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, Mr Kihoro contended before the Court that the circumstantial evidences 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, Criminal Case No. 30 of 2017, 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]

Case BriefsHigh Courts

Bombay High Court: B.P. Dharmadhikari, J. allowed a criminal appeal and acquitted the appellant who was convicted and sentenced by the trial court for commission of an offence punishable under Section 12 (punishment for abetment of offences) of the Prevention of Corruption Act, 1988.

The appellant was charged with aiding the main accused, an Assistant Sub-Inspector, in accepting a bribe from the complainant and thereby committing an offence under Section 12. The main accused died during the pendency of the trial and therefore the case against him abated. The appellant, however, was convicted by the trial court.

A.H. Jamal, Advocate, representing the appellant contended that any offence under Section 7 or Section 13 itself having not been established, there was no question of offence of abetment under Section 12. Per contra, N.R. Patil, Assistant Government Pleader, appearing for the State supported the trial court’s Judgment.

Relying on the decision of the Supreme Court in Sadashiv Mahadeo Yavaluje v. State of Maharashtra, (1990) 1 SCC 299 and CBI v. V.C. Shukla, (1988) 3 SCC 410, the High Court noted: “It was never the case of the prosecution that the appellant instigated complainant to pay bribe or then engaged himself and conspired to facilitate receipt of bribe. In fact, there is no charge of conspiracy at all. The only remaining part, therefore, is of aiding and, the provisions of Clause (iii) of Section 107 IPC (which defines abetment) show that aiding has to be with intention.” In Court’s view, the facts necessary to demonstrate that the appellant was dwelling under such intention were not brought on record. Prosecution only established the payment of Rs 1500 by the complainant to the appellant. However, its nature as a bribe could not be established. Therefore, it was held that the appellant’s conviction under Section 12 was unsustainable. the appeal was allowed and the appellant was acquitted. [Abdul Mannan Mohd. Yusuf v. State of Maharashtra, 2019 SCC OnLine Bom 824, decided on 16-05-2019]

Case BriefsHigh Courts

Madhya Pradesh High Court: S.C. Sharma, J. allowed a criminal appeal, filed against the order of conviction under Ss. 304, 323 and 149 of IPC, 1860 passed by Trial Court.

Prosecution narrated that, daughter of appellant got sick one day; he suspected that deceased and his wife had practiced ‘witchcraft’ on her. To take revenge of such alleged act of the deceased, the appellant along with others assaulted the deceased along with his family. Deceased lodged an FIR under relevant sections of IPC against the accused. After the alleged FIR was lodged, police performed the medical examination of the victim, recorded the statements of witnesses and also prepared a spot map. Prosecution submitted that, the victim during his treatment, ten days after assault died as he suffered grievous hurt which resulted in his death which is also stated in panchnama and postmortem report. Eventually accused was duly arrested.

All witnesses along with the Medical Officer testified against the appellant and had narrated the crime in brief. The medical examination report stated that injuries were caused by heavy, hard and blunt objects and, Cause of death of the injured was cardio respiratory failure as a result of multiple injuries over the body.

Learned counsel for the appellants, Siddharth Jain, contended that there was an anomaly in the statements of the witnesses on the point that which accused assaulted the deceased and other injured persons. He further contended that appellants were not guilty and were falsely implicated in the aforementioned case. He argued that the testimony of witnesses were not in conformity with each other as to which respondent inflicted injuries to the deceased.

The Court observed that the injuries could not have been caused on account of an accident and were not self-inflicted, and therefore, the death of the deceased was neither accidental nor suicidal, hence, it was homicidal in nature. Court stated that, appellant gave a blow of Tangiya (axe) on the non-vital part of the deceased, therefore, it would be apparent that he has assaulted the deceased, and therefore, it cannot be said that there was no intention on the part of the appellant to kill the deceased. Court held that the trial court has not committed any error in convicting the appellant for the offence punishable under Section 304 (II) IPC for causing culpable homicide. It was established based upon the evidence that he inflicted grievous injuries to the wife of deceased also, and therefore, his conviction under relevant sections does not warrant any interference by Court. The participation of the other co-accused persons has not been proved beyond a reasonable doubt; hence, offence under Sections 147 and 148 automatically goes.[Anokhilal v. State of M.P., 2019 SCC OnLine MP 842, decided on 14-05-2019]

Case BriefsHigh Courts

Delhi High Court: In view of the failure of justice on account of lack of effective cross-examination of prosecution witnesses, Sanjeev Sachdeva, J. quashed the trial court’s order convicting and sentencing the accused (appellant) for offence punishable under Section 6 of the Protection of Children from Sexual Offences Act, 2012.

