Case BriefsHigh Courts

Bombay High Court: A Division Bench comprising of B.R. Gavai and Sarang V. Kotwal, JJ. allowed an appeal filed against the order of conviction and sentence under Section 302 IPC passed by the trial court.

The appellant was convicted for the murder of the watchman of his housing society. The appellant stabbed the deceased with a knife for refusing to irrigate plants at his home. He was convicted by the order of the trial court, against which present appeal was preferred. Counsel for the appellant prayed for a benefit under Section 84 IPC as the appellant was suffering from paranoid schizophrenia.

The High Court perused the record and found that on an earlier occasion also, the appellant was tried under the same section but was given the benefit of Section 84 by the trial court. Reference was made to Supreme Court decision in Shrikant Anandrao Bhosale v. State of Maharashtra, (2002) 7 SCC 748, to observe that the circumstances of unsoundness of mind before and after the incident is a relevant fact to draw the inference that the appellant was under ailment at the relevant time, when he committed the crime. Appellant also examined his doctor that proved a history of mental illness. Further, immediately after the incident, the appellant was admitted to the hospital for the treatment of paranoid schizophrenia. It was held that the appellant had discharged the burden to show that he was suffering from unsoundness of mind at the time of the incident. Hence, the trial court was not right in refusing to grant him benefit under Section 84. Thus, the appeal was allowed and the appellant was acquitted. [Mohammed Rafiq Shahabuddin Shaikh v. State of Maharashtra,2018 SCC OnLine Bom 1461, dated 29-06-2018]

Case BriefsForeign Courts

‘Sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender’

Supreme Court of Canada: The 7-Judge Bench comprising of Abella, Moldaver, Karkatsanis, Wagner, Gascon, Côté and Rowe JJ., delivered a 6:1 majority decision by stating that refusing to provide a breath sample especially so when a death occurs clearly calls for a serious criminal offence set out in Section 255(3.2) of the Criminal Code

In the present case, Mr Suter was arrested for driving his car onto a restaurant patio, which caused a fatal accident of a two-year-old kid. When the stated accident took place, Mr Suter was having a heated argument with his wife and while parking the car in front of the restaurant, he accidentally pulled the gas pedal instead of the brake and drove into the patio. On being arrested, he spoke to his legal aid lawyer who advised him not to give his ‘breath sample’.

Further, Mr Suter pleaded guilty for refusing the breath sample after causing an accident where someone died for which the sentencing judge gave a sentence of four months plus a thirty-month driving ban. Ideally, Mr Suter should have been sent to the jail of over 3 years but his sentence was lowered on the reasoning that he was given wrong advice by his lawyer which reduced his burden of moral blame. But, the Court of Appeal increased his sentence to 26 months.

On analysing the facts and circumstances of the case Michael Moldaver  J. speaking for the majority placed an essential remark on the sentence placed by the sentencing judge and Court of Appeal. According to the majority, the sentence given of 4 months in prison by the sentencing judge was said to be inappropriate as the reasoning behind the sentence was highly concentrated towards Mr Suter not being drunk and receiving ill-legal advice, though his point on reduced sentence than normally given in other cases was a valid one as the circumstances in the instant case were of ‘unique’ nature. Further, the error caused by the Court of Appeal was of increasing the sentence due to the recasting of charges.

Therefore, in the instant case, the majority took note of all the essentialities of the case along with the sentences provided by the lower courts and stated that Mr Suter’s sentence be reduced to one of time served just over 10 and a half months without interfering with the prohibition on driving and allowing the appeal by re-sentencing and considering all the mitigating factors stated in the appeal.[R v. Suter, 2018 SCC 34, decided on 29-06-2018]

Case BriefsHigh Courts

Bombay High Court: A Division Bench comprising of B.R. Gavai and Sarang V. Kotwal, JJ. decided a criminal appeal wherein the sentence of the appellant (convict) was reduced from life imprisonment to eight years.

The appellant, who threw acid on the victim, was convicted for the offences punishable under Sections 326 and 341 IPC. According to the High Court, the incident appeared to be an outcome of a love affair between the appellant and the victim. It appeared that both were in love with each other for a long time. However, when the appellant asked the victim for marriage, she refused. On such refusal, the appellant became angry and threatened the victim. On the date of the incident, when the victim was proceeding towards her college, the appellant threw acid on her face and shoulder. The appellant was convicted as stated above and sentenced to life imprisonment. In the High Court, the appellant confined his challenge to the quantum of punishment.

