Case BriefsHigh Courts

Delhi High Court: A Division Bench of Manmohan and Sangita Dhingra Sehgal, JJ. dismissed of an appeal filed against the judgment of the trial court whereby the respondent, accused of raping the appellant-prosecutrix, was acquitted.

The case of the prosecutrix was that the accused established physical relations with her under the false pretext of marriage and that they were living together for about five years before the complaint was lodged by the prosecutrix under Section 376(2)(n) and 313 read with 506 Penal Code, 1860.

The High Court, at the outset, reiterated the settled legal position that the onus is on the prosecution to prove its case beyond a reasonable doubt. Relying on Pramod Suryabhan Pawar v. State of Maharashtra, 2019 SCC OnLine SC 1073, it was noted that the false promise should have had a direct nexus to the prosecutrix decision to engage in the sexual act. It was noted that the prosecutrix was already married to someone else and had six children from the wedlock. The Court was of the view that it was imperative for the prosecution to prove that prosecutrix was divorced from her first husband and was eligible for re-marriage. It was asserted by the prosecutrix she was given triple talaq orally in the presence of her parents and in-laws. However, the factum of the divorce was not substantiated by any proof, not even the evidence of prosecutrix parents and in-laws for proving the divorce was adduced. The Court was of the opinion that the prosecutrix failed to prove that she was eligible for re-marriage.

Further, the prosecutrix’s allegation that the accused neither married her nor allowed anybody else to marry her, did not inspire confidence since neither the 2015 marriage proposal had been proved nor the alleged obscene photos and videos shown by the accused to the prospective groom had been placed on record.

The High Court is in agreement with the finding of the trial court that the prosecutrix’ conduct of voluntary meeting the accused in Rohini Jail three times after filing of the present complaint lend credence to the accused’ defence that the real intent behind the present proceeding was to force him to marry the prosecutrix.

It was held that the testimony of the prosecutrix, read in its entirety, was neither credible nor believable or trustworthy. Therefore the appeal was found without merit and was dismissed. [“X” v. State, 2019 SCC OnLine Del 10822, decided on 22-10-2019]

Case BriefsHigh Courts

Patna High Court: The Division Bench comprising of Hemant Kumar Srivastava Prabhat Kumar Singh, JJ. dismissed an appeal on the admission stage itself since they did not find any faults in the findings of the trial court.

A criminal appeal was preferred under the proviso of Section 372 of the Criminal Procedure Code, 1973 against the Judgment of acquittal by which the respondents were acquitted from charges framed under Section 304-B of the Penal Code, 1860.

The appellant claimed that his daughter, namely, Najma Khatoon who was married to the respondent 3, six years ago but, the respondent’s 2, 3 and 4 started misbehaving with his daughter and, she was killed by respondent’s 2, 3 and 4. The appellant further claimed that as soon as he was informed about the death of his daughter went to her in-laws’ house and found that the body of his daughter was lying in a room and had marks of assault on it. It was also submitted that the respondent’s 2, 3 and 4 forcibly buried the body.

The respondents were charged for the offence punishable under Section 304-B of the IPC. In the course of the trial, ten prosecution witnesses were examined and some documents were also exhibited. The trial court having evaluated the evidences available on the record came to the conclusion that prosecution did not succeed to prove all the ingredients of Section 304-B of the IPC and accordingly, the learned trial court acquitted the respondent’s 2, 3 and 4.

The learned counsel for the appellant submitted that during the course of trial, appellant, as well as some other prosecution witnesses, had supported the prosecution’s story stating that deceased the was subjected to cruelty and harassment by respondents’s 2, 3 and 4 due to non-fulfillment of the illegal dowry demand, she was killed by the respondents. The witnesses also claimed that they had seen injury marks on the person of the deceased when they had visited the house of respondents 2, 3 and 4 after receiving information regarding the death.

On perusal of the impugned Judgment, the Court held that the learned trial court noticed that the appellant had filed a complaint case after one month of the alleged occurrence and although the prosecution witnesses claimed to have seen the injuries on the person of the deceased just after her death, none of them made any attempt to report the matter to concerned police station immediately after noticing the injuries. The trial court had no grounds to believe the witnesses as there was not a single shred of paper to prove that the deceased had sustained injuries. The appellant had not disclosed the factum of dowry in his complaint petition and the aforesaid story was introduced during the course of the trial.

In view of the above-noted facts, the instant appeal was dismissed since the Court did not find any perversity in the findings of the trial court.[Mohammad Hanif v. State of Bihar, 2019 SCC OnLine Pat 1683, decided on 24-09-2019]

Case BriefsHigh Courts

Bombay High Court: Sandeep K. Shinde, J. dismissed an appeal filed by the State against the order of acquittal by the trial court in respect to the matter pertaining to Sections 498-A and 306 of Penal Code, 1860.

State preferred the present appeal under Section 378(1) of CrPC, 1973 against the order of acquittal passed by Additional Sessions Judge.

In accordance with the prosecution case, the deceased suffered suicidal death due to acute cardiorespiratory arrest caused due to 100% burns at her matrimonial house. Deceased’s brother filed the complaint against deceased’s brother-in-law (accused 1) and wife of accused 1 (accused 2) along with sister-in-law of deceased (accused 3), for ill-treating the deceased and for abetting to commit suicide.

Thus, a crime under Section 498-A and 306 read with Section 24 of the Penal Code, 1860 was registered,

Deceased suffered unnatural death within a period of 7 years from the date of her marriage. Trial Court acquitted the accused, having found the prosecution could not establish that the accused ill-treated and caused cruelty to deceased within the meaning of Explanation Clause-a to Section 498-A of the Penal Code, 1860.

