SC Order On Review Petition in Soumya Case

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ITEM NO.301
COURT NO.6
S U P R E M E C O U R T O F
RECORD OF PROCEEDINGS
SECTION II/IIB
I N D I A
SUO MOTU REVIEW PETITION (CRL) NO.1/2016

IN RE BLOG PUBLISHED BY JUSTICE MARKANDEY KATJU IN FACEBOOK
IN
CRIMINAL APPEAL NOS.1584-1585 OF 2014
GOVINDASWAMY
...APPELLANT
VERSUS
STATE OF KERALA
.RESPONDENT
WITH
R.P.(CRL.) NO.D 32189/2016 IN CRL.A. NOS. 1584-1585/2014
R.P.(CRL.) NO.655-656/29016 IN CRL. A. NOS.1584-1585/2014
Date : 11/11/2016 These petitions were called on for hearing today.
CORAM :
HON'BLE MR. JUSTICE RANJAN GOGOI
HON'BLE MR. JUSTICE PRAFULLA C. PANT
HON'BLE MR. JUSTICE UDAY UMESH LALIT
Mr. Justice Markandey Katju, Judge (Retd.), SCI
For parties:
Signature Not Verified

Digitally signed by
VINOD LAKHINA
Date: 2016.11.12
13:56:07 IST
Reason:
Mr.
Mr.
Mr.
Ms.
Mr.
Mr.
Ms.
Mukul Rohatgi, AG
A. Suresan, Adv.
Nishe Rajen Shonker, Adv.
Anu K.Joy, Adv.
Gajendra Khichi, Adv.
Prasaran, Adv.
Diksha Rai, Adv.
Mr.
Mr.
Mr.
Mr.
Mr.
Ms.
Mr.
Siddharth Luthra, Sr. Adv.

Huzefa A. Ahmadi, Sr. Adv.
Aljo Joseph, Adv.
Ritesh Kumar Chowdhary, Adv.
Shahruk Alam, Adv.
Shelna K., Adv.
Atul Nagarajan, Adv.
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UPON hearing the counsel the Court made the following

O R D E R
The review petitions are dismissed in terms of the
signed order.
[VINOD LAKHINA]
COURT MASTER
[ASHA SONI]
COURT MASTER
[SIGNED ORDER IS PLACED ON THE FILE]
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IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION
SUO MOTU REVIEW PETITION (CRL) NO.1/2016
IN RE BLOG PUBLISHED BY JUSTICE MARKANDEY KATJU
IN FACEBOOK
IN
CRIMINAL APPEAL NOS.1584-1585 OF 2014
GOVINDASWAMY
...APPELLANT
VERSUS
STATE OF KERALA
.RESPONDENT
WITH
R.P.(CRL.) NO.D 32189/2016

IN
CRL.A. NOS. 1584-1585/2014
[SUMATHI VS. GOVINDASWAMY AND ANR.]
R.P.(CRL.) NO.655-656/29016
IN
CRL. A. NOS.1584-1585/2014
[STATE OF KERALA VS. GOVINDASWAMY]
ORDER
1.
Review of a judgment in a criminal
proceeding is provided for by the Supreme
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Court Rules, 2013 (Part IV Order XLVII]

is only in a situation where there is an
error apparent on the face of the record.
What is an error apparent on the face of
the
record
need
not
detain
the
Court.
Suffice it will be to say that an error

which
is
sought
long process
to
be
established
by
of reasoning would not be
such an error.
2.
This is an aspect that will have
to be kept in mind while we proceed to

consider
the
very
elaborate
arguments
advanced by the learned counsels for the

State of Kerala and the mother of victim
and the assistance offered/rendered by Mr.
Justice Markandey Katju at our request.
3.
The views of Justice Katju are in
no way in addition to or different from

what has been argued by Shri K.T.S. Tulsi,
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learned
senior
Rohatgi,
counsel
learned
behalf
of
the
Review
Petition
and
Shri
Attorney
State
of
filed
General
Kerala
by
Mukul
the
on
in
the
State
and
also Shri Ahmadi and Shri Luthra learned

senior
counsel
petitioner
in
32189/2016
appearing
Review
i.e.
the
for
the
Petition
mother
review
D.
of
No.
the
unfortunate victim.
4.
the
Though there are several limbs of

arguments
concentration
advanced,
may
the
be
area
of
conveniently
compartmentalized into two.
First, it is
urged that the Court has erred in relying

on inadmissible evidence being the hearsay
evidence
of
P.W.4
(Tomy
P.W.40 (Abdul Shukkur).
Devassia)
and
It is contended
that such hearsay evidence ought to have

been rejected summarily and could not have
gone into the process of determination of
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the culpability of the accused as has been

done in the impugned judgment.
5.
The issue with regard to hearsay
evidence
centers
deposition
of
testified
before
round
P.W.
part
of
the
and
P.W.
40
who
the
examination-in-chief
Court
that
in
their
though
they
wanted to stop the moving train by pulling

the alarm chain they were dissuaded by a
middle-aged man who was standing at the
door of the compartment by saying that the
victim/girl had jumped out from the train
and escaped and that she was alive.
The
Court in its judgment dated 15th September,

