Case BriefsForeign Courts

Supreme Court of Western Australia: A Single Judge Bench of Jenkins, J., allowed an appeal filed against the order of magistrates court of Western Australia, whereby the appellant was sentenced to 6 months’ imprisonment without allowing appropriate reduction under the Sentencing Act, 1995.

The main issue that arose before the Court was whether the lower court was justified in sentencing the appellant to 6 months’ imprisonment for the offence of stealing, even though the appellant pleaded guilty.

The Court observed that as per the provisions of Section 9AA of the Sentencing Act, 1995, if an accused pleads guilty for the commission of an offence then the magistrate should mention the effect of such plea taken by the accused while passing the sentencing order. Even a late plea of guilty would warrant some reduction in sentence or a discount in the sentence. In the present case, the appellant had pleaded guilty at the first instance when he was produced before the magistrate and hence such plea was entered at an initial stage. The earliness of the plea of guilty had to be balanced against the strength of the prosecution case and there had to be some consideration of the competing factors by the magistrate.

The Court held that the sentencing judge had overlooked the provisions of the Sentencing Act, 1995 and the effect of the plea of guilty taken by accused was not discussed in the sentencing order. If the sentencing judge would have considered the plea taken by the accused then there would have been some mention of the competing factors relevant to determining the amount of the discount to be given for the plea of guilty. Resultantly, the appeal was allowed and the order of the lower court was set aside. [Jake Leon Thom v. Carly Davies, (2018) WASC 324, order dated 19-10-2018]

Case BriefsHigh Courts

Tripura High Court: A Single Judge Bench comprising of Arindam Lodh, J. partly allowed a criminal appeal filed against the judgment of the trial court whereby the appellant was convicted under the provision of IPC and Protection of Children from Sexual Offences Act, 2012.

The appellant was neighbor of the complainant – father of the victim. It was alleged that the appellant had taken the victim girl, aged six and half years, from her house by saying that she was being called by his mother. It was alleged that on their way, the appellant took the victim in a jungle and did ill act against her. She was found crying in the jungle and she narrated the incident to her parents after which the complaint was filed. The appellant was tried and convicted by the trial court under Section 376 (2) (i) and 511 IPC along with Section 10 POCSO Act. Aggrieved thereby, the instant appeal was filed.

The High Court perused the record and note that statements made by the victim that the appellant touched her private part were not substantiated by any scrape of evidence, rather in her cross she categorically denied the story which she narrated in her examination-in-chief. The doctor also found no injury on any part of her body. It was observed as a settled principle that to substantiate the allegation of rape, there has to be penetration even in the slightest form to the vagina of the female which was absent in the present case. The doctor in his evidence never stated that there was any penetration to the vagina of the victim. Further, to substantiate the charge under Section 511 IPC and Section 10 POCSO Act, the attempt of rape as well as the story of aggravated sexual assault is necessary to be proved beyond reasonable doubt. It was the view of the Court that the witnesses had tried to improvise the story which was not stated before the Magistrate. This raised serious doubts about the genuinity of the prosecution case in respect of rape or sexual assault. Thus, the accused was entitled to get the benefit of doubt. In the circumstances of the case, according to the Court, the appellant at best could be convicted under Section 354 of IPC. On consideration of the facts that the appellant was 21 years of age and was first time offender at the time of commission of the offence, the sentence of the appellant was reduced to the period already undergone by him. The appeal was disposed of in the terms of above. [Dipankar Sarkar v. State of Tripura,2018 SCC OnLine Tri 233, decided on 11-10-2018]

Case BriefsSupreme Court

Supreme Court: The 3-Judge Bench comprising of CJ Ranjan Gogoi and Sanjay Kishan Kaul and K.M. Joseph, JJ., dismissed an appeal filed by the accused-appellant for his conviction under Section 376 IPC for a sentence of 7 years.

