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Consequently,it could not be said that cl.15 of the Letters Patent was not attracted for preferring appeal against the judgment of the learned Single Judge Ratio |
It is also necessary to note that the appellant being the respondent in letters patent appeal joined issues on merits and did not take up the contention that the letters patent appeal was not maintainable Ratio |
For all these reasons,therefore,the primary objection to the maintainability of the letters patent appeal as canvassed by learned counsel for the appellant,has to be repelled Ratio |
Point 1 is,therefore,answered in the affirmative against the appellant and in favour of the respondent Ratio |
It takes us to the consideration of points arising for our decision on merits Ratio |
In Surya Dev Rai v PRE |
Ram Chander Rai & Ors.[AIR 2003 SC 3044 2003 Indlaw SC 598] after referring to decisions in Custodian of Evacuee Property,Bangalore v PRE |
Khan Saheb Abdul Shukoor,etc.[1961 (3) SCR 855 1961 Indlaw SC 499] and Nagendra Nath Bora PRE |
Anr.v PRE |
Commissioner of Hills Division PRE |
AIR 1958 SC 398 1958 Indlaw SC 62],T.C.Basappa v PRE |
T.Nagappa [AIR 1954 SC 440 1954 Indlaw SC 39] and Rupa Ashok Hurra v PRE |
Ashok Hurra [AIR 2002 SC 1771 2002 Indlaw SC 1966],this Court held as follows: "From the aforesaid enunciation of law it is quite vivid and luminescent that the pleadings in the writ petition,nature of the order passed by the learned Single Judge,character and the contour of the order,directions issued,nomenclature giv... |
It cannot be said in a hypertechnical manner that an order passed in a writ petition,if there is assail to the order emerging from the inferior tribunal or subordinate Court has to be treated all the time for all purposes to be u/art.227 of the Constitution of India PRE |
Phraseology used in exercise of original jurisdiction u/art.226 of the Constitution in S.2 of the Act cannot be given a restricted and constricted meaning because an order passed in a writ petition can tantamount to an order u/art.226 or 227 of the Constitution of India and it would depend upon the real nature of the o... |
To elaborate; whether the learned Single Judge has exercised his jurisdiction u/art.226 or u/art.227 or both would depend upon various aspects and many a facet as has been emphasized in the afore quoted decisions of the apex Court PRE |
The pleadings,as has been indicated hereinabove,also assume immense significance PRE |
As has been held in the case of Surya Devi Rai (supra) a writ of certiorari can be issued u/art.226 of the Constitution against an order of a Tribunal or an order passed by the sub ordinate court PRE |
In quintessentiality,it cannot be put in a state jacket formula that any order of the learned judge that deals with an order arising from an inferior tribunal or the sub ordinate court is an order u/art.227 of the Constitution of India and not an order u/art.226 of the Constitution PRE |
It would not be an over emphasis to state that an order in a writ petition can fit into the subtle contour of Arts.226 and 227 of the Constitution in a composite manner and they can coincide,co-exit,overlap imbricate PRE |
In this context it is apt to note that there may be cases where the learned single judge may feel disposed or inclined to issue a writ to do full and complete justice because it is to be borne in mind that Art.226 of the Constitutions is fundamentally a repository and reservoir of justice based on equity and good consc... |
It will depend upon factual matrix of the case PRE |
Thus,there is no manner of doubt that the orders and proceedings of a judicial court subordinate to the High Court are amenable to writ jurisdiction of the High Court u/art.226 of the Constitution PRE |
Upon a review of decided cases and a survey of the occasions,wherein the High Courts have exercised jurisdiction to command a writ of certiorari or to exercise supervisory jurisdiction u/art.227 in the given facts and circumstances in a variety of cases,it seems that the distinction between the two jurisdictions stands... |
Probably,this is the reason why it has become customary with the lawyers labelling their petitions as one common u/arts.226 and 227 of the Constitution,though such practice has been deprecated in some judicial pronouncement PRE |
Without entering into niceties and technicality of the subject,we venture to state the broad general difference between the two jurisdictions PRE |
Firstly,the writ of certiorari is an exercise of its original jurisdiction by the High Court; exercise of supervisory jurisdiction is not an original jurisdiction and in this sense it is akin to appellate,revisional or corrective jurisdiction PRE |
Secondly,in a writ of certiorari,the record of the proceedings having been certified and sent up by the inferior court or tribunal to the High Court,the High Court if inclined to exercise its jurisdiction,may simply annul or quash the proceedings and then do no more PRE |
