Plea of fraud raised at the stage of execution of decree.
The assignment of agreement, which was basis of decree sought to be challenged claiming the signatures on the deed to bea forgery but no explanation offered for delay of 16 years in raising the question.
Kalyani executed an agreement for sale on 27.12.1968 in favour of second plaintiff-Vasudevan Pillai. Second plaintiff assigned the aforesaid agreement on 05.08.1978 in favour of one Rajayyan and the said Rajayyan assigned the agreement in favour of third plaintiff-Selvi on 10.03.1983. As pointed out earlier, all the three plaintiffs filed final decree application in I.A. No.120 of 1985. After the disposal of the matter by the first appellate court and when the second appeal was pending before the High Court, second plaintiff Vasudevan Pillai filed an affidavit on 07.01.2013 before the trial court – District Munsiff Court, Kuzhithurai alleging that a fraud has been played on him and denying the right of third plaintiff-Selvi to pursue the final decree application. Continue reading “Plea of fraud after 16 years delay”
Duty of appellate court:
It is the duty of an appellate Court to look into the evidence adduced in the case and arrive at an independent conclusion as to whether the said evidence can be relied upon or not and even if it can be relied upon, then whether the prosecution can be said to have been proved beyond reasonable doubt on the said evidence. The credibility of a witness has to be adjudged by the appellate court in drawing inference from proved and admitted facts. It must be remembered that the appellate court, like the trial court, has to be satisfied affirmatively that the prosecution case is substantially true and the guilt of the accused has been proved beyond all reasonable doubt as the presumption of innocence with which the accused starts, continues right through until he is held guilty by the final Court of Appeal and that presumption is neither strengthened by an acquittal nor weakened by a conviction in the trial court.
Appeal against acquittal:
The power of the appellate Court in an appeal against acquittal is the same as that of an appeal against conviction. But, in an appeal against acquittal, the Court has to bear in mind that the presumption of innocence is in favour of the accused and it is strengthened by the order of acquittal. At the same time, appellate Court will not interfere with the order of acquittal mainly because two views are possible, but only when the High Court feels that the appreciation of evidence is based on erroneous considerations and when there is manifest illegality in the conclusion arrived at by the trial Court.
In the present case, there was manifest irregularity in the appreciation of evidence by the trial Court. The High Court based on sound principles of criminal jurisprudence, has interfered with the judgment of acquittal passed by the trial Court and convicted the accused as the prosecution was successful in proving the guilt of the accused beyond reasonable doubt.
Distinction between Murder and Homicide not amounting to murder:
It is important to have a look at the evidence of PW 5-Dr. Arvind Kanwar who has conducted Post mortem and according to him there was an incised wound on the right parietal region of size 4” and 10” above right ear and another incised wound of 1” in size on the right index finger. He has deposed that “the brain was found congested, yet no fracture was seen on the scalp”. Though in the cross examination he has stated at one place that the injury No 2 on the scalp might be ‘grievous’ that caused brain hemorrhage. This particular fact is not noted in the postmortem report. Regarding the cause of such injury, PW5 stated that it can be caused by striking with sharp edged object and the depth of the scalp injury depends upon the force and speed. He maintains the stand that it was a ‘scalp injury’ and not ‘skull injury’. Moreover, he did not measure the depth of the head injury which was necessary for classification of injury. Continue reading “Death due to brain hemorrhage”