Case BriefsHigh Courts

Jammu & Kashmir High Court: Tashi Rabstan, J. upheld the finding of the revisional court as it was found to be well reasoned and no abuse of process of law was visible, warranting any interference from the instant Court.

The petitioner filed the instant petition under Section 561-A of the Code of Criminal Procedure (“Cr.P.C”) for setting aside the order passed by learned Additional Sessions Judge, Jammu whereby the order, passed by learned Judicial Magistrate First Class (Munsiff) Jammu discharging the petitioners from the offences mentioned in the Challan against them by the prosecution was set aside.

It was contended by the petitioners that they were being falsely implicated in the FIR by to satisfy a personal vendetta. The material collected by the prosecution during the investigation did not support the prosecution’s case in the framing of charges under Sections 498-A, 323, 504, 506, 109 of the Ranbir Penal Code as the petitioners No. 3 and 4 were not related to the husband of the respondent so as to constitute the offence under Section 498-A RPC.

The counsel for the respondents while trying to defend the Trial Magistrate submitted that the court could not have sifted the evidence placed before it or appreciated the evidence intrinsically at the stage of framing of charge, which was to be considered final. It was further submitted that the allegations in FIR and statements recorded under Section 161 of CrPC prima facie established the offences with which the petitioners were challaned and were required to be put on trial by framing the charge against them.

On perusal of the challan filed after the complete investigation, it was found that statements of nine witnesses recorded under Section 161 CrPC corroborated the allegations leveled against the petitioners in the FIR. The learned Trial Magistrate had appreciated the evidence including the medical report of injuries sustained by the respondent as if she was considering the case either to convict or acquit the accused. The learned Magistrate had observed that petitioner’s 3 and 4 were not related to the husband of the respondent, therefore, the offence under Section 498-A RPC were not made out against them, which was required to proved/disproved by leading evidence and not a mere prima facie case.

The court held that at the time of framing charge, the court had to consider the final investigation report, statement of witnesses under Section 161 CrPC, documents and other evidence adduced by the prosecution and if they saw that the allegations were groundless and no case was made out against the accused, that is, if it was unrebutted, it would not have warranted a conviction, however, if there were even probable chances of commission of offence by accused persons the court needs to frame charges. All this had to be done by prima face appreciation of material on record and not by a roving enquiry by scanning and evaluating the evidence as if the court had to decide whether the accused had committed the offence or not. For such limited purposes of prima facie satisfaction, the court may sift through the evidence produced by the prosecution to find out whether the ingredients of offences were satisfied or not a conduct a mini-trial by marshaling the evidence on record.  [Tamandeep Singh v. State of J&K2019 SCC OnLine J&K 855, decided on 25-10-2019]

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]

Case BriefsHigh Courts

Allahabad High Court: A Division Bench of Ramesh Sinha and Dinesh Kumar Singh-I, JJ. allowed the appeal filed by a couple accused of murder, against the trial court’s order sentencing them to death for the said offence; and set aside the death reference made by the trial court.

In the present case, the appellant along with his wife Shakila was accused of murdering his two brothers-in-law and mother-in-law by hacking their neck, in a factory where he was a watchman. Charges were made out against the appellant and his wife under Sections 302, 34 and 201 of the Penal Code, 1860. The trial court convicted them on the basis that only appellant had access to the building as he lived inside it, and account of a child witness aged 6 years (son of the deceased lady) was taken into consideration.

Learned counsel for the appellant argued that the child witness’ testimony could not be taken into consideration as he had deposed that he was wrapped in a blanket and thrown in another room by his sister Shakila. The child’s presence at the crime scene could not be confirmed as had he been present over there, he too would have been killed by the accused-appellant but that was not the case. Moreover, the panchayatnama of three deceased was conducted as of unknown persons and had the child witness been present at the place of occurrence then definitely he would have disclosed the two male deceased to be his real brothers and female to be his mother. Also, it could not be said that the factory in which the appellant was a guard and where he was living along with his wife, was in his exclusive possession and not accessible to anyone else because one of the keys of the factory was with the owner of the factory. Therefore, the factory was accessible to others as well.

On the other hand, learned Additional Government Advocate submitted that accused-appellant has bad antecedents as he was already convicted and sentenced by the trial court for murdering his earlier wife. He had absconded from Lucknow jail and was living in Kanpur while working in the said factory as Chaukidar. He had enticed the daughter of deceased lady and when Shakila’s brothers along with their mother came to take her away from accused, a quarrel took place between the parties and Shakila’s mother and two brothers were murdered by accused. Shakila’s younger brother was an eye witness of the incident and had deposed that he saw the accused killing the three deceased with knife and his sister Shakila was facilitating in the crime.

