is consistent with the only conclusion of guilt. The margin of error in a case based on circumstantial evidence is minimal. For, the chain of circumstantial evidence is essentially meant to enable the court in drawing an inference. The task of fixing criminal liability upon a person on the strength of an inference must be approached with abundant caution.”
“The doubtful existence of the extra judicial confession, unnatural conduct of PW-1, recovery of dead body in the presence of an unreliable witness PW-2, contradictions regarding arrest, unnatural prior and subsequent conduct of PW-1, incredible testimony of the witnesses in support of the last seen theory etc. are some of the inconsistencies which strike at the root of the prosecution case.” the Supreme Court highlighted the contradictions which doesn't establish the chain of events.
Purpose of Criminal Trial Is To Punish Guilty And Not Innocent
After finding that the prosecution had miserably failed to establish a coherent chain of circumstances, the court disagreed with the submission made by the respondent state to contend that minor inconsistencies could not be construed as reasonable doubts for ordering acquittal.
According to the court, the observations in this regard may not advance the case of the respondent in the present appeal because the inconsistencies in the case of the prosecution are not minor inconsistencies.
“It is also noteworthy that the purpose of criminal trial is not only to ensure that an innocent person is not punished, but it is also to ensure that the guilty does not escape unpunished. A judge owes this duty to the society and effective performance of this duty plays a crucial role in securing the faith of the common public in rule of law. Every case, wherein a guilty person goes unpunished due to any lacuna on the part of the investigating agency, prosecution or otherwise, shakes the conscience of the society at large and diminishes the value of the rule of law. Having observed so, the observations in this regard may not advance the case of the respondent in the present appeal. It is so because the inconsistencies in the case of the prosecution are not minor inconsistencies. As already discussed above, the prosecution has miserably failed to establish a coherent chain of circumstances.”
Conclusion
In light of the aforementioned observations made by the Supreme Court, the appeal preferred by the appellant-accused is allowed and the impugned order/judgment of the High Court was set aside.
The Supreme Court affirmed the view taken by the Trial Court and acquitted the accused.
Case Details:
Kalinga @ Kushal Versus State of Karnataka By Police Inspector Hubli, Criminal Appeal No. 622 of 2013
The Supreme Court on Wednesday (May 08) held that the evidence of a prosecution witness cannot be rejected in toto merely because the prosecution chose to treat him as hostile and cross-examined him.Affirming read more
The Supreme Court on Wednesday (May 08) held that the evidence of a prosecution witness cannot be rejected in toto merely because the prosecution chose to treat him as hostile and cross-examined him.
Affirming the decision of the High Court and Trial Court, the bench comprising Justices BR Gavai and Sandeep Mehta declined to aside the conviction of the accused merely because the prosecution witness didn't support the prosecution's case in their cross-examination.
By placing reliance on the case of C. Muniappan and Others v. State of Tamil Nadu, the court stated that the evidence of such prosecution witnesses cannot be treated as effaced or washed off the record altogether but the same can be accepted to the extent their version is found to be dependable on a scrutiny thereof.
“when the evidence of the victim as well as prosecution witnesses is tested with the FIR, the statement recorded under Section 164 Cr.P.C. and the evidence of the Medical Expert (PW-8), we find that there is sufficient corroboration to the version given by the prosecutrix in her examination-in-chief.”, the court said.
it appears that, on account of a long gap between the examination-in-chief and cross examination, the witnesses were won over by the accused and they resiled from the version as deposed in the examination-in-chief which fully incriminates the accused. However, when the evidence of the victim as well as her mother (PW-2) and aunt (PW-3) is tested with the FIR, the statement recorded under Section 164 CrPC and the evidence of the Medical Expert (PW-8), we find that there is sufficient corroboration to the version given by the prosecutrix in her examination-in-chief.
Insofar as the reliance placed by the learned counsel for
the appellant on the judgment of this Court in the case of
Rai Sandeep alias Deepu (supra) is concerned, the said
case can be distinguished, inasmuch as in the said case
except a minor abrasion on the right side of the neck below
jaw, there were no other injuries on the private part of the
prosecutrix, although it was allegedly a forcible gang rape.
As such, the said judgment would not be applicable in the
present case.