Settled Law:

“Cruelty for the purpose of Section 498-A Penal Code, 1860 means any “willful conduct” which is of such a nature as is likely to drive a women to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman or harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security is on account of failure by her or any person related to her to meet such demand.”

The question involved in the present case is,

“Whether prosecution has established that the “willful conduct” of the accused was of such a nature which drove Shaheeda (deceased) to commit suicide?”

On the date of the incident, a quarrel ensued between the deceased and accused 2, during the course of the same, deceased inflicted injury on the forehead of accused 2 by a stick. It is disclosed that when accused 1 had gone to the police station to report about the assault by deceased on his wife (accused 2), he was informed that the deceased had set herself on fire.

It was reported to the police that there were recurring disputes between the deceased and her in-laws on account of supply and electricity and water.

Thus upon assessing the evidence of deceased’s brother, it cannot be said that “willful conduct” of the accused amounts to cruelty and such alleged conduct drove her to commit suicide. There is no specification laid out as to what kind of ill-treatment or harassment was meted out to the deceased.

High Court on noting the facts and circumstances of the case, held that there is no evidence or rather, it is not the case of the prosecution that the deceased was physically harassed or tortured by the accused. Equally, there is no dependable evidence to hold that, accused were mentally torturing the deceased.

Therefore, by relying on the Supreme Court’s decision in Pawan Kalyan v. State of Haryana, (1998) 3 SCC 309, Ramesh Kumar v. State of Chhattisgarh, (2001) 9 SCC 618 and  Mohd. Hoshan v. State of A.P., (2002) 7 SCC 414, Court held that the trial court is consistent with the evidence which cannot be faulted with and hence no interference is called for. The appeal, therefore, fails and is dismissed. [State of Maharashtra v. Ibrahim Ruknuddin Bagkari, Criminal Appeal No. 1267 of 2003, decided on 11-09-2019]

Case BriefsHigh Courts

Delhi High Court: A Division Bench of Manmohan and Sangita Dhingra Sehgal, JJ. dismissed a criminal leave petition filed by the State challenging the order of the Additional Sessions Judge whereby the respondent-accused was acquitted of offences punishable under Sections 376, 366 and 363 IPC along with Section 6 of the Protection of Children from Sexual Offences Act, 2012.

The father of the victim had lodged a complaint that his minor daughter (aged about 17 years) had not returned home from school. During the course of the investigation, the victim was recovered from the possession of the accused. After completion of investigation, charge sheet wassailed against the accused of the offences as aforementioned. The accused was, however, acquitted by the trial court.

Aashaa Tiwari, APP appearing for the State, submitted that as the victim was a minor at the relevant time, her consent to accompany the accused and to have physical relations with him was of no consequence.

Perusing the statements of the victim, the High Court noted that she has misrepresented her age to be 18 years to the accused. She had also categorically stated that had she not done so, the accused would not have allowed her to accompany him.

It was observed: “The element of mens rea, which is an essential ingredient of Sections 363, 376 IPC is missing. In the present case, it is only because of a misrepresentation by the prosecutrix with regard to her age, which the respondent-accused bonafidely believed to be true that he allowed her to accompany him.”

The Court noted further: “In fact, statement of the prosecutrix clearly negates any charge including Section 6 of POCSO. Consequently, as the respondent-accused had not knowingly committed any offence, none of the charges can be said to have been proven.”

Considering the well-settled law that an acquittal order cannot be lightly interfered with by the Appellate Court, the High Court declined to interfere with the order of the acquittal passed by the trial court. The leave petition was thus dismissed.[State (NCT of Delhi) v. Kaishar Ali, 2019 SCC OnLine Del 9875, decided on 30-08-2019]

Case BriefsHigh Courts

Bombay High Court: Prithviraj K. Chavan, J. allowed an application whereby the State of Goa sought condonation of 156 days’ delay in filing the appeal against the acquittal of the accused-respondent.

S.R. Rivankar, Public Prosecutor, appearing for the State, submitted that as per the opinion was given by the Director of Prosecution, the impugned order passed by the Magistrate was challenged before the Sessions Judge along with an application for condonation of delay. It was objected to by the respondent as regards its maintainability before the said Court. Consequently, the prosecution moved an application for withdrawal of the appeal on with liberty to file the said appeal before the High Court. The Sessions Judge on the same day permitted the prosecution to withdraw the appeal. Thereafter, the file was circulated in the Department and the matter was finally allotted to the Public Prosecutor. As such, it was contended that the State was prosecuting its remedy with due diligence before a wrong forum, inadvertently, and therefore, the delay need be condoned.

Per contra, H. Gopi, Advocate for the respondent stated,  that there was no sufficient cause for condonation of delay, as the prosecution was required to explain delay before each and every officer which had gone unexplained. It was submitted that the respondent had accrued valuable rights in his favour on account of the acquittal granted by the Magistrate and, therefore, that right cannot be taken away lightly.

The High Court was of the opinion that the State had shown sufficient cause to condone the delay. Perusing Section 470 CrPC that provides for exclusion of time in certain cases, it was observed: “It appears that due to an incorrect opinion given by the Director of Prosecution, the State was prosecuting the remedy before a wrong forum. It was indeed with due diligence and bonafide as per Section 470 CrPC, and hence, such a period needs to be excluded while computing the period of limitation. Sufficient cause has been shown by the prosecution for condonation of delay, however, it cannot be lost sight of the fact that the respondent is put to some hardship due to the said delay which needs to be adequately compensated.”

