Case BriefsHigh Courts

Delhi High Court: The Court  recently in a Criminal Appeal considered the mitigating circumstances to award an appropriate sentence to the accused-appellant. The facts of the case were that the accused was charged under Section 307 IPC. In Section 313 CrPC statement, the appellant denied his involvement in the crime and pleaded false implication. However, he was convicted by the trial court.

Before the High Court, APP pleaded that the appreciation of evidence and witness by the trial court was not appropriate and crime weapon allegedly recovered was not identified by the victim in his court deposition. The appellant in his testimony had named the appellant as accused. But the Crime weapon allegedly recovered in this case was not identified by the victim in his Court deposition.

The Court denied discrediting the statement of the victim merely because he had not identified the weapon. The Court went on to discuss the gravity of evidence that an injured victim’s statement possesses and accordingly cited various case laws. It observed that in State of Uttar Pradesh v. Naresh, (2011) 4 SCC 324, Supreme Court had averred that the testimony of an injured witness is accorded a special status in law as it is difficult to believe that he would spare the actual offender in order to falsely implicate someone else.

Considering the precedents, the Court decided to rely on the victim’s statement and upheld the conviction. However, with regard to the sentence, the Court took into account the mitigating circumstances such as that the appellant had a younger brother and old aged parents to take care of them, that he was a first time offender and was aged 25 years of age at the time of commission of offence. Accordingly, the Judge modified the sentence of 7 years RI along with a fine of Rs. 50,000 as compensation to victim to the extent that RI shall be for five years with fine Rs. 50,000 and default sentence for non-payment of fine would be SI for two months. [Jitender Khari v. State, 2017 SCC OnLine Del 6953, decided on 09.02.2017]

Case BriefsSupreme Court

Supreme Court: Deciding an interesting question of law as to whether consecutive life sentences can be awarded to a convict on being found guilty of a series of murders for which he has been tried in a single trial, the 5 judge bench of T.S. Thakur, CJ, Fakkir Mohamed Ibrahim Kalifulla, A.K. Sikri, S.A. Bobde and R. Banumathi, JJ answered the question in negative and held that while multiple sentences for imprisonment for life can be awarded for multiple murders or other offences punishable with imprisonment for life, the life sentences so awarded cannot be directed to run consecutively. Such sentences would, however, be super imposed over each other so that any remission or commutation granted by the competent authority in one does not ipso facto result in remission of the sentence awarded to the prisoner for the other.

The matter in which the aforementioned question arose was that the appellants were tried for several offences including an offence punishable under Section 302 IPC for several murders allegedly committed by them in a single incident. They were found guilty and sentenced to suffer varying sentences, including a sentence of imprisonment for life for each one of the murders committed by them and the sentence of imprisonment for life for each one of the murders was directed to run consecutively.

The Court, interpreting the provision under Section 31 of CrPC which deals with sentences in cases of conviction of several offences at one trial, held that the power of the Court to direct the order in which sentences will run is unquestionable in view of the language employed in Section 31 of the Cr.P.C. The Court can, therefore, legitimately direct that the prisoner shall first undergo the term sentence before the commencement of his life sentence. Such a direction shall be perfectly legitimate and in tune with Section 31. The converse however may not be true for if the Court directs the life sentence to start first it would necessarily imply that the term sentence would run concurrently. That is because once the prisoner spends his life in jail, there is no question of his undergoing any further sentence. [Muthuramalingam v. State, 2016 SCC OnLine SC 713, decided on 19.07.2016]

Case BriefsSupreme Court

Supreme Court: While dealing with the question of the sentencing of a juvenile in light of the enactment of the Juvenile Justice Act 2000 during the pendency of the case, the Bench comprising of V. Gopala Gowda and Uday Umesh Lalit JJ., set aside the sentence of life-imprisonment of the Appellant and remitted the matter to the Jurisdictional Juvenile Board. The Court also recommended that fine should be levied and compensation should be paid by the Appellant to the victim’s family.

