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 BriefsForeign Courts

Supreme Court of Canada: A Full Bench of Wagner, CJ. and Abella, Moldaver, Karakatsanis, Côté, Brown and Rowe, JJ. dismissed an appeal filed by accused to restore his acquittal.

In the present case, the deceased woman was found dead in the hotel bathroom of the appellant. She had bled to death from an 11 cm gash inside her vagina. Appellant was arrested and charged with first degree murder. He denied using a sharp object and asserted that the deceased consented to the sexual activities in question or at least he honestly believed that she did. The jury acquitted the appellant of first degree murder and the included offence of manslaughter. On appeal by the Crown, the Alberta Court of appeal concluded that the trial judge had made several serious errors that had affected the jury’s ability to assess the evidence and correctly apply the law to the facts of the case. It allowed the Crown’s appeal and ordered a re-trial on both first degree murder and manslaughter. The accused then appealed to restore his acquittal.

The appellant contended that the issues raised by the Crown, in appeal to the Court of appeal, of after-the-fact conduct were different from the issues he was originally tried on. He argued that the Crown’s failure to object to this portion of the charge should have prevented the Court from dealing with these issues.

It was observed by the Court that the Appellate Court could raise new issues to avert the risk of injustice. It was not doubtful that adequate procedural fairness was afforded to the parties as they were given sufficient notice and an adequate opportunity to make submissions. It was also observed that Section 276 of the Criminal Code, RSC 1985, prohibited the evidence of prior sexual activity, which could lead to reason, based on sexual history, that the complainant would have been more likely to consent to the sexual activity in question, or is less worthy of belief in general.  The Alberta Court of Appeal in this case, labelled the deceased as “Native prostitute”, this was in violation of Section 276 regime. This error had effects on the defence of honest but mistaken belief in communicated consent, upon which accused relied.

It was opined that the trial judge’s instruction relating to after the fact conduct were confusing and misleading. In his own testimony, the appellant had admitted to lying, disposing of evidence and providing contradictory explanations to numerous people after the commission of offence. He also concocted and fabricated multiple stories and excuses. Trial Judge stated that it was up to the jury to decide upon the usage of the said circumstantial evidence, and that they were entitled to consider the evidence of the admitted lies and discarding of evidence as after-the-fact conduct but it was also instructed to the jury that it could not use the evidence for those very purposes. Therefore, the trial judge did not leave it open to the jury to consider the impact of the after-the-fact conduct evidence to properly decide whether appellant’s narrative was credible or not.

It was held that the trial judge’s error in permitting evidence of prior sexual activity to be admitted was in clear contravention of Section 276 of the Act and it could reasonably have had a material bearing on the jury’s deliberations as a whole due to which a new trial on both murder and manslaughter was directed. The appeal was hence, dismissed.[R. v. Barton, 2019 SCC OnLine Can SC 15, decided on 24-05-2019]

Bail Application
Case BriefsHigh Courts

Himachal Pradesh High Court: Vivek Singh Thakur, J. contemplated a petition filed under Section 482 of CrPC, where the petitioner arrived at a compromise with the respondent for quashing of the FIR filed under Sections 279 and 337 of IPC along with allegations under Motor Vehicle Act, 1988.

Factual matrix of the case was that the complainant-respondent was crossing the road and he was hit by a motorcycle which was driven by the petitioner. The complainant fell unconscious and he did not know the main cause of the accident. He subsequently lodged an FIR on the basis of the information which was supplied by the people present at the site of the accident. The contention of the complainant was that it is not known to him that how the accident had occurred and as to whether petitioner was at fault or not and that after the accident petitioner along with his family had approached him in his village and had taken care of his injuries and further that petitioner was a young graduate engineer and even if had it been fault on his part, he would have forgiven him, as he was feeling guilty for hitting him with his Motor Cycle, therefore, he did not intend to continue criminal proceedings against him and had prayed for compounding the case.

