JUDGEMENT SUMMARY:
Alli Noushad & v. Rasheed and Anr.
DATE OF JUDGEMENT:
18th February 2022
JUDGES:
K.V. Chandran, J.
C. Jayachandran, J.
PARTIES:
Alli Noushad (Appellant)
Rasheed and Anr. (Respondent)
SUBJECT
The HC of Kerela observes that the marital confidence under Section 122 of EA which jeopardizes public interest requires a re-visit. The Court believing in the primacy and paramountcy of truth votes against the continuance of the said provision. It directs the said section should be scrutinized in the context of changing values governing human and familial relations. It further directs the Registry to send a copy of the judgment to the Secretary, Ministry of Law and Justice, Government of India, and the Member Secretary, Law Commission of India.
AN OVERVIEW
1. The case presented by the Prosecution was that the Respondent had rammed the deceased who was in the car and then stabbed him thrice with a knife. The deceased had succumbed to the fatal injuries inflicted to him by the Respondent.
2. The motive established for the offence was that the Respondent had suspected the illicit relationship between his wife and the deceased. To prove the motive the wife of the Respondent was examined who spoke about a quarrel between the couple before the day of the incident regarding the chat between her and the deceased over the phone.
3. The Prosecution had examined 21 witnesses marking 16 material objects. For the defence of the Respondent, 2 witnesses were examined and 4 documents were marked.
4. The Additional Session Court had acquitted the Respondent of the offence on the grounds that:
a. The solitary eye-witness had a strange and improbable reaction on witnessing the incident and thus, the evidence adduced by him was unsafe to rely upon.
b. Theevidence adduced by the wife of the Respondent was inadmissible on grounds of marital confidence.
c. Discarded all the evidence provided by the Prosecution
5. The wife of the deceased had preferred the appeal before the HC assailing the impugned judgment of the Trial Court.
IMPORTANT PROVISIONS
Code of Criminal Procedure 1973
Section 372– Provides for appeal from orders requiring security or refusal to accept or rejecting surety for keeping the peace or good behavior
Section 378- Provides for appeal in case of acquittal
Indian Penal Code 1860
Section 300- Defines offence of murder
Section 302- Specifies punishment for murder
Section 506-Specifies punishment for criminal intimidation
Indian Evidence Act(EA)1872
Section 122- Outlines Martial Confidence
ISSUES
- Whether the solitary eye witness was wholly reliable?
- Whether the evidence tendered by the wife of the Respondent was admissible given the express bar under Section 122 of the EA?
ANALYSIS OF THE JUDGMENT
1. In Rajan v. State of M.P., 1999 SC had enumerated the following principles for considering appeal against an order of acquittal:
a. While hearing an appeal against an order of acquittal, HC possessed the same power as it possessed in an appeal against an order of conviction.
b. The HC was empowered to reconsider the whole issue, reappraise the evidence, and come to a conclusion, even if the findings of the Trial Court were perverse.
c. For reversing the findings of acquittal of Trial Court, HC was required to consider each ground on which the order of acquittal was based and to record its own reasons for not accepting and not subscribing to the same.
d. The presumption of innocence of the accused wasfortified and strengthened by the order of acquittal from the Trial Court.
e. If a different reasonable view surfaced based on fresh scrutiny and reappraisal of the evidence and other material on record, the view which favored the accused would be adopted.
f. The trial Court had the advantage of looking at the demeanour of witnesses and observing their conduct in the Court, especially in the witnessbox.
g. The accused was entitled to benefit of doubt which would be such that a reasonable person would honestly and conscientiously entertain as to the guilt of the accused.
h. The findings recorded by Trial Court would be perverse until the HC had arrived at a definite conclusion and the HC would not substitute its view on a totally different perspective.
i. The Appellate Court would interfere with the judgment of acquittal only on compelling and substantial grounds such as the impugned judgment was unreasonable and relevant and convincing materials were unjustifiably eliminated in the process.
2. In Narinder Singh v. State of Punjab, it was held that the HC would interfere in an appeal against acquittal if the Trial Court had rejected the evidence of eyewitnesses based on wrong assumptions. In AllaRakha K.Mansuri v. State of Gujarat, it was held that the Appellate Court was required to re-appreciate the evidence if the lower court had ignored the admissible evidence and had acted on surmises, conjectures, and had assumed contradictions to acquit the accused.
3. It was unscientific and illogical to presume a standard behaviour from human beings in a given situation. The conclusion that the Trial Court had drawn based on the deviation from the so-called standard behaviour was rather fallacious. Neither could standard behaviour be expected from the witness of a crime nor could the witness be branded as reliable or unreliable solely based on standard behaviour.
4. In VadiveluThevar v. State of Madras, SC had classified the witnesses into three categories-
a. Wholly reliable witness- The conviction could be solely based on the solitary testimony of the witness.
b. Wholly unreliable witness- Liable to be discarded completely.
c. Neither wholly reliable, nor wholly unreliable witness- The court would be cautious and look for corroboration in material particulars through reliable testimony, either direct or circumstantial.
5. After the cross-examination of the solitary eye witness, the authenticity of the evidence adduced by him could not be discredited. There was no inordinate delay on his part to give the statement to the police, except for a single day and nothing contradictory was present. 2 other witnesses were held reliable as in cross-examination of one, the evidence remained unshaken and the same facts were vouched by another witness.
6. Section 122 of EA recognized the concept of marital confidence that all communications between spouses during the wedlock were sacrosanct. In the 2nd report of The Commission of Common Law Procedure, England it was observed that domestic confidence was inviolable and the compulsion of public disclosure of confidential communications between husband and wife would be a great evil.
7. In Emperor v. Ramchandra Shankarshet Uravane, it was held that prohibition contained in Section 122 of EA did not rest on the technicality that could be waived at will. Rather it was founded on the principle of high import which the Courts were not entitled to relax. Further, it was laid that the prohibition was on every communication between husband and wife regardless of whatever nature they were.
8. Section 122 of EA barred the witness from disclosing the 'communication' made to them by their spouse during their marriage. The Apex Court in Ram Bharosey v. State of U.P. had laid emphasis on the distinction between ‘communication’ and ‘acts and deeds’. The disclosure of acts and deeds of one spouse in the presence of the other was not barred under the said Section.
9. In Bhalchandra Namdeo Shinde v. State of Maharashtra, the HC of Bombay had held that the acts of one spouse witnessed by the other were admissible in the Court. The statement of the Respondent’s wife was regarding the quarrel which was a deed or conduct and not a communication.
10. When closely scrutinized, it would come to light the Respondent’s wife had disclosed the grounds of the quarrel which had proved the motive. However, in doing so, she had disclosed the communication which was not admissible as per Section 122 of EA. Therefore, the evidence regarding the quarrel and the reason behind it fell within the ambit of the prohibited compartment of communication between spouses.
11. The evidence adduced by the wife of the Respondent was not reckoned. The prosecution could not establish the alleged motive.In Vilas Raghunath Kurhade v. State of Maharashtra,HC of Bombay had recognized the sacrosanctity of spousal communications as peril and had recommended the State Government to approach the Law Commission or the Ministry of Law and Justice, Government of India with a proposal for amendment of Section 122 of EA.
CONCLUSION
The HC had scanned the pieces of evidence from both prosecution and defence and arrived at the conclusion that the Respondent was guilty of the offence. It was observed that the impugned judgement of the Trial Court was based on surmises and conjectures. The Appeal was allowed and the challenged judgement was set aside. The Respondent was imposed with the punishment of life imprisonment along with a fine of Rs.2,00,000/- to be paid to the wife and children of the deceased as compensation.
