Case BriefsForeign Courts

South Africa High Court, Kwazulu-Natal Division: This appeal was filed before a Division Bench of Gorven, J and Ntshulana, AJ preferred against the convictions and sentence for the offence of rape of two minor girls in contravention of Section 3 read with Sections 1, 56(1), 57, 58, 59, 60 and 61 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007.

The appellant was sentenced to undergo life imprisonment for both the rapes committed but for sentences, they were treated as one and his name was entered into the register for sexual offenders in terms of Section 50 of the Act. The Court noted that throughout the trial, the appellant had only challenged the evidence which was based on his plea of alibi and that incident was fabricated due to a family feud which was later rejected as false beyond a reasonable doubt. Appellant had contended that medical evidence failed to prove offence and thus he should be acquitted.

High Court relied on a case of S v. Hadebe, 1997 (2) SACR 641 (SCA) where it was held that if there was no material misdirection by the Trial Court, it was to be presumed to be correct. Thus, the Court concluded that evidence on record did not show any misdirection. Therefore, in the absence of substantial and compelling circumstances, the sentence was sustained and the appeal preferred against conviction and sentence was dismissed. [Sibonelo Bo Ngobese v. State, Case No. AR751 of 2017, decided on 29-03-2019]

Case BriefsForeign Courts

South Africa High Court, Kwazulu–Natal Division: This appeal was preferred before the Bench of Ploos Van Amstel, J., against the order of conviction and sentence of appellant passed by regional Magistrate for commission of crime of rape in contravention of Section 3 of the Criminal Law (Sexual Offences and Related Matters) Act, 2007.

Facts of the case were such that the complainant a minor girl alleged appellant for the offence of raping her on several occasions between the years 2012 to 2015. The case went before the Magistrate where he was sentenced to life imprisonment.

Mkumbuzi, Counsel on behalf of the appellant submitted that complainant was not a competent witness and thus, her evidence was inadmissible on the ground that Magistrate had failed to establish if complainant understood the difference of truth and lies or the consequences of lying in accordance with Section 164(1) of the Act, 1977. Case of DPP v. Minister of Justice and Constitutional Development, 2009 (4) SA 222 (CC) was relied on where it was stated that a child unable to comprehend what it was to speak the truth cannot be admonished to speak the truth and hence, was an incompetent witness and cannot testify.

High Court was of the view that the rationale behind a person to be admonished to speak the truth was to make sure that the evidence was reliable without which the appellant’s right to a fair trial would be compromised.  Agreeing with the submissions of the appellant the conviction and sentence were set aside and the appeal was allowed. [SS v. State, CASE NO. AR 220 of 2018, Order dated 01-03-2019]

Case BriefsForeign Courts

Supreme Court of Pakistan: The Five-Judge Bench of Mian Saqib Nisar, Asif Saeed Khan Khosa, Gulzar Ahmed, Mushir Alam and Mazhar Alam Khan Miankhel, JJ.,  refused to interfere with the Judgment of Division Bench of Islamabad High Court granting bail to former Prime Minister Nawaz Sharif, his daughter Maryam Nawaz Sharif and son-in-law Capt. (Retd) Muhammad Safdar.

The Court took note of certain shortcomings in the impugned judgment such as commenting on the merits of the case, making premature conclusions at the stage of bail/ suspension of sentence, recording of a lengthy bail order in contravention of this Court’s guidelines. However, despite the said deficiencies, it was observed that considerations for grant of bail and those for its cancellation are entirely different. 

It was opined that no allegation had been levelled regarding any misuse or abuse of the concession of bail by respondents. One of the said respondents was already in jail after having been convicted and sentenced in connection with another criminal case, another of the said respondents was a woman and the law envisaged concession for her in the matter of bail, and the sentence of imprisonment passed by the trial Court against yet another of the said respondents was quite short. Thus, the Court concluded that there was no occasion for interference with the jurisdiction and discretion exercised by the High Court in the matter of the said respondents’ bail upon suspension of their sentences during the pendency of their appeals. Thus, the appeal was dismissed.[National Accountability Bureau v. Mian Muhammad Nawaz Sharif, Civil Appeal No. 1340 of 2018, decided on 14-01-2019]

Case BriefsHigh Courts

Jharkhand High Court: This criminal appeal was filed before the Bench of Ratnaker Bhengra, J., against the judgment of conviction and order of sentence passed by the Additional Sessions Judge, Fast Track Court.

