Gauhati High Court Digest, 16 to 31 August 2023
Nominal Index
Aman Jindal And 2 Ors. Vs. M/S Dayal Enterprises And 3 Ors.
2023 STPL(Web) 66 Gauhati: Civil Procedure – Counter claim after framing of issues
Ani Ram Panging Sivasagar Vs. State Of Assam
2023 STPL(Web) 50 Gauhati: Murder – offence not modified
Assam Khadi And Village Industries Board Vs. Manalisha Deka
2023 STPL(Web) 61 Gauhati: Service Law – Promotion
Afiya Begum Laskar And 28 Ors Vs. State Of Assam
2023 STPL(Web) 70 Gauhati: Gram Panchayat – Allotment of Shops
Balindra Pran Kakati Vs. State Of Assam And Ors.
2023 STPL(Web) 64 Gauhati: Service Law – Promotion – Non consideration of
Charua Kachua @ Sushil Kujur Vs. State Of Assam
2023 STPL(Web) 58 Gauhati: Murder – Confession
Smti. Dipti Mali Vs. Dr. (Mrs.) Mausomi Madhab And Others
2023 STPL(Web) 59 Gauhati: Service Law – Selection
Dipen Rajkonwar Vs. State Of Assam
2023 STPL(Web) 72 Gauhati: Culpable Homicide – Benefit of doubt
Sri Hiranya Kumar Sarma Vs. State Of Assam
2023 STPL(Web) 60 Gauhati: Service Law – Promotion with retrospective effect
Kamala Phukan Vs. State Of Assam And 4 Ors.
2023 STPL(Web) 73 Gauhati: Land Acquisition – Non Payment of Compensation
Mridul Gogoi Lakhimpur, Assam Vs. State Of Assam
2023 STPL(Web) 52 Gauhati: Murder – offence modified
Sri Matiram Munda Vs. State Of Assam
2023 STPL(Web) 68 Gauhati: Murder – Offence modified
Mufosil Ali Vs. State Of Assam
2023 STPL(Web) 71 Gauhati: Rape – Conviction upheld
Pabitra Nath Vs. State Of Assam And 4 Ors.
2023 STPL(Web) 54 Gauhati: Anganwadi Center – Complaint against
Smt. Punam Devi And 5 Ors. Vs. Reliance General Insuranc Co. Ltd. And Anr.
2023 STPL(Web) 65 Gauhati: Employee Compensation – Overtime wages
Ramani Malakar Vs. State Of Assam And 4 Ors
2023 STPL(Web) 69 Gauhati: Service Law – Experience – Recruitment
Rnt Plantations Limited Vs. Oil And Natural Gas Corporation Ltd. And Ors
2023 STPL(Web) 53 Gauhati: Land Acquisition – Non Payment of Compensation
Renu Bhuyan Vs. Ananda Saikia And Anr.
2023 STPL(Web) 62 Gauhati: Eviction – Title of Property
Sunil Murari Vs. State Of Assam
2023 STPL(Web) 51 Gauhati: Murder and Rape – Conviction upheld
Sanjit Chandra Das Vs. Assam Fisheries Development Corporation Ltd. And 7 Ors.
2023 STPL(Web) 56 Gauhati: Tender – Invalid Bakijai Clearance Certificate
Shyam Sundar Saha Vs. State Of Assam And 4 Ors.
2023 STPL(Web) 57 Gauhati: Service Law: Delay of 28 years – Cost imposed with dismissal
Sri Sirish Das Vs. State Of Assam And Anr.
2023 STPL(Web) 67 Gauhati: Rape – Conviction Upheld
Sourav Baruah Vs. State Of Assam And 4 Ors.