The High Court, considered the factual matrix as mentioned hereinabove. It was further noted that during the pendency of the appeal, the matter had been amicably settled between the appellant and the victim. They had solemnized marriage with each other. Further, the victim was undergoing plastic surgery for which the expenses were being paid by the appellant. Not only this, but the appellant had also undertaken to donate skin for the surgical procedure. It was noted that the appellant had already undergone the sentence of more than eight years, which, considering the nature of the factual background, was found to be more than sufficient. The Court held it to be just and necessary that the appellant and the victim be permitted to lead a peaceful life. Accordingly, while upholding his conviction, the sentence awarded to the appellant was reduced to the period already undergone by him. The appeals were disposed of in above terms. [Anil Shivaji Patil v. State of Maharashtra,  2018 SCC OnLine Bom 1408, decided on 27-06-2018]

Case BriefsHigh Courts

Delhi High Court: A Single Judge Bench comprising of Pratibha M. Singh, J. dismissed a criminal appeal while upholding the conviction and sentence of the appellant (accused) inter alia for the offence punishable under Section 397 IPC.

The appellant was accused of robbery by the use of a deadly weapon- a knife. It was alleged that the appellant along with other co-accused entered the house of the victims, threatened them with a knife and robbed their house. On victim’s information, FIR was registered, the appellant was apprehended, arrested, charged, tried, convicted and sentenced by the trial court inter alia under Section 397 IPC. The appellant approached the High Court challenging the decision of the trial court contending that since the deadly weapon (a knife in this case) was not recovered, the appellant could not have been convicted under the section.

The High Court referred to a long catena of decisions to reach a conclusion that recovery of the weapon was not essential to convict the appellant under Section 397. The Court relied on Ashfaq v. State (NCT of Delhi), (2004) 3 SCC 116 wherein the Supreme Court referred to Phool Kumar v. State (UT of Delhi), (1975) 1 SCC 797 wherein it was held, “… what is essential to satisfy the word ‘use’ for the purpose of Section 397 is the robbery being committed by an offender who was armed with deadly weapon which was within the vision of the victim so as to be capable of creating a terror in the mind of the victim… knife is equally a deadly weapon, for purposes of Section 397”. The High Court referring to its earlier decisions held, the fact that the knife was not recovered would not matter as long as eye-witnesses to the crime are able to convincingly and consistently recount the fact that they were threatened by the sight of the accused wielding the knife while parting with their belongings. Placing reliance on the precedents and discussions held therein, the Court held, recovery of the weapon is not essential for conviction for an offence under Section 397 IPC. The Court, while holding that ingredients required for conviction under Section 397 were satisfied by the testimonies of prosecution witnesses, upheld the conviction and sentence awarded by the trial court and dismissed the appeal. [Murlidhar v.  State,2018 SCC OnLine Del 9401, dated 01-06-2018]

Case BriefsHigh Courts

Punjab & Haryana High Court: A Single Judge Bench comprising of Jaishree Thakur J., addressed an appeal challenging the judgment of the lower court in regard to the reduction of sentence.

The brief facts of the case state that the appellant was a convict under Sections 366 & 376 of IPC, for committing the rape of a 6 year old child. On recording of the statements of the accused under 313 CrPC all the allegations on his part were denied and he pleaded innocence. Appellant was acquitted earlier by the session’s court. However, on appeal, the matter was remanded back by the High Court after setting aside appellant’s acquittal. And thereafter, he was convicted as aforesaid.

The Learned Counsel for appellant by placing reliance on the various precedents submitted that his Right of speedy trial under Article 21 of the Constitution of India grants him the leniency and reduction of sentence awarded as he already has faced trial for 25 years.

However, the Hon’ble High Court on observing the above said facts and circumstances and the instance of cases given by the learned counsel for appellant in reference to the reduction of sentence, stated that “Rape” is a heinous offence which along with physical scars impact the mental well-being of the child equally and in a huge extent and manner. While stating the above-mentioned contentions of the appellant, Court also focused on a case of State of Rajasthan v. Vinod Kumar, 2012(6) SCC 770, in this case also reduction of sentence was demanded for an offence of rape and the accused was granted reduction of the sentence, though the Hon’ble Supreme Court held that “deciding the case in such a casual manner reduces the criminal justice delivery system to mockery.”