In exercise of supervisory jurisdiction,the High Court may not only quash or set aside the impugned proceedings,judgment or order but it may also make such directions as the facts and circumstances of the case may warrant,maybe,by way of guiding the inferior court or tribunal as to the manner in which it would now proc... |
In appropriate cases the High Court,while exercising supervisory jurisdiction,may substitute such a decision of its own in place of the impugned decision,as the inferior court or tribunal should have made PRE |
Lastly,the jurisdiction u/art.226 of the Constitution is capable of being exercised on a prayer made by or on behalf of the party aggrieved; the supervisory jurisdiction is capable of being exercised suo motu as well PRE |
In view of what has been stated above,the High Court was not justified in holding that the Letters Patent Appeal was not maintainable Ratio |
In addition,a bare reading of this Court's earlier order shows that the impugned order is clearly erroneous Ratio |
The impugned order is set aside RPC |
The writ appeal shall be heard by the Division Bench on merits RPC |
The appeal is allowed RPC |
Challenge in this appeal is to the order of a Division Bench of Madras High Court allowing the appeal filed by the respondent (hereinafter referred to as the 'accused').The accused was convicted for offence punishable under Section 302 of the Indian Penal Code,1860 (in short the 'IPC') and sentenced to undergo imprison... |
He was also convicted for offences punishable under Section 392 read with Section 397 IPC and sentence to undergo rigorous imprisonment for 10 years and to pay a fine FAC |
Background facts in a nutshell are as follows FAC |
The deceased is one Mayurani,a Sri Lankan student,who was residing in the first floor of the house belonging to one Solsimalai (P.W.1).The Accused is also a Sri Lankan student studying in a different college,but staying in the second floor of the same premises FAC |
The occurrence allegedly took place in the afternoon of 22.4.2003 FAC |
The First Information Report was lodged by P.W.1 on 24-4-2003 at about 9.30 A.M.It was indicated in the First Information Report that on 24.4.2003 at 9.00 A.M.,while the informant had gone to perform pooja in the first floor of the house,he got foul smell in the last room of the first floor and found blood seeping thro... |
On opening the window he noticed that Mayurani was lying in a pool of blood with her face covered with a bag FAC |
On the basis of the aforesaid F.I.R.,investigation was taken up initially by P.W.40 FAC |
Subsequently on the basis of the order of the High Court,such investigation was completed by P.W.42.The accused is stated to have been arrested on suspicion on 26.4.2003.On the basis of the statement of the accused,prosecution discovered many materials including a knife and a log allegedly used for killing FAC |
Initially,P.W.40 suspected the role of P.W.1,his wife P.W.2,P.W.3,from whose house certain incriminating material were recovered allegedly on the basis of statement of the accused as well as P.W.4,who was working as a cleaner in the vehicle of P.W.1.Subsequently,however,P.W.42,who took over investigation from P.W.40 fi... |
The prosecution relied upon only circumstantial evidence,namely,confessional statements of the accused leading to recovery of various incriminating materials FAC |
Ex.P-6 is the statement leading to recovery of Travel bags (M.Os.2 & 3),knife (.M.0.5),wooden log (M.0.28),rubber gloves (M.0.29 series) cotton rope with human hair (MN.O.30 series),two sponges soaked with blood (M.0.31 series),bloodstained blue clolour jean pant (M.0.32),bloodstained white banian (M.0.33),colour bania... |
Ex.P-10 is the statement relating to jewelleries,ultimately leading to recovery of gold ingots (M.O.18 series) from the house of P.W.19 on the basis of other connecting statements of P.W.17 and P.W.18.These three statements,Exs FAC |
P-6,P-8 and P-10 dated 26-4-2003,were made before P.W.40 in the presence of P.W.22 and C.W.1.The other confessional statement Ex.P-12 dated 22-9-2003 made before P.W.42 and Subbiah and P.W.24,led to recovery of "M" dollar (M.0.38) and key chain with key chain in (M.0.39) from the toilet in the room of the accused FAC |
The prosecution has also relied upon the alleged motive to the effect that the accused urgently wanted money with a view to increase his marks in Mathematics and,therefore,the accused had stolen articles belonging to the deceased FAC |
The trial court found the respondent guilty and recorded conviction and imposed sentence as aforestated FAC |
The trial court found that the prosecution version rested on circumstantial evidence FAC |
The following circumstances were highlighted to find the accused guilty FAC |
a FAC |
The death is homicidal; (b FAC |
The accused was in need of money to chase mathematics paper and for the aforesaid purpose he has killed the deceased to take away the valuable articles like computer and gold ornaments to sell such articles in the market FAC |
c FAC |
At the time of occurrence,only the accused,deceased and PW 9 were available in the premises and there was no other person FAC |