2023 STPL(Web) 74 Gauhati: Service Law – Voluntary Retirement
Union Of India Vs. M/S. P. P. Enterprisefancy Bazaar
2023 STPL(Web) 63 Gauhati: Review – No merit to be seen
Subject Index
Civil
Anganwadi Center – Complaint against – Nothing found in inquiry – Mentioned in report that petitioner are collusively filing complaint against the respondent due to previous enmity – Held: Taking into account the said report, this Court finds no reason for issuance of a writ in the instant case for which the instant writ petition stands dismissed. (Para 3, 4) Pabitra Nath Vs. State Of Assam And 4 Ors.: 2023 STPL(Web) 54 Gauhati
Tender – Invalid Bakijai Clearance Certificate – Rejection of bid – Petition against – Held: the interpretation of the terms of the tender document is best left to the tendering authority and if the interpretation so made is manifestly in consonance with the language of the tender document, the Court should follow the principle of restraint – Appellant herein was rightly disqualified in the technical evaluation process. (Para 22, 23) Sanjit Chandra Das Vs. Assam Fisheries Development Corporation Ltd. And 7 Ors. : 2023 STPL(Web) 56 Gauhati
Code of Civil Procedure, 1908 – Section 114 read with Order XLVII Rule 1– Review – No merit to be seen – Held: The petitioner has treated this review application as an appeal by touching the merit of the case. There is no error apparent on the face of the record to invite review of the order under Order 47 Rule 1 of the Civil Procedure Code. Review dismissed. (Para 12) Union Of India Vs. M/S. P. P. Enterprisefancy Bazaar: 2023 STPL(Web) 63 Gauhati
Code of Civil Procedure, 1908 – Order VIII Rule 6C – Civil Procedure – Counter claim after framing of issues – Order VIII Rule 6C this does not give absolute right to the defendants to file the counterclaim with substantive delay – Many factors to be considered – Held: The learned trial court committed error by allowing the defendants to file their counter-claim after framing of issues. The impugned order is set aside accordingly. The counter-claim filed by the defendants after framing of issues, shall be taken into consideration while trying the suit. (Para 7, 9) Aman Jindal And 2 Ors. Vs. M/S Dayal Enterprises And 3 Ors.: 2023 STPL(Web) 66 Gauhati
Gram Panchayat – Allotment of Shops – Fraudulent allotment of shop to petitioners – Lease deed issued by the President of the Gaon Panchayat in his own individual capacity and they do not have any sanctity in the eyes of law. Allotment to respondents after due procedure of tender held to be valid – No relief to petitioners. (Para 2, 18) Afiya Begum Laskar And 28 Ors Vs. State Of Assam: 2023 STPL(Web) 70 Gauhati
Criminal
Indian Penal Code, 1860 – Section 302 – Murder – offence not modified – Main plea regarding motive – Held: The evidence of PW shows that there were four stab injuries on the back side of the head of the deceased and the said injuries were inflicted by a sharp weapon. Keeping in view the four cut injuries inflicted on the vital part of the body of the deceased, we are of the view that there is nothing to attract the Exceptions to Section 300 IPC in the present case. (Para 22) Ani Ram Panging Sivasagar Vs. State Of Assam : 2023 STPL(Web) 50 Gauhati
Protection of children from of sexual offences, 2012 – Section 4 – Indian Penal Code, 1860 – Section 302, 366 – Murder and Rape – Conviction upheld – Appeal against conviction – Appreciation of Evidence – Held: In the instant case are concerned, it was duly proved that the death of the deceased was homicidal. It was also proved that prior to her death, she was sexually abused as the Medical Officer proved that on examination of the victim, he found injuries on her private parts.
It was also not disputed that the accused/appellant had taken the deceased with him on the previous evening. Thereafter, on the next day morning, the dead body of the deceased was found lying in a dilapidated katcha house adjacent to the house of the complainant. The time gap between the period when the deceased was last seen with the accused/appellant and the recovery of the corpse of the deceased being quite proximate, the non-explanation of the accused/appellant with regard to the circumstances under which and when the accused/appellant had departed the company of the deceased was a very crucial circumstance proved against him.
The evidence of the Scientific Officer who examined the wearing apparels of the deceased and the accused/appellant also supported the fact that he noticed human blood and semen on the wearing apparels of the victim girl and the undergarments of the accused/appellant. When the statement of the accused/appellant was recorded under Section 313 Cr.P.C, he did not say anything as to when he had parted from the deceased and there is no explanation from his side as to how the incident occurred.
We do not find any ground to interfere with the judgment recorded by the learned Trial Court. (Para 44, 45) Sunil Murari Vs. State Of Assam: 2023 STPL(Web) 51 Gauhati
Evidence – Extra Judicial Confession – In view of the contradictory statements regarding extra judicial confession made by the accused/appellant, we are of the view that such type of extra judicial confession has no such value in the eye of law. (Para 44) Sunil Murari Vs. State Of Assam: 2023 STPL(Web) 51 Gauhati
Indian Penal Code, 1860 – Section 302 – Murder – offence modified – Appeal against conviction – Appreciation of evidence – Held: There is no allegation by any of the prosecution witnesses that the accused had any motive or intention to cause death of the deceased. This incident occurred as a result of a sudden fight without any premeditation, in the heat of passion and upon a sudden quarrel. The offender had not taken undue advantage by acting in an unusual manner. The accused had inflicted bodily injuries on the deceased which were of such a nature that were likely to cause death. There can be no doubt that the accused intended to cause and did cause the injuries, and is therefore, liable to be punished under first part of Section 304 of IPC.