The court upheld the conviction of the accused based on the testimony of the prosecutrix/victim after her testimony in the examination in chief led to sufficient corroboration with the Section 164 Cr.P.C. statements and the expert evidence.
Accordingly, the appeal was dismissed.
Case Title: SELVAMANI VERSUS THE STATE REP. BY THE INSPECTOR OF POLICE
The Supreme Court said that trial judges should take a proactive role instead of acting as "mere tape recorders" recording witness statements. If there is any lapse by the prosecutor, then the judge should read more
The Supreme Court said that trial judges should take a proactive role instead of acting as "mere tape recorders" recording witness statements. If there is any lapse by the prosecutor, then the judge should intervene and ask necessary questions to the witness to elicit relevant information.
"It is the duty of the court to arrive at the truth and subserve the ends of justice. The courts have to take a participatory role in the trial and not act as mere tape recorders to record whatever is being stated by the witnesses. The judge has to monitor the proceedings in aid of justice," observed the bench comprising Chief Justice of India DY Chandrachud, Justice JB Pardiwal and Manoj Misra.
The Court noted that after the witness was declared hostile, all that the public prosecutor did was to put few suggestions to her for the purposes of cross-examination. Even proper contradictions were not brought on record.
"The judge has to monitor the proceedings in aid of justice. Even if the prosecutor is remiss or lethargic in some ways, the court should control the proceedings effectively so that the ultimate objective that is the truth is arrived at. The court must be conscious of serious pitfalls and dereliction of duty on the part of the prosecuting agency. Upon failure of the prosecuting agency showing indifference or adopting an attitude of aloofness, the trial judge must exercise the vast powers conferred under Section 165 of the Evidence Act and Section 311 of the Cr.P.C. respectively to elicit all the necessary materials by playing an active role in the evidence collecting process," the judgment stated.
Supreme Court observed that the claimant of an easementary right wouldn't be entitled to claim the 'easementary right by necessity' for enjoying the 'Dominant Heritage' (the property owned by the claimant) read more
Supreme Court observed that the claimant of an easementary right wouldn't be entitled to claim the 'easementary right by necessity' for enjoying the 'Dominant Heritage' (the property owned by the claimant) when there exists an alternative way to access the 'Dominant Heritage' apart from the way over which the easementary rights were claimed to access the Dominant Heritage.
“The easementary right by necessity could be acquired only in accordance with Section 13 of the Indian Easement Act which provides that such easementary right would arise if it is necessary for enjoying the Dominant Heritage. In the instant case, findings have been returned not only by the appellate courts but even by the trial court that there is an alternative way to access the Dominant Heritage, which may be a little far away or longer which demolishes the easement of necessity...Thus, the Gala's (claimant) are not entitled to any easementary right by necessity upon the disputed rasta.”, the Bench Comprising Justices Pankaj Mithal and Prashant Kumar Mishra said.
Dominant Heritage is the land that is to be enjoyed by the beneficiary, whereas the land on which the easement is claimed is called Servient Heritage.
Section 13 of the Indian Easements Act, 1882 states about easementary rights by necessity.
The Judgment authored by Justice Pankaj Mithal stated that the easementary right by necessity over the 'servient heritage' would arise if there's no alternative way to access the Dominant Heritage.
After finding that the claimant had an alternative way to access the dominant heritage apart from the subservient heritage, the court denied any easementary right by necessity upon the disputed rasta to the claimant.
The Supreme Court on Monday (March 11) observed that the offence of sexual harassment committed within the confines of a room or a house (under the POCSO Act) requires closer scrutiny by the courts while read more
The Supreme Court on Monday (March 11) observed that the offence of sexual harassment committed within the confines of a room or a house (under the POCSO Act) requires closer scrutiny by the courts while deciding the conviction of the accused solely based on the victim's statements.
Reversing the concurrent findings of the trial court and the Madras High Court, the Supreme Court acquitted a teacher who was accused of sexually harassing his 13-year-old girl student.
It was the case of the prosecution that the accused/teacher in between the classes gave chocolates and flowers to the victim/student. When the victim resisted, the teacher forcefully gave the flowers by twisting her hands. Moreover, the prosecution also alleged that the accused/teacher showed his sexual intent towards the victim by asking her friend over call to send the victim to the Physical Education Training room.