The appellants were convicted under Sections 304-B/120-B and under Section 498-A of Penal Code and sentenced to undergo RI of 7 years and RI of 3 years with a fine of Rs. 2000. Both the sentences were to run concurrently. Accused were alleged with torturing one Dipak Devi for dowry who was murdered on non-fulfillment of their dowry demand. FIR was registered and charge sheet was filed. Appellant contended that the deceased committed suicide which was not accepted by the Trial Court. Trial was held and concluded with the aforementioned conviction and sentence. Hence, this appeal was filed. It was found through the post mortem report that the death occurred due to asphyxia as a result of strangulation. It also stated that the deceased body was hanging from the roof and her feet were touching the ground suggesting that she was first killed and then her suicide was staged by the appellant.

High Court found that there was a history of serious cruelty on the deceased and the fact that her feet were touching ground show that she was killed and her suicide was faked by the appellants. Therefore, the conviction and sentence of the accused was sustained. [Surendra Mishra v. State of Jharkhand, 2019 SCC OnLine Jhar 159, dated 22-02-2019]

Hot Off The PressNews

In yesterday’s hearing, India presented its arguments before the International Court of Justice (ICJ). The public hearings started from Monday 18 and will be continued till 21-02-2019.

Schedule for the hearings

First round of oral arguments-

Monday 18 February 10 a.m.-1 p.m.   : India
Tuesday 19 February 10 a.m.-1 p.m.: Pakistan

Second round of oral arguments-

Wednesday 20 February 3 p.m.-4.30 p.m.: India
Thursday 21 February 4.30 p.m.-6 p.m.: Pakistan

Snippets from Yesterday’s Hearing:

  • Kulbhushan Jadhav case used as propaganda by Pakistan.
  • Salve emphasizes: Review and reconsideration of the case would be inadequate. The relief should be in the form of a direction to set Jadhav free.
  • India: It has established that not allowing consular access is a gross violation of Article 36 of the Vienna Convention by Pakistan.
  • In the present case, relief of review & re-consideration would be highly inadequate, considering facts & circumstances.
  • India seeks annulment of Jadhav’s conviction and a direction that he be released.

 

 

 

 

 


Image Courtesy: ICJ


LIVE UPDATES [India v. Pakistan]: Pakistan’s oral arguments begins:

  • Oral arguments by Pakistan’s Attorney General Anwar Mansoor Khan.
  • Since 1947, India has continuously tried destroying Pakistan.
  • “On humanitarian grounds, Pakistan allowed Jadhav’s family to visit him. I challenge India to quote a similar example.”
  • Mr Khawar Qureshi representing Pakistan starts with his oral arguments.
  • Developments in customary international law not consistent with India’s position on Article 36 of Vienna Convention on Consular Relations.
  • Blatant misrepresentations in the pleadings by India.
  • Qureshi in an electronic presentation places the issues it will present its arguments.
  • He states that “Why was Jadhav in possession of an authentic Indian passport with a Muslim cover name.”
  • What evidence is there that Jadhav retired from the Armed Forces?
  • ICJ President interrupts in between and asks Mr Qureshi to kindly slow down.
  • India’s conduct is far from irrelevant.
  • India failed to provide any explanation as to how it is that Commander Jadhav was able to travel frequently to and from India using an authentic Indian passport bearing a false identity in a Muslim name.
  • Evidence of how Jadhav was an Indian National?
  • India’s hands are sullied.
  • Passport was authenticated by expert David Westgate. Used at least on 17 occasions by Jadhav.
  • “We gave every single opportunity to India to correct/clarify/apologize, but it arrogantly dismissed.”
  • ICJ President again interrupts and asks Qureshi to slow down as the judges are not able to follow.
  • Qureshi on claims that Jadhav was not well when his family visited him stated in regard to Deputy High Commissioner J.P. Singh’s letter that: “I wish him well for his future as a fantasy fiction writer.”
  • Court adjourned for a 15-minute break.
  • Mr Qureshi starts with his arguments after the break.
  • At no stage can India say that Pakistan engaged in any clear and unequivocal representation made directly to India, to the effect that India waived the requirement for India to establish the Indian nationality of Commander Jadhav.
  • At no point, India has established (even now) that commander Jadhav is an Indian National.
  • No general practice accepted as law (opinio juris) by States to provide consular access in cases of espionage.
  • India has used flowery and topsy turvy language in its pleadings.
  • Did India demand any negotiation or mediation? NO
  • What does India have to say for that passport?
  • Why didn’t India raise a dispute back in 2016? Why did it come directly to the ICJ for provisional measures?
  • India stated that Pre-Mediated murder was supposed to take place.
  • India’s MEA Official stated that India and Pakistan have a bilateral agreement (vis consular access).
  • India’s claim for “at least” acquittal, release, and return is outlandish.
  • India shamelessly misrepresented the conclusion of the Joint Report of the distinguished Military Law Experts and extremely late in the day (shamelessly and without apology) sought to deflect criticism by saying a “typo” was involved in one respect.
  • India simply fails to answer questions.
  • Reference to Narendra Modi’s purported claim that rapists will be hanged within days quoted by Qureshi.
  • India invokes the decisions of the IACHR in a completely irrelevant and misleading manner.
  • “Why does India wants Pakistan to be treated differently?”
  • In any event, effective review and reconsideration has always been available to Commander Jadhav and his family.
  • India’s Application should be declared inadmissible by reason of India’s conduct in this context manifesting abuse of rights, lack of good faith, illegality, lack of clean hand and misrepresentations.
  • Conduct of India as aforesaid militates against the grant of any relief in any event.
  • VCCR is not engaged as India has not established that Commander Jadhav is an Indian National, nor was consular access refused prior to the commencement of these proceedings.
  • Customary International law provided for an exception to consular access in the case of an individual reasonably suspected of espionage.
  • India’s claim for “at least”, “acquittal, release or return”/annulment of the conviction is at best misconceived, at worst made in bad faith in the light of the Court’s previous decisions consistently rejecting such a claim.
  • India has not made any other relief, thus its application should be dismissed.