The Court noted the aforestated facts and arguments and opined as below:

Section 118 Evidence Act – Reliability on testimony of child witness:

It was observed that the Investigating Officer had failed to show the place of occurrence and the place from where the child witness was witnessing the incident as the incident had taken place in two parts – body of mother of child witness was found on the second floor of the factory whereas the dead body of his two deceased brothers, was found on the first floor of factory. It was observed that it was highly doubtful that the child, who had stated that he was wrapped and thrown in a room by his sister, could not have seen the murder of the two deceased which had taken place on the first floor. Thus, his evidence could not be said to be wholly reliable for the conviction and sentence of two appellants.

The Court relied on Digamber Vaishnav v. State of Chhattisgarh, (2019) 4 SCC 522 where the Supreme Court while discussing Section 118 of the Evidence Act, 1872 held that “evidence of a child witness must be evaluated carefully as the child may be swayed by what others tell him and he is an easy prey to tutoring. Therefore, the evidence of a child witness must find adequate corroboration before it can be relied upon.”

Presumption under Section 106 Evidence Act:

It was opined that the prosecution admitted that one key of the factory was with accused and another key was with the owner of the factory. Hence, the presumption under Section 106 of the Evidence Act could not be drawn against the accused as he was not in his exclusive possession of the factory.

Proof beyond a reasonable doubt versus suspicion:

Further, the Court opined that it may not be possible that two deceased men aged about 25 years and 35 years and the deceased lady aged about 55 years could have been overpowered and killed single-handedly in such a gruesome manner by the accused who was just aged about 45 years. The possibility of the incident having occurred in some other manner by more persons could not be completely ruled out. It was noted that suspicion, howsoever strong, could not take the place of proof. Reliance in this regard was placed on Sujit Biswas v. State of Assam, (2013) 12 SCC 406 where the Court examined the distinction between ‘proof beyond reasonable doubt’ and ‘suspicion’.

Establishing guilt on the basis of circumstantial evidence:

Lastly, the Court relied on Digamber Vaishnav case and opined that in criminal cases where guilt of the accused is sought to be established on the basis of circumstantial evidence, “if two views are possible on evidence adduced in the case – one binding to the guilt of the accused and the other is to his innocence, the view which is favourable to the accused, should be adopted.”

In view of the above, the conviction and sentence of both the appellants by the trial court was set aside, and they were directed to be released from jail forthwith unless otherwise wanted in any other case.[Rashid v. State of Uttar Pradesh, 2019 SCC OnLine All 2228, decided on 16-05-2019]

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: Explaining the law on the credibility of the testimony of an interested eye-witness, the bench of NV Ramana and SA Nazeer, JJ held:

“If the evidence of an eyewitness, though a close relative of the victim, inspires confidence, it must be relied upon without seeking corroboration with minute material particulars. It is no doubt true that the Courts must be cautious while considering the evidence of interested witnesses.”

The Court was hearing the appeal of a man who was accused of abusing and attacking a shopkeeper with iron rod who was heading home in the evening with his father. The shopkeeper later succumbed to the injuries on his head. The accused had assaulted the deceased after a prior tussle between them during the daytime at the shop of the deceased over a financial transaction. One iron rod being the weapon of assault was also recovered at the instance of the accused.

The father of the deceased was the sole eye-witness in the case and the therefore, the entire case depended upon the veracity of his testimony. The accused, hence, argued that he was an interested witness and hence, his testimony can be relied on. He also argued that if the eyewitness was present at the time of the incident then why didn’t he receive any injury? To this, the Court answered:

 “It is not necessary that to prove an offence, every eyewitness who had seen the accused hitting the victim should also receive injuries.”

The Court, hence, calling the father of the deceased a ‘natural’ witness to the incident, noticed that the chain of events and the circumstantial evidence thereof completely supports the eyewitness’s statements which in turn strengthens the prosecution case with no manner of doubt.

As a word of caution for the courts, the bench said:

“When analyzing the evidence available on record, Court should not adopt hyper technical approach but should look at the broader probabilities of the case. (…)  Particularly in the criminal cases, from the date of incident till the day they give evidence in the Court, there may be gap of years. Hence the Courts have to take all these aspects into consideration and weigh the evidence. The discrepancies and contradictions which do not go to the root of the matter, credence shall not be given to them. In any event, the paramount consideration of the Court must be to do substantial justice.”