d) Statement of the accused leading to recovery of incriminating materials such as knife,rope,clothes,wooden log and other valuable articles such as computer,gold ornaments,"M FAC |
Dollar and the key chain with key belonging to the deceased FAC |
The High Court found that the circumstances highlighted were not sufficient to fasten the guilt on the accused,and directed acquittal FAC |
Learned counsel for the appellant submitted that the High Court failed to notice that the circumstances highlighted clearly establish the chain of circumstances which established the prosecution version and the High Court was not justified in directing acquittal FAC |
Learned counsel for the respondent on the other hand supported the judgment of the High Court FAC |
The conviction based on circumstantial evidence has been highlighted by this Court in various orders of this Court FAC |
It has been consistently laid down by this Court that where a case rests squarely on circumstantial evidence,the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person.(See Hukam Singh v ... |
State of Rajasthan AIR (1977 SC 1063 1977 Indlaw SC 433); Eradu and Ors.v Ratio |
State of Hyderabad (AIR 1956 SC 316 1955 Indlaw SC 108); Earabhadrappa v Ratio |
State of Karnataka (AIR 1983 SC 446 1983 Indlaw SC 161); State of U.P.v Ratio |
Sukhbasi and Ors.(AIR 1985 SC 1224 1985 Indlaw SC 71); Balwinder Singh v Ratio |
State of Punjab (AIR 1987 SC 350 1986 Indlaw SC 35); Ashok Kumar Chatterjee v Ratio |
State of M.P.(AIR 1989 SC 1890 1989 Indlaw SC 443).The circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances Ratio |
In Bhagat Ram v PRE |
State of Punjab (AIR 1954 SC 621 1954 Indlaw SC 188),it was laid down that where the case depends upon the conclusion drawn from circumstances the cumulative effect of the circumstances must be such as to negative the innocence of the accused and bring the offences home beyond any reasonable doubt PRE |
We may also make a reference to a decision of this Court in C.Chenga Reddy and Ors.v PRE |
State of A.P.(1996) 10 SCC PRE |
193 1996 Indlaw SC 3059,wherein PRE |
it has been observed thus PRE |
In a case based on circumstantial evidence,the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature PRE |
Moreover,all the circumstances should be complete and there should be no gap left in the chain of evidence PRE |
Further the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence PRE |
In Padala Veera Reddy v PRE |
State of A.P.and Ors.(AIR 1990 PRE |
SC 79 1989 Indlaw SC 31),it was laid down that when a case rests upon circumstantial evidence,such evidence must satisfy the following tests: "(1) the circumstances from which an inference of guilt is sought to be drawn,must be cogently and firmly established; (2) those circumstances should be of a definite tendency un... |
In State of U.P.v PRE |
Ashok Kumar Srivastava,(1992 Crl PRE |
LJ 1104 PRE |
1992 Indlaw SC 107),it was pointed out that great care must be taken in evaluating circumstantial evidence and if the evidence relied on is reasonably capable of two inferences,the one in favour of the accused must be accepted PRE |
It was also pointed out that the circumstances relied upon must be found to have been fully established and the cumulative effect of all the facts so established must be consistent only with the hypothesis of guilt PRE |
Sir Alfred Wills in his admirable book "Wills' Circumstantial Evidence" (Chapter VI) lays down the following rules specially to be observed in the case of circumstantial evidence: (1) the facts alleged as the basis of any legal inference must be clearly proved and beyond reasonable doubt connected with the factum proba... |
There is no doubt that conviction can be based solely on circumstantial evidence but it should be tested by the touch-stone of law relating to circumstantial evidence laid down by the this Court as far back as in 1952 Ratio |
In Hanumant Govind Nargundkar and Anr PRE |
V.State of Madhya PRE |
Pradesh,(AIR 1952 SC 343 1952 Indlaw SC 89),wherein it was observed thus: "It is well to remember that in cases where the evidence is of a circumstantial nature,the circumstances from which the conclusion of guilt is to be drawn should be in the first instance be fully established and all the facts so established shoul... |
Again,the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved PRE |
In other words,there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused PRE |
A reference may be made to a later decision in Sharad Birdhichand Sarda v PRE |
State of Maharashtra,(AIR 1984 SC 1622 1984 Indlaw SC 432).Therein,while dealing with circumstantial evidence,it has been held that onus was on the prosecution to prove that the chain is complete and the infirmity of lacuna in prosecution cannot be cured by false defence or plea PRE |
The conditions precedent in the words of this Court,before conviction could be based on circumstantial evidence,must be fully established PRE |
They are: (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established PRE |
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