Therefore, keeping a sight of all the stated contentions and instances placed upon, the High Court dismissed the appeal of the convict finding no merits on the defence that he had put forward as the fact that the victim a 6 year old child was raped, the award of sentence of 10 years was rightly imposed in accordance to Section 376(2)(f) IPC. [Inder Sain  v. State of Punjab;2018 SCC OnLine P&H 797; dated 04-05-2018]

Case BriefsHigh Courts

Patna High Court: A Single Judge Bench comprising of Aditya Kumar Trivedi, J. allowed a criminal appeal and set aside the conviction and sentence of the appellant under Section 307, 333 and 34 IPC along with Section 27(1) of Arms Act.

The appellant was accused of firing gunshot at the injured Assistant Sub-Inspector (informant) while he was returning from election duty. It was alleged that the appellant came on a motorcycle from behind along with the co-accused and fired gunshot at the petitioner thereby injuring him. The FIR was registered in the case, the appellant was apprehended, charge sheet filed, and he was tried, convicted and sentenced as mentioned above. The appellant challenged the order of the trial court in the instant appeal.

The High Court, on a careful consideration of the record, inter alia observed that the informant saw the appellant who came from behind, only after the gunshot had been fired. As there was no other person to be seen on the road, the informant inferred that it was the appellant who had injured him. The conviction was based on the fardbeyan of the informant, and such inference as was made by the informant could not be made a basis for conviction of the appellant. Further, identification of the appellant was done by the informant while he was in the police station in another case, and no proper test identification parade was conducted which was another irregularity which demanded consideration while deciding the case. In such circumstances, the High Court allowed the appeal and set aside the order of conviction and sentence passed against the appellant. [Santosh Yadav v. State of Bihar,2018 SCC OnLine Pat 955, dated 29.05.2018]

Case BriefsHigh Courts

Jammu and Kashmir High Court: A Single Judge Bench comprising of Tashi Rabstan, J. allowed the application filed by the applicant-convict for travelling USA for medical check-up and meeting his children.

The applicant was convicted and sentenced under Section 471 of Ranbir Penal Code. In an appeal preferred by the applicant herein against his conviction and sentence awarded by the learned Additional Sessions Judge, the High Court had suspended the sentence awarded to him and also admitted him to bail. The applicant had moved an application before the High Court for grant of permission to travel the United States of America.

The High Court perused the record and noted that even during his trial, the applicant was permitted, on several occasions, to travel abroad for a medical check-up. He never flouted any such permission granted by the trial court. In fact, each time, the applicant had returned before the stipulated time as granted by the courts below. The Court held the reason put forth by the applicant for travelling abroad, i.e. getting a medical check-up and meeting his children, as genuine. In such circumstances, the High Court allowed the application and permitted the applicant to travel USA subject to the conditions imposed. [Rajinder Nath Raina v. State of J&K,2018 SCC OnLine J&K 329, dated 01-06-2018]

Case BriefsHigh Courts

Uttaranchal High Court: While answering the criminal reference in a case falling under the category of ‘rarest of rare cases’, a Division Bench comprising of Rajeev Sharma and Alok Singh, JJ. confirmed the death sentence awarded to the respondent in Sessions trial.

The respondent was convicted under Section 302 IPC for murder and was sentenced to capital punishment. He was further convicted and sentenced under Sections 436, 392 and 411 IPC. The respondent was working as a Mechanic in the motorcycle showroom of one Sanjay Kumar. One Lalita also worked there as a Supervisor. Lalita complained to Sanjay about the appellant, and he was removed from the job. The appellant developed a grudge against them and on a fateful day, the respondent murdered Sanjay by giving him knife blows; chased Lalita and did away with her life; threatened the onlookers; and before escaping, put fire to the showroom. The respondent was tried, convicted and sentenced by the Sessions Court as mentioned above. Learned Additional Sessions Judge made a reference to the High Court for confirmation of death sentence awarded to the respondent.

The High Court considered the record including depositions of the witnesses. The respondent gave a knife blow on the neck of Sanjay and inflicted as many as 10 injuries on Lalita. The medical expert who conducted post-mortem examination deposed that the deceased died due to shock and hemorrhage as a result of excessive bleeding. The Court considered it established that the respondent murdered the deceased and set the showroom ablaze in presence of the witnesses whose testimony could not be assailed. He did not show any repentance, instead threatened the onlookers with dire consequences in case they tried to apprehend him. The Court held that the case fell in the category of ‘rarest of rare’ cases. In the given circumstances, the death sentence awarded to the respondent was confirmed. [State v. Sehzaad Ali, 2018 SCC OnLine Utt 522, dated 01-06-2018]

Case BriefsHigh Courts

Bombay High Court: The sentence of the appellant who was convicted for kidnapping and rape, was reduced to the period already undergone by him, by a Single Judge Bench comprising of K.K. Sonawane, J.