The submissions of the petitioner had also been made he had stated that he was feeling guilty for hitting the complainant and therefore had repentance for the same and had apologized to the complainant, who had agreed to forgive him. He undertook to be more careful in the future. He further deposed that at the time of the accident he was not in possession of documents of the vehicle as well as driving license, but now he possesses the same. He had also stated that he has deposed in the Court out of his free will, consent and without any coercion, pressure or threat.

But the main issue in the instant petition was that the State contended that accused was not entitled to invoke inherent jurisdiction of this Court to exercise its power on the basis of compromise arrived at between the parties with respect to an offence not compoundable under Section 320 CrPC, reliance was placed on Gian Singh v. State of Punjab, (2012) 10 SCC 303, where the Supreme Court explained the power of the High Courts under Section 482 CrPC. and had held that, “these powers are to be exercised to secure the ends of justice or to prevent abuse of process of any Court and these powers can be exercised to quash criminal proceedings or complaint or FIR in appropriate cases where offender and victim have settled their dispute and for that purpose no definite category of offence can be prescribed.” However, it was also observed that Courts must have due regard to nature and gravity of the crime and criminal proceedings in heinous and serious offences or offence like murder, rape and dacoity, etc. should not be quashed despite victim or victim family have settled the dispute with the offender. Jurisdiction vested in High Court under Section 482 CrPC is held to be exercisable for quashing criminal proceedings in cases having overwhelming and predominately civil flavor particularly offences arising from commercial, financial, mercantile, civil partnership, or such like transactions, or even offences arising out of matrimony relating to dowry, etc., It was also held that no category or cases for this purpose could be prescribed and each case has to be dealt with on its own merit but it is also clarified that this power does not extend to crimes against society.

The Court observed that though Section 279 is not compoundable under Section 320 of CrPC, however the contentions in Gian Singh’s case where the power of the High Court under Section 482 CrPC was not inhibited by the provisions of Section 320. the Court further observed that the type of offence dealt in the instant petition was not expressly barred or prohibited by the general view for compounding hence, the petition was allowed. [Rohit v. State of Himachal Pradesh, 2019 SCC OnLine HP 1333, decided on 22-08-2019]

Case Briefs

Supreme Court: The bench of Deepak Gupta and Aniruddha Bose, JJ has directed the State of Uttar Pradesh to airlift the Unnao rape survivor by air-ambulance to Delhi and transfer her to AIIMS today itself after consulting with the Doctors at Lucknow.

The counsel appearing for the family members of the survivor had submitted before the Court that since the survivor has developed Pneumonia and hence, she should be shifted to AIIMS.

Regarding the lawyer of the survivor, who is in critical condition, the Court said,

“In case the family members of the lawyer of the victim make a similar request to the State authorities at 5 Lucknow by 3.00 p.m. today, he shall also be airlifted along with the victim, following the same procedure as laid down for the victim.”

On July 28, a truck rammed into the vehicle in which the Unnao rape survivor, her counsel and two aunts were travelling to Raebareli. While she and her lawyer sustained grievous injuries, her aunts were killed on the spot.

The Uttar Pradesh Police filed a case of murder against BJP MLA Kuldeep Singh Sengar and nine others in connection with the accident. Meanwhile, the BJP has expelled MLA Kuldeep Singh Sengar amidst the controversy.

[IN RE ALARMING RISE IN THE NUMBER OF REPORTED CHILD RAPE INCIDENTS, Suo Motu Writ Petition (Crl.) No(s).1/2019, order dated 05.08.2019]


Also read:

Unnao rape case: All cases transferred to Delhi; Probe to be completed within maximum 14 days

Case BriefsSupreme Court

Supreme Court: In a ghastly case involving rape and murder of 2 children, the 3-judge bench of RF Nariman, Surya Kant and Sanjiv Khanna, JJ upheld the conviction of the accused but gave 2:1 verdict on quantum of punishment.

FACTUAL BACKGROUND

  • In October 2010, accused Mohanakrishnan & Manoharan kidnapped a 10-year-old girl & her 7-year-old brother while they were preparing to leave for school.
  • The children were taken to a remote area and rape was committed on the girl.
  • Attempt was made to kill both the children by feeding them poisonous cow dung powder mixed in milk. However, the children took only a small amount of the milk and didn’t die.
  • The children were then thrown away alive in the Parambikulam-Axhiyar Project canal.
  • Both the accused were arrested but Mohanakrishnan was later shot dead in an encounter.