Resultantly, the delay of 156 days in filing the appeal was condoned subject to costs of Rs 3000 to be paid to the respondent.[State of Goa v. Natividade Nazario Fernandes, 2019 SCC OnLine Bom 1703, decided on 27-08-2019]

Case BriefsForeign Courts

Supreme Court of Canada: A Full Bench of Wagner, CJ. and Abella, Moldaver, Karakatsanis, Côté, Brown and Rowe, JJ. dismissed an appeal filed by accused to restore his acquittal.

In the present case, the deceased woman was found dead in the hotel bathroom of the appellant. She had bled to death from an 11 cm gash inside her vagina. Appellant was arrested and charged with first degree murder. He denied using a sharp object and asserted that the deceased consented to the sexual activities in question or at least he honestly believed that she did. The jury acquitted the appellant of first degree murder and the included offence of manslaughter. On appeal by the Crown, the Alberta Court of appeal concluded that the trial judge had made several serious errors that had affected the jury’s ability to assess the evidence and correctly apply the law to the facts of the case. It allowed the Crown’s appeal and ordered a re-trial on both first degree murder and manslaughter. The accused then appealed to restore his acquittal.

The appellant contended that the issues raised by the Crown, in appeal to the Court of appeal, of after-the-fact conduct were different from the issues he was originally tried on. He argued that the Crown’s failure to object to this portion of the charge should have prevented the Court from dealing with these issues.

It was observed by the Court that the Appellate Court could raise new issues to avert the risk of injustice. It was not doubtful that adequate procedural fairness was afforded to the parties as they were given sufficient notice and an adequate opportunity to make submissions. It was also observed that Section 276 of the Criminal Code, RSC 1985, prohibited the evidence of prior sexual activity, which could lead to reason, based on sexual history, that the complainant would have been more likely to consent to the sexual activity in question, or is less worthy of belief in general.  The Alberta Court of Appeal in this case, labelled the deceased as “Native prostitute”, this was in violation of Section 276 regime. This error had effects on the defence of honest but mistaken belief in communicated consent, upon which accused relied.

It was opined that the trial judge’s instruction relating to after the fact conduct were confusing and misleading. In his own testimony, the appellant had admitted to lying, disposing of evidence and providing contradictory explanations to numerous people after the commission of offence. He also concocted and fabricated multiple stories and excuses. Trial Judge stated that it was up to the jury to decide upon the usage of the said circumstantial evidence, and that they were entitled to consider the evidence of the admitted lies and discarding of evidence as after-the-fact conduct but it was also instructed to the jury that it could not use the evidence for those very purposes. Therefore, the trial judge did not leave it open to the jury to consider the impact of the after-the-fact conduct evidence to properly decide whether appellant’s narrative was credible or not.

It was held that the trial judge’s error in permitting evidence of prior sexual activity to be admitted was in clear contravention of Section 276 of the Act and it could reasonably have had a material bearing on the jury’s deliberations as a whole due to which a new trial on both murder and manslaughter was directed. The appeal was hence, dismissed.[R. v. Barton, 2019 SCC OnLine Can SC 15, decided on 24-05-2019]

Case BriefsHigh Courts

Orissa High Court: S.K. Sahoo, J. dismissed a criminal appeal for the acquittal of the appellant under Section 376 of the Penal Code, 1860.

The victim in the present case was forcibly raped by the appellant on the pretext that he will marry her. The appellant visited the victim on many occasions and raped her and would give her the assurance of marriage. Even after the victim became pregnant, the appellant continued raping her. The news of the pregnancy of the victim spread in the village and the appellant confessed his guilt before the uncles of the victim. He also admitted to having impregnated the victim in presence of the entire village post which, on 11-04-2011, she lodged an FIR. The trial Court acquitted the appellant on 28-06-2012 under Section 417 of the Penal Code but found him guilty under section 376 and sentenced him to undergo rigorous imprisonment for a period of ten years and to pay a fine of rupees five thousand.

The appellant challenged this judgment and order of conviction on the grounds that there was a delay in filing the FIR by the victim and the prosecution has not satisfactorily explained this delay. It was further contended that there is no hard evidence to prove the age of the victim, and if the age of the victim is held to be more than sixteen years then it can be said that she was a consenting party.

Priyabrata Tripathy, Additional Standing Counsel for the victim, submitted that delay in lodging the FIR in a rape case cannot be a ground to hold the entire prosecution case suspicious. He argued that the victim remained silent an account of assurance of marriage given by the appellant and when the victim disclosed about her pregnancy, an FIR was lodged. Further, there is no infirmity in the evidence of the victim.

The Court held that, “the law is well settled that delay in lodging the FIR in an offence of rape is a normal phenomenon as the FIR is lodged after deliberation. It takes some time to overcome the trauma suffered, the agony and anguish that create the turbulence in the mind of the victim, to muster the courage to expose one in a conservative social media, to acquire the psychological inner strength to undertake a legal battle against the culprit.”

Secondly, the victim stated her age to be fifteen years at the time of her deposition, which was recorded on 13-08-2011. She stated that the occurrence last took place in 2010. No evidence was brought out in the cross-examination to challenge her age. The doctor who conducted ossification test of the victim stated that on the basis of the physical findings, dental examination and development of secondary sexual characteristics and menstrual history and ossification test, that the age of the victim to be more than fourteen years and less than sixteen years. Therefore, the question of the victim being a consenting party was not taken into account.