The appellant had challenged the order of the trial court whereby he was convicted and sentenced under POCSO Act. He contended that the manner in which the trial was conducted showed that the principles of natural justice were violated and he was declined a fair opportunity of being defended.

The High Court found that some prosecution witnesses were not cross-examined and for others, there was very sketchy cross-examination. It was noted that the manner in which cross-examination was conducted on part of the accused by the amicus curiae appointed by the trial court clearly showed that he made no serious efforts to defend the accused. It was observed: “If the Amicus Curiae does not or is not in a position to effectively provide assistance to an accused, the Trial Court is obliged to correct the situation. Even the trial court failed to take any remedial steps. The manner in which the cross-examination has been conducted has clearly led to failure of justice.” Holding it to be a clear case of failure of justice, the Court quashed the impugned order and remanded the matter to the Court of Additional Sessions Judge for re-trial from the stage of cross-examination of prosecution witnesses.

Before departing with the case, the High Court recorded appreciation for the assistance rendered by Adit S. Pujari, Advocate appearing on behalf of Delhi High Court Legal Services Committee and also by Meenakshi Dahiya, Additional Public Prosecutor for the State. [Dev Kumar Yadav v. State (NCT of Delhi), 2019 SCC OnLine Del 8485, decided on 10-05-2019]

Case BriefsHigh Courts

Bombay High Court: A Bench of B.P. Dharmadhikari and Prakash D. Naik, JJ. allowed a criminal appeal and set aside the decision of the trial court whereby the appellant was convicted under Section 302 IPC for murdering his wife.

The appellant was convicted on the basis of dying declaration recorded by his deceased wife. It was alleged that on the fateful day, the appellant and his wife had a quarrel after which he poured kerosene on her and set her ablaze. The wife untimely succumbed to burn injuries in hospital. Aggrieved by his conviction recorded by the trial court, the appellant filed the present appeal.

Neha Bhide, Advocate, representing the appellant contended that there were lacunae in the dying declaration, it was unreliable and a fake document. Per contra, V.V. Gangurde, APP, appearing for the State submitted that there was nothing to doubt the genuineness of the dying declaration.

The High Court noted that the infirmities in the dying declaration spoke volumes about its genuineness. It did not bear the endorsement of the Doctor as to whether the wife was in a fit state to make a statement. There were interpolations at more than one places in the declaration. There was no description as to whether the thumb impression was of the right hand or left hand. The Court observed: “A dying declaration can be the basis of conviction, if the Court comes to the conclusion that it represents truthful version. To pass the test of reliability a close scrutiny is necessary as the accused has no opportunity to cross examine the maker of dying declaration. It must inspire full confidence of the Court regarding its correctness and voluntariness and court must ensure that the statement was not the result of tutoring, prompting or product of imagination.” 

Holding that the dying declaration in the present case failed to pass the test of reliability, the Court was of the opinion that appellant deserved to be given benefit of doubt. Consequently,the appeal was allowed and the appellant was acquitted of charges as framed. [Ashwini Rammeher Sharma v. State of Maharashtra, 2019 SCC OnLine Bom 803, decided on 08-04-2019]

Case BriefsForeign Courts

South Africa High Court, Kwazulu-Natal Division: This appeal was filed before a Division Bench of Gorven, J and Ntshulana, AJ preferred against the convictions and sentence for the offence of rape of two minor girls in contravention of Section 3 read with Sections 1, 56(1), 57, 58, 59, 60 and 61 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007.

The appellant was sentenced to undergo life imprisonment for both the rapes committed but for sentences, they were treated as one and his name was entered into the register for sexual offenders in terms of Section 50 of the Act. The Court noted that throughout the trial, the appellant had only challenged the evidence which was based on his plea of alibi and that incident was fabricated due to a family feud which was later rejected as false beyond a reasonable doubt. Appellant had contended that medical evidence failed to prove offence and thus he should be acquitted.

