Case BriefsHigh Courts

Himachal Pradesh High Court: Anoop Chitkara, J., dismissed an appeal filed to challenge the acquittal of respondents-accused for carrying 600 bottles of country-made liquor without license, where the Chief Judicial Magistrate had acquitted him giving reasons.

The daily diary report of the Police line in Hamirpur stated that on the morning of November 29, 2006, when the police party was present at a place known as Karer, then from the side of Salauni, one vehicle number bearing No. HP22A 8412 had arrived and it was stopped on suspicion. The vehicle had two people, the driver and one other person who ran away taking advantage of darkness. On checking the police had found 50 cartons, each carton contained 12 bottles of 750 ml each, in all 600 bottles of country-made liquor of Brand Una No. 1, out of which 5 bottles were taken out by the officials for sample and others were sealed, after which FIR was filed for the commission of offence punishable under Section 61 of the Punjab Excise Act as applicable to the State of H.P., also during investigation, the police arrested the absconding accused. After the completion of the investigation, police had filed a report under Section 173 (2) CrPC in the Court of Chief Judicial Magistrate. After the recording of the prosecution evidence, the trial Court had put the incriminating circumstances to the accused in compliance with the provisions of Section 313 of CrPC; the accused denied all the circumstances but had not led any evidence in defence. The Court had dismissed the prosecution case and acquitted the accused of all charges thus the instant appeal was filed by the State.

The High Court while dismissing the appeal found the impugned Judgment well reasoned and explained that the point that the police had introduced an independent witness at a later stage as there was no mention of him in the daily diary report and in cross-examination also the prosecution witness admitted to the fact that he had seen 350 bottles in a gunny bag which were unsealed, and the prosecution had failed to prove in evidence that the quantity of bottles of liquor in question was 600.  [State of Himachal Pradesh v. Vipan Kumar, Cr. Appeal No. 528 of 2009, decided on 03-01-2020]

Case BriefsHigh Courts

Himachal Pradesh High Court: Anoop Chitkara, J., dismissed an appeal filed challenging the acquittal of the accused of the commission of offences of criminal defamation, insult, threat and causing simple injuries.

A criminal complaint had been filed by one brother-in-law against the other stating that both their houses were adjacent to each other and in between, there was government land which was being used as a compound and a common path by both the parties. The complainant alleged that the accused kept on trying to encroach upon this government land and the complainant prevented him of doing the same but finally, the accused was successful in encroaching upon the land upon which complainant filed an application before the Tehsildar and they scheduled a demarcation. Before the demarcation could take place the accused started building pillars on the government land adjacent to the wall of the house of the complainant to which he objected but instead of stopping the work the accused got furious and hurled abuses on him followed by catching hold of his neck and pushing him and he fell off the stairs suffering injuries. The complainant further alleged that the accused proclaimed that the complainant’s mother had brought her daughter-in-law (his wife), in dowry to which the complainant warned him of using defamatory words. The Court had framed charges against the accused under Sections 323, 500, 504 and 506(1) of the Penal Code. The Court after examining all the witnesses from both the parties dismissed the complaint thus the instant appeal.

The Court while dismissing the appeal based it partly on the cross-examination of the witnesses where it was admitted that the accused had demolished the pillars when the scuffle came up which showed that the quarrel had come to an end and it could not be ruled out that the accused had also filed numerous complaints against the complainant and he had brought this matter after a month when the matter was settled earlier itself. The complaint and the evidence brought on record proved that the case suffered from major contradictions and the accused could be given the benefit of doubt and the court found that the judgment of the trial Court was well reasoned and was based on complete, correct and proper appreciation of evidence. [Kanshi Ram Panchhi v. Amar Chand, 2020 SCC OnLine HP 33, decided on 03-01-2020]

Case BriefsHigh Courts

Himachal Pradesh High Court: Anoop Chitkara, J., dismissed an appeal filed to challenge the acquittal of the respondents-accused, for causing simple hurt and wrongful restraint. The appellant-State had come up before this Court seeking the conviction of accused, by filing the Criminal Appeal under Section 378 of the CrPC.