The appellant also submitted that he has been in judicial custody since 14-04-2011 and he was never released on bail either during pendency of the trial or during pendency of this appeal and therefore, he has already undergone the substantive sentence of eight years and three months and therefore, the substantive sentence should be reduced to the period already undergone.

The Court upheld the order of conviction of the appellant under Section 376 of the Penal Code, 1860 but reduced the substantive sentence from rigorous imprisonment for ten years to the period already undergone. In view of the enactment of the Odisha Victim Compensation Scheme, 2012, keeping in view the age of the victim at the time of occurrence and the nature and gravity of the offence committed and the family background, the Court recommend the case to District Legal Services Authority, to examine the case of the victim for grant of compensation under the Scheme.

The Criminal Appeal was dismissed and the appellant was released from jail custody.[Budha v. State of Odisha, 2019 SCC OnLine Ori 262, decided on 01-08-2019]

Case BriefsForeign Courts

Pakistan Supreme Court: A Full Bench of Manzoor Ahmad Malik, Syed Mansoor Ali Shah and Qazi Muhammad Amin Ahmed, JJ. allowed an appeal seeking acquittal of a murder charge in the absence of satisfactory evidence.

The appellant was in receipt of a guilty verdict. He was indicted for committing the murder of his wife Kausar Bibi (deceased). The said verdict was affirmed by the High Court judgment which was challenged through this appeal. Prosecution case was structured on the statement of the deceased’s brother Muhammad Arshad, according to whom, the marriage of the appellant was on the rocks as deceased had not brought a dowry to accused-appellants expectations. Upon a message by the deceased, Muhammad Arshad visited her to take her back. However, their house was attacked that night and Kausar Bibi was killed. Upon indictment, appellant blamed dacoits to have murdered the deceased.  The trial Judge convicted the appellant under Section 302(b) of Pakistan Penal Code, 1860 and sentenced him to death along with a direction to pay Rs 100,000.

Learned counsel for the appellant Nawab Ali Mayo, contended that the appellant should not be convicted merely upon his failure to satisfactorily explain as to what happened on that night. He further added that the presence of witnesses was extremely doubtful. He pleaded that it would have been unsafe to maintain conviction. Moreover, a co-accused was acquitted on the same grounds but the appellant was convicted.

Contrarily, the learned counsel for the respondent Mehmud ul Islam, vehemently defended appellant’s conviction on the ground that plea advanced by him was preposterous and was rightly rejected which in retrospect established his presence at the spot, thus there was no space to entertain any hypothesis of his innocence.

The Court observed that silence or implausible explanation could not equate with failure within the contemplation of Article 121 of Qanoon-e-Shahadat Order, 1984 which dealt with the exceptions of a case. Further, the appellant had not denied his presence, but these factors by itself could not hypothesize presumption of his guilt in the absence of positive proof. It was opined that suspicions are not a substitute for legal proof, and a suspect cannot be condemned on the basis of moral satisfaction in the absence of evidentiary certainty. Furthermore, the Court observed that convicting a co-accused on the same ground on which another accused has been acquitted, was wrong and it required immediate ratification. Thus, the Court allowed the appeal and ordered the immediate release of the appellant.[Muhammad Pervaiz v. State, 2019 SCC OnLine Pak SC 13, decided on 06-05-2019]

Case BriefsHigh Courts

Jharkhand High Court: Anil Kumar Choudhary, J. disposed of an interlocutory application filed under Section 378(4) of the Code of Criminal Procedure, 1973 for special leave to file the acquittal appeal.

Appellant had filed an acquittal appeal which challenged the acquittal of the accused persons in a complaint case by the impugned judgment. In the complaint, it had been mentioned that thirty days prior to the lodging of the complaint, all of the accused persons had brought the complainant to her paternal house and had repeatedly made demands for dowry. When her father expressed his helplessness, all of the accused had assaulted her and her aging father. However, none of the witnesses except the complainant herself had mentioned this occurrence in their deposition. Moreover, several witnesses had testified that the complainant’s husband had never visited her paternal house after their marriage. One of the complainant witnesses added that the demand for dowry as well as the assault incident had taken place in Delhi which was outside the jurisdiction of the trial court. Due to the many discrepancies in the evidence of the complainant, the trial court did not believe the statements made by the witnesses of the complainant and acquitted the accused persons of the case.

Sunita Kumari, learned counsel for the appellant, submitted that the trial court did not appreciate the evidence of the witnesses of the complaint properly. She added that since the deposition of the witnesses was recorded after ten years of lodging the complaint, some discrepancies would exist in the time and year mentioned and that the trial court relied upon these contradictions when it acquitted the accused persons. She contended that due to the long lapse of time, the witnesses of the complainant missed in testifying about the parts of the incidents mentioned in the complaint. However, the same could not be a circumstance due to which the entire case of the complainant was disbelieved. She maintained that the court had made an error by considering that her reasons for lodging the complaint were that she was neither ready nor willing to go to her matrimonial house and that she had inherited property from her father. The counsel asserted that the appellant should get special leave to present this appeal.

Praveen Kr. Appu, learned counsel on behalf of the respondents, defended the impugned judgment. He submitted that the trial court had correctly appreciated the evidence on record, had kept in view the discrepancies in the deposition of the witnesses and had rightly disbelieved the complainant. Resultantly, the impugned judgment did not require the interference of the Court in the exercise of its appellate jurisdiction, particularly when the impugned judgment was of acquittal of accused persons. Consequently, the special leave to present this appeal should not be granted to the appellant.