High Court relied on a case of S v. Hadebe, 1997 (2) SACR 641 (SCA) where it was held that if there was no material misdirection by the Trial Court, it was to be presumed to be correct. Thus, the Court concluded that evidence on record did not show any misdirection. Therefore, in the absence of substantial and compelling circumstances, the sentence was sustained and the appeal preferred against conviction and sentence was dismissed. [Sibonelo Bo Ngobese v. State, Case No. AR751 of 2017, decided on 29-03-2019]

Case BriefsHigh Courts

Meghalaya High Court: A Bench of Mohammad Yaqoob Mir, C.J. and H.S. Thangkhiew, J. set aside the conviction and sentence inflicted upon the appellant for an offence of “kidnapping abducting or inducing woman to compel her marriage, etc.”, punishable under Section 366 IPC.

As per the prosecution, on the day of the incident, the prosecutrix boarded the appellant’s auto rickshaw for her home. It was alleged that the appellant deliberately avoided to stop the autorickshaw at the destination (home of the prosecutrix). This prompted the prosecutrix to jump out of the autorickshaw, as a result whereof she was injured and became unconscious. The appellant was booked for an offence under Section 366  and was convicted by the trial court. Aggrieved thereby, he filed the present appeal.

The High Court noted that the star witness — the prosecutrix —  did not support the prosecution case of kidnapping. As per the Court, the case was registered on the basis of imaginationIt was further noted that the appellant did not know the home of the prosecutrix or the point where he had to stop and as stated by him, there was noise of trucks and maybe due to that, he was unable to hear the voice of prosecutrix. Referring to the ingredients under Section 366, it was observed: “There is not an iota of evidence to suggest that the prosecutrix was in any manner compelled to marry or likely to be compelled to intercourse so as to constitute offence punishable under Section 366 intention directly or indirectly shall be gatherable from the evidence.”

Furthermore, an important question is whether the accused knew where the house of the prosecutrix was situated nor it is stated in any manner that she had asked the driver to stop and he refused. It is nowhere emerging from the evidence that the auto rickshaw driver while driving the auto rickshaw … had deviated from the main road..”

Holding that the prosecutrix got apprehensive of her own and there was nothing on part of the appellant which could constitute offence under Section 366 IPC, the Court observed: “Learned trial court appears to have been swayed by the rise of cases of sexual harassment against women and minor children …Any offence against women and minor children is totally unacceptable but in the name of the same, an innocent person cannot be convicted or sentenced. Any person who dares or tries to commit such offence cannot be shown any leniency but at the same time without any basis, a person cannot be convicted and sentenced.”

In such view of the matter, the appeal was allowed and set at liberty. [Jerman Syngkli v. State of Meghalaya, Crl. A. No. 1 of 2019, Order dated 01-05-2019]

Case BriefsHigh Courts

Bombay High Court: Sadhana S. Jadhav, J. dismissed an appeal filed against the Judgment of the Additional Sessions Judge whereby the appellant was convicted for the offence of rape punishable under Section 376(2)(f) IPC.

This was a traumatic story of a minor victim aged 10 years who was sexually assaulted by her father. She was taken to the agricultural field by her father from the middle of the school and rape was committed on her. The father was convicted by the trial court. The present was an appeal against his conviction.

It may be noted that during her examinations, the little girl — the victim, turned hostile and stated: “It is true that I am feeling that my father should get free from the jail, as early as possible.” Her evidence concluded in denial: “It is not true that to help my father I am not disclosing true fact before the court.” She even denied that she was admitted in the civil hospital. Little did the innocent soul know that the same was being corroborated by medical case papers.

The High Court held that the appellant’s conviction as recorded by the trial court deserved to be upheld. His guilt was proven beyond doubt through prosecution evidence, the prime from which being the medical evidence. Other cases were discussed wherein it had been held that if a witness turns hostile, his statement given to the Magistrate under Section 164 CrPC at the earliest opportunity must get some credence if it is being materially corroborated at material points. It was noticed that not only the appellant (her father) but her mother too influenced the victim to turn hostile. Terming it as a scar on human relations, the Court said: “She could bear the physical pain but would be living with an injury to her soul. The biggest trauma would be that she was not even supported by her mother, and was expected to speak a lie before the Court.” Observing as aforesaid, the Court dismissed the appeal. [Baban Devji Rathod v. State of Maharashtra, 2019 SCC OnLine Bom 704, dated 10-04-2019]

Case BriefsHigh Courts

Tripura High Court: Sanjay Karol, CJ allowed the compounding of offence in a case where the accused had been convicted for an offence punishable under Section 138 of the Negotiable Instruments Act, 1881.

The conviction recorded by the trial court was also affirmed by the Sessions Judge in appeal. Now, the convict along with the complainant prayed before the High Court for compounding of the said offence.