QUANTUM OF PUNISHMENT

MAJORITY VIEW BY NARIMAN AND SURYA KANT, JJ

Considering the serious nature of the crime, Justice Nariman, writing for himself and Surya Kant, J said that there is no doubt that aggravated penetrative sexual assault was committed on the 10 year old girl by more than one person. The 10 year old girl child (who was below 12 years of age) would fall within Section 5 (m) of the POCSO 48 Act. He further said,

“There can be no doubt that today’s judgment is in keeping with the legislature’s realisation that such crimes are on the rise and must be dealt with severely.”

It was noticed that the crime in the case at hand was extremely shocking as a young 10 year old girl has first been horribly gangraped after which she and her brother aged 7 years were done away with while they were conscious by throwing them into a canal which caused their death by drowning. The Court also noticed that no remorse has been shown by the Appellant at all and given the nature of the crime it is unlikely that the Appellant, if set free, would not be capable of committing such a crime yet again.

The Court, hence, confirmed the death sentence imposed on the appellant.

MINORITY VIEW BY KHANNA, J

While Khanna, J said that he would uphold the appellant’s conviction, he did not think that this case was fit for a death penalty and would, hence, commute it to imprisonment for life i.e. till his natural life with a stipulation that the appellant would not be entitled to remission under Sections 432 and 433 of the Code of Criminal Procedure, 1973.

Noticing that the appellant had confessed to his crime and that confession is a ground to mitigate the sentence, Khanna, J said,

“to confess to such acts of crime and misdeeds before all and everyone, including the Magistrate could only mean that the appellant had felt shame, remorse and alienation from the society.”

He also noticed that the appellant had retracted the last part of his confession as to his involvement in sexual assault, rape and throwing the children in the canal and said that the retraction does, however, substantially reiterate and accept the first portion of the confession, including his presence in the van, but states that the appellant had not raped the girl and had remained standing.

He said,

“The retraction by itself, I would observe, should not be treated as absence of remorse or repentance, albeit an afterthought or on advice propelled by fear that the appellant in view of his admission may face the gallows, and that the earlier confession made seeking forgiveness would be the cause of his death.”

Khanna, J also took note of the fact that the appellant was 23 years of age at the time of occurrence and he belongs to a poor family. The facts that he has aged parents and is a first-time offender were also taken into consideration.

He, hence, held,

“the present case does not fall under the category of ‘rarest of rare’ case i.e. there is no alternative but to impose death sentence. It would fall within the special category of cases, where the appellant should be directed to suffer sentence for life i.e. till his natural death, without remission/commutation under Sections 432 and 433 Cr.P.C.”

[Manoharan v. State, 2019 SCC OnLine SC 951, decided on 01.08.2019]

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 BriefsForeign Courts

Pakistan Supreme Court: A Full Bench of Manzoor Ahmad Malik, Syed Mansoor Ali Shah and Qazi Muhammad Amin Ahmed, JJ. allowed an appeal seeking acquittal of a murder charge in the absence of satisfactory evidence.

The appellant was in receipt of a guilty verdict. He was indicted for committing the murder of his wife Kausar Bibi (deceased). The said verdict was affirmed by the High Court judgment which was challenged through this appeal. Prosecution case was structured on the statement of the deceased’s brother Muhammad Arshad, according to whom, the marriage of the appellant was on the rocks as deceased had not brought a dowry to accused-appellants expectations. Upon a message by the deceased, Muhammad Arshad visited her to take her back. However, their house was attacked that night and Kausar Bibi was killed. Upon indictment, appellant blamed dacoits to have murdered the deceased.  The trial Judge convicted the appellant under Section 302(b) of Pakistan Penal Code, 1860 and sentenced him to death along with a direction to pay Rs 100,000.

Learned counsel for the appellant Nawab Ali Mayo, contended that the appellant should not be convicted merely upon his failure to satisfactorily explain as to what happened on that night. He further added that the presence of witnesses was extremely doubtful. He pleaded that it would have been unsafe to maintain conviction. Moreover, a co-accused was acquitted on the same grounds but the appellant was convicted.

