Monday, 29 August 2016

Whether accused can be convicted U/S 498A of IPC if there is material showing harassment or cruelty?

The evidence of PWs 1 and 2 show that they spoke about the dowry to be the basis for suicide. The High Court came to the conclusion that because the deceased had given birth to a child there was no reason for her to commit suicide. The evidence of the parents of the deceased PWs 1 and 2 was only relatable to dowry. The High Court held that there was no question of demand of dowry, and in fact, appellant was financing the father of the deceased PW1. There being no other material to show as to how the deceased was being harassed or subjected to cruelty, the conclusion of the High Court that because the deceased committed suicide there must be some harassment and cruelty is insupportable and indefensible. There was no material to substantiate this conclusion. Merely on surmises and conjectures the conviction could not have recorded. There is a vast difference between "could have been", "must have been" and "has been". In the absence of any material, the case falls to the first category. In such a case conviction is impermissible.
Supreme Court of India
Hazarilal vs State Of M.P on 20 June, 2007

Bench: Dr. Arijit Pasayat, D.K. Jain
           CASE NO.:
Appeal (crl.)  585 of 2001

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When court should not order DNA test?

 ‘H’ – respondent no.1 husband has not pleaded “non-access”
to the appellant wife or “no opportunity” at the time when Baby
‘X’ could have been conceived. On the contrary, he has admitted
“access”. ‘W’ - the appellant wife has effectively denied the pleas
of adultery.
184. ‘H’ has failed to make out a prima facie case justifying an
order for compelling Baby ‘X’ to give a sample for a DNA
examination. The repeated admissions of paternity by ‘H’ in his
pleadings, affidavit and his statement on oath in support on judicial
record militate against a prima facie case in favour of ‘H’ for
making the order prayed for. The husband ‘H’ has made
admissions of paternity in public records of the Registrar of Births
as well as bank record. No explanation was tendered before the ld.
Family Court Judge or before us. The respondent no.1 has
concealed material facts; is guilty of mis-statement before the
Family Court and his conduct post-conception of the child do not 
support a prima facie case in his favour justifying the impugned
order. The respondent no.1 has also not established imminent need
for the order or that such order was at all necessary for a just
decision of the case. The impugned order is unreasoned, contrary
to law and unsustainable.
 MAT.APP.(F.C.) 17/2016 & CM No.5064/2016

 Date of decision : 26th August, 2016
‘W’ ..... Appellant

‘H’ & ANR ..... Respondents


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Sunday, 28 August 2016

Whether court can permit recall of witness using its inherent powers U/S 151 of CPC?

There is no specific provision in the Code enabling the parties to re- open the evidence for the purpose of further examination-in-chief or cross- examination. Section 151 of the Code provides that nothing in the Code shall be deemed to limit or otherwise affect the inherent powers of the Code to make such orders as may be necessary for the ends of justice or to prevent the abuse of the process of the court. In the absence of any provision providing for re-opening of evidence or recall of any witness for further examination or cross-examination, for purposes other than securing clarification required by the court, the inherent power under section 151 of the Code, subject to its limitations, can be invoked in appropriate cases to re- open the evidence and/or recall witnesses for further examination. This inherent power of the court is not affected by the express power conferred upon the court under Order 18 Rule 17 of the Code to recall any witness to enable the court to put such question to elicit any clarifications.
Supreme Court of India
K.K. Velusamy vs N. Palaanisamy on 30 March, 2011
Bench: R.V. Raveendran, A.K. Patnaik
Citation:2011 AIR SCW2296
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Whether court can permit recall of witness when case was fixed for delivery of Judgment?

 I have heard the learned counsel for the parties at length. Order xviii Rule 17 runs as under: 104 "The Court may at any stage of the suit recall any witness who has been examined and may (subject to the law of evidence for the time being in force) put such questions to him as the Court thinks fit." On a plain reading of this provision it is obvious that discretion vests in the Court to recall a witness who has been examined earlier at any stage of the suit which would evidently mean any stage before the judgment is pronounced. So, the discretion vesting in the Court under this Rule can be exercised even after evidence of the parties has concluded, of course, it mist be exercised judicially and on well accepted judicial principles and not arbitrarily or capriciously.
The learned counsel for the respondent has adverted to a couple of reported decisions, viz ,T. Ramachandra Murthy v. K. Rama Murthy and others, Air 1980 Andhra Pradesh 265 and Altaf Hussain v. Nasreen Zahra, , in support of his contention that the power vesting under Rule 17 cannot be exercised so as to enable a party to fill up the lacuna in evidence. In the former case, there is no doubt, an observation to this effect. In the said case an application for recalling a witness was made after the judgment had been reserved. The learned Judge, therefore, observed that "the jurisdiction of the Court was sought to be invoked for recalling the witness at the time when the hearing of the case was over". With great respect I do not agree that the stage of the case alone should weigh with the Court to an extent as to over-shadow the other aspects of the matter. As observed by me above and also in Altaf Hussain's case (supra), the power under this rule can be exercised even of the stage of writing a judgment. It bears repetition that the object in the instant case is not to fill up the lacuna by adducing any fresh evidence but it is only to bring the proper admissible evidence on record which was somehow left out and instead photostat copies had been filed.
(8) In the second case, it was observed by a learned Judge of Allahabad High Court that the power under Rule 17 should not be exercised lightly and it should be used sparingly and in exceptional cases only. I am in respectful agreement with this view and I feel that the instant is a case in which the interests of justice demand that the petitioner should be permitted to bring proper documents on the record rather than be punished for certain lapses on his part which may well be attributed to inadvertence or lack of proper advice. Certainly the respondent can be compensated by awarding costs and also by affording an opportunity to adduce any evidence in rebuttal, if he so wishes.
Delhi High Court
Suresh Kumar vs Baldev Raj on 24 May, 1984
Equivalent citations: AIR 1984 Delhi 439, 26 (1984) DLT 213, 1984 (7) DRJ 101, 1984 RLR 631

Bench: J Jain
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