Case BriefsHigh Courts

Rajasthan High Court: Sandeep Mehta, J. suspended the punishment awarded by the Additional Sessions Judge in the Sessions Case No. 46 of 2017, Udaipur. The co-accused of the same case already got relief from this Court. 

The appellant, in this case, is convicted and sentenced for offences under Sections 307, 323/34 and 324/34 of the Penal Code. The applicant in the appeal has already served nearly four and a half years of punishment out of seven years of rigorous punishment awarded by the trial court. Whereas the Court already suspended the sentence awarded to the co-accused. Before giving any relief to the appellant, the Court looked into the previous convictions of the appellant. It was collected that the appellant did not have any other grievous criminal history, except for the present one. Hence, the Court decided that the applicant will be granted bail during the pendency of the appeal, following the principle of parity.

Section 389 of Code of Criminal Procedure, 1973 provides for the provision of bail in certain cases and this Court suspended the sentence of the trial court till the final disposal of this appeal. 

The Court asked the appellant to produce a personal bond of a sum of Rs 50,000 with two sureties of Rs 25,000 each. In addition, the Court ordered for his appearance in this court on 06-01-2020. The Court also ordered that the appellant will have to appear before the trial court in the month of January, of every year, until the appeal is decided. The appellant is also supposed to inform the trial court if he changes his place of residence or the sureties residence. The Court ordered the trial court to maintain attendance of the accused- applicant in a separate file. Further, this Court ordered the trial court to inform if the applicant does not produce himself. If so, then the High Court will cancel the bail of the applicant. [Mustaffa Sheik v. State of Rajasthan, 2019 SCC OnLine Raj 4477, decided on 04-12-2019]

Case BriefsForeign Courts

Court of Appeal of the Democratic Socialist Republic of Sri Lanka: A Division Bench of K.K. Wickremasinghe and K. Priyantha Fernando, JJ., allowed an appeal setting aside the conviction and acquitting the Accused-Appellant from the charge of murder.

The Appellant and the victim (deceased) were husband and wife. Appellant was a serving Brigadier in the Sri Lankan Army, they were sleeping in their room and the victim’s brother (PW 2) was sleeping in another room with the appellant’s son (PW 1). After hearing some unusual noise the PW2 ran to check what had happened on the other hand PW 1 followed the appellant to his room and saw saliva coming out of the mouth of the deceased and blood on her head, she was taken to the hospital where she succumbed to injuries in about 2 hours.

There was no dispute that the shot was fired from the personal weapon of the

Appellant and that the deceased died of that gunshot injury.

The counsels for the appellant Shavindra Fernando PC and Ananda Weerasinghe contended that the deceased had committed suicide by shooting herself and the appellant had tried to grab the weapon while he saw the deceased standing with the gun on her head but he was unsuccessful. After trial the learned High Court Judge found the Appellant guilty of the charge and sentenced him to death aggrieved by which the instant appeal was filed. The counsels for the appellant contended that the trial judge had erred in his decision by not considering various important factors like the bullet was fired from a distance of 30 cm away from the head of the deceased and the judgment was based on hearsay evidence and he was denied fair trial. The arguments of both the parties were analyzed again and opinion of expert witnesses was referred to which was unable to prove a case against the appellant and hold him liable for the offence beyond reasonable doubt.

The Court while allowing the appeal set aside the conviction of the appellant and acquitted him on the count of murder explaining that the prosecution had failed to prove the charge beyond reasonable doubt against the Appellant. [Democratic Socialist Republic of Sri Lanka v. Don Chandana Priyantha Rupasinghe, Court of Appeal Case No. HCC 44 of 2015, decided on 26-11-2019]

Case BriefsHigh Courts

Sikkim High Court: Bhaskar Raj Pradhan, J., upheld the decision passed by the Sessions Judge while rejecting the present appeal filed.

In the present case, FIR was lodged by PW 1 complaining that her sister, i.e. the victim (PW 12) was burnt and bitten by the appellant. In lieu of the same case was registered under Section 307 of the Penal Code, 1860 against the appellant.

The  Sessions Judge framed the charge under Section 307 IPC and on the plea of “not guilty” the trial commenced.

At the time of the trial, Sessions Judge examined the appellant under Section 313 of the Code of Criminal Procedure, 1973. Sessions Judge delivered the impugned judgment holding the appellant guilty as charged.

Present appeal challenges the conviction and sentence.

C. Sharma, was the Counsel for the appellant and Thupden Youngda, learned Additional Public Prosecutor, represented the State-respondent.

Victim stated that appellant, who she was in a relationship with, had a fight with her and started damaging the furniture after which she called the police. Appellant picked up the kerosene jar, poured kerosene oil over her and burnt her after lighting a matchbox. Eyewitness tried to douse the fire by putting water and thereafter took the victim to the hospital.

Defence alleged that she had pressurised the appellant to marry him and so they had a discussion and in a fit of anger, poured kerosene upon herself, lighted a matchbox and set herself on fire.

Dr Simmi Rasaily (PW 13) who examined the victim found burn injuries and recorded in her report that there was kerosene smell on her body, which corroborates victim’s deposition.