The appellant was accused of forcibly taking away the prosecutrix (victim), who was a minor at the time of incident. She was taken away on the pretext of marriage and the appellant had sexual intercourse with her a number of times during that period. The appellant was charged under Section 361 read with Section 363, Sections 366 and 376 IPC. He was convicted by the trial court for the offences charged under. The appellant challenged the order of the trial court.

On considering the record, the High Court found that at the relevant time, the victim was 14 years of age. It was proved by the School Leaving Certificate signed by the Headmaster of the School. The evidence led by the prosecution and the statement of witnesses proved that the appellant kidnapped the victim and therefore committed the offence under Section 361 read with 363 IPC. Further, the fact of the appellant having sexual intercourse with the victim was proved by the medical report. And since the victim was below 16 years of age, therefore, her consent doesn’t count and the appellant was guilty of offences under Sections 366 and 376. However, the facts remained that the victim never raised alarm as to her kidnapping, never informed or tried to contact her family, lived with the appellant as husband and wife, and also that the appellant was a youngster, 24 years old, at the time of commission of the offence. The High Court finally upheld the conviction of the appellant; however, his sentence was reduced to the period already undergone by him in light of the mitigating circumstances as noted hereinabove. Thus, the appeal was partly allowed. [Bapu v. State of Maharashtra, 2018 SCC OnLine Bom 920, dated 03-05-2018]

Case BriefsHigh Courts

Himachal Pradesh High Court: A Division Bench comprising of Sanjay Karol and Ajay Mohan Goel, JJ., decided a public interest litigation-writ petition, wherein it held that the benefits of remission in sentence cannot be provided to convicts under Narcotic Drugs and Psychotropic Substances (NDPS) Act, 1985.

A letter petition was addressed to the Court by the convicts undergoing imprisonment in various jails of the State for offences punishable under the NDPS Act. The petitioners alleged discrimination and inaction on the part of Authorities in granting remission in sentence to such convicts. The Court took suo moto cognizance, and issued notice to the State. The Director General of Prisons (Himachal Pradesh) filed a reply submitting that such convicts were not entitled to benefit of remission in view of the provisions contained in the NDPS Act itself.

In order to settle the controversy, the Court perused various provisions of the Act and relying on decision of the Supreme Court in Tara Singh v. Union of India, (2016) 11 SCC 335; held that the petitioners do not have a right to seek remission under the Code of Criminal Procedure because of Section 32-A of the NDPS Act. However, they can seek relief either under Article 72 or 161 of the Constitution, as the case my be. Section 32-A provides that notwithstanding anything in the CrPC, no sentence awarded under the NDPS Act (other than Section 27), shall be suspended or remitted or commuted.

The Court was satisfied with the response filed by the State and consequently, closed the proceedings. [State of H.P., In re, 2018 SCC OnLine HP 265, order dated 6.3.2018]

Case BriefsHigh Courts

Chhattisgarh High Court: In a criminal appeal filed before a Single Judge Bench comprising of Arvind Singh Chandel, J., the sentence awarded to the appellants-accused under Section 304 IPC was restricted to the period already undergone by them.
The appellants were convicted and sentenced to imprisonment for 5 years along with payment of fine by the trial court for the offence committed under Section 304 IPC. Counsel appearing for the appellants submitted that the record did not show that the injury caused to the deceased was caused by the appellants. Further, the appellants were facing the litigation for nearly 16 years; they had already undergone the sentence for 20 months. The counsel prayed that the sentence imposed on the appellants may be restricted to the period already undergone by them. Counsel for the State supported the order of the trial court.
In order to solve the controversy, the High Court referred to a Supreme Court decision passed in Ravinder Singh v. State of Haryana, (2015) 11 SCC 588, wherein it was observed that the question of sentence is always a difficult task requiring balancing of various considerations; it is a matter of discretion to be exercised on consideration of circumstances aggravating and mitigating in individual cases. In the instant case, the High Court found that at the time of the occurrence of incident, the appellants were about 25 years of age and now they are about 40 years of age. They were facing litigation for about last 16 years and they had no criminal antecedents. Court was of the view that it would be in the interest of justice to reduce the sentence of appellants to the period already undergone by them.
Thus, the High Court ordered accordingly and also enhanced the amount of fine imposed on the appellants which was directed to be distributed among the legal representatives of the deceased. [Guddu alias Ram Prasad v. State of Chhattisgarh,  2018 SCC OnLine Chh 155, dated 21-02-2018]

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.
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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