Sitting is now adjourned for the day. 

Parties will now respond to the oral arguments for the next two days of the hearing.

Case BriefsHigh Courts

Delhi High Court: Sanjeev Sachdeva, J. modified the order of sentence imposed on petitioner and directed that the sentences shall run concurrently and not consecutively.

Petitioner was alleged to have snatched a chain from a lade and threatening her with a weapon while fleeing. He was convicted under Section 382 read with Section 34 IPC and sentences to undergo 4 years rigorous imprisonment. He was also convicted under Section 25(1-B)(a) of the Arms Act and sentenced to undergo 1-year rigorous imprisonment. By the order on sentence, trial court directed both sentences to run one after the other, i.e. consecutively. This order was challenged in the present petition.

Archit Upadhyay, Advocate for the petitioner contended that the impugned order was erroneous and contrary to the settled position of law. He relied on Manoj v. State of Haryana, (2014) 2 SCC 153, wherein the Supreme Court interpreted Section 31 CrPC which relates ‘sentences in cases of conviction of several offences at one trial.’

The High Court noted that the offences committed by petitioner were part of the same transaction. The Court discussed the Manoj case while referring to Nagaraja Rao v. CBI, (2015) 4 SCC 302V.K. Bansal v. State of Haryana, (2013)  7 SCC 211Sharad Hiru Kolambe v. State of Maharashtra, 2018 SCC OnLine SC 1581. It was observed by the High Court that “if the accused convicted of separate offences under IPC as also the Arms Act but they are part of the same transactions, the sentences shall run concurrently and not consecutively.” As such, the impugned order of the sentence was modified to run concurrently. Furthermore, it was found that the petitioner had already undergone the substantive sentence and was therefore directed to be released forthwith. [Irfan v. State, 2019 SCC OnLine Del 6908, decided on 05-02-2019]

Case BriefsForeign Courts

Mauritius Intermediate Court: The Bench of B.R. Jannoo- Jaunbocus, set aside the motion of the defendant in relation to the protection of his fundamental rights.

The facts of the case are that the accused was a public official and was charged under Sections 4(1)(b)(2) of the Prevention of Corruption Act, 2002 for unlawfully and criminally, soliciting from another person, a gratification for doing an act which was facilitated by his duties. The case was heard by a differently constituted Bench of the Intermediate Court, which dismissed the matter against the accused.  It was then appealed to the Supreme Court against the acquittal. The Court was faced with the Herculean task of interpreting the Constitution. The questions before the Court were –

  1. Whether the Court on appeal can remit back a case to the lower Court with the direction that another Magistrate, other than the trial Court should hear evidence and proceed to pass sentence in the teeth of Section 10 of the Constitution?
  2. Whether a newly constituted bench can sentence an accused without hearing all the evidence on record?