The Court observed that the trial court had taken into account all the contradictions in the depositions of the witnesses and had made a record of the same.  It also noted the “lack of specific evidence regarding any occurrence having been taken place about the incident mentioned in para-12 of the complaint regarding which there is specific allegation made in the complaint”. It relied on the case of State of U.P. v. Wasif Haider, (2019) 2 SCC 303, where it was held that the appellate court would only interfere where there existed perversity of facts and law. Hence, the court held that this was not a fit case where a special appeal could be granted to the appellant. Therefore, the interlocutory application was rejected on the basis of lack of merit and the acquittal appeal was also dismissed.[Nazma Khatoon v. State of Jharkhand, 2019 SCC OnLine Jhar 771, decided on 04-04-2019]

Case BriefsHigh Courts

Punjab and Haryana High Court: Hari Pal Verma, J. dismissed the appeal application against the judgment passed by the Additional Sessions judge.

An application was filed by the State for the grant of leave to appeal against the judgment passed by the Additional Session Judge whereby the respondent-accused was acquitted of the charges leveled under Section 3(1)(xi) of the Scheduled Caste and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 but was convicted and sentenced under Sections 341, 354-A, 354-D and 506 of the Penal Code.

The allegations made against the accused were that when complainant alighted from the bus, the respondent intercepted her and started harassing her sexually. However, when the complainant screamed, many persons gathered there on the spot and the complainant was rescued from his clutches. The complainant was frightened and when she was proceeding towards her office, the accused suddenly appeared and extended threat to her life and the family members of the complainant. He also threatened to kill her child after the kidnapping.

The counsel argued that respondent extended threat to the complainant to kill her child after kidnapping attracts offence under Section 506 IPC for which a maximum sentence of 7 years is provided.

The Court opined that the offence under Section 506 of the Penal Code, 1860 had to be read in totality as it was in one incident that the accused had allegedly threatened the complainant, no extended punishment can be provided for the same. With regard to punishment under Scheduled Caste and the Scheduled Tribes (Prevention of Atrocities) Act, 1989, as no proper evidence was given, the order of acquittal was lawful. Thus the application was dismissed as being devoid of merit. [State of Haryana v. Ankit, 2019 SCC OnLine P&H 1044, decided on 03-07-2019]

Case BriefsForeign Courts

Pakistan Supreme Court: A Full Bench of Manzoor Ahmad Malik, Syed Mansoor Ali Shah and Qazi Muhammad Amin Ahmed, JJ. allowed the appeal by the accused against the order given by Lahore High Court and set aside his conviction and sentence.

Appellant herein was tried alongside two persons Abdul Razzaq and Sakina Bibi who were co-accused for committing the murder of one Khalil Ahmed. The accused were presented before the Additional Sessions Judge who acquitted them. The said order was challenged in Lahore High Court wherein the appellant stood convicted under Section 302(b) of the Pakistan Penal Code, 1860 and was sentenced to imprisonment for life. This order was under challenge in the present appeal.

Learned counsel for the appellant Shahid Azeem, ASC, contended that High Court should not have reversed the appellant’s acquittal after he extended benefit of doubt to co-accused. Further, it was contended that the acquittal order given the trial court was on the basis of the evidence presented and was not open to any exceptions.  

The Court noted that the reasons given by the learned trial Judge to acquit the accused from the charge which included – improbability of witnesses’ presence; their enmity with the accused, and contradictions in their disposition, were observed to be genuine. It was further opined that acquittal carries with it a double presumption of innocence and it could be reversed only when finding blatantly perverse. It could not be set aside merely on the possibility of contra view. 

It was held that High Court did not act according to settled principles of law and thus appeal was allowed, and impugned judgment given by High Court was set aside. The appellant was acquitted from the charge and was ordered to be released if not required in any other case.[Muhammad Shafi v. State, Criminal Appeal No. 48-L of 2016, decided on 07-05-2019]

Case BriefsHigh Courts

Gujarat High Court: R.P. Dholaria, J. whilst partly allowing the appeal reduced the sentence of the appellant.

In the present case, the deceased, Deepali committed suicide by setting herself on fire on 22-10-2014. The deceased’s marriage took place four months prior to the incident and since then the accused father-in-law picked up a quarrel for the promised dowry of Rs 30,000 of which Rs 10,000 had already been by paid by the deceased’s mother. The other two accused – husband and mother-in-law did not appeal.

Counsel for the appellant father-in-law, Shubha Tripathi confined to only challenging the conviction and pointed out that the appellant has already undergone a sentence of roughly five years and no acquittal is to be sought. The appellant’s prime concern is for a reduced sentence.

The Court observed from the facts and circumstances of the case that the grave allegations were levelled against the husband and mother-in-law alone. Therefore, it reduced the sentence to the extent of 5 years rigorous imprisonment for the offence punishable under Sections 304-B read with 114 IPC. [Aakash Madhukarbhai Egole v. State of Gujarat, 2019 SCC OnLine Guj 1288, decided on 01-07-2019]

Case BriefsForeign Courts

Kenya High Court, Nyahururu: R.P.V. Wendoh, J. passed a judgment directing acquittal of an accused in the absence of sound circumstantial evidence.

