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]

Case BriefsHigh Courts

Jharkhand High Court: Anil Kumar Choudhary, J. disposed of a revision petition, filed against the judgment of the trial court, whereby the petitioner was convicted and sentenced for simple imprisonment for six months for offences punishable under Section 33 of the Indian Forest Act, 1927 but it did not pass any separate sentence for his conviction under Section 2 of the Forest (Conservation) Act, 1980.

The facts of the instant case were that two forest guards while patrolling through the protected forest area, had found the revision petitioner and other co-accused persons ploughing the forest land within the protected forest. On being questioned, they disclosed their names and addresses but resisted confiscation of their ploughing implements. The guards confirmed that 3.5 acres had been ploughed by the petitioner and the other co-accused persons and they had no documents proving ownership of the land. Another witness stated that the land was ploughed after being encroached upon. The trial court relied on the evidence and convicted the revision petitioner and the co-accused persons. The first appellate court conducted an independent comprehension of the evidence on the record and agreed with the decision of the trial court and dismissed the appeal.

Abhilash Kumar and Anurag Kashyap, counsels for the revision petitioner, submitted that both the lower courts had made an error by convicting the revision petitioner for the offence punishable under Section 2 of the Forest (Conservation) Act, 1980 as this was not penal provision. They also added that the appellate court did not properly consider the evidence on the record. They further stated that the petitioner was an old man of 74 years and had been facing the severity of criminal prosecution since 1993. Moreover, the petitioner had remained in custody until he was granted bail. Thus, in case his conviction was sustained, a lenient sentence could be given to him.

Sanjay Kumar Pandey, counsel appeared on behalf of the State and defended the impugned judgment passed by the appellate court and contended that the appellate court had rightly upheld the conviction of the revision petitioner. He asserted that this revision was not based on any merit and hence should be dismissed.

The Court held that both the lower courts had erred by convicting the revision petitioner for the offence punishable under Section 2 of the Forest (Conservation) Act, 1980 as this was not a penal provision. Consequently, his conviction under the abovementioned Act was ‘not sustainable in law’ and thus he was acquitted for the same. It observed that the evidence on the record was adequate to establish the charge for the offence punishable under Section 33 (1) (c) of the Indian Forest Act, 1927. Thus, the Court did not need to exercise revisional jurisdiction in this aspect. However, the court remarked that there was no specific evidence on the record about the dimension of the area which was cleared for cultivation by the petitioner and noted the fact that he had undergone the rigors of the criminal prosecution for a considerable period of time. Hence, it held that the sentence of the petitioner be modified to the period that he had previously spent in custody. [Prasad Paswan v. State of Jharkhand, 2019 SCC OnLine Jhar 772, decided on 13-03-2019]

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

Madhya Pradesh High Court: Vishal Mishra, J. dismissed a writ petition, where the petitioner challenged the order passed against the petitioner whereby the service was terminated because of a criminal case registered against the said petitioner and was accused of not disclosing the relevant information at the time of appointment.

Neeraj Shrivastava, counsel for the petitioner submitted that prior passing the impugned order the procedure as provided under Rules 9 and 52 of Rules M.P. Nagar Palika, Karamchari (Appointment and Services Condition) Rules, 1968 had not been taken care of as no opportunity of hearing was provided to the petitioner prior to passing of impugned order. It was further argued that the offence under Section 3 of the Public Gambling Act was registered against the petitioner wherein he had only been punished with a fine of Rs 75, which he had already deposited. The petitioner contended that the offence was trivial in nature and termination of service based upon such a past act was unfair and unjust.

Counsel for the respondent, S.P. Jain submitted that the petitioner had stated that no criminal case was registered against him and no information had been furnished by the petitioner hence he had concealed all necessary information and verified the same. An affidavit was also submitted by the petitioner to the effect that all the information which he had furnished in the form was true and correct to the best of his knowledge and no part was suppressed or false.