Deposition of the victim was adequately corroborated by both oral and material evidence. Failure of PW 1 to give certain details about her visit to see the victim at the hospital does not dislodge the fact that she had lodged the FIR after visiting the victim. Further, the only issue raised by the Appellant’s Counsel that required examination is an alleged failure of the prosecution to produce the eyewitness.

“In a criminal trial, an accused person is considered innocent until proven guilty. It is for the prosecution to establish its case beyond all reasonable doubt.”

It was further noted that P. Dewan (DW 1) had recorded the statement of the eyewitness during the appellant’s departmental inquiry which must be given credence.

However, whether what P. Dewan heard and the eyewitness stated in her statement was the truth could have been found only if she had been produced as a witness and subjected to cross-examination. Evidence of P. Dewan is, therefore, hearsay to that extent. Therefore, there is no credible evidence led by the defence to create enough doubt in the mind of the Court to defeat the prosecution case.

High Court with respect to the above stated that the defence evidence does not make probable his innocence in view of the overwhelming evidence led by the prosecution.

Further adding to its observation, Court stated that the victim’s deposition cannot be doubted, her testimony has its own significance.

Therefore, in the present case prosecution has established its case that it was only the appellant who had poured kerosene over the victim and burnt her with the knowledge that if he by that act caused death, he would be guilty of murder and consequently, by such an act, the victim was hurt.

Appeal is rejected in the above terms and Sessions Judge’s judgment of conviction and order on sentence, both have been upheld. [Deepen Pradhan v. State of Sikkim, 2019 SCC OnLine Sikk 195, decided on 30-11-2019]

Case BriefsForeign Courts

Supreme Court of the Democratic Socialist Republic of Sri Lanka: A Full Bench of Jayantha Jayasuriya, PC, CJ and Priyantha Jayawardena, PC, and Murdu N.B. Fernando, PC, JJ., allowed appeals filed by two appellants out of eight accused.

The two Accused-Appellant-Petitioners (hereinafter called Appellants) were charged along with six others in the Magistrate’s Court of Jaffna. They were charged for “Joining an Unlawful Assembly armed with any deadly weapon”, an offence punishable under Section 141 of the Penal Code; “Voluntarily Causing Grievous Hurt by dangerous weapons or means” while being members of an unlawful assembly, an offence punishable under Section 317 read with Section 146 of the Penal Code; and “Voluntarily Causing Grievous Hurt by dangerous weapons or means” punishable under Section 317 read with Section 32 of the Penal Code.

The Magistrate convicted all eight accused for the first two counts, after trial. The two appellants being aggrieved with the conviction and the sentence appealed to the High Court of Jaffna.

The High Court Judge affirmed the conviction and sentence. Thus the instant appeal was filed.

The Counsels for the appellants M.A. Sumanthiran, PC, J. Arulanantham and D. Mascarange contended that he would mainly address the issue of dock identification as there was no proper dock identification relating to two appellants and there was no sufficient evidence to establish the identity of the two appellants. There was no dispute that neither the victim nor any other witness, in this case, knew the two appellants.

The Court while allowing the appeal opinioned that the evidence was unsatisfactory and the conviction and sentence of the two appellants was set aside accordingly acquitted. [Rathnasingham Janushan v. Officer In-charge, SC (Spl) Appeal No. 07 of 2018, decided on 04-10-2019]

Case BriefsForeign Courts

Malaysia Court of Appeal: A Full Bench of Kamardin Hashim, Hanipah Farikullah, Mohamad Zabidin Mohd Diah, JCA dismissed the appeal filed by a person who was convicted for drug trafficking and affirmed the conviction and sentence of the death penalty by High Court.

The appellant was a Thai national female who was found in the possession of drugs and she was trying to hide it by sitting on it. When cops did the body check of appellant then drugs were found. She was charged under Section 39B(1)(a) of the Dangerous Drugs Act, 1952. The learned trial judge invoked the statutory presumption under Section 37(da)(ix) of the Act based on the weight of the drugs which was more than 40 grams of Cocaine, and sentenced her to death penalty. The said order was challenged in this appeal.

The appellant argued that drugs could have been left by the previous guest and also there are chances that police may fabricate evidence against her but there was no reason for police to do that. She also emphasized that her luggage was scanned at the airport and nothing incriminating was found. But the argument was made that there is a possibility she got possession of drugs after she left airport. 

The respondent argued that they got information about drugs so they checked the room acting on that information they checked the room and drugs were found in that room. Drugs found were sent for check which confirmed the presence of cocaine in those things which further affirms the allegation on the appellant. Moreover, there will be no reason to defame a person who had just arrived in a country. 

The Court opined that High Court had analysed all the witness and was satisfied there was no break in chain of evidence to the drugs produced and identified by prosecution witness in court. The High Court Judge had relied on the conduct of appellant in concealing the drugs by sitting on them, which established that she had knowledge about it.

Giving due regard to appreciation of evidence by the High Court and circumstances of this case, the Court held the appellant guilty for trafficking charges without any reasonable doubt. The court also remarked that it is illogical for the person to leave such valuable drugs in the room. It was opined that there was no merit in the appeal and also the arguments made by the appellant. [Napalai Narapattarawong v. Public Prosecutor, 2019 SCC OnLine MYCA 3, decided on 24-09-2019]

Case BriefsForeign Courts

Supreme Court of the Democratic Socialist Republic of Sri Lanka: A full bench of Priyantha Jayawardena, PC, Murdu N.B. Fernando, PC, and S. Thurairaja, PC, JJ., dismissed an appeal filed against an order of the High Court of Colombo, through his Power of Attorney holder, Wanigasuriyaarachige Don Sharan Mary Dolita to the Supreme Court.