The facts of the case as presented in the appeal are that the accused was convicted for raping a 16-year-old girl. The victim’s family was neighbors and friends with the accused’s family. The incident of rape happened in January 1996 but was discovered by the mother of prosecutrix only in May-June when the victim missed her cycle that she was 5 months pregnant.

The FIR in this regard was filed in the month of July 1996 stating that prosecutrix and her family did not want to spoil the reputation or bring disharmony in the family of the accused and later the complaint was filed only on the basis that the accused had denied providing funds for the victims’ abortion.

The Supreme Court Bench in the present case focused on the cardinal issue that has to be decided whether the initial act was consensual or a forcible act. Further, the Court stated that the close relations between the families and that being the reason for the delay in lodging an FIR cannot be brushed aside. Court also took notice of the facts that there was a solitary incident and was not followed by repeated acts which lead us to this act being non-consensual.

Therefore, the prosecution was successful in proving that it was a forcible act and not consensual which failed the present appeal by upholding the conviction and sentence of the accused-appellant. [P.J. Mathew v. State of Kerala,2018 SCC OnLine SC 2044, Order dated 04-10-2018]

Case BriefsInternational Courts

African Court on Human and Peoples’ Rights: The application had been filed under Rule 19 of the Court Rules from Provision 17 of the Court Practice Directions before the Court comprising of the following? Sylvain, President; Ben Kioko, Vice-President; Rafaa, Angelo, Suzanne, M-Therese, Tujilane, Chafika, Blaise, Stella, Anukam, JJ. and Robert ENO, Registrar.

Facts of the case were that the applicant had been convicted for raping a 15 year old girl, offence punishable under Sections 130(1) and (2)(e) and 131(1) of the Tanzanian Penal Code, as Revised in 2002 and was sentenced to thirty years imprisonment after which applicant filed a criminal appeal at High Court of Tanzania and subsequently criminal appeal before Court of Appeal of Tanzania. In both the appeals his sentencing was upheld after which applicant filed an application for review before Court of Appeal which was still pending. Applicant prayed that the guilty verdict and sentence should be annulled and he should be released.

The Court’s jurisdiction was challenged by respondent State stating that applicant wanted the Court to behave like an appellate body by praying to re-examine the matters of fact and get it examined by its judicial bodies. Whereas the Court was not under the power to do so. Applicant contended that if any provisions of this charter were violated then the Court has the power to review the matter. Court was of the view that though it is not an Appellate Court, can still examine if the procedure by national court were in conformity with the African Charter on Human and Peoples’ Rights. Therefore, Court stated itself to have material jurisdiction.

Respondent further objected to the admissibility of the application on two grounds that applicant had not exhausted all his local remedies and that he delayed the filing of application beyond a reasonable time. The Court observed that applicant has exhausted the local remedies as envisaged under Article 56(5) of the Charter and Rule 40(5) of the Rules of Court. On the second ground Court again favoured applicant stating him to be indigent, incarcerated person without any legal assistance which justifies his delay in filing the application.

Applicant in his application had alleged that his right to be heard was abridged by the Court of Appeal as they examined only a few arguments of the applicant while leaving the other argument unattended. However, the Court found no violation of applicant’s right to be heard.

Therefore, in light of the fact that applicant’s rights were not infringed his prayer to annul his conviction and sentence along with his prayer to be released from prison was dismissed. [Minani Evarist v. United Republic of Tanzania,2018 SCC OnLine ACTHPR 1, dated 21-09-2018]

Case BriefsHigh Courts

Gujarat High Court: A Division Bench comprising of Anant S. Dave and Biren Vaishnav, JJ., allowed a regular bail application along with the order of the suspension of the sentence.

The present application was preferred under Section 389 CrPC for the suspension of sentence and grant of bail for the offences punishable under Sections 302, 307, 324, 452, 118 and 114 IPC including a sentence for rigorous imprisonment for life with fine.