The Court held that the right of the accused to a fair hearing at sentencing stage and the duty upon the court to give an accused party the opportunity to be heard before sentence should be passed upon him. An omission to hear a defendant before passing sentence is a serious breach of procedural fairness. The direction given by the Supreme Court in the present case was that of directing the Presiding Magistrate to designate another magistrate “to hear evidence on the appropriate sentence to be passed and proceed to sentence”. The Court concluded that there was no infringement of the principle laid down in Sip Heng Wong Ng v. R (Privy Council Appeal No 52 of 1985) [1985 MR 142], if it were to proceed with the hearing for the purpose of sentencing. The motion of the defence was set aside. [Independent Commission Against Corruption v. JOTTEE Dharmanund, 2019 INT 3, decided on 17-01-2019]

Case BriefsHigh Courts

Bombay High Court: The Bench of M.G. Giratkar, J. dismissed a revision petition against the judgment of Judicial Magistrate (First Class) whereby the petitioner was convicted for offences punishable under Sections 380 and 457 IPC.

The petitioner was charge-sheeted for committing theft of gold ornaments and cash at night. As per the prosecution, after lodging of complaint in the matter, the petitioner was immediately arrested and was found in possession of gold ornaments and cash of Rs 2500 complained to be stolen. The matter went to trial and the petitioner was convicted as mentioned above.

N.M. Gaidhane, Advocate for the petitioner submitted that there was no evidence against the petitioner to convict him. On the other hand, V.P. Gangane, Additional Public Prosecutor representing the State supported the judgment of the trial court.

The High Court noted that as per the independent witness, at the time of petitioner’s arrest gold articles and cash were seized from him and he was unable to explain the possession of those articles. The Court referred to Section 114 of the Evidence Act which provides that the court may presume the existence of certain facts. Illustration (a) of this section states that “a man who is in possession of stolen goods soon after the theft is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession.” As in the present case, the petitioner was not able to rebut the presumption under Section 114 as he failed to account for the articles found in his possession immediately after the theft. Hence, his conviction was upheld while the sentence was modified for the period of imprisonment already undergone by him. [Imran Khan v. State of Maharashtra, 2019 SCC OnLine Bom 46, dated 14-01-2019]

Case BriefsHigh Courts

Allahabad High Court: The criminal revision was filed before a Bench of Aniruddha Singh, J., against the judgment and order passed by the Sessions Judge, Mathura where revisionist were convicted under Sections 325 read with 34 of the Penal Code.

Facts of the case were that FIR was filed against the revisionist alleging that they committed assault on one Lakshman who received only two injuries which were serious and the rest were simple injuries. The trial court had found the case to have been proved beyond reasonable doubt, thus by the impugned judgment and order, the sentence was awarded and the appeal was dismissed. Hence, this revision was filed. Revisionist submitted that the impugned order passed by the appellate court was illegal, arbitrary and without application of mind. High Court found no illegality or infirmity in the conviction by the appellant court which had given concurrent finding as trial court on the conviction.

High Court while considering the point of sentence observed the age, their belonging to rural areas and social and economic status of the revisionists, held that end of justice would be served if the revisionists are punished for the period of imprisonment already undergone with a fine of Rs 500. Therefore, impugned order passed by session judge was set aside. [Ganeshi v. State, 2018 SCC OnLine All 3365, order dated 01-12-2018]

Case BriefsForeign Courts

Eswatini High Court: This matter was brought before a Bench of M. Langwenya, J. for judgment on sentence.

Facts of the case were such that accused was found guilty of murder with extenuating circumstances. The accused was found to have been drinking alcohol at the time when the deceased was stabbed. Pieces of evidence were present showing that the accused was provoked by deceased which reduced the moral blameworthiness due to its effect on the state of mind of accused.

Accused defended by submitting mitigating factors such as his young age, his remorsefulness towards the crime, that he is a first-time offender and that he had already been in the custody for five years, five months and two days. Court referred the case of Samkeliso Madati Tsela v. Rex, (2010) [2011] SZSC 13 in order to decide on the sentence of accused which is an authority setting out the appropriate range of sentences in cases of murder in the country.