The Accused-Appellant was employed as a General Cashier (Chief Cashier) at the Hilton Hotel, Colombo. Passengers who were departing through the Bandaranaike International Airport were supposed to pay an Embarkation Tax. The Hilton hotel pre-purchased the Embarkation Tax Tickets and provided them to their customers. The routine accounts verification found that, the cashier had not accounted for the said money of Rs 600,000 and when they investigated, it was found that the cashier had not reimbursed Rs 600,000   which was used to purchase the Embarkation Tax Tickets. The Hotel held an independent enquiry and found the Accused-Appellant guilty. The matter was referred to the Colombo Fraud Investigations Bureau; a case was filed against the Accused-Appellant, at the Colombo-Fort Magistrate’s Court on two counts under Section 391 of the Penal Code and two alternate counts under Section 386 of the Penal Code. The magistrate found him guilty on the first and third counts and sentenced him to one year imprisonment, aggrieved by which the Accused-Appellant had filed an appeal in the High Court and the High Court had affirmed the order of the Magistrate. Dissatisfied by which the instant appeal was made and the Supreme Court had asked to frame the grounds of appeal.

The Court while dismissing the appeal explained that the misappropriation of the Accused-Appellant has been proved beyond reasonable doubt and they do not find any in consideration of the grounds of appeal, hence there are no merits in the grounds of appeal. [Warnakulasuriya Michael Angelo Fernando v. Officer-in-Charge, SC Appeal 85 of 2014, decided on 13-11-2019]

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

Kerala High Court: A Division Bench comprising of A. Hariprasad and A.Anil Kumar, JJ., released the appellant as no intention to commit murder was established and he had already undergone more detention than imposed by the law.

The prosecution alleges that the deceased and the accused-appellant used to sleep in the veranda or close shop rooms and in bus waiting sheds. It is pertinent to note that both were in the habit of drinking. The appellant had enmity towards the deceased and physically assaulted him by kicking and hitting on vital body parts with an intention to commit murder. The deceased was taken to the hospital where he was declared dead on arrival.

Renjith B. Marar, counsel representing the appellant, argued that the name of the deceased was noted at the hospital. Due to a botched up investigation, the chance of someone else assaulting the deceased with a mistaken identity cannot be ruled out. There is no case that the accused had any weapon which could have been used for causing injuries mentioned in the post-mortem report. He further argued that even if the prosecution case is accepted, the offence under Section 300 of the Penal Code, 1860 is not made out. The counsel submitted that the opposite counsel failed to prove mens rea on the part of the appellant that caused the death of the deceased. 

Alex H. Thombra, counsel for the respondent, argued that on the evening previous to the incident due to a scuffle between the accused and the deceased; the accused was made to apologise to the victim and thus he developed hostility towards him. PW1 confirmed witnessing the accused assaulting the deceased.

The High Court upon perusal of the facts and circumstances of the case held that the appellant and the deceased were known to each other prior to the incident, the appellant was aware of the deceased’s weak physical conditions. Thus the Court held that the appellant had knowledge that by incessantly assaulting the deceased it will likely cause his death and there is the absence of intention to commit murder, thus the appellant has committed an offence under Section 299, Penal Code, 1860 and is liable under Section 304 of the Penal Code, 1860. The Court sentenced him to 7 years of rigorous imprisonment and on finding that he has been undergoing detention for about 10 years directed that authorities release him. [Jomon Kava v. State of Kerala, CRL.A.No. 1276 of 2016 decided on 31-10-2019]

Case BriefsHigh Courts

Rajasthan High Court: A Division Bench of Sabina and Goverdhan Bardhar, JJ., while dismissing the appeal upheld the judgment passed by the trial court.

In the instant case, respondent Nafisa in her dying declaration stated that her husband Amin who is the appellant, in this case, used to beat her out of matrimonial home under the influence of liquor. On 14-08-2011 Amin under the influence of liquor gave beatings to her and poured kerosene oil on her and set her on fire around 8-9 pm. The children were sleeping at that time so she raised an alarm she was taken to the hospital by her neighbours. Meanwhile, the appellant fled away from the spot. Respondent’s statement was recorded under Section 164 of the Code of Criminal Procedure, 1973. Respondent died on 15-08-2011 at 3:30 am so the offence under Section 302 of the Penal Code, 1860 was added. 

During the investigation, appellant said he was falsely framed in this case and said his wife had prepared meals and had served to children and he had no knowledge of how the fire was caught. Moreover, he said he tried to extinguish the fire and suffered injuries on his hands and face. When children were examined they didn’t support prosecution case and said their father tried to extinguish fire. Medical examination of the appellant said he suffered burn injuries on his hands and forearm. Even the parents of the deceased also admitted that she never complained about her husband to them. 

Therefore, the question before Court was that the statement recorded as dying declaration under Section 164 of the Code of Criminal Procedure, 1973 recorded by the magistrate the entire case should rest upon it.