It was contended that both the petitioners who were convicts, were only seen abusing, instigating and giving fist blows, none of which constituted towards the injury conferred on the deceased or the injured person by any weapon of assault. Also, the witnesses present confirmed the same. Further, one of the cross-complainants was herself convicted under Section 323 of IPC and thus this version of the alleged allegation cannot be taken into consideration on the account of being untrustworthy. Hence the two incidences that took place on the same date and the nature of quarrel presuppose the involvement of both the parties.

The Court was of the view that the nature of testimonies implicated the petitioners for a limited role and prima facie, no clear or specific role of both the petitioners could be surfaced on record. Accordingly, the court deemed it just and proper to consider their case for suspension of sentence and grant of regular bail as prayed for and allowed the petition. [Kavlaben v. State of Gujarat, 2018 SCC OnLine Guj 1396, order dated 14-09-2018]

Case BriefsSupreme Court

Each criminal trial is but a quest for search of the truth.

Supreme Court: The Bench comprising of Ranjan Gogoi, Navin Sinha and K.M. Joseph, JJ. disposed of a criminal appeal filed against the judgment of Delhi High Court whereby the order of the trial court acquitting the appellant was reversed and she was convicted under Sections 302, 307 and 34 IPC.

The appellant, along with other co-accused, was alleged to have murdered the family (brother, sister, and mother) of her son-in-law (PW 1). As per prosecution case, the motive for the crime being that the accused were not happy with the marriage of her daughter with PW 1. The trial court, after appreciation of evidence, convicted four out of seven accused;  the appellant and two others were acquitted. However, the High Court, on an appeal, reversed the order of acquittal as far as the appellant was concerned. She was sentenced to undergo life imprisonment. Further, she was denied any remission in sentence until she completed 25 years in custody. Aggrieved thereby, the present appeal was filed by the appellant.

While adjudicating, the Supreme Court discussed the weightage of evidence by different witnesses, the duty of a Judge, and the proportionality of sentence in a criminal trial. A few of the important points as discussed and reiterated by the Court are delineated hereinafter:

  • In a criminal trial, normally the evidence of wife, husband, son or daughter is given great weightage on the principle that there is no reason for them not to speak the truth and shield the real culprit.
  • There is no reason why the same principle cannot be applied when such a witness deposes against a closely related accused.
  • It would require great courage of conviction and moral strength for a daughter to depose against her mother.
  • While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole inspires confidence.
  • The prosecution evidence may suffer from inconsistencies here and discrepancies there, but that is a shortcoming from which no criminal case is free. The main thing to be seen is whether those inconsistencies go to the root of the matter or pertain to insignificant aspects thereof.
  • The duty of a Judge presiding over a criminal trial is not merely to see that no innocent person is punished, but also to see that a guilty person does not escape. One is as important as the other. Both are public duties which a Judge has to perform.
  • Sentencing has always been a vexed question as part of the principle of proportionality. Once the appellant has been convicted with the aid of Section 34 IPC, there appears no justification to single out that convict for differential treatment in sentencing.

In the facts and circumstances of the present case, the Court held that the judgment impugned whereby the order of appellant’s acquittal passed by the trial court was reversed by the High Court, did not require interference. However, on the basis of the last point as delineated hereinabove, the direction given by the High Court for denial of remission in sentence to the appellant for 25 years was set aside. The appeal was disposed of in terms above. [Shamim v. State (NCT of Delhi), 2018 SCC OnLine SC 1559, decided on 19-09-2018]

Case BriefsSupreme Court

Supreme Court: Abhay Manohar Sapre, J. delivered the judgment for himself and Uday U. Lalit, J. wherein the appeal filed by the convict under Sections 294, 353, 504 read with Section 34 IPC, was allowed in part. The appeal was filed against the judgment of the Bombay High Court which  upheld his conviction and sentence awarded by the trial court.