In the present case, the Appellants were convicted on the basis of the dying declaration of a man they had allegedly set on fire. The Court dismissed the first criminal appeal no. 2084/2009, as provocation or unreliability of dying declaration were insufficiently proved. The next Appeal turned upon the fact that Appellant Dilshad was of age 16 years, 5 months and 5 days on the date of the occurrence i.e. 27.12.1990, when the Juvenile Justice Act, 1986 was operative, whereby a 16-year old was not juvenile. During the pendency of the appeal to the High Court, the Juvenile Justice (Care and Protection of Children) Act, 2000 came into force, effectively replacing the earlier Act. As reiterated in Pratap Singh v. State of Jharkhand (2005) 3 SCC 551, and Bijender Singh v. State of Haryana (2005) 3 SCC 685, Section 20 of the new Act considers pending cases, and provides via a non obstante clause an exemption for proceedings pending before the Courts. In such cases, a finding shall be recorded, but in lieu of sentencing, the Court was to hand over the juvenile to the custody of the Juvenile Justice Board which was to pass relevant orders. The Court also relied on Dharambir v. State (NCT of Delhi) (2010) 5 SCC 344 in terms of determining juvenility of juvenile in which it was said that the determination even during revision or appeal proceedings, has to be in accordance with clause (l) of Section 2 even if the juvenile ceases to be a juvenile on or before 1-4-2001.
.
The Court while holding appellant Dilshad to be juvenile in terms of the 2000 Act as on the day of occurrence and guilty of the offence with which he was tried, set aside the sentence of life imprisonment passed against him and remit the matter to the Jurisdictional Juvenile Justice Board for determining the appropriate quantum of fine that should be levied on the appellant Dilshad and the compensation that should be awarded to the family of the deceased keeping in mind the directions issued in Jitendra Singh v. State of U.P., (2013) 11 SCC 193. Further, the bail bonds furnished by Appellant Mumtaz were cancelled and taken in custody forthwith to undergo the sentence awarded to him.  [Mumtaz v. State of Uttar Pradesh 2016 SCC OnLine SC 653, decided on 01-07-2016]

Case BriefsHigh Courts

Calcutta High Court: While dealing with a death reference the Court cancelled the death sentence awarded by Trial Court to a person convicted for rape and murder of an Eight year old girl, by modifying the conviction from Section 302 IPC to Section 304 (II) IPC and sentenced him to ten years imprisonment. The court allowed the appeal in part and but did not approve the death sentence reference. The Trial Court had sentenced the appellant to death for the offence under Section 302 of Indian Penal Code and has also sentenced the appellant for the offence under Sections 363, 376(2)(f) and 201 IPC.

The division bench comprising of Nadira Patherya and Debi Prosad Dey JJ. said that “It is apparent from the facts and circumstances of this case that the convict had no intention to commit murder of the victim but the victim could not bear the violent onslaught of the convict at the time of commission of such offence under Section 376 (2)(f) of the Indian Penal Code. The convict had also definite knowledge that by such action the victim could have died.  Relying on the aforesaid decision of the Apex Court we do hold that such offence of the convict would squarely fall within the purview of Section 304 (II) of the Indian Penal Code and accordingly we reduce the sentence awarded by the learned Trial Judge under Section 302 of Indian Penal Code to one under Section 304 (II) of Indian Penal Code and sentence him to suffer Rigorous Imprisonment for 10(ten) years and to pay a fine of Rs.10,000/-(Ten thousand) i.d. Rigorous Imprisonment for 2(two) years.”

The Court further also set aside conviction under Section 201 IPC by stating: “Admittedly, the convict/appellant after commission of such offence concealed the dead body under water hyacinth of a pond in order to cause dis-appearance of the evidence of offence but ultimately the dead body was recovered pursuant to the information given by the convict/appellant. The convict/appellant also did not conceal the whereabouts of the dead body though initially he had concealed the dead body.  Therefore we do not find any applicability of Section 201 of the Indian Penal Code and accordingly the conviction of the appellant under Section 201 of the Indian Penal Code is set aside.” However the Court upheld the order of conviction and sentence passed for the offence under Section 376(2)(f)  & 363 of the Indian Penal Code. The bench further said that, ‘we answer the death reference in the negative and modify the sentence awarded by learned trial Judge, as stated herein above and set aside the order of conviction and sentence against the convict in respect of the offence under Section 302 (by reducing the same under Section 304 (II) of the Indian Penal Code) and Section 201 of Indian Penal Code.’ [Binay Majhi v. State of West Bengal, Criminal Appeal No.857 of 2013, Decided on 19.05.2016]

Supreme Court

Supreme Court: In the present case, where the appellant was convicted under Sections 363, 366 and 376 of IPC for coaxing a minor girl into marriage and subsequent physical relationship, the Division Bench of Dipak Misra and Dr. A.K. Sikri, JJ., denied the appellant’s request for reduction of his sentence on the grounds that, consent of a minor girl for sexual intercourse does not amount to consent at all, because at the young age of 16 a girl can be easily lured into taking such actions without a second a thought towards the future implications. Therefore, consent given by a minor for sexual intercourse cannot act as a mitigating circumstance for reduction of sentence in a rape case, for even if consent of a minor girl exists, the other partner in the sexual act is treated as a rapist under Section 375 (Sixthly) of IPC. The Court further added that if minor girl’s consent is considered as a mitigating circumstance, then the future consequences of such observation might be severe.  