Keeping in view the law laid down by the Supreme Court in Damodar S. Prabhu v. Sayed Babalal H., (2010) 5 SCC 663 and Meters and Instruments (P) Ltd. v. Kanchan Mehta, (2018) 1 SCC 560, the High Court allowed the petition for compounding of the offence. Consequently, the convict was held to be not liable to undergo imprisonment in terms of the trial court’s decision. However, he was directed to deposit an amount equal to 15% of the cheque amount with the Tripura Legal Sevices Authority within a period of 4 weeks. [Rakhal Sen v. Ganesh Debnath, 2019 SCC OnLine Tri 119, Order dated 02-04-2019]

Case BriefsHigh Courts

Gauhati High Court: A Bench of Achintya Malla Bujor Barua and Mir Alfaz Ali, JJ., modified a conviction for murder to that of conviction for culpable homicide not amounting to murder in light of the convict’s inebriated condition at the time of the commission of offence and his subsequent conduct.

The appellant was convicted under Section 302 IPC for the murder of the deceased (his sister-in-law). He backed her with a dao from behind. It clearly came out from the record that at the time of the commission of offence, the appellant was in an intoxicated condition. Also, after the incident, he brought a vehicle and took the injured (now deceased) to hospital.

The High Court noted that after inflicting the injury, the appellant thought about providing treatment to the deceased. It was noted, “there are materials to show that the accused was in an inebriated condition and the incident took place at the spur of the moment and immediately after the incident took place, it was the accused, who himself went out to bring a vehicle and took the deceased to the hospital…” Relying on the Supreme Court decisions in Deepak v. State of U.P.,(2018) 8 SCC 228 and Kalu Ram v. State of Rajasthan, (2000) 10 SCC 324, the High Court found similarity in the present circumstances and converted the appellant’s conviction from that under Section 302 to one under Section 304 Part II IPC. Further, in view of the period of imprisonment already undergone by him, the appellant was directed to be released forthwith if not required in any other offence. [Nara Kanta Dutta v. State of Assam, 2019 SCC OnLine Gau 1671, dated 02-04-2019]

Case BriefsHigh Courts

Bombay High Court: Sarang V. Kotwal, J., held that conviction for the offences punishable under Section 279 (rash driving in a public way) and 337 (causing hurt by act endangering life or personal safety of others) IPC is not maintainable where the driver (convict-applicant) was facing the real threat of imminent  death at the hands of robbers carrying razor.

On 11-03-1983, a robbery took place at about 9:35 am, after which the robbers sat in applicant’s taxi. Prosecution’s case was that the taxi was driven in a rash and negligent manner injuring four pedestrians. The prosecution raised doubts as to the applicant’s involvement in the conspiracy but was refused by the trial Judge. He was, however, convicted under Sections 279 and 337 IPC. The applicant, represented by Ganesh Gole along with Ritesh Ratnam and Ateer Shirodkar, challenged his conviction.

On perusing the record, the High Court found that the applicant had sufficiently proved his case on the touchstone of probability. In fact, he himself if had suffered a razor injury on his neck. He was under a real and reasonable apprehension of suffering grievous injury or even death at the hands of the robbers who had forcibly entered his taxi. Referring to Section 106 IPC which makes a provision for the right of private defence against deadly assault when there is a risk of harm to an innocent person, the Court held that the applicant could not be held guilty for causing minor injuries to the pedestrians. Therefore, the trial court’s order was reversed and he was acquitted. [Hamza Mohd. Ibrahim Ansari v. State of Maharashtra, 2019 SCC OnLine Bom 547, decided on 29-03-2019]

Case BriefsHigh Courts

Sikkim High Court: A Bench of Vijay Kumar Bist, C.J., and Meenakshi Madan Rai, J., dismissed an application filed against the judgment of the Special Judge (POCSO) whereby the appellant was convicted for the offences punishable under various sections of the Protection of Children from Sexual Offences Act, 2012 and the Penal Code for raping a minor girl.

It was alleged that the appellant raped the victim in a jungle near her school when she went there for collecting fruits. The victim was aged 13 years at the time of the incident. The appellant was tried, convicted and sentenced for raping the victim by the trial court. Aggrieved thereby, he preferred the present appeal.

Gulshan Lama, Advocate (Legal Aid Counsel) for the appellant relied on the statement of doctors to challenge the impugned judgment. Per contra, Thimlay Dorjee Bhutia, Additional Public Prosecutor supported the impugned judgment.