The Court relied on the case Muthu Kutty v. State of T.N., (2005) 9 SCC 113 where Supreme Court laid down that though the dying declaration is of great value and importance, the accused is left with no power of cross-examination. The Court has to be on guard “that the statement of deceased was not as a result of either tutoring, or prompting or a product of imagination”. In another case of Munnu Raja v. State of M.P., (1976) 3 SCC 104, the Supreme Court laid down that there is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration.

The Court opined that the dying declaration in this case was obtained by all legal means as it was recorded by magistrate under Section 164 of the Code of Criminal Procedure, 1973 and the doctor deemed her fit to give statement and it was also signed by doctor and moreover no reason was established of her to such a thing in her death bed. The appellant neither took her wife to the hospital and nor was present in the hospital during the time of treatment. Moreover, the medical examination of the appellant happened on 28-09-2011 and the incident took place on 14-08-2011. Delay of so many days further questions the credibility of the medical report. This establishes guilt in the mind of appellant. [Amin v. State of Rajasthan, 2019 SCC OnLine Raj 3945, decided on 23-10-2019]

Case BriefsHigh Courts

Allahabad High Court: Sanjay Kumar Singh, J. allowed the instant application in terms of compromise and quashed the chargesheet as well as the entire proceedings.

This instant application was filed for the quashing of the chargesheet. The applicant, Gomti Devi purchased a plot that it got in a dispute with Madhu Sharma, daughter-in-law of Opposite Party 2. An FIR was lodged against Madhu Sharma by Opposite Party 2 under Section 156(3) of the Code of Criminal Procedure, 1973, for wrongly and illegally executing a sale deed which is in dispute. Investigating Officer filed the chargesheet under Section 420 of the Penal Code, 1860.

Counsel for the applicants, Vinod Sinha, submitted that during the pendency of the trial both the parties entered in compromise and all things were settled outside the court. So an affidavit was filed for cancellation of sale deed dated 12-12-2011. Since the compromise was made the continuance of criminal proceedings pursuant to impugned charge-sheet against the applicants after compromise arrived at between the parties would be a futile exercise.

The issue before the Court was whether the Court can quash the proceedings of a non-compoundable offence under Section 482 CrPC.

This Court relied on the judgment of the Supreme Court in the case of State of M.P. v. Laxmi Narayan, (2019) 5 SCC 688  where it laid down the guidelines for exercising the inherent power of the court under Section 482 of Code of Criminal.

The Court after considering the facts and circumstances of this case observed that this is a fit case, where this Court can exercise its inherent power to secure the end of justice. Accordingly, the Court quashed the subject proceedings. [Gomti Devi v. State of U.P., 2019 SCC OnLine All 4269, decided on 30-10-2019]

Case BriefsHigh Courts

Uttaranchal High Court: Manoj K. Tiwari, J. allowed a writ petition to quash criminal proceedings after parties compromise over a non-compoundable offence.

The petitioners were convicted for the charge of robbery under Section 392 of the Penal Code, 1860. The learned counsels for both the parties, Mr Mani Kumar for the petitioners and Mr Kishore Rai for respondent 3, submitted that the dispute was amicably settled and the parties want to bury the hatchet. A writ petition seeking quashing of the FIR lodged against the petitioners and a compounding application was duly filed in the court.

The Court commented extensively on the power conferred by Section 482 of the Code of Criminal Procedure, 1973 stating its primary need to be the prevention of abuse of the process of any court or to secure the ends of justice. It is equally well settled that the power is not to be resorted to if there is a specific provision in the Code for the redress of the grievance of an aggrieved party. It should be exercised very sparingly and it should not be exercised as against the express bar of law engrafted in any other provision of the Code.

As to when can a High Court quash criminal proceedings in view of a settlement between the parties, the offences being non-compoundable, the Court took the Supreme Court’s view in Gian Singh v. State of Punjab (2012) 10 SCC 303 which was that it can do so if in its opinion continuation of criminal proceedings will be an exercise in futility and justice in the case demands that the dispute between the parties is put to an end and peace is restored; securing the ends of justice being the ultimate guiding factor.

In view of the points of law discussed above, the Court acknowledged that the possibility of a conviction from a trial seemed rather bleak and remote considering the parties have entered into a compromise and thus, allowed the writ petition. [Gurmukh v. State of Uttarakhand, 2019 SCC OnLine Utt 1138, decided on 08-11-2019]

Case BriefsHigh Courts

Sikkim High Court: A Division Bench comprising of Meenakshi Madan Rai and Bhaskar Raj Pradhan, JJ., while allowing an appeal, found error in trial court’s decision of convicting the appellant under Section 375 of Penal Code, 1860, as none of the ingredients required for an offence to be established under Section 375 was satisfied.

Background of the case

In the present case, the mother of the victim filed an FIR against the appellant. Charge-Sheet against the appellant was under Section 376 of the Penal Code, 1860 read with Section 4 of the Protection of Children from Sexual Offences Act, 2012.

Trial Court had framed charges against the appellant under Sections 5(l) and 5(k) punishable under Section 6 of POCSO Act, 2012 and Sections 376(2)(n), 376(2)(i) and 376(2)(l) of the Penal Code, 1860.