Contrarily, the learned counsel for the respondent Mehmud ul Islam, vehemently defended appellant’s conviction on the ground that plea advanced by him was preposterous and was rightly rejected which in retrospect established his presence at the spot, thus there was no space to entertain any hypothesis of his innocence.

The Court observed that silence or implausible explanation could not equate with failure within the contemplation of Article 121 of Qanoon-e-Shahadat Order, 1984 which dealt with the exceptions of a case. Further, the appellant had not denied his presence, but these factors by itself could not hypothesize presumption of his guilt in the absence of positive proof. It was opined that suspicions are not a substitute for legal proof, and a suspect cannot be condemned on the basis of moral satisfaction in the absence of evidentiary certainty. Furthermore, the Court observed that convicting a co-accused on the same ground on which another accused has been acquitted, was wrong and it required immediate ratification. Thus, the Court allowed the appeal and ordered the immediate release of the appellant.[Muhammad Pervaiz v. State, 2019 SCC OnLine Pak SC 13, decided on 06-05-2019]

Case BriefsHigh Courts

Madhya Pradesh High Court: A Division Bench of J.K. Maheshwari and Anjuli Palo, JJ. partly allowed a criminal petition filed by a person accused of rape and murder of his minor daughter, and commuted his death penalty to life imprisonment.

In the instant case, the prosecutrix (since deceased) aged six years was the younger daughter of the appellant. She was residing with her mother and the appellant. The appellant was annoyed and having suspicion on his wife, Farida of questionable character. As he wanted to take revenge, he allured the prosecutrix with chocolates and used to commit unnatural intercourse and rape with his minor daughter. After committing the rape with the prosecutrix, he murdered her, hanged her from the ceiling with the help of a dupatta and then fled away from the spot. Police registered a case under Section 174 of the Code of Criminal Procedure, 1973. The DNA test report revealed that the DNA profile of appellant matched with the DNA profile present in the vaginal swab of the prosecutrix and sperms were also present in the vaginal swab. Due to the aforesaid evidence, police filed charge-sheet against the appellant under Sections 376, 377, 302 and 201 of the Penal Code, 1860 and Section 5(m) read with Section 6 of the Protection of Children from the Sexual Offences Act, 2012. Trial Court convicted the appellant and awarded him a death sentence. The matter was referred to this Court for confirmation of the death sentence under Section 366 (1) of CrPC. The appellant had challenged the findings recorded by the trial court by filing the separate appeal under Section 374 (2) of CrPC.

The learned counsel for the appellant, Surendra Singh and Siddharth Sharma argued that the dupatta which was used by the deceased for hanging herself was not examined at the time of postmortem. It was further contended that conviction could not be based only on the DNA and Forensic Science Laboratory (FSL) reports. Hence, the impugned judgment was liable to be set aside and the appellant was entitled to be acquitted from the charges leveled against him.

The learned counsel for the respondent/State, Som Mishra contended that the Trial Court had properly evaluated the evidence available on record and rightly convicted the appellant and awarded sentence befitting the crime. Hence, the appeal filed by the appellant was liable to be dismissed and allowing the criminal reference, the death sentence may be confirmed.

The Court stated that in the rarest of the rare cases, death sentence ought to be awarded. For this, the Court relied on the judgment of Supreme Court in the case of Mofil Khan v. State of Jharkhand, (2015) 1 SCC 67, in which the Supreme Court had opined that the death sentence must be awarded where the victims were innocent children and helpless women, especially when the crime was committed in the cruelest and inhumane manner which was extremely brutal, grotesque, diabolical and revolting.