As per the prosecution case, the appellant (Sarpanch of the village) along with the co-accused (Member of Gram Panchayat) reached the Zilla Parishad primary school. They asked PW-1, the teacher, as to why he was not regular and punctual. The explanation given by PW-1 did not satisfy the appellant. PW-1 was asked to bring the book of circle-in-charge which  was refused by PW-1. Thereafter, PW-1 was held from the collar of his shirt and beatings were given to him. The appellant along with the co-accused was tried and convicted for the charges as mentioned above by the trial court. An appeal was preferred to the High Court which acquitted the co-accused but the appeal so far it concerned the appellant herein was dismissed. Aggrieved thus, the appellant filed the present appeal.

The Supreme Court considered the factual matrix and was of the opinion that the sentence awarded to the appellant deserved to be modified. For reaching such conclusion, the Court gave relevance to four facts which are enumerated hereinafter:

  • Firstly, the appellant had already undergone a sentence of one month in prison out of three months imprisonment awarded to him.
  • Secondly, the appellant was old and the incident seemed to have occurred at spur of the moment.
  • Thirdly, he had no criminal antecedents.
  • Lastly, fairly, he did not deny the commission of the act and did not challenge his conviction.

The appeal was, thus, allowed in part. The punishment of imprisonment awarded by the trial court and upheld by the High Court was altered. The sentence of imprisonment was reduced to the period already undergone by the appellant. However, the fine of Rs 800 was increased to Rs 15,000. [Haribhau v. State of Maharashtra,2018 SCC OnLine SC 1337, dated 04-09-2018]

 

Case BriefsHigh Courts

Delhi High Court: A Single Judge Bench comprising of Anu Malhotra, J. dismissed an appeal for reduction of sentence of the appellant awarded by trial court. The Court also gave directions essential for reformation of the convict (appellant) incarcerated in Tihar Jail.

The appellant was convicted under Section 6 read with Section 5(m) of POCSO Act along with Section 323 IPC. He was sentenced imprisonment for a period of 14 years under all the sections combined. He had undergone a period of 5 years, 4 months and 2 days. The convict filed the present appeal for seeking reduction of sentence. He was convicted for sexual assault on a two and a half years old victim child.

The High Court, considering all the facts, was of the view that no reduction in period of sentence as awarded by the trial court could be granted to the convict. However, following the precedent, the Court held that carcerial period should be such which reforms the convict. Therefore, the Court thought it essential to issue directions for reformation of the appellant-convict who was incarcerated in Tihar Jail. The Court directed the Superintendent at the Tihar Jail to consider an appropriate program for the appellant ensuring:

  • meditational therapy;
  • educational opportunity, vocational training, developmental program to enable livelihood options;
  • post-release rehabilitation program;
  • protection from being associated with anti-social groups as per Model Prison Manuel, 2016;
  • adequate counseling for sensitising him to understand why he is in prison;
  • conducting psychometric tests;
  • contact with family members as per jail rules.

The appeal was disposed of in the terms above. [Randhir v. State (NCT of Delhi),2018 SCC OnLine Del 10906, decided on 28-08-2018]

Case BriefsHigh Courts

Gauhati High Court: A Single Judge Bench comprising Mir Alfaz Ali, J., allowed an appeal as it was unable to persuade itself to sustain the conviction and sentence of the appellant.

The petition was filed by the appellant who was charged under Section 376 of Indian Penal Code, 1860 for rape of the respondent.

The respondent’s claim that she was tied and raped in the same room where the other family members were also sleeping appeared to be absurd and unbelievable. Also, there were discrepancies in the oral testimony of the respondent’s family which further failed to secure their claim.

What was evident from the two medical documents submitted was that they were contradictory, as the first issued at the time of discharge of the victim did not disclose any injury on the private part whereas the subsequent report explained the reason of injuries to be a self-inflicted one with no marks of violence in addition to the fact that the clothing of the respondent was intact at the time of medical examination.

The Court highlighted that when the offence alleged to have been committed by the appellant was serious and grave one, providing for severe punishment, prosecution must provide greater assurance to the court by the strictest degree of proof that the case has been proved beyond all reasonable doubt.