Trial Court on considering the examination of the witnesses, convicted the appellant of offences under Section 376(2)(l) and 376(2)(n) punishable under Section 376(2) of the Penal Code, 1860 but acquitted him of the offences under Sections 5(l) and 5(k) of the POCSO Act, 2012 and 376(2)(i) of IPC.

Thus, on being dissatisfied with the finding the appellant approached the High Court.

Submissions of the appellant

Appellant assailed the impugned judgment on the grounds that although the victim alleged that he had sexually assaulted her on several occasions she did not complain of it either to her parents or anyone else.

The victim complained that the appellant used to frequently come to her home and sexually assault her when she was alone and she had narrated the incident to PW5 who however failed to endorse this evidence of PW9. Contrarily PW1 deposed that appellant told him that the victim had lured him to have sexual intercourse with her.

Even the minority of the victim stood unestablished and the trial court in the absence of any evidence opined that the victim was not a minor. Hence, the appellant be acquitted of the charges.

Submissions by Additional Public Prosecutor

He argued that although the prosecution had furnished the birth certificate of the victim before the trial court in the absence of supporting documents it was not considered. The said document was never contested by the appellant which therefore was an acceptance of the fact that the victim was a minor.

Relying only on the statement of the victim, it was contended that she has specifically stated that the Appellant had requested her to have sex with him holding out the promise that her deformities would be cured if she consented and acted on the consent.

Mother of the victim corroborated the evidence of PW9 as she had stated that on a relevant day, the victim came running to her and told that the appellant had entered the and forcibly laid her on the bed, taken off her lower garment and rubbed his penis on the vagina.

Hence it was stated that no error emanates in trial court’s ruling.

Decision of the High Court

High Court noted that the birth certificate was not contested by the appellant; the trial court chose to ignore it in the absence of supporting documents. Thus, it follows that the age of the victim has not been established.

Court also took note of the evidence of PW6 from which it was clear that the witness has not explained as to whether the laxity of the hymen was a result of the occurrence of the alleged incidents or whether the hymen was lax prior to the incidents or for that matter whether medical science can at all point to the age of the laxity enabling the Court to draw a correct conclusion.

In absence of any categorical and cogent statement of PW6 in this context and in the absence of fresh injuries on the genital or person of the victim, medical report is of no assistance to the prosecution case and neither can the offence of the appellant be foisted.

What does Section 375 of Penal Code, 1860 say?

Appellant was convicted under Section 376(2)(n) and Section 376(2)(I) IPC.

Offence of rape is described in Section 375 of the Penal Code which, inter alia, requires penetration of the perpetrator’s penis to any extent, into the vagina, mouth, urethra or anus of the victim or he makes her do so with him or any other person or that he inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her to do so with him or any other person.

Rape would also occur if the accused manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any part of body of such woman or makes her to do so with him or any other person or the accused applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other person.

These acts must necessarily be against the will of the victim, sans her consent and if her consent is obtained by putting her in fear of death or hurt or any of the seven descriptions enumerated in Section 375 IPC.

Observation of the Court

Victim had claimed that there was sexual assault and therefore Court cannot arrive at a hasty conclusion. It was imperative for the prosecution to have extracted from the victim during her deposition the actual act that was committed on her considering that the prosecution is under the mandate of proving its case beyond all reasonable doubt which means that it cannot leave its case to ambiguities thereby leading to erroneous conclusions.

All of the above-stated explains that the appellant does not satisfy the ingredients of Section 375 IPC.

Thus, the Court was of the considered opinion that trial court erred in arriving at the finding and in High Court’s opinion the offence is one under Section 354A (1)(i) IPC.

The appeal is allowed to the extent above. [Tshering Tempa Sherpa v. State of Sikkim, 2019 SCC OnLine Sikk 188, decided on 12-11-2019]

Case BriefsHigh Courts

Patna High Court: Madhuresh Prasad, J. disposed of the writ petition on the ground that the petitioner was not incarcerated when joining was offered.

The petitioner was a Peon in the respondent bank. An FIR was lodged against the petitioner, his son and other family members alleging offences under Sections 304-B read with Section 34 of the Penal Code, 1860. The allegations led to the conviction of the petitioner. Later, the petitioner was granted bail and released from custody. He then submitted for his joining in the bank but was subsequently served with a notice of proposed punishment of dismissal by the respondent bank. The petitioner thus filed the instant proceedings.

During the pendency of the instant writ proceeding, the petitioner was dismissed on account of his conviction in the criminal case by the bank in view of the provisions contained in the Regulations 39 and 40. The petitioner had preferred a criminal appeal against the conviction order and the impugned order was set aside but he had already crossed the age of retirement by then.

The petitioner in view of the developments during pendency had sought for quashing of the order dismissing him from service and also prayed that he may be granted benefits of payment of salary from the date on which he offered joining. The counsel    Shashi Bhushan Kumar-Manglam representing the petitioner relied on the Judgment of the Apex Court in the case of Ranchhodji Chaturji Thakore v. Superintending Engineer, Gujarat Electricity Body, Himmat Narayan, (1996) 11 SCC 603, according to which the petitioner was entitled to grant of salary from the date on which he offered to join in the bank after his release on bail as thereafter he had been prevented from working by the authorities on account of their non acceptance of petitioner’s joining.

