Case BriefsHigh Courts

Jammu & Kashmir: A Single Judge bench comprising of Sanjay Kumar Gupta, J. dismissed a civil writ petition seeking quashing of trial court’s order directing filing of affidavits of witnesses.

Brief factual matrix is that the petitioner is one of the defendants in a suit for partition pending in the lower court wherein she has filed a list of witnesses. Principal District Judge, in the said suit, took cognizance of the said list of witnesses and directed her to file evidence by way of affidavit of the witnesses. This order was challenged by the petitioner contending that the said order is vitiated on account of not following the proper course of law because as a normal course, enforcement of appearance of the witnesses is through summons by the court unless the party citing witnesses can produce them on their own.

The High Court noted that despite a clear direction for conclusion of proceedings within a period of six months, the trial could not be completed because the defendants had failed to tender evidence and disregarded multiple orders passed to that effect by the trial court. It was also noted that the petitioner did not place the contention raised herein before the trial court on all such occasions when the interim orders were passed and as such the present writ petition was a mere dilatory tactic adopted to delay the course of trial.

Relying on the judgment in Rasiklal Manickchand Dhariwal v. M.S.S. Food Products, 2012 (2) SCC 196 it was held that the as per Order XVIII Rule 4 and 5 CPC, the examination-in-chief of a witness has to be tendered by way of affidavit in every case – whether appealable or non-appealable; and on that holding the writ petition was dismissed. [Manorma Sharma v Sahib Saran Khajuria, 2018 SCC OnLine J&K 640, Order dated 14-09-2018]

Case BriefsHigh Courts

Tripura High Court: A Single Judge Bench comprising of Arindam lodh, J. disposed of an appeal wherein the offence under Section 376 IPC was converted to Section 354 IPC.

The Appeal was filed by the appellant against the order of District Court whereby he was alleged for the offence of rape of a minor.

From the evidence presented by the respondent, it was clear that the appellant did not touch her vagina or any parts surrounding the vagina.

It was argued by the appellant that in order to attract the provision of Section 376 IPC, even the slightest penetration of the penis into the vagina, mouth, urethra or anus of a woman was enough to constitute the offence under Section 376 of IPC. Taking the deposition of the mother of the respondent into consideration it was clear that, the time gap between the cry for help of the respondent and her mother reaching the place on hearing the same was insufficient to commit the alleged offence. Also during examination-in-chief under Section 161 CrPC, the wearing apparels of the respondent were not ceased neither she was forwarded to record her judicial confession under Section 164(5) CrPC which further weakens her case along with the inference that her clothes were not torn out.

In light of the facts and the evidences stated, the Court established that this incident could be best described as “fondling” and the offence best categorized under Section 354 of IPC as already observed, the slightest penetration, whichever degree it was, an essential requirement vis-à-vis sine qua non to attract the provision of Section 376 of IPC. Hence due to absence of any degree of penetration, the appeal was disposed of. [Nemai Dey v. State of Tripura, CRL A (J) NO. 23 of 2015, dated 06-09-2018]