The Court observed that the petitioner had concealed the necessary information related to his criminal background, it was when the character verification took place, and the authorities came to know about the alleged crime. The aforesaid act of the petitioner amounted to suppression of information. The Court held that, “It is settled position of law that imposition of fine in the criminal case by the competent Court is also in category of conviction, therefore, the petitioner cannot be exhorted from its liabilities that he was required to give the complete information in Column 12 of the form submitted by him.” Court further cited the established principle of law that suppression of information was moral turpitude though the crime itself was not, in that eventuality, the service was liable to be terminated, even if there had been no further trial and the petitioner was discharged.[Rajesh Balmik v. State of M.P, 2019 SCC OnLine MP 1349, decided on 28-06-2019]

Hot Off The PressNews

Supreme Court: The Court has convicted 12 persons for killing former Gujarat Home Minister Haren Pandya in 2003.

A bench headed by Justice Arun Mishra allowed the appeals of CBI and the Gujarat government challenging the High Court order by which the convicts were absolved of murder charges in the case. The Court, however, dismissed a PIL filed by NGO “Centre for Public Interest Litigation” (CPIL) seeking a court-monitored fresh probe in the Haren Pandya murder case.

It also imposed a fine of Rs 50,000 on CPIL for filing the PIL and said no further petition would be entertained in the case.

The Gujarat High Court, while acquitting the 12 persons of the charges of murder, had upheld the trial court’s decision that convicted them for criminal conspiracy, attempt to murder and offences under the Prevention of Terrorism Act (POTA). The trial court had awarded punishment ranging from five years to life imprisonment to the convicts.

Haren Pandya was the Home Minister in the then Narendra Modi-led Gujarat government. He was shot dead on March 26, 2003 near Law Garden in Ahmedabad during morning walk.

(Source: PTI)

Case BriefsHigh Courts

Punjab and Haryana High Court: Rajbir Sehrawat, J. upheld the decision of the lower court on the set principle of law which was already decided by the court.

A petition was filed to quash the order passed by Additional Session Judge, Faridabad in an appeal against the conviction and sentence in a complaint under Section 138 of the Negotiable Instrument Act, 1881 directing the appellant/petitioners to deposit 25 per cent of the amount awarded by the trial Court, during the pendency of the appeal.

Kunal Dawar, Counsel for the petitioner submitted that complaint was made in the year 2017, for which the petitioner was convicted. That during the pendency of the appeal, the appellate court passed the order whereby it was directed to deposit 25 per cent of the amount of the compensation to the appellate court. The counsel for the petitioner submitted that the act was introduced for the first time in the year 2018 and there cannot be any retrospective effect of the same. Thus, the provision contained in newly added Section 148 of the Act cannot be applied to the present appeal, which had arisen from the case where the trial was pending on the date of enforcement of the amended provision. Thus, prayed for the quashing of the order.

The court opined that the point of law which was raised by the petitioner had already been considered and decided by this court in the judgment of Ginni Garments v. Sethi Garments; CRR No. 9872-2018 (O&M), in which it was held that the “procedure for recovery of fine or compensation from appellant in pending appeal already existed in CrPC even before advent of the provision as contained in Section 148 of the Act. Hence, no new aspect of coercive recovery of fine or compensation from the appellant is being freshly created through this amended provision. Rather this provision is beneficial to the convict/appellant because it reduces the liability of the appellant qua immediate deposit of fine or compensation, if not otherwise stayed by Appellate Court.”  Thus the impugned order was upheld in the present petition.[Ebullient Cables (P) Ltd. v. Supertech Machines (P) Ltd., 2019 SCC OnLine P&H 1013, decided on 02-07-2019]

Case BriefsHigh Courts

Bombay High Court: P.N. Deshmukh and Pushpa V. Ganediwala, JJ. allowed an appeal filed against the order of the Sessions Judge whereby the appellant was convicted under Section 302 IPC for murder of one Pancham (deceased).

As per the prosecution case, the deceased failed to pay the loan he had taken from the brother of the appellant which led to the appellant assaulting the deceased, which resulted in his death. R.M. Patwardhan, Advocate for the appellant contended that the evidence of the eye-witnesses was not at all convincing and were totally contrary to each-other on material aspects. He prayed that the appellant may be acquitted. Per contra, S.A. Ashirgade, Additional Public Prosecutor appearing for the State, submitted that there was direct evidence against the appellant which was duly corroborated. He, thus, prayed for dismissal of the appeal.