The Court drew a balance sheet of aggravating and mitigating circumstances to determine if the death penalty was adequate punishment. Aggravating circumstances: (i) extremely brutal, diabolic and cruel act; (ii) victim being six years was a minor and helpless; (iii) no provocation because the accused was in a dominating position; (iv) injuries were grievous with respect to sexual assault particularly in a case where the victim was the daughter of the appellant. Mitigating circumstances: (i) it was a case of circumstantial evidence; (ii) no evidence that the accused had the propensity of committing further crimes causing continuous threat to the society; (iii) no evidence to show that the accused could not be reformed or rehabilitated; (iv) other punishment options were open; (v) accused was not a professional killer or offender having any criminal antecedent; (vi) accused being a major having family with him, the possibility of reformation could not be ruled out.

Thus, the Court held that in place of the death penalty, the appellant undergoes life imprisonment with a minimum of 30 years of imprisonment (without remission) and fine of Rs 20,000. In default of payment of fine, the appellant had to undergo further rigorous imprisonment for six months. The conviction and sentences awarded under Sections 201, 377, 376 of IPC as awarded by the trial court were held to be just and hence, hereby maintained.

The criminal appeal filed by the appellant was partly allowed.[Afjal Khan v. State of Madhya Pradesh, 2019 SCC OnLine MP 1672, decided on 17-05-2019]

Hot Off The PressNews

As reported by ANI, the United States of America has passed a bill unanimously, which would impose sanctions on Saudi officials who were involved in the killing of Saudi journalist Jamal Khashoggi.

House of Representatives passed Saudi Arabia Human Rights and Accountability Act which requires — director of National Intelligence to publicly identify persons who were involved in the murder of Saudi journalist last year.

The said act requires the director of National Intelligence to publicly identify the persons involved in killing of Khashoggi and impose visa and travel sanctions on them.


[Source: ANI]

Hot Off The PressNews

Supreme Court: A bench headed by Justice N V Ramana has declined to entertain a plea of P Rajagopal, the founder of South Indian food chain ‘Saravana Bhavan’, seeking more time on medical grounds to surrender for serving life imprisonment in a murder case. The Court dismissed the plea, saying his illness was not raised before the court during the hearing of the appeal in the case.

Rajagopal was to surrender on July 7 to serve life term for murdering an employee in October 2001 to marry his wife. The Court had dismissed appeals of nine convicts, including Rajagopal, and upheld the Madras High Court verdict awarding life term to them.

Stating that the prosecution has fully proved that Rajagopal had murdered Santhakumar by strangulating him and thereafter throwing the dead body at Tiger­Chola, the Court said:

“It is worth recalling that while it is necessary that proof beyond reasonable doubt should be adduced in all criminal cases, it is not necessary that such proof should be perfect, and someone who is guilty cannot get away with impunity only because the truth may develop some infirmity when projected through human processes.”

The Court, hence, concluded that the chain of circumstances is complete and points solely at the guilt of Rajagopal.

(With inputs from PTI)


Read the full report on the Supreme Court judgment where P Rajagopal was found guilty for murdering his employee, here

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)

Hot Off The PressNews

Supreme Court: A 3-judge bench of Ranjan Gogoi, CJ and Deepak Gupta and Aniruddha Bose, JJ has refused to entertain a PIL seeking a direction to the Punjab government to set up a special investigation team (SIT) to probe the death of a government official whose body was found on railway track near Jalandhar Cantt station in November 2017.

The bench said that it was not inclined to entertain the plea and granted liberty to the petitioners to approach the Punjab and Haryana High Court with their grievances. It said,

“We are not inclined to entertain this petition under Article 32 of the Constitution of India, on the ground stated before the Court by the petitioner-in-person that as a law student the petitioner has no time to move the High Court.”

The plea, filed by three law students Deepali Vashishth, Prateek Raj and Anurag Mani, said that Rahul Bhatia was posted in the Regional Passport office at Jalandhar and on November 15, 2017, his body was found near the railway station. They said that Bhatia’s parents, who are residing in Delhi, were informed by the police about it but no proper investigation was carried out in the case. They have said in the plea that several complaints and representations were made to the top authorities but no action was taken in the matter by the police.

The plea also sought a direction to the authorities to ensure that in every case of death, where proceedings under section 174 of the CrPC is initiated, a charge sheet is submitted to the judicial magistrate after conducting probe. Section 174 of CrPC deals with inquiry by police in cases of suicide or unnatural deaths.