The scenario in which the accused had been stated by the eye-witnesses to have given one blow on the deceased, it is difficult for us to hold that he gave the blow in question either with the intention of causing murder of the deceased or he could have had the requisite knowledge that death would otherwise be the inevitable result. In such a situation, even on accepting the prosecution case, we hold that the accused did not commit the offence under Section 302 IPC but under Part-I of Section 304 IPC. We set aside the conviction of the accused under Section 302 IPC and instead convict him under Section 304 Part-I of the IPC.
The appeal is partly allowed. The conviction under Section 302 IPC is scaled down to section 304 Part-I IPC and we convict the accused under Section 304 Part-I to undergo 10 (ten) years rigorous imprisonment. (Para 27, 28) Mridul Gogoi Lakhimpur, Assam Vs. State Of Assam :2023 STPL(Web) 52 Gauhati
Indian Penal Code, 1860 – Murder – Confession – Retracted – it could not be shown by the appellant before this Court that there were any procedural lapses in recording of the confessional statement of the appellant, so as to give him any benefit of doubt. Injuries as told in confessional statement matches in medical evidence – Retraction not at early stage but during statement u/s 313 Cr PC – Held: Not a fit case to discard the confessional statement. (Para 38, 40, 41, 43) Charua Kachua @ Sushil Kujur Vs. State Of Assam : 2023 STPL(Web) 58 Gauhati
Indian Penal Code, 1860 – Murder – Sudden Provocation – No evidence that deceased had given a grave and sudden provocation to the appellant – Held: The appellant could not establish that the deceased had given a grave and sudden provocation to the appellant, which provoked the appellant to assault her. (Para 44) Charua Kachua @ Sushil Kujur Vs. State Of Assam : 2023 STPL(Web) 58 Gauhati
Indian Evidence Act, 1872 – Section 106 – Indian Penal Code, 1860 – Murder – Motive – Held: Failure of the prosecution to prove the motive of the appellant to kill his wife in this case would not be fatal to the prosecution and the appellant would not be entitled to be acquitted because the crime took place in the confines of their matrimonial home and under section 106 of the Evidence Act, 1872, it was his burden to prove what had happened in the confines of their matrimonial home. (Para 45) Charua Kachua @ Sushil Kujur Vs. State Of Assam : 2023 STPL(Web) 58 Gauhati
Indian Penal Code, 1860 – Section 376(AB) – Protection of Children from Sexual offences Act, 2012, Section 6 – Rape – Conviction Upheld – Appeal against conviction – Appreciation of evidence – Held: We are of the considered view that the evidences are credible, reliable and trustworthy and the conviction can be based on the testimony of the prosecutrix which is corroborated by the other evidences particularly PW2 and PW3, although conviction can be based on sole testimony of the prosecutrix which warrants no interference. We have, therefore, no incertitude in holding that the evidence led by the prosecution establishes the charges brought against the appellant beyond reasonable doubt. Therefore, the learned Trial Court had rightly convicted the appellant. (Para 72) Sri Sirish Das Vs. State Of Assam And Anr.: 2023 STPL(Web) 67 Gauhati
Indian Evidence Act, 1872 – Section 26 – Indian Penal Code, 1860 – Section 302 – Murder – offence modified – Appeal against conviction – Appreciation of evidence – Held: However, considering the facts and circumstances of this case and the evidence on record in its entirety, it may not be wrong to presume that on the date of incident also the assault by the present appellant on his wife was preceded by quarrel between the present appellant and his wife and upon such quarrel, the present appellant hit his wife with a bamboo stick and she fell down as a result of the same and in the process her enlarged spleen suffered injuries and got ruptured causing her death. Hence, in the considered opinion of this Court, the act of present appellant would fall under exception 4 to Section 300 of the Indian Penal Code and as the appellant did not intend to kill his wife, however, the knowledge that his act of assault by lathi may likely to cause death of his wife may be ascribed to him and thus, he is liable to be convicted under Section 304 Part II of the Indian Penal Code instead of Section 302 of the Indian Penal Code. Sentence modified to ten years imprisonment. (Para 42, 43) Sri Matiram Munda Vs. State Of Assam: 2023 STPL(Web) 68 Gauhati