A child was found dead in Nyahururu, Kenya. The reason for the death was found to be strangulation leaving a dark swollen mark around the neck of the deceased child. The police was called and the investigating officer noticed that the younger brother of the deceased child also had the same swollen mark on his neck, however, he never bothered to interrogate that child. The deceased used to live with father, brother and father’s second wife as the mother of the deceased had parted from his father and he was under the custody of the father. Police suspected David Wang’ondu Githiru, father of the deceased for the murder but when they tried arresting him, he started to run with an intention of escaping from the scene.

Learned counsel for the prosecution, Mutembei called upon nine witnesses who testified the death of the deceased and the swollen mark present on his neck. One of the witnesses also testified the presence of the same mark on the neck of the younger brother of the deceased. The testimony of the witnesses created a chain of events which somewhat placed accused as the probable murderer.

Learned counsel for the defendant, Kihoro contended before the Court that the circumstantial pieces of evidence brought before the Court were hollow as it did not answer as to who killed the child. He further argued that when the accused reached his home on that evening, the child informed him that he was sick. However, the accused had no money at that time so he started to arrange money. Around 3:00 a.m. the next day, he was taken to the hospital but he had died by that time.

The Court after hearing both the sides observed that the case turns on purely circumstantial evidence. It was opined that for the Court to rule a conviction on such evidence, events leading to the death of deceased must form a chain so closely knit together without any breakage or interruption. But, the present case did not give a very strong circumstantial evidence whose final outcome could be relied upon. The Court thus reiterated the judgment passed in Sawe v. Republic, (2003) KLR 364 in which it was opined that “Suspicion, however strong, cannot provide basis for inferring guilt which must be proved by evidence beyond reasonable doubt.”

Thus, the Court in absence of the proof beyond reasonable doubt acquitted the accused. [Republic v. David Wang’ondu Githuru, 2018 SCC OnLine Ken 1, decided on 24-10-2018]

Bail Application
Case BriefsHigh Courts

Himachal Pradesh High Court: Chander Bhusan Barowalia, J. dismissed a petition finding no merit in the appeal as when two reasonable conclusions are possible on the basis of the evidence, the appellate court should not disturb the finding of acquittal recorded by the trial Court.

In the present matter, the appellants alleged that they had found a person carrying a plastic can in his right hand. The person on seeing the police party got perplexed and on suspicion, he was arrested. During his personal search, he was found in conscious and exclusive possession of one plastic can, containing three bottles of illicit liquor. After separating one nip as a sample, both the nips as well as sample were sealed. The prosecution, in order to prove its case, examined as many as six witnesses. Statement of the accused was recorded under Section 313 CrPC, wherein he denied the prosecution case and claimed innocence. Additional Advocates General, Shiv Pal Manhas and P.K Bhatti with Raju Ram Rahi, Deputy Advocate General argued that the prosecution has proved the guilt of the accused beyond the shadow of reasonable doubt.

While H.K.S. Thakur, counsel for the respondent argued that the alleged quantity of three bottles of illicit liquor stated to be recovered from the respondent is a concocted story, as no independent witness was associated by the police. And even the Investigating Officer in his statement has specifically stated that he did not find it appropriate to associate any independent witness.

The Court after considering the facts and circumstances and the arguments advanced found that “when independent witnesses were available on spot the Investigating Officer should have associated them. However, the Investigating Officer simply stated that he does not find it proper to associate independent witnesses. The non joining of the independent prosecution witnesses when they were available, makes the prosecution case doubtful with respect to recovery of three bottles of illicit liquor”. The Court further relied on K. Prakashan v. P.K. Surenderan, (2008) 1 SCC 258 and T. Subramanian v. State of T.N., (2006) 1 SCC 401. Further, it took into consideration the principles culled out in Chandrappa v. State of Karnataka, (2007) 4 SCC 415 that, “If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court” amongst other things.[State of Himachal Pradesh v. Joban Dass, 2019 SCC OnLine HP 646, decided on 21-05-2019]

Case BriefsHigh Courts

Gauhati High Court: Rumi Kumari Phukan, J. dismissed an application seeking leave to appeal against an Assistant Sessions Judge’s order of acquittal, holding that the forum for preferring such an appeal would be the Court of Sessions Judge and not the High Court. 

The petitioner (herein) in the instant case alleged before the trial court that the accused persons had forcefully kidnapped his daughter while she was returning from college. She was also kept confined by them. As a result, the petitioner registered complaint under Section 366 read with Section 34 of Penal Code, 1860. Learned Assistant Sessions Judge acquitted all the accused persons. Aggrieved by this order of acquittal the petitioner preferred the present application under Section 378(3) of Code of Criminal Procedure, 1973 seeking leave to file an appeal against the acquittal order.

The counsel for the petitioner, A.T. Sarkar, placed reliance upon the decision rendered in Satyapal Singh v. State of Madhya Pradesh, (2015) 15 SCC 613, while preferring appeal under 378(3) of CrPC. He contended, “even though the victim has a right to prefer an appeal against the order of acquittal u/s 372 CrPC but same can be filed only after obtaining leave of the Court as required under sub-section 3 of Section 378 CrPC.” 

The Court after perusing the legal provisions and pronouncements observed, “it appears that there is a confusion in the mind of the petitioner that he has to seek for leave to prefer the appeal in view of the decision in Satypal Singh case.” It was further observed, “As the appeal sought to be preferred against the order of the learned Assistant Sessions Judge so the appeal will lie to the Court of learned Sessions Judge.” Thus, the Court taking into consideration the bona fide nature of application by quoting the provision under Section 378(3) of CrPC, opined that the petitioner was not debarred to prefer the appeal to which he was entitled under the statute. The Court held, “the petitioner herein being the informant has a right to prefer an appeal u/s 372 (proviso) CrPC and he being the informant in the GR Case he cannot be equated as complainant within the purview of Section 378 (3) of CrPC and no leave is required to prefer such appeal.”