The High Court noted that there was an inordinate delay of as many as 4 days in recording the statement of eye-witnesses. The Court referred to State of H.P. V. Gian Chand, (2001) 6 SCC 71 and Dilawar Singh v. State (NCT of Delhi), (2007) 12 SCC 641, to note the effect of the delay in recording statements of witnesses under Section 161 CrPC. It was noted: “If the prosecution fails to satisfactorily explain the delay and there is a possibility of embellishment in the prosecution version on account of such delay, the delay would be fatal to the prosecution. However, if the delay is explained to the satisfaction of the Court, the delay cannot by itself be a ground for disbelieving and discarding the entire prosecution case.”

In the case on hand, the delay in recording the statements was nowhere explained. On facts of the case, it was held that testimonies of the witnesses was in a shadow of doubt and that the evidence failed to prove the case beyond a reasonable doubt. Resultantly, the appeal was allowed and the appellant was acquitted of the offences charged with.[Sachin v. State of Maharashtra, 2019 SCC OnLine Bom 1080, decided on 21-06-2019]

Case BriefsForeign Courts

Supreme Court of Pakistan: A Full Bench of Manzoor Ahmad Malik, Syed Mansoor Ali Shah and Qazi Muhammad Amin Ahmed, JJ. set aside the impugned judgment and conviction of the appellant by extending the benefit of doubt.

The prosecution’s case was hinged on the dying declaration made by the deceased Haji Muhammed Zamin Khan (complainant), in which he said that he was on his way back from a condolence meeting when the respondent herein fired upon him. After making this statement to the police, he succumbed to his wounds. The accused was arrested, convicted under Section 302 of Pakistan Penal Code, 1860 and sentenced to death. Peshawar High Court however altered the death penalty into imprisonment for life. Aggrieved by the said order, the present appeal was filed by complainant’s son.

The learned counsel for the appellant, Astagfirullah, contended that in the absence of any mitigating circumstance, there was no occasion for the learned High Court to alter the death penalty into imprisonment for life. Whereas learned counsel for the accused-respondent, Ghulam Mohyuddin Malik, questioned the legality of conviction on the ground that the case was founded primarily on a dying declaration and the prosecution miserably failed to show as to who recorded deceased’s last words and thus it was unsafe to maintain the conviction.

The Court noted that the statement of the deceased was recorded by Munawar Khan, one of the prosecution witnesses, who dictated it to Khan Ghalib Khan (another prosecution witness) to be recorded in the first information report. However, the second prosecution witness denied recording the first information report and thus it was unknown as to who had recorded the deceased’s last words.

It was observed that dying declaration is an exception to the general rule of direct evidence and it is admitted to the detriment of an accused without the opportunity of cross-examination upon the declarant under the belief that a person, face to face with God, would tell nothing but the whole truth. Therefore, it was held that prosecution must demonstrate beyond the shadow of a doubt that the dying declaration comprised of the words of declarant alone without extraneous prompting or additions. Thus, the person who recorded the dying declaration is the most important witness to verify its veracity. However, this person was missing in the present case.

In view of the above, the Court held that it was grievously unsafe to maintain the conviction and hence by extending the benefit of the doubt to the appellant, the appeal was dismissed and respondent was directed to be released.[Somaid v. Ali Gohar, 2019 SCC OnLine Pak SC 9, decided on 30-04-2019]

Case BriefsForeign Courts

South Africa High Court, Free State Division, Bloemfontein: A Division Bench of Mathebula and Chesiwe, JJ. dismissed the present appeal against convictions and sentences.

On 23-11-2012, the deceased and his friends arrived at Mahlomola’s Tavern, Welkom to have drinks but they were not allowed entry. After persuading the in-charge they bought beers. The moment they started to leave, an altercation erupted and the second appellant stabbed at the back of the deceased, Mokhele Thys Thebeladi. This led to the other two appellants also stabbing the deceased.