Indian Evidence Act, 1872 – Section 26 – Confessional Statement – Not relied – Trial Court has correctly not relied upon the confessional statement of the present appellant as the appellant was produced before the Magistrate from police custody where he was kept for about 14(fourteen) hours and he was, given only 3(three) hours time for reflection which was not adequate to reflect upon before taking a major decision as to whether to make a confessional statement or not. It is also submitted that there is no evidence on record to show that the Magistrate who recorded the confessional statement made any enquiry to find out whether the confessional statement has been made voluntarily by the present appellant or not. (Para 24) Sri Matiram Munda Vs. State Of Assam: 2023 STPL(Web) 68 Gauhati
Indian Penal Code, 1860 – Section 376 – Rape – Conviction upheld – Medical Evidence against appellant – No consent established – Held: When the father of the victim girl was in jail and the perpetrator was her own related maternal grand-father and the fact that PW-3 in fact delivered a stillborn baby and there appears to be no cogent reason for the victim girl to falsely implicate the present appellant, mere delay of filing of FIR under such circumstances would not falsify the prosecution story. The testimony of PW-3 (victim girl), under the facts and circumstances in the instant case as discussed herein above is not liable to be discarded as it lacks any inherent infirmity or anything which creates doubt about its veracity. Petitioner rightly convicted. (Para 45, 46) Mufosil Ali Vs. State Of Assam :2023 STPL(Web) 71 Gauhati
Indian Penal Code, 1860 – Section 304 – Part 1, 324 – Culpable Homicide – Benefit of doubt – Appeal against conviction – Appreciation of evidence – Held: We have seen herein before that there are material contradiction in the testimony of main prosecution witnesses, namely, PW-1, PW-5 and PW-6 which renders their testimony unreliable. Moreover, in the instant case, the injuries sustained by the present appellant were serious in nature which required immediate surgical intervention and hospitalization of appellant for about thirteen days. As, during trial, the prosecution side has failed to explain the serious injuries sustained by the appellant at the time of occurrence, which only leads to the inference that the said prosecution witnesses, namely, PW-1, PW-5 and PW-6 have suppressed the genesis of the offence and have not presented the true version during trial making their testimony unreliable of any credence. The conviction of present appellant merely on the basis of assumption is not sustainable and he is entitled to get benefit of doubt under the facts and circumstances of this case. Conviction set aside. (Para 53, 56) Dipen Rajkonwar Vs. State Of Assam: 2023 STPL(Web) 72 Gauhati
Eviction
Indian Evidence Act, 872 – Section 58 – Code of Civil Procedure, 1908 – Order 8 Rule 5 – Eviction – Title of Property – Plea of tenant that he has purchased the property – Landlord got that property from his father through gift deed – Tenant plea rejected – Held: Plea of registered gift deed. has not been denied by the respondents in their written statement. Order 8 Rule 5 of the CPC, prescribes that every allegation of fact in the plaint if not denied specifically or by necessary implication or stated to be not admitted in the pleadings of the defendant, shall be taken to be admitted except against a person under disability. Similarly, the law of evidence under Section 58 of the Indian Evidence Act lays down that admitted facts need not be proved.
Registered Gift Deed is already proved and therefore, there is no need of proving the Gift Deed by examination of attesting witnesses. The respondents have failed to prove the title of tenant over the suit property. Therefore, the Sale has no value in the eye of law. First appeal court order against landlord set aside. (Para 14, 18) Renu Bhuyan Vs. Ananda Saikia And Anr.: 2023 STPL(Web) 62 Gauhati
Indian Evidence Act, 872 – Section 58 – Evidence – Admitted fact – The law of evidence under Section 58 of the Indian Evidence Act lays down that admitted facts need not be proved. (Para 14) Renu Bhuyan Vs. Ananda Saikia And Anr.: 2023 STPL(Web) 62 Gauhati
Labour Law
Employee’s Compensation Act, 1923 – Section 2(m) – Employee Compensation – overtime wages – Overtime wages is included in the wages of the workman – They have to be considered while determining compensation. (Section 5, 6) Smt. Punam Devi And 5 Ors. Vs. Reliance General Insuranc Co. Ltd. And Anr.: 2023 STPL(Web) 65 Gauhati
Land Acquisition
Petroleum and Minerals Pipelines (Acquisition of Right of User in Land) Act, 1962 – Land Acquisition Act, 1894 – Land Acquisition – Non Payment of Compensation – Directions to respondent to complete the process of assessing the amount of compensation, prepare a report and thereafter, proceed to pass an award in respect thereof. The aforesaid exercise be completed within an outer limit of six months from the date of receipt of a certified copy of this order. (Para 11) Rnt Plantations Limited Vs. Oil And Natural Gas Corporation Ltd. And Ors: 2023 STPL(Web) 53 Gauhati