High Court was of the view that murder was a serious offence but considering the personal circumstances of the accused and his young age, Court was inclined to sentence him to twelve years of imprisonment, where the time period already spent in custody would be adjusted. [Rex v. Lwazi Tshepo Kubheka, Case No. 43 of 2016, decided on 15-11-2018]

Case BriefsHigh Courts

Chhattisgarh High Court: A Single Judge Bench comprising of Vimla Singh Kapoor, J. reduced the sentence of the applicant as he had already spent some time in the jail.

The applicant through his counsel Manoj Mishra has challenged the order whereby he has been charged under Sections 456 and 354 IPC with RI for six months including a fine for the outrage of modesty which further has been affirmed by an appeal. It was contended that the conviction has not been made on merits and the fact that the case was quite old and the applicant has already remained in jail for some time.

Considering the sentence and the fact that the incident had taken place in the year 2002 along with the fact that the applicant was in jail for some days and was leading a well-settled life with responsibilities, the Court thinks it proper to reduce the sentence imposed to the period already undergone.

Accordingly, the revision petition stood allowed in part. [Lal Sai v. State of Chhattisgarh, 2018 SCC OnLine Chh 670, decided on 17-12-2018]

Case BriefsHigh Courts

Delhi High Court: A Single Judge Bench comprising of R.K. Gauba, J. directed partial retrial of a case while disposing of an appeal filed against the order of conviction and sentence awarded to the appellant by the trial court.

The appellant was alleged to have committed an offence of penetrative sexual assault on a ten-year-old child. He was sentenced and convicted by the trial court under Section 376(i)(2) IPC and Section of the Protection of Children from Sexual Offences Act, 2012. This was challenged by the appellant pleading that he was falsely implicated in the case and the charge against him was not proved.

The High Court perused the record and noted that a crucial witness in the case—- Dr Pallavi, the medical examiner who prepared MLC report of the victim– was not examined by the prosecution. It was noted that summons were sent for Dr Pallavi to appear in Court as a witness but in the summons, the court itself gave liberty to the hospital concerned to send some other doctor in place of Dr Pallavi in case she had left services of the hospital. Subsequently, some other doctor appeared before the court only for the purpose of proving Dr Pallavi’s handwriting and signature. As a matter of fact, there was no examination or cross-examination of the crucial witness. This course was not approved by the High Court as it may lead to a serious miscarriage of justice. It was held,

“No doubt, the prosecution may rely on the evidence of an alternative witness if the witness earlier cited has become unavailable or her presence cannot be secured without unreasonable delay. But the suggestion for alternative witness cannot come from the Court on assumption that the witness may not be readily available, not the least without an attempt being made to reach out to such witness.”

Consequently, the conviction and sentence awarded to the appellant was set aside and the case was remanded back to the trial court directing that Dr Pallavi shall be summoned for examination. [Santosh Kumar v. State, 2018 SCC OnLine Del 12727, decided on 19-11-2018]

Case BriefsHigh Courts

Delhi High Court: A Single Judge Bench comprising of Rekha Palli, J. while disposing of a petition, waived of the sentence awarded to the petitioner on grounds of parity with the co-accused.

The petitioner was convicted by the Magistrate under Section 132 and 135(1) (a) of the Customs Act for evading customs duties payable at the airport on the import of certain household items. He was sentenced to undergo imprisonment for a period of 6 months along with a fine of Rs 50,000 on each count. The petitioner did not challenge his conviction but sought suspension of sentence. it was submitted that he had already paid the fine and undergone 2 months of imprisonment.

The High Court perused the record and noted that the petitioner was working as an authorised representative of the co-accused and smuggled certain goods by misdeclaring the same before customs authorities. On facts, it was proved that both the accused were equally culpable. It was also noted that the remaining sentence of the co-accused had already been waived off. The Court was of the opinion that the petitioner was entitled to the same benefits as that of the co-accused. Accordingly, his sentence was reduced to the period already undergone subject to the petitioner depositing an additional fine of Rs 25,000. [R.K. Anand v. Commr. of Customs,2018 SCC OnLine Del 12593, decided on 27-11-2018]

Case BriefsSupreme Court

Supreme Court: The 3-Judge Bench comprising of N.V. Ramana, Mohan M. Shantanagoudar and M.R. Shah, JJ. dismissed an appeal arising out of Punjab and Haryana High Court judgment, while altering the conviction and sentence awarded under Sections 304 Part II IPC to that of under Section 302 IPC.