An FIR was filed by the complainant alleging that she was a farmer and while she was lopping leaves from her compound, Accused 1 and Accused 2, who was carrying a bamboo stick obstructed her from lopping the leaves and claimed that the land belonged to her. On the suspicion that the accused was going to beat her, she ran to her house and requested them that she did not want to quarrel and if the compound fell on their land then they could go for demarcation and if the land was found belonging to them then she would vacate her possession but the accused entered the house and started beating her with sticks. Her mother in law tried to stop the accused on which they started beating her also due to which she suffered several injuries. The medical examination of the complainant and the mother in law was conducted and the sticks were recovered from the accused and the trial court had framed charges under Sections 451 and 323 both read with 34 of Penal Code. The accused had denied all the offences but had not produced any evidence in their defense. The complainant during the cross-examination had admitted to the fact that a civil case was going on between them since 3 years, she also admitted later that at the time of the quarrel Balwant Singh, her daughter, two sons, her mother-in-law and members of the family of accused were also present The JMIC had acquitted both the accused of all the charges thus the instant appeal.

The Court while dismissing the appeal explained that the judgment of the trial court was a well-reasoned Judgment and was based on correct, complete and proper appreciation of evidence provided by the sole independent witness of the case who was the neighbor of the parties and he had stated that the accused Nirmala Devi was in his house and Seema Devi was in her own house. [State of H.P. v. Nirmala Devi, 2020 SCC OnLine HP 31, decided on 03-01-2020]

Case BriefsHigh Courts

Bombay High Court: K.R. Shriram, J., dismissed an appeal filed against the order of the trial court whereby it had acquitted of the offences punishable under Sections 498-A, 306, 201 read with Section 34 Penal Code, 1860.

The accused were the in-laws of the deceased. The complainant (father of the deceased)and harassed her due to the non-fulfilment of their demand. Further, it was alleged that subsequent to the harassment, the accused persons murder the deceased. However, during the trial, the charge of murder against the accused persons was altered to that of the abetment of suicide. At the conclusion of the trial, the trial court acquitted all the accused. Aggrieved thereby, the State approached the High Court in the instant appeal.

The High Court considered the findings of the trial court and held that the offence under Section 498-A (husband or relative of husband of a woman subjecting her to cruelty) was not established as the demand of money, such as alleged by the complainant, could not be proved by the prosecution.

Coming to the charge under Section 306 (abetment of suicide), the High Court, relying on Sanju v. State of M.P., (2002) 5 SCC 371, explained: “Here is the case of abetment by instigation. The word ‘instigate’ means to goad or urge or forward or to provoke, incite, or encourage to do an untoward act which that person would have otherwise not done. It is also well settled that in order to amount to abetment, there must be mens rea. Without knowledge or intention, there can be no abetment and the knowledge and intention must relate to the act said to be abetted, i.e., suicide, in this case. In order to constitute ‘abetment by instigation’, there must be a direct incitement to do the culpable act. The word ‘instigate’ denotes incitement or urging to do some drastic or unadvisable action or to stimulate or incite. Presence of mens rea, therefore, is the necessary concomitant of instigation.”

It was noted that in the instant case, “There is no evidence to suggest or indicate that the accused knew or had reason to believe that deceased would commit suicide. Even if any acts or words uttered by the accused or their conduct are sufficient to demean or humiliate the deceased and even to drive the deceased to suicide, such acts will not amount to instigation or abetment of commission of suicide, unless it is established that the accused intended by their acts that the deceased must commit suicide. It is not enough if the acts of the accused cause persuasion in the mind of the deceased to commit suicide.”

The offence under Section 201 (causing disappearance of evidence of offence, or giving false information to screen offender) was also held to be not proved. Therefore, the order of the trial court was upheld and the instant appeal was dismissed. [State of Maharashtra v. Vijay Maruti Bombale, 2019 SCC OnLine Bom 5985, decided on 19-12-2019]

Case BriefsHigh Courts

Kerala High Court: R. Narayana Pisharadi, J. rejected this petition in which the petitioner prayed to file an appeal against the judgment passed by the trial court, for an offence punishable under Section 138 of the Negotiable Instruments Act, 1881.