2016
took
the
aforesaid
part
of
the
deposition as a piece of relevant material

for adjudication of the issue before it
and held that on the face of the aforesaid
evidence Injury No.2 cannot be ascribed to
the
accused.
According
to
the
medical
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evidence
placed
prosecution
on
Injury
record
No.1
(the
by
the
involvement
of the accused in respect of which there

is no doubt) coupled with Injury No.2 had
led to the death of the victim girl.
6.
The
very
elaborate
argument
advanced on this score is capable of being

answered by a reference to Section 6 and
Illustration (a) thereof of the Evidence
Act, 1872 which engrafts in the Evidence
Act
the
principle
of
res
gestae.
The
statement made by the middle-aged man to

P.Ws.4
and
40
being
spontaneous
and
prosecution
case
contemporaneous
that
and
also
no
being
attempt
and
the
having
been made to discredit this part of the

evidence tendered, we are of the view that
in
case
where
the
liability
of
the
accused is to be judged on the touchstone

of
the
circumstantial
evidence
the
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aforesaid part of the deposition of P.Ws.

4
and
40
must
determination
go
of
into
the
the
process
culpability
of
of
the
accused to rule out any other hypothesis

inconsistent
with
the
guilt
of
the
accused.
7.
The
next
limb
of
the
case
projected before the Court at this stage

is that the offence of murder falls within
the Third and Fourth clause of Section 300
of the Indian Penal Code, 1860 (IPC for
short).
earlier
Shri
In this regard, reliance, on the

date
Mukul
of
hearing,
Rohatgi,
was
placed
learned
by
Attorney
General for India on two decisions; one

reported
in
the
case
of
Bassappa
and
others versus State1 and another decision

of this Court reported in Joginder Singh
and another versus State of Punjab2
1
2
AIR 1980 MYSORE 228

(1980) 1 SCC 493
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8.
It
said
is
submitted,
judgments,
that
relying
even
on
if
the
the
controversy as to whether the deceased was

pushed or had voluntarily jumped is to be
answered
said
in
favour
accused
would
of
the
still
accused,
be
liable
the
for
Injury No. 2.
9.
In
Bassappa
and
others
versus
State (supra), the Mysore High Court was

confronted
with
situation
where
the
deceased was on the roof of the house of

accused No.3 alongwith P.W.2, watching the
burning
accused.
deceased
haystacks
belonging
to
the
The accused perceived that the

and
P.W.2
were
enjoying
the
misery of the accused whose haystacks were

burning.
There was a history of previous
enmity between the parties.
Apparently,
at the spot i.e. roof of the house, the
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accused assaulted the deceased on the nape

of
the
neck
whereupon
roof.
with
the
sharp-edged
deceased
Thereafter,
the
jumped
accused
weapons
from
the
threw
the
deceased into the burning haystacks.
The
medical
was
opinion
inconclusive,
was
caused
in
namely,
by
the
the
case
whether
the
wounds
death
sustained
by
sharp-edged weapons or from the fall or

from burning.
The High Court doubted the
evidence of P.W. 1,
cause
of
death
due
to
accused
from
However,
it
held
evidence
is
to
be
still
be
guilty
would
the
the doctor so far as

jumping
roof
that
is
even
the
concerned.
if
accepted
of
by
the
the
said
accused
murder.
The
reasoning appears to be that though the

three
circumstances
in
which
death
had
occurred are different, yet, having regard

to the close proximity of time in which
they had occurred and the inter connection
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between the same the three incidents may

be taken as one.
What cannot be ignored
is that in the Mysore case intention to

cause death or atleast a bodily injury to
bring the case within the third and fourth
clause of Section 300 is more than evident
from the injuries caused by the accused on
the nape of the neck by sharp weapons or
by throwing the victim in to the burning
haystack.
It is on the said basis that
the conclusion holding the accused guilty

under Section 302 IPC was returned by the
High Court.
We do not see how the said
judgment can have any application to the

facts of the present case wherein the role
of the accused in causing injury No. 2 by
pushing
the
victim
out
of
train
is
not
free from doubt and the medical opinion is

to
the
effect
that
Injury
NO.
1,
by
itself, was not sufficient to cause death.
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10.
In
Joginder
Singh
and
another
versus State of Punjab (supra) the accused

apparently
chased
the
deceased
dangerous weapons across a field.