In light of the above, the Court dismissed the instant appeal but granted him liberty to prefer an appeal in the Court of concerned Sessions Judge.[Akhtar Mirza v. State of Assam, 2019 SCC OnLine Gau 2295, decided on 14-05-2019]

Bail Application
Case BriefsHigh Courts

Himachal Pradesh High Court: The Bench of Chander Bhusan Barowalia, J. allowed a petition while setting aside the Judgment of conviction passed by the learned trial Court.

In the pertinent case, the appellant was convicted and sentenced for commission of offences punishable under Sections 306 and 498-A IPC. The chain of events as alleged were that after the marriage with the deceased (wife of the appellant), he started ill-treating and humiliating her on account of the reason that she has not brought sufficient dowry. It was also alleged that the appellant was not satisfied with the deceased as she could not give birth to a child. And that on account of cruelty meted out to the deceased by the appellant, ultimately, she consumed a heavy dose of Barbiturate, owing to which, she fell unconscious. The decease had epileptic and an overdose of the medicines was found in the Vicera report. Further, it was claimed that no medical assistance was provided to her. Certain documents were also presented before the Court for the same.

Although all such allegations were denied by the accused along with the other witnesses who all happened to be her friend and relatives. They also proved that they were living happily as they had even adopted a child.

The Court after analyzing the evidence found that the dates when the deceased fell unconscious had a disparity as were mentioned in a different set of documents.

It was also found in the evidence that the deceased was taking medicines regularly and after she fell unconscious, she was taken to PGI, Chandigarh, where she ultimately died. And the origin of documents was also suspicious on which the other party placed heavy reliance. The evidence also showed that the couple had adopted a daughter, who was studying in good school. The photographs placed on the file depicted that the couple was living happily. Therefore, the judgment of conviction passed by the learned trial Court was set aside and the appellant was acquitted of the charges.[Mahesh Gautam v. State of H.P., 2019 SCC OnLine HP 404, decided on 04-04-2019]

Case BriefsSupreme Court

Supreme Court: The bench of Abhay Manohar Sapre and Dinesh Maheshwari, JJ acquitted a man convicted for the offence of rape and said that the Session Court and the Patna High Court were not justified in convicting the appellant for an offence punishable under Section 376 IPC and sentenced him to undergo rigorous imprisonment for seven years.

Factual Background:

Prosecutrix alleged that the appellant, December 14, 1997, entered into her house when she was alone and threatened her by showing pistol and committed rape on her. The prosecution examined, prosecutrix’s husband and a neighbour, apart from examining the prosecutrix herself. Both the Courts below based their conclusions on the evidence of the aforementioned 3 witnesses.

Grounds for acquittal:

  • the complainant was not examined by the Doctor after the alleged incident.
  • in absence of any medical examination done, the prosecution did not examine any doctor in the trial in support of their case;
  • it was not disputed that similar type of complaints were being made in past by the complainant ag and such complaints were later found false;
  • it was also not disputed that there was enmity between the appellant and the husband of the prosecutrix, due to which their relations were not cordial;
  • it had also come in evidence that the prosecutrix was in habit of implicating all the persons by making wild allegations of such nature against those with whom she or/and her husband were having any kind of disputes;
  • there was no eye witness to the alleged incident and the one, who was cited as witness, was a chance witness on whose testimony, a charge of rape could not be established;
  • so far as the husband of the complainant, is concerned, he admitted that he was away and returned to village the next day morning of the incident.

Ruling:

Noticing that there was no evidence adduced by the prosecution to prove the commission of the offence of rape by the appellant on the prosecutrix and the evidence adduced was not sufficient to prove the case of rape against the appellant, Court set the accused free.

[Ganga Prasad Mahto v. State of Bihar, 2019 SCC OnLine SC 417, decided on 26.03.2019]

Case BriefsSupreme Court

Supreme Court: The 3-judge bench of Dr. AK Sikri, SA Nazeer and MR Shah, JJ has acquitted 6 death row convicts and has directed reinvestigation in a crime that was committed in June, 2003.

The Court was hearing the case where 5 people were brutally killed and a woman was raped. However, the accused were falsely implicated in the matter as they were all nomadic tribes coming from the lower strata of the society and are very poor labourers.

Lapse on part of investigating agency:

Noticing that an injured prime witness identified four named persons from the album of the photographs of notorious criminals but nothing was  on record whether those four persons were arrested or not or any further investigation was carried out with respect to those four persons, the Court said that there was a serious lapse on the part of the investigating agency, which has affected the fair investigation and fair trial, and therefore, the fundamental rights of the accused guaranteed under Articles 20 & 21 of the Constitution of India have been violated. It said:

“The benefit of the lapse in investigation and/or unfair investigation cannot be permitted to go to the persons who are real culprits and in fact who committed the offence.”

The Court, hence, directed the Chief Secretary, Home Department, State of Maharashtra to:

  • look into the matter and identify such erring officers/officials responsible for failure of a prosecution case, on account of sheer negligence or because of culpable lapses, real culprits are out of the clutches of law and because of whose lapses the case has resulted into acquittal in a case where five persons were killed brutally and one lady was subjected to even rape.
  • take departmental action against those erring officers/officials, if those officers/officials are still in service. The instant direction shall be given effect to within a period three months from the date of the order.