This petition was filed by the petitioner to seek relief against the order of the trial court where the trial court acquitted the accused under Section 255(1) of the Code of Criminal Procedure, 1973. Section 255(1) of CrPC states that if the Magistrate, after recording the evidence, finds that the accused is not guilty, he shall record an order of acquittal.

This petition was filed by the complainant in the trial court by the case S.T. No. 114 of  2017 on the file of the Court of the Chief Judicial Magistrate, Thodupuzha. The case was filed under the offence punishable under Section 138 of the NI Act. It consists of dishonour of cheque for insufficiency, etc., of funds in the account, punishable with imprisonment for a term which may extend to 2 years or with fine which may extend to twice the amount of the cheque.

During the trial, the prosecution as well as the accused, both were examined and documents were also marked, complying with the needs of Section 255 CrPC.

The facts of the present petition is that the petitioner wants to file an appeal because the trial court acquitted the accused under Section 255(1) CrPC on the ground that the cheque drawn by him was not on an account maintained by the accused himself, in the bank. Rather it was drawn on an account maintained by one Kavitha Chandrasekharan. The Manager of the Bank of the said account gave evidence that the said account did belonged to Kavitha Chandrasekharan. The counsel for the petitioner contended that the trial court should have charged the accused for an offence punishable under Section 420 of the Penal Code.

It was upheld in a Supreme Court judgment, Jugesh Sehgal v. Shamsher Singh, (2009) 14 SCC 683, that one of the basic ingredients of offence punishable under Section 138 of the Act is that the cheque shall be drawn on an account maintained in the bank in the name of the drawer himself. Hence, the Court here upheld the decision of the trial court.

After noting the contentions of the counsel for the petitioner, Latheesh Sebastian, and the counsel for the respondent, C.N. Prabhakaran, Senior Public Prosecutor, High Court held that the decision given by the Chief Judicial Magistrate was correct as the case did not satisfy all the ingredients that are needed to punish someone under Section 138 of the NI Act. Secondly, this Court also said that it was not necessary for the trial court to convert this case into a warrant case and start a de novo trial. Hence, the prayer for granting leave to file an appeal was rejected and the petition was dismissed. [Areeplavan Finance v. Chandrasekharan, 2019 SCC OnLine Ker 5330, decided on 11-12-2019]

Case BriefsHigh Courts

Delhi High Court: A Division Bench of Manmohan and Sangita Dhingra Sehgal, JJ., held that the appeal filed by the complainant (father of the deceased victim) against the judgment of the trial court, challenging the inadequacy of sentence awarded to the convict, was not maintainable.

The convict was sentenced to life imprisonment for the commission of offences under Sections 302 and 364-A IPC. The complainant (father of the deceased victim), feeling aggrieved by the inadequacy of sentence, filed the instant appeal contending that the sentence awarded to the convict should be sentenced to the death penalty.

C.L. Gupta, Advocate made contentions on behalf of the complainant. Per contra, Amit Gupta, APP, appearing for the State, argued that the appeal was not maintainable.

The High Court reiterated that it is settled law that an appeal is a creature of a statue and cannot lie under any inherent power. It was noted that the proviso to Section 372 CrPC (no appeal to lie, unless otherwise provided) confers upon the victim, the right to prefer an appeal against the order of the Criminal Court in the following three instances: (a) Acquittal of the accused person; (b) Conviction of the accused person for a lesse offence; and (c) Imposition of inadequate compensation.

Relying on a catena of decisions, including that of the Supreme Court in National Commission for Women v. State (NCT of Delhi), (2010) 12 SCC 599, the High Court restated: “An appeal by the victim under Section 372 CrPC, is not maintainable if it only challenges the order on sentence on the ground that it imposes inadequate punishment.”