The High Court noted that the Forensic Laboratory Report stated that human semen was found on victim’s underwear. Considering the report with statements of the victim and her friend, the Court found the victim’s statement trustworthy.

Explaining the law, the Court observed, “Section 29 of the POCSO Act provides that where a person is prosecuted for committing or abetting or attempting to commit any offence under Sections 3,5,7 and 9 of the POCSO Act, the Special Court shall presume, that such person has committed or abetted or attempted to commit the offence, as the case may be, unless the contrary is proved. In this case, the appellant failed to prove that he has not committed the offence as alleged by the minor victim. Section 30 of the POCSO Act provides that the accused has to establish beyond reasonable doubt that had no culpable mental state.”

Stating that the appellant made no effort to rebut the presumption of culpable mental state, the Court dismissed the appeal. [Lakpa Dorjee Tamang v. State of Sikkim, 2019 SCC OnLine Sikk 7, dated 21-2-2019]

Case BriefsHigh Courts

Jharkhand High Court: The Bench of H.C. Mishra and Sanjay Kumar Dwivedi, JJ. allowed the appeals while setting aside the judgment of conviction and order of sentence convicting and sentencing the appellants.

In the pertinent case, the dispute was over land and its illegal possession wherein the accused were held guilty of murder under Section 302 of the Penal Code and the Trial Court even sentenced the accused accordingly. The Court was approached because there were discrepancies in the FIR and the statements provided by the prosecution witnesses, where they first stated that the occurrence had taken place in the hut and they could not see which accused was armed with what weapon. Subsequently, in evidence, the place was changed to the land in question and improvements were made on the details as to which accused was armed with what weapon and the person who assaulted. Also, the Investigation Officer (IO) was not examined because of which the necessary implications could not be taken from the IO. Even the Doctor conducting the post-mortem examination was not examined in the case.

The Court in the interest of justice looked into the case diary with the help of the learned senior counsel, Mr V.P. Singh, where it became apparent that the non-examination of the IO has vitally prejudiced the defence in the case and even the place of occurrence has not been properly proved in the case. The Court further believed that, the benefit of doubt should be extended to the appellants in the absence of the evidence of the IO and the Doctor. Therefore, the Court set aside the conviction and sentence ordered by the 1st Additional Sessions Judge and discharged the appellants from their respective liabilities.[Manik Singh v. State of Jharkhand, 2019 SCC OnLine Jhar 244, Order dated 11-03-2019]

Case BriefsForeign Courts

Supreme Court of Pakistan: The Division Bench of Dost Muhammad Khan and Qazi Faez Isa, JJ. allowed an appeal against order convicting a person for the offence of defiling Quran, for lack of any evidence in support of offence.

Appellant herein was alleged to have desecrated the Holy Quran and was charged for an offence under Section 295-B of Pakistan Penal Code, 1860 (PPC). It was alleged that he had masturbated in the centre of a mosque and then smeared his semen on the Holy Quran. Allegedly this act was seen by one Muhammad Akhtar who was deaf and dumb. The trial Court convicted the appellant and Lahore High Court affirmed the said order. Aggrieved thereby, a jail petition was filed, which was converted into an appeal by this Court.

The Court noted that the FIR, in this case, was lodged with an inexplicable delay of five days. The interpreter of Muhammad Akhtar’s sign language who, himself was a witness had not been administered any oath, which was contrary to Section 543 of Code of Criminal Procedure, 1898. There were disagreements between witnesses regarding the date of occurrence of the offence.

It was observed that the purported confession of the accused before panchayat was after he had been kept in the custody of complainants, and beaten by them. Further, eleven pages were removed from the Holy Quran and only those pages were sent for chemical examination. Though it was confirmed that there were semen stains on the pages, no effort was made for the DNA test and semen matches. It was, thus, opined that the prosecution failed to act independently and fairly in the present case.

The Court concluded that punishment for an offence under Section 295-B PPC is imprisonment for life, therefore, it was necessary that the prosecution and the trial Court had proceeded with caution. Unfortunately, in this case even the basic parameters of proof required in a criminal case were completely disregarded.

In view of the absence of any tangible evidence, innumerable contradictions, the abject failure of the prosecution to act independently, and violation of criminal procedural laws, the conviction and sentence of appellant was held unsustainable and accordingly set aside.[Muhammad Mansha v. State, 2018 SCC OnLine Pak SC 18, Order dated 15-01-2018]