Land Acquisition – Non Payment of Compensation – No dispute about the fact that land was acquired by the authorities – Merely because one Smti. Dimple Das had raised a claim over the land and filed a Title Suit, as noted above, in the absence of any restraint order passed by the Court, there was no justifiable ground for the authorities to deny the compensation payable to the petitioner on account of the land and at present, there is no proceeding pending before any court of law pertaining to the land in question. Direction to the respondents to pay compensation for acquiring the land of the petitioner, as per the rate fixed by the Reference Court (Para 8, 9, 11) Kamala Phukan Vs. State Of Assam And 4 Ors.: 2023 STPL(Web) 73 Gauhati
Service Law
Service Law – Delay of 29 years – Matter of seniority – The appellant, being a government servant, has tried to invoke the extra-ordinary writ jurisdiction of this Court to lay a lame challenge to an action which took place nearly 29 years ago which attempt by itself is depreciable. Intra Court writ appeal dismissed with Cost. (Para 7) Shyam Sundar Saha Vs. State Of Assam And 4 Ors. :2023 STPL(Web) 57 Gauhati
Service Law – Selection – Intra Court Writ appeals – Over riding effect of rules – Single Judge direction to consider the case of the writ petitioner for appointment under the Assam Police Service – Held: As the provisions of the Rules of 1989 have an overriding effect on other service rules, including the Assam Police Rules, 1966, the respondent/writ petitioner, having participated in the selection process with open eyes, could not have taken a U turn so as to question the validity of the process after having participated therein. The writ petitioner is clearly estopped from raising this challenge after having participated in the selection process under the prevailing rules and the conditions incorporated in the recruitment advertisement. Entertaining such a challenge would lead to a consequence that the rules of the games are being changed after the ball is set into motion. Such a course of action is impermissible in law – Single judge order quashed – Petition dismissed.(Para 14, 15) Smti. Dipti Mali Vs. Dr. (Mrs.) Mausomi Madhab And Others: 2023 STPL(Web) 59 Gauhati
Service Law – Promotion with retrospective effect – Intra court writ appeal against dismissal of writ – Held: The delay in promoting the appellant was on account of the process of promotion being stalled due to pending litigation wherein, injunction operated on the promotion and, hence, the delay was not on account of the administrative lapses – No relief can be granted to petitioner. (Para 7) Sri Hiranya Kumar Sarma Vs. State Of Assam: 2023 STPL(Web) 60 Gauhati
Service Law – Promotion – What will prevail, Executive instructions or Draft Rules – Held: The controversy shall be examined by the Secretary of the department in consultation with the Secretary of the Department of Personnel, Government of Assam. Till such process is undertaken, the respondent/writ petitioner shall continue to hold the post of Superintendent. However, she will not be entitled to claim any lien on the post based on the promotion (Para 14, 17) Assam Khadi And Village Industries Board Vs. Manalisha Deka: 2023 STPL(Web) 61 Gauhati
Service Law – Promotion – Non consideration of – Held: Neither the materials placed before this Court nor the affidavit-in-opposition of the Department discloses that there was a consideration of the case of the petitioner for promotion – While junior to petitioner promoted – Direction issued that the case of the petitioner be considered for promotion to the rank of Senior Grade I ACS by convening a review DPC for the vacancies arising in the year 2011. The aforesaid direction is however subject to the condition that the same only pertains to a consideration of the case of the petitioner for such promotion, wherein the criteria laid down in Rule 12, namely “merit with due regard to seniority” is required to be followed meticulously. (Para 16, 19) Balindra Pran Kakati Vs. State Of Assam And Ors.: 2023 STPL(Web) 64 Gauhati
Service Law – Experience – Recruitment – Person has eligibility criteria on the last date of submitting application – Respondent was not fulfilling criteria of experience on the last date of submitting application – Appointment quashed – Authorities are directed to consider the case of the petitioner and take steps for appointment in accordance with law. (Para 22, 23) Ramani Malakar Vs. State Of Assam And 4 Ors: 2023 STPL(Web) 69 Gauhati
Service Law – Voluntary Retirement – Rejection of application on ground of disciplinary proceedings – Charges are already settled by judicial pronouncement – Now cannot be opened – Direction to appropriate authority to pass immediate orders of accepting of voluntary retirement of the petitioner in terms of the findings and observations made in the earlier judgment and order.(Para 22, 26) Sourav Baruah Vs. State Of Assam And 4 Ors.: 2023 STPL(Web) 74 Gauhati
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