The factual matrix of the case is as follows: Darshan Lal i.e. Complainant and his mother were witnesses to the scenario where the deceased i.e. Som Raj, complainant’s brother was seen to be followed by their neighbours fully armed with weapons and further dragging Som Raj by alleging him to have thrown stones into their house. Ramji (A5) who appeared to be in SPO uniform gave repeated kick blows to Som Raj and pressed his neck till he became unconscious.

Later, the complainant took the deceased to the hospital wherein PW 9 i.e. Inspector Ram Prakash recorded the complainant’s statement and registered an FIR. All the accused were challaned for the offence under Section 302/34 IPC.

The present appeal was filed on the trial judge forming an opinion that all the accused were guilty of offence under Section 304 read with Section 149 IPC. Aggrieved further, the parties approached the High Court, wherein the Court dismissed the appeals of the accused, allowed the State appeal and disposed of the criminal revision petition filed by the complainant by setting aside the trial court’s judgment on modifying the conviction from the offence under Section 304 Part II to offence under Section 302 IPC. Further, it was submitted that prosecution witnesses had contradictions in their statements and High Court without application of mind ignored the factum of the role played by the appellant and wrongly convicted him with other accused.

The Supreme Court on careful consideration of the facts of the case concluded its decision stating that circumstances concluding the guilt of the appellant are clearly established and High Court did not commit any error of law in convicting and sentencing the accused for an offence under Section 302 IPC. [Ramji v. State of Punjab, Criminal Appeal No. 1478-1479 of 2011, decided on 27-11-2018]

Case BriefsForeign Courts

High Court of South Africa, Kwazulu-Natal Division: A Single Judge Bench of Mbatha, J., mitigated sentence to accused alleged for the offence of murder.

Facts of the case were that the accused killed one person alleging that person to have used witchcraft in order to kill a child. One person, Induna called a meeting and went to find the culprit behind the child’s death. When he returned he disclosed the name of accused due to which the incident leading to the alleged death occurred. The question before Court was whether the belief in witchcraft should still be considered as a mitigating factor where Section 11 of the Bill of Rights recognises that everyone has a right to life.  Court viewed that some of the accused before the Court were educated, having attended high school. Those without a formal education had been exposed to religion.

High Court considered personal circumstances such as the fact that they belong to stable family backgrounds, the breadwinner of their family with some accused were primary caregivers to their children. Thus, accused found to be primary caregivers Court considered Section 28(2) read with Section 28(1)(b) of the Constitution. Accepting the probation officer’s reports and considering all the relevant facts of this case court was persuaded that there were substantial and compelling circumstances justifying Court’s departure from imposing the prescribed minimum sentence for life imprisonment. Therefore, the Court directed the accuses person’s punishment to be mitigated. [State v. Mkhombi Xaba, CC 48 of 2016, dated 03-07-2018]

Case BriefsHigh Courts

Allahabad High Court: The appellant had filed this jail appeal before a Division Judge Bench comprising of Sudhir Agarwal and Om Prakash-VII, JJ., against his conviction and sentence order passed by Additional District Judge under Sections 489-B and 489-C IPC where he had to undergo imprisonment for life with fine, and imprisonment for 7 years with fine for the respective offence to be run concurrently.

Facts of the case were that the appellant was found to carry counterfeit currency for which he was brought before Sessions Court where prosecution proved charges against the appellant beyond reasonable doubt. Appellant contended that minimum punishment for the offence under Section 489-B was 10 years and the imprisonment awarded to him was life imprisonment. He submitted that he was not a habitual offender and no other case was pending against him. It was pertinent to note the fact that the matter dates back to 2008 and he had already undergone imprisonment for more than 10 years. Whereas the respondent supported the findings of the trial court that the case to have been proved beyond reasonable doubt. No leniency to the appellant was to be shown as per respondent as the crime was committed to jeopardize the economic condition of the country.

High Court found no reason to interfere with the finding that the case was proved against the appellant beyond the reasonable doubt and decided only on the sentence imposed upon the appellant. It was to be kept in mind that deciding sentence is a matter of discretion where punishment should be proportionate to the gravity of the offence. Therefore, appellant’s sentence for punishment under Section 489-B was decreased to 14 years imprisonment on the ground of the sentence passed by trial court being excessive, exorbitant and harsh with other punishment to remain intact. [Abdul Gaffar v. State,2018 SCC OnLine All 2759, Order dated 20-11-2018]

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]