Counsel for the appellants, L. Tshabalala and P.P. Mile denied any involvement with the events leading to the death of the deceased. All the three had their own defenses; the first left the tavern before the fight started, the second saw him lying on the ground and the third neither participated nor saw anything.

The trial court (Regional Magistrate, Welkom) convicted all the appellants with murder under Section 51(2) of Act 105 of 1997 and sentenced to fifteen years imprisonment. The second appellant was convicted with a further charge of assault with intent to do grievous bodily harm and a further sentence of three years.

Aggrieved with both conviction and sentence the appellant appealed.

The Court observed that the findings of a trial court are credible and anyone even a Court of Appeal with a contrary opinion should support with sufficient reasons. S. v. Chabalala, 2003 (1) SACR 134 (SCA) a case based on ‘guilt to be proved beyond reasonable doubt’ was cited. It laid down that “The correct approach is to weigh up all elements which point towards the guilt of the accused against all those which are indicative of his innocence… to decide whether the balance weighs so heavily in favour of the State as to exclude reasonable doubt about the accused’s guilt.”

In addition, according to the post-mortem report, the deceased sustained multiple stab wounds, caused by the three appellants. The trial court took the right approach as stated in the case and concluded rightly that this was an attack. The trial court has not faulted in any way whatsoever. Therefore, the convictions and sentences are not to be altered.[Andile Cofa v. State, Case number: A132/2017, decided on 22-03-2019]

Case BriefsHigh Courts

Tripura High Court: Arindam Lodh, J. reduced the sentence of 5 years rigorous imprisonment awarded to the appellant by the trial Judge to 3 years for the commission of an offence under Section 7 (sexual assault) made punishable under Section 8 of the Protection of Children from Sexual Offences Act, 2012.

The appellant was tried and convicted for committing the offence of sexual assault on the prosecutrix when she was returning from mela. The appellant had filed the present appeal against the said judgment. R.G. Chakraborty, Advocate representing the appellant strenuously argued that the entire story was false and the appellant was totally innocent. Per contra, A. Roy Barman, Additional Public Prosecutor appearing for the State submitted that the prosecution had been able to prove the case beyond any shadow of doubt.

As per prosecutrix’s evidence, the High Court found that the appellant came in contact with the prosecutrix physically with sexual intention. However, there was no evidence that the appellant touched private parts of the prosecutrix. The Court was of the opinion that while maintaining the appellant’s conviction, the order of sentence passed against him warrant’s alteration. It was observed: “Since there is no specific evidence that the appellant had touched the private parts of the prosecutrix, in my opinion following the doctrine of proportionate punishment, justice would be made if the sentence of 5 years is reduced to 3 years.” The sentence was reduced accordingly. At the same time, other parts of the impugned judgment relating to conviction and sentence under Section 341 and 342 IPC remained unaltered. [Asok Das v. State of Tripura, 2019 SCC OnLine Tri 190, decided on 13-05-2019]

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

Madhya Pradesh High Court: Virender Singh, J. allowed the petition for reduction of the sentence on the ground that petitioner was the only bread winner of his family and had been diligently attended and cooperated in the trial.

A petition was made against the confirmation of the conviction and sentence under Sections 337 and 338 of the Penal Code, 1860.

The facts of the case were petitioner was driving the bus negligently and rashly due to which the bus turned turtle and the passengers were injured thereto. The charge sheet was filed against the petitioner and thereon he was charged, tried, convicted and sentenced and was directed to pay the compensation to the injured persons.

Nilesh Manore, learned counsel for the petitioner submitted that he was aggrieved by the term of the imprisonment and thus prayed to reduce the period of imprisonment as he had already served more than one-month imprisonment and the that he was facing the trial since 2008. It was further submitted that trial Court and the appellate Court itself has observed that he diligently attended and cooperated in the trial. It was further submitted that in lieu thereof, some fine may be imposed. It was further submitted that the petitioner was a driver, belongs to a poor family and was the only bread winner of his family and there was no criminal case prior to or after the incident been registered against him.

Sandeep Mehta, Public Prosecutor vehemently opposed the petition as the offence was against the public at large.