The trial court convicted the accused/teacher and sentenced him to suffer three years of rigorous imprisonment with a fine of Rs. 30,000/-, and the High Court upheld the same. Following this, the accused/teacher preferred the plea before the Supreme Court.
Before the Supreme Court, it was contended by the appellant/teacher that both the Trial Court and High Court committed error in finding the appellant guilty of sexually harassing the victim because apart from the victim herself, no testimony of other students was placed by the prosecution to prove that the accused had given flowers to the victim forcefully in between the class.
Finding force in the submissions made by the accused/teacher, the Supreme Court noted that the prosecution's case has been marked by lacklustre efforts, revealing a poorly executed endeavour that gives rise to substantial doubts regarding the integrity of the case.
“The material contradictions apparent in the depositions of prosecution witnesses, including the victim, significantly undermine the credibility of the prosecution version. These inconsistencies in the prosecution's narrative, render it considerably doubtful”, the court observed.
Conviction Cannot Be Sustained Based On Unreliable Sole Testimony of Victim
The Supreme Court referred to Ganesan v. State, where it held that the sole testimony of the victim if found reliable and trustworthy, requires no corroboration and may be sufficient to invite conviction of the accused.
However, while referring to its precedents, the Supreme Court stated if the testimony of the victim suffers from contradictions or can't be relied upon, then the courts should strive to find out the true genesis of the incident.
“What flows from the aforesaid decisions is that in cases where witnesses are neither wholly reliable nor wholly unreliable, the Court should strive to find out the true genesis of the incident. While a victim's testimony is usually enough for sexual offence cases, an unreliable or insufficient account from the prosecutrix, marked by identified flaws and gaps, could make it difficult for a conviction to be recorded.”, the court observed.
“When considering the evidence of a victim subjected to a sexual offence, the Court does not necessarily demand an almost accurate account of the incident. If the Court deems such evidence credible and free from doubt, there is hardly any insistence on corroboration of that version.”, the court added.
However, the Supreme Court didn't rely on the sole testimony of the victim after finding apparent contradictions in the victim's statements specifically the statement recorded in FIR and Section 164 Cr.P.C. statements.
“While we might have chosen to overlook other contradictions and solely relied on the victim's account, considering her as a 'sterling witness', her version appears muddled and prevaricated, much less coherent. It is precisely these inconsistencies and contradictions, which are material, that compel us to reject the case set up by the prosecution before the Special Court with which the High Court concurred adopting a flawed approach.”, the court observed.
Here, the Court noted that only one student was examined as a witness to prove that the accused had given flowers and chocolates to the victim. But she turned hostile during the trial. Also, nowhere in the deposition has the victim said that she was pinched by the accused. However,t he High Court held that the accused perpetrated physical attack on the victim by pinching her. The omissions of the prosecution to examine the headmaster of the school and the brother of the victim, who was studying in the same school, were also cited by the Court as glaring mistakes.
"While the actions attributed to A-1, as sought to be demonstrated by the prosecution, may fall within the purview of 'sexual harassment' under section 11 of the POCSO Act, the evidence in this case has been marred by inadequacies from the outset, evident in contradictions within statements and testimonies. The evidence led leaves reasonable suspicion as to whether A-1 was actually involved in any criminal act," the Court stated.
Moreover, the following observation of the court is important to be mentioned here:
"At the same time, it is axiomatic that reputation is earned by a teacher upon rendering service over the years and an accusation like the present would remain as an indelible mark marring his entire future life. Care has, therefore, to be taken so that his right to live a life of dignity and personal liberty are not put to jeopardy on the basis of half-baked evidence."
Based on the abovementioned observations, the Supreme Court reversed the accused/teacher's conviction to acquittal by giving the benefit of doubt due to missing links in the present case to convict the accused.
Case Title: NIRMAL PREMKUMAR & ANR. VERSUS STATE REP. BY INSPECTOR OF POLICE
In a recent ruling, the Supreme Court reiterated that the burden of proving applicability of exclusionary clauses in insurance contracts is on the insurer and such clauses must be interpreted strictly read more
In a recent ruling, the Supreme Court reiterated that the burden of proving applicability of exclusionary clauses in insurance contracts is on the insurer and such clauses must be interpreted strictly against the insurer, as they may completely exempt the insurer of its liability.