In the present case, where the offence took place in the year 1993 when the prosecutrix was a minor, the appellant was held guilty by the Trial Court, which was later affirmed by the High Court. The appellant pleaded before the Court that as a result of a love affair between the appellant and the prosecutrix the sexual intercourse between them was consensual. The appellant further pleaded that at present the prosecutrix is happily married whereas the appellant is a poor man and the sole breadwinner for his family, therefore as a mark of sympathy, his sentence should be reduced. The respondents were represented by Hemantika Wahi. Mohan Pandey assisted the Court in absence of the appointed amicus curaie.

In the present case the Court observed that in the event of the prosecutrix’s minority, her consent for the intercourse gets invalidated by the virtue of Section 375 (sixthly) of IPC which was enacted by the legislature with the rationale that a minor is incapable of thinking reasonably for giving a consent, therefore in law a minor’s consent is treated as no consent. A minor consenting to an action such as having a sexual intercourse is not treated as an informed consent as, such consent has not been arrived at with proper deliberations, therefore a duty is cast on the other person in not taking an advantage of the supposed consent. The Court thus stated that, as per the facts of the case, the appellant has committed rape of a minor girl and his sentence under the Penal provisions is well within the parameters and spirit of Protection of Children from Sexual Offences Act. Satish Kumar Jayantilal Dabgar v. State of Gujarat, 2015 SCC OnLine SC 198, decided on 10.03.2015      

Supreme Court

Supreme Court: While deciding a case related to scope of stay of conviction under Section 389(1); CrPC, the Division Bench comprising M.Y. Eqbal and Kurian Joseph, JJ. observed that unless there are exceptional cases of irreparable injury coupled with irreversible consequences resulting in injustice, the appellate court shall not stay the conviction, though the sentence may be suspended. However, it was held that there is no hard and fast rule or guidelines as to what are those exceptional circumstances.

In the instant, where the appellant was convicted under Sections 147, 148, 302/144 and 120B, IPC, appeal arose from the order of the Allahabad High Court  which granted bail to the appellant but refused to stay the appellant’s conviction.. The appellant, represented by M/S Anuradha and Associates, contended that he will be deprived of his source of livelihood if the conviction is not stayed.

The Court, relying upon Navjot Singh Siddhu v. State of Punjab, (2007) 2 SCC 574, observed that the person seeking stay of conviction should specifically draw the attention of the appellate court to the consequences that may arise if the conviction is not stayed. If the convict is involved in crimes which are so outrageous and yet beyond suspension of sentence and if the conviction also is stayed then it would have serious impact on the public perception. Such orders definitely will shake the public confidence in judiciary. Therefore the Court rejecting the appellant’s contention held that the appellant has been convicted for serious offences like rioting and criminal conspiracy and the manner in which it was committed does not make it a rare and exceptional case for staying the conviction. Shyam Narain Pandey v. State of U.P., Criminal Appeal No. 1515 of 2014, decided on 22.07.2014

To read the full judgment, refer to SCCOnLine

High Courts

Bombay High Court: Rejecting an appeal made by an accused challenging the conviction holding him guilty for murdering his wife, a division bench comprising of VK Tahilramani and AS Gadkari, JJ upheld the conviction based on the testimonies of his two minor children. As per the testimonies, the children had seen their father assaulting the mother at home and later throwing her into a nearby well. Apart from the testimonies, the Court also took into account the medical evidence given by the doctor in the post-mortem report of the mother, cited the cause of death to be asphyxia  due to drowning which further corroborated the evidence placed on record. As per the Counsel for the respondent, the appellant had a history of domestic violence. Four years prior to the incident, the appellant had caused injuries to his wife and mother-in-law. On account of this, he was prosecuted but subsequently that case was compounded. About 15 days prior to the incident, the accused had again attacked his wife and out of fear, she had come to her brother’s house to take shelter along with the children. However, she was sent back by her brother and was brutally murdered about a fortnight later. After going through the evidence as well as the arguments made by the counsel for the appellant, the Court held that based on the evidence on record, they find no difficulty in coming to the conclusion that it was the appellant who assaulted his wife and threw her in the well causing her death, and thereby dismissed the appeal. Pandhari Sukhdeo Mothe vs. State of Maharashtra, Criminal Appeal No. 175 of 2012, decided on June 9, 2014

To read the full judgment, click here