The Court also directed the prosecution to conduct further investigation under Section 173(8) against those four persons identified by the injured prime witness so that real culprits should not go unpunished.

Compensation to falsely implicated persons:

The Court also took note of the statement of a psychiatrist who had examined one of the accused who was subsequently found to be a juvenile. The juvenile had clearly opined that he has lived under sub-human conditions for several years. He was kept in isolation in solitary confinement with very restricted human contact and under perpetual fear of death. He was only allowed to meet his mother, and that too only infrequently. He was not even allowed to mix with other prisoners. Therefore, all the accused remained under constant stress and in the perpetual fear of death. As they were facing the death penalty, they might not have availed any other facilities of parole, furlon etc. All of them who were between the age of 25-30 years (and one of the accused was a juvenile) have lost their valuable years of their life in jail. Their family members have also suffered. Considering the aforesaid facts and circumstances, the Court directed:

“The State of Maharashtra to pay a sum of Rs.5,00,000/- to each of the accused by way of compensation, to be deposited by the State with the learned Sessions Court within a period of four weeks from today and on such deposit, the same be paid to the concerned accused on proper identification.”

[Ankush Maruti Shinde v. State of Maharashtra, 2019 SCC OnLine SC 317, decided on 05.03.2019]

Case BriefsSupreme Court

Supreme Court:  The 3-judge bench of Ranjan Gogoi, CJ and Navin Sinha and KM Joseph, JJ has clarified that  all pending criminal prosecutions, trials and appeals prior to the law laid down in Mohan Lal vs. State of Punjab, (2018) SCC Online SC 974 shall continue to be governed by the individual facts of the case, as the said judgment cannot be allowed to become a spring board by an accused   for   being   catapulted   to   acquittal,   irrespective   of   all   other considerations pursuant to an investigation and prosecution when the law in that regard was nebulous.

In the said judgment, the 3-judge bench of Ranjan Gogoi, R. Banumathi and Navin Sinha, JJ was dealing with the question as to whether in a criminal prosecution, it will be in consonance with the principles of justice, fair play and a fair investigation, if the informant and the investigating officer were to be the same person. It had held that:

“To leave the matter for being determined on the individual facts of a case, may not only lead to a possible abuse of powers, but more importantly will leave the police, the accused, the lawyer and the courts in a state of uncertainty and confusion which has to be avoided. It is therefore held that a fair investigation, which is but the very foundation of fair trial, necessarily postulates that the informant and the investigator must not be the same person. Justice must not only be done, but must appear to be done also. Any possibility of bias or a predetermined conclusion has to be excluded. This requirement is all the more imperative in laws carrying a reverse burden of proof.”

When the present matter came before the Court, it noticed the facts of the present case were different from that in the Mohan Lal case. In the present case, it was argued that the conviction must vitiate as the informant is also the investigating officer. Strong reliance was placed on the Mohan Lal verdict. The Court, however, noticed that the facts in Mohan Lal case were indeed extremely telling in so far as the defaults on part of the prosecution was concerned. In the said case, the paramount consideration being to interpret the law so that it operates fairly, the facts of that case did not show any need to visualise what all exceptions must be carved out and provided for.

In relation to the case at hand, the Court said that the facts in the present case were equally telling with regard to the accused. It added:

“There is a history of previous convictions of the appellant also. We cannot be oblivious of the fact that while the law stood nebulous, charge sheets have been submitted, trials in progress or concluded, and appeals pending all of which will necessarily be impacted.”

Stating that criminal jurisprudence mandates balancing the rights of the accused and the prosecution, the bench said:

“Individual rights of the accused are undoubtedly important. But equally important is the societal interest for bringing the offender to book and for the system to send the right message to all in the society — be it the law­abiding citizen or the potential offender. ‘Human rights’ are not only of the accused but, extent apart, also of the victim, the symbolic member of the society as the potential victim and the society as a whole.”

[Varinder Kumar v. State of Himachal Pradesh, 2019 SCC OnLine SC 170, decided on 11.02.2019]

Case BriefsSupreme Court

Supreme Court: A Bench comprising of N.V. Ramana and M.M. Shantanagoudar, JJ. dismissed an appeal filed by the State of U.P. against the judgment of Allahabad High Court whereby it had reversed the decision the decision of trial court and acquitted the accused of charges under Sections 302 and 307 read with 149, Section 148 IPC and Section 7 of Criminal Law (Amendment) Act, 1932.

The accused persons were alleged to have participated in rioting and injuring the deceased (a senior official) with fire shots which resulted in his death. The accused were tried and convicted by the trial court for the offences mentioned above. However, on appeal by the accused persons, the High Court reversed the conviction and acquitted them. Aggrieved thereby, State of U.P. filed the instant appeal.

On perusal of the record, the Supreme Court was of the view that the judgment of the High Court needs no interference. The Court noted several laches in the investigation which went to root of the matter and resulted in acquittal:

  • Unexplained delay of 55 days in conducting Test Identification Parade.
  • Suspicion over post-mortem report and FSL report being incompatible with each other.
  • Doubtful recovery of pistol from accused.
  • Prosecution’s failure to ascertain with precision the place of incidence.
  • Non-examination of crucial witness (the other injured person in the incident) and failure of adducing independent witness.

Observing that suspicion however grave, cannot take place of proof, the Court gave benefit of doubt to the accused and upheld the High Court’s judgment of acquittal. The appeal filed by the State was dismissed. [State of U.P. v. Wasif Haider,2018 SCC OnLine SC 2740, decided on 10-12-2018]