In view of such a mandate of law, the High Court held that the instant appeal was not maintainable, which was, therefore, dismissed. [Pravinder Kansal v. State (NCT of Delhi), 2019 SCC OnLine Del 11508, decided on 27-11-2019]

Case BriefsHigh Courts

Patna High Court: Ahsanuddin Amanullah, J. dismissed the petition filed against the order passed in Sessions Trial by which the opposite parties 2 to 4 had been acquitted under Sections 447, 307, 504/34 of the Penal Code, 1860 and convicted only under Sections 323 and 341 of Penal Code, 1860.

The petitioner had filed a case under Sections 447, 341, 323, 327 and 504/34 of the Penal Code in which cognizance was taken under all the Sections. After trial, the judgment resulted in the acquittal of the opposite parties under Sections 447, 307, 504/34 of the Penal Code and conviction under Sections 323 and 341 of the IPC. The learned counsel for the petitioner submitted that the accused had assaulted him and two others with lathi and iron rod which resulted in a blow to his head and acquittal under Section 307 of the Indian Penal Code was not justified. They relied upon the judgment of the Hon’ble Supreme Court in the case of Hari Mohan Mandal v. State of Jharkhand, 2004(3) PLJR (SC) 7, for the proposition that to justify a conviction under Section 307, it is not essential that bodily injury capable of causing death should have been inflicted and it was sufficient if there was present an intent coupled with some overt act in execution thereof and further that merely because the injury inflicted on the victim were simple in nature it would not be correct to acquit under Section 307 of the Indian Penal Code.

The APP submitted that the assault resulted in only simple injury and even on the head, there was only one lacerated would which clearly does not satisfy the requirement of conviction under Section 307 of the Indian Penal Code as it did not disclose premeditated intention to kill, as there was no repetition of blow and even the weapons used could not be said to be weapons which may indicate intention to kill the person assaulted.

The Court found no merit in the present application. The order impugned had discussed the evidence and had rightly convicted the opposite parties 2 to 4 only under Sections 323 and 341 of IPC. In the present case, a single blow which had been found to be simple in nature, on the back of the head, can in no way be construed to be indicative of a premeditated mind to inflict such blow knowing that the same would result in the death of the person. [Md. Nazir v. State of Bihar, 2019 SCC OnLine Pat 2010, decided on 19-11-2019]

Case BriefsHigh Courts

Bombay High Court: K.R. Shriram, J., while dismissing the criminal appeal filed by the State against the order of the trial court acquitting the accused of charge under Section 392 of Penal Code, 1860, reiterated that there is a double presumption of innocence in favour of the accused who has been acquitted from the offence as charged by the trial court.

In the instant case, the accused was charged with committing an offence of robbery punishable under Section 392 IPC. On the conclusion of the trial, he was, however, acquitted by the trial court. Aggrieved by the said order of acquittal, the State preferred the instant appeal.

The High Court, on perusal of the evidence, found that the prosecution was not able to prove its case against the accused beyond reasonable doubt and, therefore, no interference was warranted with the order of the trial court. Pertinently, the Court reiterated the law relating to presumption of innocence that runs in favour of the accused. It was observed:

“There is an acquittal and therefore, there is double presumption in favour of the accused. Firstly, the presumption of innocence available to the accused under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured acquittal, the presumption of their innocence is further reinforced, reaffirmed and strengthened by the trial court. For acquitting the accused, the Trial Court observed that the prosecution had failed to prove its case.”

Also, in relation to the nature of proof to be adduced in a criminal case, the Court restated:

“When the evidence adduced did not conclusively lead to the guilt of the accused and only pointed needle of suspicion towards the accused and nothing more, he cannot be committed because suspicion is no substitute for proof in criminal trial.”

Accordingly, finding no fault with the order passed by the Trial Judge, the High Court held that the instant appeal deserves dismissal. [State of Maharashtra v. Shivaji Haribhau Jirase, 2019 SCC OnLine Bom 4130, decided on 11-11-2019]

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]