Hence the conviction and sentence of the appellant were set aside.[Ganesh Das v. State of Assam, 2018 SCC OnLine Gau 949, order dated 16-08-2018]

Case BriefsHigh Courts

Delhi High Court: A Division Bench comprising of Vipin Sanghi and I.S. Mehta, JJ. modified the sentence of the appellant convicted under Sections 363, 376(2)(i) and 506 IPC along with Sections 5(m) and 6 of Protection of Children from Sexual Offences Act, 2012.

The appellant was accused of convicting rape upon a 9 years old girl. He was driver of the school transport facility availed by the girl. The trial court convicted him of the offences mentioned above and he was sentenced to life imprisonment under Section 376(2)(i) along with sentences for other offences. Aggrieved by the same, the appellant filed the instant appeal.

The High Court rejected all his submissions against the judgment of conviction by the trial court. The Court, on perusal of the facts, held that there was no merit in submission of the appellant that identity of the perpetrator of the crime was in doubt. The prosecution evidence was sufficient to bring home the guilt of the accused. Contentions were also raised regarding the sentence awarded. It was submitted that the appellant was 42 years of age and had a family of four minor children and a wife. The Court referred to its previous judgments and reiterated the parameters for assessing the quantum of punishment in cases of rape upon a child which include, inter alia:

  • Criminal and crime, both are important for purpose of sentencing;
  • Manner of commission of crime is to be considered;
  • Violence, if any accompanying the crime;
  • Whether the offender was in a position of fiduciary trust or exploited a social or family relationship;
  • Impact of the crime on victim;
  • Antecedents of the offender;
  • Passage of time since offence committed;
  • Rehabilitation of the rape victim; etc.

Taking into account all the facts and circumstances of the case and judging them on the aforementioned parameters, the Court was of the view that interest of justice would be met if the sentence of the convict-appellant awarded for the offence punishable under Section 376(2)(i) was reduced from imprisonment for rest of his life to 16 years rigorous imprisonment without remission. Sentence qua other offences was ordered to remain unaltered. The appeal was disposed of in the terms above. [Om Prakash v. State of Delhi,2018 SCC OnLine Del 10732, dated 21-08-2018]

Case BriefsSupreme Court

Supreme Court: The Bench comprising of Navin Sinha and K.M. Joseph, JJ., while addressing a criminal appeal regarding assault committed during a dispute between neighbors with regard to strayed cattle in which Appellant 2 was additionally convicted under Section 304 Part II read with Section 34 IPC, altered the sentence from 8 years to 2 years.

The facts of the case as laid down in a nutshell state that some bullocks which belonged to the appellants had strayed into the compound of the deceased. The deceased, in order to drive them away from his land, used lathi which came onto the notice of the appellants and led to some altercation between the two which ended up with major injuries to the deceased and led to his death.

The contentions placed by the appellants’ counsel were that the injuries suffered by the appellants explain that they had only acted in self-defence and they were not the aggressors. There was no intention to cause death; much less the knowledge can be attributed from the nature of the assault. Further, the submissions state that the offence deserved to be reduced and or/alternatively the sentence was excessive in the facts of the case. For the stated contentions they placed reliance on Darshan Singh v. State of Punjab, 2009 (16) SCC 290 and Maqsood v. State of U.P, 2016 (15) SCC 748.

The Supreme Court on noting the circumstances, evidences and the contentions placed, concluded by stating that the occurrence had taken place at the spur of the moment without any premeditation. Appellant only intended to vent their ire against neighbour for having assaulted their bullocks. Since there was no presence of common intention that makes Appellant 2 individually answerable and as the occurrence had taken place in 1980, the Court was convinced to reduce the sentence to 2 years by putting reliance on the case aforementioned.  The appeal was allowed to the stated extent. [Lakshmi Chand v. State of U.P., 2018 SCC OnLine SC 1135, decided on 24-08-2018]

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 OnLine Can SC 12: 2018 Supreme Court Cases 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]