The bench of Justices PS Narasimha and Aravind Kumar was dealing with an insurance company's appeal against an NCDRC order, which directed it to pay the insured-joint venture company after a bridge that was contracted for construction to the latter company collapsed. Taking note of the exclusionary clause in the insurance policy (which excluded cover for factors including faulty design), the court set aside the NCDRC order and observed,
The National Highway Authority of India (NHAI) entered into a contract with a joint venture company ("JV") for the design, construction and maintenance of a cable-stayed bridge across Chambal River in Kota, Rajasthan. In respect of the same, the appellant-insurance company issued an all-risk insurance policy, which covered the entire project amount.
In 2009, while the project was in progress, a part of the bridge collapsed, resulting in the death of 48 workmen. An Expert Committee was constituted by the Union government to investigate the cause of the collapse. Meanwhile, NHAI informed the appellant about the incident, requesting deputation of a surveyor to assess the damage caused, and seeking indemnification of the loss.
In 2011, the appellant's surveyor submitted a report, assessing net loss @ Rs.39,09,92,828/-. It recommended rejection of the insurance claim on the ground that the JV violated the conditions of the insurance policy. When the appellant repudiated the claim based on the reports, the JV requested re-consideration. It relied on some independent reports to urge that its design of the bridge was not faulty.
Proceedings before NCDRC
Two years after rejection of its claim, in 2019, the JV filed a Consumer Complaint before the National Consumer Disputes Redressal Commission (NCDRC) making allegations of 'deficiency in service' and unfair trade practice against the appellant.
The NCDRC held in the JV's favor, observing that the Expert Committee report was 'inconclusive' and based on the independent reports, there was no defect in the bridge design. The Commission also factored in the fact that NHAI allowed the JV to complete the remaining contract work.
NCDRC directed the appellant to pay the JV Rs.39,09,92,828/- with interest from the first date of repudiation (in 2011). Oddly, an undated addendum to the order modified the payable amount to Rs. 151,59,94,542/-. Aggrieved, the appellant moved the Supreme Court.
Observations by Supreme Court
At the outset, the Court expressed surprise at the NCDRC's addendum, which enhanced the amount payable from Rs.39,09,92,828/- to Rs. 151,59,94,542/- without hearing the parties. It was noted that the JV itself had restricted its case to Rs.39,09,92,828/-. As the JV's counsel maintained that the claim was confined to Rs.39,09,92,828/-, the court did not go into the issue further.
Moving on, the court analyzed the issue of exclusionary clauses in contracts, as the policy in the present case excluded cover in case there was damage due to faulty design, for cost of replacement, repair or rectification of defective material and/or workmanship, for cost of rectification/correction of any error during construction, etc.
Referring to the decision in Texco Marketing P. Ltd. v. TATA AIG General Insurance Company Ltd., the court reiterated that the burden of proving applicability of an exclusionary clause is on the insurer. Although, it must not be interpreted in a manner that conflicts with the main intention of the insurance.
"It is, therefore, the duty of the insurer to plead and lead cogent evidence to establish the application of such a clause. The evidence must unequivocally establish that the event sought to be excluded is specifically covered by the exclusionary clause."
It was held that the appellant sufficiently discharged the burden on it, by relying on the reports of the Expert Committee and the surveyor. The independent reports relied on by the JV, the court observed, were unexhibited documents and none of the experts were examined as witness before NCDRC. Moreover, these were theoretical in nature and not based on site-inspection (unlike the surveyor's).
Insofar as the NCDRC's finding that the Expert Committee report was inconclusive, the court referred to certain discrepancies between the approved drawing plans and the actual construction illustrated in the report. Notably, the report spoke of changes in sequence of construction without consulting/informing the design consultants of the project and changes brought about without proper technical review.
As per the report, "a combination of factors such as lack of stability and robustness in the structure, shortfall in design, lack of quality workmanship have all contributed to the collapse...the primary responsibility for the collapse lies with the contractor, M/s Hyundai and Gammon (JV) for allowing the structure to reach a vulnerable stage without taking adequate precautions with respect to stability and robustness of the partially completed structure and the shortfall in the design".
So far as the surveyor's report, the court noted that it was an evidence tendered by the appellant, which was not treated as unreliable by NCDRC. Pertinently, the surveyor report noted - (i) The sequence of operations in the construction of the Bridge were changed in actual construction, and (ii) Change in allocation of works amongst the JV Partners played a key role in the quality of workmanship.