The Court opined that as the petitioner was only the bread winner of his family and there was no criminal record attributed to him. It was also opined that the incident took place all of a sudden. Thus, on the ground that the justice will be subserved if the petition was not allowed, the prayer of the petitioner was granted. [Kailash v. State of M.P, 2019 SCC OnLine MP 931, decided on 30-05-2019]

Case BriefsHigh Courts

Delhi High Court: Sanjeev Sachdeva, J. allowed a petition filed against the order of the Appellate Court whereby petitioner’s appeal, against his conviction under Section 392 IPC recorded by the trial court, was dismissed on the sole ground of limitation.

The petitioner pleaded before the Appellate Court that being a poor person and in custody, he was unable to approach either the legal aid or to engage a private counsel, and therefore he couldn’t file the appeal in time. The Appellate Court noticed that during the trial the petitioner was represented by a private counsel and therefore disbelieved his explanation.

The High Court was of the view that the Appellate Court committed an error in not condoning the delay. It was said that the fact that the petitioner was represented by a private counsel before the trial court would not ipso facto imply that he had sufficient funds to engage a private counsel or appropriate legal advice to file an appeal within limitation. It was observed: “Courts have to take a liberal approach, when appeals against conviction are filed, with some delay, by persons who are in custody. Delay does not work to the advantage of the person incarcerated. People who are incarcerated do not have the advantage that a free person has, of approaching a counsel and taking legal advice at one own free will.”

It was said further: “We live in a society where the families of a poor person in custody and families of those coming from remote areas of the country are not even aware of their legal rights and even if aware, may not have the capacity or resources to approach a counsel for legal advice or approach courts for legal aid. Courts cannot adopt a hyper-technical approach, while considering an application seeking condonation of delay filed against conviction by a person in custody.” In such view of the matter, the Court quashed the impugned order and restored the petitioner’s appeal to the Court of the Additional Sessions Judge. [Rakesh Kumar v. State (NCT Delhi), 2019 SCC OnLine Del 8779, decided on 30-05-2019]

Case BriefsHigh Courts

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

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

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

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

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

Case BriefsHigh Courts

Bombay High Court: Swapna Joshi, J. partly allowed a criminal appeal and altered the conviction of the appellant — an Ayurvedic certificate holder — from the one under Section 304 (II) IPC to that under Section 304-A IPC.

The appellant was convicted for causing the death of two deceased persons. The deceased had visited the appellant for treatment of knee pain. The appellant, who was not qualified as a doctor/medical practitioner, administered an injection to the deceased. Both the deceased persons, after administration of the injection, developed lumps which resulted in their deaths. The appellant was convicted under Section 304 (II) IPC and Section 33 of the Maharashtra Medical Practitioner Act, 1961. Aggrieved thereby, the appellant filed the present appeal.

According to the High Court: “The accused was not registered as a medical practitioner. He was simply a certificate holder in Ayurvedic Medicine. He was under a statutory duty not to enter the filed of any other system of medicines as he was not qualified in other system i.e. allopathy. The accused trespassed into a prohibited field and therefore he is liable to be prosecuted under Section 33 of the Maharashtra Medical Practitioners Act, 1961.”

However, the Court was of the view that his conviction for committing culpable homicide not amounting to murder was liable to be altered to causing death by negligence. Holding that the appellant had no knowledge the injury was likely to cause death, the High Court observed: The learned trial Judge should have considered the evidence led by the prosecution witnesses in its right perspective. In the instant case, the accused did not have a knowledge that the death was likely to be caused due to the act of administering unsterilised injections. It appears that the accused in good-faith has treated both the deceased to relieve them from knee pain from which they were suffering. The conduct of the accused shows that the accused has taken Muktabai from one doctor to the other to save her life, however, unfortunately, she succumbed to her injuries and died due to septicemia which was developed due to the piercing of the injections. There is no convincing evidence on record to show that the accused had a knowledge that due to the piercing of the injection, the lump would be created, due to which, septicemia would cause.”

Resultantly, the criminal appeal filed by the appellant was partly allowed in the terms above. [Bhupal Malayya Agbattini v. State of Maharashtra, Crl. Appeal no. 406 of 2018, decided on 09-04-2019]