distance
of
about
15-20
feet
with
At the
from
the
accused, the deceased jumped into a Well,

hit his head on the side of the wall of
the Well and drowned himself. This Court
while
deciding
the
culpability
of
the
deceased in the aforesaid circumstances of

the
offence
of
murder
exonerated
the
accused by recording the following view:
11.
We will now deal with the
death of Rupinder Singh. After
Kuldip
Singh
was
attacked,
Rupinder Singh ran from his
house towards the fields.
He
was followed, apparently chased
by Joginder Singh and Balwinder
Singh.
According to PW 1,
Rupinder Singh jumped into a
well 'in order to save himself'.
Joginder
Singh and
Balwinder
Singh were about 15 to 20 feet
from Rupinder Singh when he
jumped into the well. It is not
the case of the prosecution nor
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11
is there any evidence to justify

such a case, that the accused
drove Rupinder Singh to jump
into the well leaving him no
option except to do so.
From
the evidence of PW 1 we are
unable to get a clear picture of
this part of the incident.
It
is
not
the
case
of
the
prosecution that Rupinder Singh
was beaten on the head and then
thrown into the well. According
to
the
medical
evidence
he
received an injury on the head
which
made
him
lose
consciousness and thereafter he
died
of
asphyxia,
due
to
drowning.
Apparently
when
Rupinder Singh jumped into the
well
his
head
hit
a
hard
substance with the result that
he
lost
consciousness
and
thereafter died of asphyxia. In
the circumstances of the case we
are unable to say that the death
of Rupinder Singh was homicidal,
though we are conscious of the
fact that what induced Rupinder
Singh to jump into the well was
the circumstance that Joginder
Singh and Balwinder Singh were
following him closely.
If we
were
satisfied that
Joginder
Singh and Balwinder Singh drove
him to jump into the well
without the option of pursuing
any other course, the result
might have been different. As
the
evidence
stands
we
are
unable to hold that the death of
Rupinder Singh was caused by the
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doing of an act by Joginder

Singh and Balwinder Singh with
the
intention
or
knowledge
specified in Section 299, Indian
Penal Code. Joginder Singh and
Balwinder Singh are, therefore,
entitled to be acquitted of the
charge
of murdering
Rupinder
Singh. (Underlining is ours)
11.
No other decision has been pointed
out to us. In this regard, we may also

usefully notice the provisions of Section
113-A
which
of
the
Indian
engrafts
Evidence
the
Act,
1872
principle
of
presumption to be drawn from the acts of

cruelty in order to hold a husband guilty
of abetment of suicide by the wife. The
legislative wisdom has not engrafted any
such principle of presumption insofar as
the offence of murder is concerned.
12.
Though
the
scope
of
the
present
review petitions is confined to the above
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13
two
questions,
questions,
certain
including
incidental
an
alleged
confessional statement made by the accused

before P.W. 47 were also urged.
it
will
be
to
say
that
extra-judicial
confession
confidence
the
of
Court
the
Suffice
aforesaid
cannot
because
circumstances surrounding the same.
inspire
of
the
It is
perhaps for this reason that the said plea

was not advanced before us by the learned
State counsel in the course of hearing of
the main appeal.
13.
Consequently and for the reasons
aforesaid, the review petitions filed by

the
State
victim
and
of
Kerala
also
the
and
the
suo
mother
motu
of
review
petition entertained by us have to fail

and are dismissed.
14.
We order accordingly.
We record our deep appreciation to
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14
Mr. Justice Markandey Katju, former judge

of this Court for the assistance rendered
to the Court.
....................,J.
(RANJAN GOGOI)
....................,J.
(PRAFULLA C. PANT)
....................,J.
(UDAY UMESH LALIT)
NEW DELHI
NOVEMBER 11, 2016

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SUO MOTU REVIEW PETITION (CRL) NO.1/2016

Signature Not Verified

Siddharth Luthra, Sr. Adv.

UPON hearing the counsel the Court made the following

[SIGNED ORDER IS PLACED ON THE FILE]

IN THE SUPREME COURT OF INDIA

R.P.(CRL.) NO.D 32189/2016

Review of a judgment in a criminal

proceeding is provided for by the Supreme

Court Rules, 2013 (Part IV Order XLVII]

Suffice it will be to say that an error

of reasoning would not be

This is an aspect that will have

to be kept in mind while we proceed to

advanced by the learned counsels for the

The views of Justice Katju are in

no way in addition to or different from

also Shri Ahmadi and Shri Luthra learned

Though there are several limbs of

compartmentalized into two.

urged that the Court has erred in relying

P.W.40 (Abdul Shukkur).

that such hearsay evidence ought to have

the culpability of the accused as has been

The issue with regard to hearsay

wanted to stop the moving train by pulling

Court in its judgment dated 15th September,

deposition as a piece of relevant material

of the accused in respect of which there

advanced on this score is capable of being

statement made by the middle-aged man to

been made to discredit this part of the

accused is to be judged on the touchstone

aforesaid part of the deposition of P.Ws.

accused to rule out any other hypothesis

projected before the Court at this stage

In this regard, reliance, on the

General for India on two decisions; one

others versus State1 and another decision

AIR 1980 MYSORE 228

controversy as to whether the deceased was

State (supra), the Mysore High Court was

deceased was on the roof of the house of

The accused perceived that the

misery of the accused whose haystacks were

There was a history of previous

enmity between the parties.

at the spot i.e. roof of the house, the

accused assaulted the deceased on the nape

deceased into the burning haystacks.

sharp-edged weapons or from the fall or

The High Court doubted the

the doctor so far as

reasoning appears to be that though the

occurred are different, yet, having regard

between the same the three incidents may

What cannot be ignored