Lastly, the fact that NHAI permitted the JV to complete the remaining work did not weigh with the court. It was noted that the continuation could have been due to various reasons.
"Even if the NHAI's decision to continue is taken to be a valid economic decision, that by itself cannot be a reason for not applying the applicable clause of the contract if such applicability is otherwise proved by cogent evidence", the court said.
Conclusion
In view of the above, the court allowed the insurance company's appeal and set aside the NCDRC's order.
Case Title: United India Insurance Co. Ltd. Versus M/s Hyundai Engineering & Construction Co. Ltd. & Ors., Civil Appeal No. 1496 of 2023
The Supreme Court on Monday (March 18) overturned the conviction of the accused while observing that conviction cannot be sustained based on the testimony of the 'injured witness' who happens to be an read more
The Supreme Court on Monday (March 18) overturned the conviction of the accused while observing that conviction cannot be sustained based on the testimony of the 'injured witness' who happens to be an 'interested witness' in the outcome of the case.
Reversing the findings of the High Court and Trial Court which has convicted the accused, the Bench Comprising Justices Hrishikesh Roy and Sanjay Karol observed that although the evidence of an injured witness is considered to be on a higher pedestal than that of a witness simpliciter yet the courts need to strike a balance between the testimony provided by the injured witness who happens to be also interested in the outcome of the case.
“This Court has to strike a balance between the testimony of the injured witness and that of an interested witness.”, the court clarified.
The prosecution case was based on the two prosecution witnesses' testimony, who according to the prosecution were injured by the Appellants while attacking the deceased persons. The prosecution stated that the testimonies supplied by the witnesses' is sufficient to prove the guilt of the accused as the evidentiary value of the 'injured witness' is higher than that of other witnesses.
“There is a direct statement by PW-1 that D-1 was his relative, i.e., son of his paternal uncle. D-2 was a relative of the owner of the wine shop, who, according to him, was A-1, but in another instance, he states that A-1 was only a worker.”, the court said.
“It is hard to conceive how the Trial Court concluded that despite being the first cousin of D-1 (Deceased) and himself a person injured in the incident, PW-1 was not an interested witness.”, the court questioned the trial court's decision for not treating PW-1 as an interested witness.
Further, the court noted that the prosecution must have also examined the independent witnesses, citing that if the incident occurred at a crowded place, then how it's possible that there were no independent witnesses available at the crime scene?
“He (PW1) has also deposed that there were about 50 persons at the scene of the crime, then, how has the non-examination of independent witness been countenanced by the prosecution and “approved” by the Courts below, is something that escapes us, or rather confounds us.”, the court said.
Not only this, the court disbelieved the entire investigation carried out by the investigating officer by stating that such a process of investigation is not sought from the IO, whole role is that of the backbone of the entire criminal proceeding in respect of the particular offences he is charged with investigating.
“A perusal of his testimony reveals certain problematic statements. Nowhere has it come on record as to how the investigation reached the bus stand from where A-2 was arrested – who informed the authorities about A-2's movement by bus? Further, he has deposed that he made two visits to the scene of the crime and that he also examined several witnesses. Then how is there a striking lack of independent witnesses to lend credence to the prosecution's version of events? He does not know where D-1 had expired. How? He also did not conduct any scientific investigation at the spot of crime. Such an investigation carried out most casually and callously is sought to be made the basis by the police in seeking the conviction of the accused.”, the court said.
Ultimately, the court allowed the appeal and acquitted the Appellants on account of highlighting several lapses on the part of the prosecution in proving the case against the appellant beyond reasonable doubt.
“Various lapses such as these cumulatively affect the overall sanctity of the prosecution case, making it fall short of the threshold of beyond reasonable doubt. It is in such circumstances, on analysis of the record, that we are unable to sustain the conviction handed down by the Courts below to A-1 and A-2. The injured witnesses and the Investigation Officer in their testimony together are not inspiring confidence, and in our own estimation the prosecution case stands shaken beyond a point to which no conviction resting thereupon can be said to be just in the eyes of law.”