Advocates Prabhakar Jha and Mukund Mohan Jha, representing the bank submitted that the scheme of the Regulations which governed terms and conditions of the petitioner’s services make it abundantly clear that conviction by itself was a disqualification to continue in service. The mere fact of conviction was sufficient to dismiss an employee dispensing with the requirement of compliance with the principles of natural justice. He even referred to the same judgment relied on by petitioner’s Counsel to submit that it was only upon his acquittal in the criminal charges that the disqualification was removed.

The Court held that such an offer of joining, post acquittal which if not acceded to by the respondent authority, may ensue to the petitioner to claim salary. The petitioner’s status was of a convict at the time of submitting for joining and as such his claim for payment of salary for the period subsequent to such joining was not sustainable in the eyes of law.

It was further held that there was no disqualification against the grant of post-retirement benefits as was available under the service regulation.

In view of the above-noted facts, the instant petition was disposed of accordingly with the observation that the respondent Bank was to consider and dispose of the claim and pay the admissible dues within three months with regard to the retrial benefits of the petitioner. [Tarkeshwa Pandey v. Uttar Bihar Gramin Bank, 2019 SCC OnLine Pat 1924, decided on 16-10-2019]

Case BriefsHigh Courts

Punjab and Haryana High Court: A Division Bench of Rajiv Sharma and Harinder Singh Sindhu, JJ., disposed of the appeal of a person who was convicted and punished for murder under Section 302 of the Penal Code, 1860 by the trial court.

The appellant herein was convicted by the trial court under Section 302 of IPC which was later converted to Section 304 Part-II of IPC. The appellant had already undergone 10 years and 12 days of imprisonment and prayed for a lenient view towards the quantum of sentence.

The Court recorded a finding stating that the appellant had inflicted simple injuries on the respondent. Relying on Shailesh Jasvantbhai v. State of Gujarat, (2006) 2 SCC 359 and Jameel v. State of Uttar Pradesh, (2010) 12 SCC 532, the Court held that the sentence must be awarded for an offence; and the circumstances affecting the offence must be analyzed by the court on the basis of their relevance. 

Also, the sentencing system of the courts must consider: (i) nature and gravity of offence, (ii) motive and manner of commission of offence, (iii) weapons used, and (iv) conduct of accused. 

Taking into account the facts and circumstances of the case, the Court preferred a lenient view and sentenced the appellant to the period of imprisonment already undergone by him, thus releasing him and disposing of the case.  [Mohan Singh v. State of Punjab, IOIN CRA-D-122-DB of 2004, decided on 22-07-2019]

Case BriefsHigh Courts

Bombay High Court: Prithviraj K. Chavan, J. allowed an appeal filed by the appellant against the order of the Special Judge (NDPS) whereby he was convicted under Narcotic Drugs and Psychotropic Substances Act, 1985 for being found in illegal possession of LSD liquid and charas.

The appellant was represented by Caroline Collasso, Advocate who contended that his prosecution was based on total falsity as there were several discrepancies and lacunae in the case. S.R. Rivankar, Public Prosecutor, urged the Court to pass necessary orders.

Discussing the scope of Section 50 of NDPS Act, the High Court relied on Arif Khan v. State of Uttarakhand, (2018) 18 SCC 380, and noted that it is obligatory upon the officer concerned to apprise the suspect of his right to be searched before a Gazetted Officer or Magistrate. The Court was of the opinion that the mandatory requirement of Section 50 was not satisfied in the present case, and therefore the impugned order was liable to be set aside.

Apart from that, it was pertinently noted that the charge against the appellant was itself defective, in the sense that, it nowhere revealed that the contents of the charge were explained to the appellant in the language understood by him and after following the same, he pleaded not guilty. The charge which was farmed was in the English Language. And it was an uncontroverted fact, the appellant who was a Japanese National did not know English. More surprisingly, the Advocate appearing for the appellant did not argue the matter on charge and left it to the Court, which also could be said to be against the right of the accused to be heard at the time of the framing of the charge. The Court observed it as apparent that the charge was farmed sans giving a proper hearing to the appellant.

In such view of the matter, the Court quashed the conviction and sentence awarded to the appellant and set aside the impugned order. [Yusuji Hinagata v. State, 2019 SCC OnLine Bom 2474, decided on 01-10-2019]

Case BriefsHigh Courts

Patna High Court: Ahsanuddin Amanullah, J. disposed of the petition after making minor changes to the sentence on the grounds of the imprisonment already undergone by the petitioners.

The petitioners petitioned the Court under Sections 397 and 401 of the Code of Criminal Procedure, 1973, against the judgment passed by the Additional Sessions Judge, Patna in Cr. Appeal No. 25 of 2013, by which the petitioners were convicted and sentenced and it was upheld when the appeal was made against the same. The petitioners along with four others was convicted under Section 498-A of the Penal Code and sentenced to simple imprisonment of one year and a fine of Rs 3,000 each and in default, they were to undergo further two months simple imprisonment. 