[Khurshid Ahmed v. State of Jammu and Kashmir, 2018 SCC OnLine SC 529, decided on 15.05.2018]

Case BriefsSupreme Court

Supreme Court: The 3-judge bench of Dipak Misra, Amitava Roy and AM Khanwilkar, JJ held that a public servant facing charge of criminal misconduct, cannot be comprehended to furnish any explanation in absence of the proof of the allegation of being in possession by himself or through someone else, of pecuniary resources or property disproportionate to his known sources of income.

The bench held that the primary burden to bring home the charge of criminal misconduct is indubitably on the prosecution to establish beyond reasonable doubt that the public servant either himself or through anyone else had at any time during the period of his office been in possession of pecuniary resources or property disproportionate to his known sources of income and it is only on the discharge of such burden by the prosecution, if he fails to satisfactorily account for the same, he would be in law held guilty of such offence.

In the case where the appellant had challenged the Madhya Pradesh High Court’s order convicted him under Section 13(1)(e) read with Section 13(2) of the Prevention of Corruption Act, 1988 by drawing adverse inference without any conclusive proof, the Court, setting aside his conviction, said that the appellant must be given a benefit of doubt. The Court said that the prosecution, to succeed in a criminal trial, has to pitch its case beyond all reasonable doubt and lodge it in the realm of “must be true” category and not rest contended by leaving it in the domain of “may be true”. [Vasant Rao Guhe v. State of Madhya Pradesh, 2017 SCC OnLine SC 893, decided on 09.08.2017]

Case BriefsSupreme Court

Supreme Court: The bench comprising of L.Nageswara Rao and Navin Sinha, JJ. held that in the absence of conclusive and consistent proof of circumstantial chain of evidence which lead to the only “hypothesis of guilt” against the accused then, only circumstance of last seen cannot be made basis of conviction.

In the case where the accused were charged with rape and murder of the deceased whose severed body was found on the railway track after she was seen in the house of one of the accused persons, the Gauhati High Court held them guilty for causing death in furtherance of common intention, under Section 302/34 and for tampering with evidences, under sec 201 of Penal Code 1860 and awarded life imprisonment for the same. Prosecution relied on blood samples, postmortem certificate and last seen theory to form chain of evidence.

The Court held that there exist no conclusive proof of corroboration of statement of investigation and the blood stains found on murder weapon couldn’t be established. The Court allowed the appeal and reversed the decision of High Court, stating that last seen together cannot be the only ground for holding accused guilty, a connectivity must be established, the circumstance of “last seen together” does not by itself and necessarily lead to the inference that it was the accused who committed the crime. It further stated that due to the lack of corroborative evidence the appellants are acquitted of the charges under Section 302, 201 read with 34 Penal Code 1860. [Anjan Kumar Sharma v. State of Assam, 2017 SCC OnLine SC 622, decided on 23.05.2017]

Case BriefsHigh Courts

Allahabad High Court: The Division Bench comprising of Surendra Vikram Singh Rathore and Anil Kumar Srivastava, JJ. held that statements given by the accused persons under Section 313 of the Criminal Procedure Code, 1973 can be used for the appreciation of evidence and can also be used for corroboration of the evidence, but the burden of the prosecution to prove its case beyond reasonable doubt is not reduced to any extent. The accused had filed an appeal against the judgment and order passed by the Additional Sessions Judge, Fast Track Court No. 2, Gonda, in Sessions Trial No. 177 of 2004 whereby  the appellants were convicted under Sections 147, 148, 304 and 342 of the Penal Code, 11860. The counsel for State argued on the behalf of the complainant that the accused persons have admitted the date, time and place of occurrence themselves in the statement recorded under Section  313 CrPC  and the manner in which  the whole incident  had taken place has been stated by the witnesses.

Allowing the appeals, the Court held that prosecution must stand on its own legs and cannot take advantage of the weakness in the defence case. Further, the Court on examining the features of Section 313 of the Code noted the observation of the Supreme Court in Balaji Gunthu Dhule v. State of Maharashtra, (2012) 11 SCC 685, that the statement of the accused can be used to test the accuracy of the exculpatory nature of the admission, if any, made by the accused. It can be taken into consideration in any enquiry or trial but still it is not strictly evidence in the case. [Ashok Singh v. State of U.P, 2016 SCC OnLine All 290, decided on May 26, 2016]