Case Title: PERIYASAMY VERSUS THE STATE REP. BY THE INSPECTOR OF POLICE
Vejle, Denmark
Malda, India
Faridabad, India
New Delhi, India
Delhi, India
New Delhi, India
Kolkata, India
New Delhi, India
Kathmandu, Nepal
Guwahati, India
DAYS
HOURS
MINUTES
SECONDS
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Time-sensitive information
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In your request, please provide an explanation of the legitimate business need for a second account.
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Misuse
of the ratings, feedback or Documents/ Advice reviews: REGISTERED
USERS cannot submit abusive or inappropriate feedback entries,
coerce or threaten buyers into submitting feedback, submit
transaction feedback regarding them, or include personal information
about a transaction partner within a feedback entry. Furthermore,
any attempt to manipulate ratings of any REGISTERED USER is
prohibited. Any attempt to manipulate ratings, feedback, or
Documents/ Advice reviews is prohibited.
Reviews: Reviews
are important to the SoOLEGAL Platform, providing a forum for
feedback about Documents/ Advice and service details and reviewers'
experiences with Documents/ Advices and services –
positive
or negative. You may not write reviews for Documents/ Advices or
services that you have a financial interest in, including reviews
for Documents/ Advices or services that you or your competitors deal
with. Additionally, you may not provide compensation for a review
(including free or discounted Documents/ Advices). Review
solicitations that ask for only positive reviews or that offer
compensation are prohibited. You may not ask buyers to modify or
remove reviews.
Prohibited Content
REGISTERED USERS are expected to conduct proper research to ensure that the items posted to our website are in compliance with all applicable laws. If we determine that the content of a Documents/ Advice detail page or listing is prohibited, potentially illegal, or inappropriate, we may remove or alter it without prior notice. SoOLEGAL reserves the right to make judgments about whether or not content is appropriate.
The
following list of prohibited Documents/ Advices comprises two
sections: Prohibited Content and Intellectual Property
Violations.
Listing
prohibited content may result in the cancellation of your listings,
or the suspension or removal of your transacting privileges.
REGISTERED USERS are responsible for ensuring that the Documents/
Advices they offer are legal and authorised for Transaction or
re-Transaction.
If
we determine that the content of a Documents/ Advice detail page or
listing is prohibited, potentially illegal, or inappropriate, we may
remove or alter it without prior notice. SoOLEGAL reserves the right
to make judgments about whether or not content is appropriate.
Illegal and potentially illegal Documents/ Advices: Documents/ Advices sold on SoOLEGAL.in must adhere to all applicable laws. As REGISTERED USERS are legally liable for their actions and transactions, they must know the legal parameters surrounding any Documents/ Advice they display on our website.
Offensive material: SoOLEGAL reserves the right to determine the appropriateness of listings posted to our website.
Nudity: In general, images that portray nudity in a gratuitous or graphic manner are prohibited.
Items that infringe upon an individual's privacy. SoOLEGAL holds personal privacy in the highest regard. Therefore, items that infringe upon, or have potential to infringe upon, an individual's privacy are prohibited.
Intellectual Property Violations
Counterfeit merchandise: Documents/ Advices displayed on our website must be authentic. Any Documents/ Advice that has been illegally replicated, reproduced or manufactured is prohibited.
Books - Unauthorised copies of books are prohibited.
Movies - Unauthorised copies of movies in any format are prohibited. Unreleased/prereleased movies, screeners, trailers, unpublished and unauthorized film scripts (no ISBN number), electronic press kits, and unauthorised props are also prohibited.
Photos - Unauthorised copies of photos are prohibited.
Television Programs - Unauthorised copies of television Programs (including pay-per-view events), Programs never broadcast, unauthorised scripts, unauthorised props, and screeners are prohibited.
Transferred media. Media transferred from one format to another is prohibited. This includes but is not limited to: films converted from NTSC to Pal and Pal to NTSC, laserdisc to video, television to video, CD-ROM to cassette tape, from the Internet to any digital format, etc.
Promotional media: Promotional versions of media Documents/ Advices, including books (advance reading copies and uncorrected proofs), music, and videos (screeners) are prohibited. These Documents/ Advices are distributed for promotional consideration and generally are not authorized for Transaction.
Rights of Publicity: Celebrity images and/or the use of celebrity names cannot be used for commercial purposes without permission of a celebrity or their management. This includes Documents/ Advice endorsements and use of a celebrity's likeness on merchandise such as posters, mouse pads, clocks, image collections in digital format, and so on.
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