The counsel for the petitioners submitted that the opposite party  2 is the wife of the petitioner’s brother. It was submitted that the petitioners had no concern with the matrimonial dispute of the parties and the allegation was that after the birth of a male and female child and two years of marriage, they tortured and assaulted for the dowry of Rs 8,000 and took away her ornaments. It was submitted that such allegation, even if believed, could at best be attributed to husband, as the petitioners could not have any role or could not have benefited from any dowry or money which the wife of their brother would have fetched from the matrimonial home. It was submitted that the witnesses during the trial had made only ominous and general allegations and there was nothing specific against them.

The APP submitted that the witnesses had stated with regard to all the accused, including the petitioners, assaulting and torturing the opposite party 2 and it is quite believable that the petitioners being elder brothers of the husband of the opposite party no. 2, would definitely be a party to any torture or assault as their brother stood to gain from any dowry which is alleged to have been demanded.

The Court held that it did not find that the order of conviction requires any interference. However, with regard to the sentence, since the petitioners are elder brothers of the husband of the opposite party2 and had been in custody for more than six months and about four months respectively, the Court was inclined to modify the sentence to period undergone.

In view of the above-noted facts, the instant petition was disposed of after upholding the order of conviction but modifying the sentence to period undergone and the fine of Rs 3,000 set aside.[Deo Prasad Sao v. State of Bihar, 2019 SCC OnLine Pat 1612, decided on 19-09-2019]

Case BriefsHigh Courts

Chhattisgarh High Court: A Division Bench of Prashant Kumar Mishra and Gautam Chourdiya, JJ. allowed a criminal appeal and quashed the order of the trial court whereby the accused-appellant was convicted and sentenced for committing the murder of the deceased.

The accused was charged for murdering the deceased with whom he was in an illicit relationship. He was convicted by the trial court on the basis of circumstantial evidence — mainly, the positive opinion of Fingerprints Expert. Aggrieved thereby, the accused filed the present appeal.

A.K. Gupta, Advocate for the accused-appellant, contended that the chain of circumstantial evidence was not so complete as required to prove the guilt of the accused. Per contra, Santosh Bharat, P. representing the State supported the impugned order.

The High Court relied on the Supreme Court decision in Sharad Birdhichand Sarda v. State of Maharashtra, (1984) 4 SCC 116. It was observed: “When we examine the circumstantial evidence available in the case vis-a-vis the defects in the investigation, it is seen that the report of the Fingerprints Expert though is positive for the prosecution but there is no proof as to who collected the finger prints from the spot. The prosecution has not filed the memo of obtainment of fingerprints from the spot.”

It was then noticed that the memo of obtaining fingerprints of the accused did not carry the date, or the signature of the accused, or signature of the person who classified and tested it. It was observed further: “More importantly, if on the date of obtaining the impressions, the accused was in judicial custody, the said impressions could not have been obtained without an order from the Magistrate. Thus, the document does not satisfy the test of legal and procedural sanctity in either of the terms. If on the said date the accused was in police custody then the document should carry the signatures of witnesses as well as the accused and if he was in judicial custody there should have been permission from the concerned Magistrate. Since, it is not proved that the admitted fingerprints said to be of the accused were obtained from him while he was in custody, the report of the Fingerprint Expert is not such evidence which can be relied upon as one of the circumstances in the chain of circumstantial evidence to establish the guilt of the accused.”

Similarly, laches were noted in other evidence as well and it was held that the prosecution had failed to knit together the chain of circumstantial evidence so as to lead to only one conclusion — guilt of the accused. Accordingly, the appeal was allowed and the conviction of the accused was set aside.[Kishan Singh Parvana v. State of Chhattisgarh, 2019 SCC OnLine Chh 95, decided on 29-07-2019]

Case BriefsHigh Courts

Allahabad High Court: Rajeev Misra, J. while allowing the criminal revision set aside the conviction and sentence awarded to the revisionist passed by the CJM, Aligarh and affirmed by the Special Judge (EC Act)/Additional Sessions Judge, Aligarh.

In the Instant case, criminal revision order of 08-08-2001 passed by the CJM, Aligarh, under Section 14 of the Child and Adolescent Labour (Prohibition and Regulation) Act, 1986 convicting the revisionist for three years imprisonment and fine of Rs 2000 was affirmed by Special Judge (EC Act)/ Additional Session Judge, Aligarh.

The complainant L.S. Gupta, Labour Enforcement Officer, Aligarh visited the premises of the accused/revisionist along with Pradeep Kumar, Senior Clerk and Girish Chandra, Junior Clerk, respectively, four children who were less than 14 years of age were found to be working in the said premises. The paper on which details of the children were noted were torn by the accused/revisionist and therefore, the details of the child workers could not be entered.

Counsel for the revisionist/accused, Hemendra Pratap Singh denied the engagement of child labour in his statement under Section 313 CrPC and further alleged that the prosecution witnesses (Labour Enforcement Officer and Senior Office Assistant in the Office of the Assistant Labour Commission, Aligarh) had demanded Rs 500 from the revisionist. The revisionist is in cloth business and to harass him, this complaint was filed against him and false criminal proceedings were initiated.

It was submitted by the Counsel of the revisionist that as per the provisions of Section 11 of the Act there was no such material collected by the complainant on the basis of which it could be proved that the accused/revisionist had employed child labourers in his commercial organization.

In case any child labourer was employed by the accused/revisionist it was the duty of the complainant to recover such child and rehabilitate him as per the mandate of Section 14(C) of Act. It was further submitted that in the absence of any material to show that the age of the alleged child labourers was below the prescribed minimum as per Rule 17 of the Child and Adolescent Labour (Prohibition and Regulation) Rules, 1988 (the Rules) was not complied with. Thus, merely on the basis of hearsay evidence, the accused/revisionist has been convicted.

The Court after analyzing the material on record observed that except for the photocopy of the alleged inspection memo no other document was filed by the complainant before the court below. The mandatory provisions of Rule 17 of the Rules were not complied with to ascertain the age of the child labourers. Consequently, there was no material before the court below to assume that child labourers were employed in the commercial organization of the accused/revisionist. [Santosh Kolanki v. State of U.P., 2019 SCC OnLine All 2831, decided on 02-08-2019]

Case BriefsForeign Courts

Supreme Court of Canada: Richard Wagner, CJ. and Michael Moldaver, Andromache Karakatsanis, Russel Brown and Sheilah Martin, JJ. allowed an appeal of a person accused of carrying firearms and drugs,  granted exclusion of evidence seized from him, and set aside his conviction.

Police had entered a private backyard without any warrant or consent, where accused-appellant herein (Tom Le), along with 4 other men, was present. The police started questioning them and also asked for documentary proof of their identity. On asking the accused about contents of the satchel that he was carrying, he fled, was pursued and arrested. Accused was caught in possession of firearms, drugs and cash, and charged with ten crimes related to these items. Before the trial court, he stated that the encounter between him and the police had infringed his right to be free from arbitrary detention and he sought exclusion of evidence against him under Section 24(2) of the Canadian Charter of Rights and Freedoms, on the basis that the police had infringed his constitutional rights to be free from unreasonable search and seizure, contrary to Sections 8 and 9 of the Charter. The trial Judge held the accused’s detention as legal on the ground that the police had reasonable suspicion of a crime. A majority of the Court of Appeal affirmed the trial court’s judgment. Aggrieved thereby, the present appeal was filed by the accused.

The Court opined that Section 9 of Charter prohibits ‘arbitrary detention’ in order to protect individual liberty against unjustified State interference. The inquiry into Section 9 of Charter proceeds in two stages: (i) whether the claimant was detained at all, and (ii) whether the detention was arbitrary. Thus, the primary issue to be decided was (i) when did the detention occur, and (ii) whether the accused’s detention was arbitrary.

It was opined that detention requires “significant physical or psychological restraint”. Since the accused was not legally required to comply with a ‘direction or demand’ by the police, his detention was covered under ‘psychological restraint’. Further, it was opined that the detention had crystallized that very moment when the accused was asked about the contents of his satchel. Rather, he was detained when the police trespassed into the backyard and made contact. Since no statutory or common law power authorized his detention at that point, it was arbitrary detention.

The Court relied on R v. Collins, [1987] 1 SCR 265 where a three-fold test was laid down for assessing unreasonable searches and seizures: (i) the detention must be authorized by law; (ii) the authorizing law itself must not be arbitrary; and, (iii) the manner in which the detention is carried out must be reasonable. Since the accused’s detention was not authorized by law, it was held to be arbitrary.

The Court by a majority of 3:2 allowed exclusion of evidence obtained against accused holding that the said evidence was tainted by breach of Charter rights.[R v. Le, 2019 SCC 34, decided on 31-05-2019]

Case BriefsHigh Courts

Delhi High Court: A.K. Chawla, J. disposed of a criminal appeal by modifying the conviction of the appellant under Section 307 (attempt to murder) of the Penal Code to that under Section 324 (voluntarily causing hurt by dangerous weapons or means).

The appellant was assailing the judgment of the trial court whereby he was convicted under Section 307 for stabbing the injured with a knife. The prosecution case was that the injured had advanced a loan to the appellant, and on the day of the incident, when the injured went to his house asking for payment of the outstanding amount, the appellant attacked him with a knife. The appellant denied the prosecution case. Aggrieved thereby, the appellant preferred the present appeal under Section 374 CrPC.

Arvind Kumar, Sneha Upadhyay and Tilak Angra, Advocates for the appellant contended that the prosecution had failed to prove its case beyond a reasonable doubt. Per Contra, G.M.Farooqui, APP appearing for the State, supported the impugned decision.

The High Court was of the opinion that it was imperative to ascertain as to whether the appellant actually intended to murder the injured. It was observed: “Offence of an attempt to murder is a serious offence. In proving the commission of such an offence, the prosecution is required to prove the basic ingredients of murder short of death. Does the instant case get even close to such a situation, the Trial Court has not given any serious thought to it. The case in hand is not one, where, the prosecution even suggests that the appellant assaulted PW8 with any premeditated mind. Who first picked the knife and wherefrom, the prosecution equally failed to prove.”

In the opinion of the Court, the evidence on record was not sufficient to prove that the appellant had any intention to commit murder. In such circumstances, it was held that conviction of the appellant for commission of offence under Section 307 could not be sustained. Appellant, however, was held liable for commission of offence under Section 324 IPC. He was released on probation of good conduct. [Ramveer v. State, 2019 SCC OnLine Del 9129, decided on 15-07-2019]