 

(With inputs from PTI)

Case BriefsForeign Courts

Supreme Court of Pakistan: A Division Bench of Asif Saeed Khan Khosa, C.J. and Syed Mansoor Ali Shah, J. in the current order consolidated all the relevant precedents and the best practices pertaining to the Test Identification Parade so as to remove confusions regarding their legal position in future.

The case at hand pertained to an alleged abduction for ransom and murder and admittedly the case depended upon some pieces of circumstantial evidence. The appellant herein was convicted and sentenced for offences under Sections 302(b) and 347 read with Section 34 of the Pakistan Penal Code and Section 7(a) of the Anti-Terrorism Act, 1997 (the Act). He was sentenced to death by the trial court. Aggrieved thereby, the appellant challenged his conviction and sentences before the High Court through an appeal which was partly allowed. The convictions and sentences of the appellant for the offences under Section 347 of PPC and Section 7(a) of the Act were set aside but his conviction for the offence under Section 302(b) PPC was upheld. The High Court reduced his sentence of death for the offence of murder to imprisonment for life. Leave to appeal was granted in this case in order to reappraise the evidence and the Supreme Court exercised this in the current case.

The Supreme Court while reappraising the evidences observed that prosecution had failed to prove its case beyond a reasonable doubt. But the Court doubted the competence and capability of the Special Judicial Magistrate appearing before the Trial Court such that he disregarded the law declared by the Court in its precedents and made a very important piece of evidence reduced in worth due to which the prosecution had to suffer irretrievably. During the Test Identification Parade, he conducted more than one accused in one go which the Court observed was against law.

The Court relied on the precedents in the cases of Lal Pasand v.  State, PLD 1981 SC 142, Imran Ashraf v. State, 2001 SCMR 424, Ziaullah v. State, 2008 SCMR 1210, Bacha Zeb v. State, 2010 SCMR 1189, Shafqat Mehmood v.  State, 2011 SCMR 537, Gulfam v. State, 2017 SCMR 1189, Hakeem v. State, 2017 SCMR 1546 and Kamal Din v. State, 2018 SCMR 577, and held that identification of many accused persons in one line in one go during a test identification parade was improper. It observed, “it has been clarified by this Court on a number of occasions that every accused person is to be put to a separate test identification parade.”

 The Court also pointed that, “a test identification parade and correct pointing out of an accused person by an eyewitness therein is not a substantive piece of evidence and failure to hold a test identification parade is not always fatal to the prosecution’s case and a reference in this respect may be made to the cases of Muhammad Akram Rahi v. State, 2011 SCMR 87 and Ghazanfar Ali v State, 2012 SCMR 215.”

Thus, all the laws and practices regarding the Test Identification Parade were brought together by the Court in this order so as to remove any confusion regarding the same. The Court also held that henceforth serious steps would be taken in case of non-compliance or disregard of the requirements and safeguards mentioned.[Asfand Yar Khan v. State, 2019 SCC OnLine Pak SC 11, decided on 22-02-2019]

Case BriefsForeign Courts

Pakistan Supreme Court: A Full Bench of Manzoor Ahmad Malik, Syed Mansoor Ali Shah, Qazi Muhammad Amin Ahmed, JJ. allowed a criminal appeal against a conviction order under Section 302 (b) of Pakistan Penal Code, 1860 which was passed on the basis of confessional statements.

 Appellants herein were tried before trial court for committing murder of a minor. As the investigation progressed, the accused were hauled up by the police and produced before a Judicial Magistrate when they, one by one, confessed the guilt. They were convicted under Section 302(b) of PPC and sentenced to death. The conviction order was upheld by the Peshawar High Court. Hence, the instant appeal.

The counsels for the appellants, Khalid Mehmood and Zahoor Qureshi, contended that reliance on confessional statements by the Courts below was fraught with multiple errors, heavily impinging upon the principle of safe administration of criminal justice; according to him, the statements were inherently flawed; these were contradicted by prosecution’s own witness, a dichotomy that escaped notice of the courts below.

The Court noted that since the appellants had been handed down the ultimate corporal penalty which was irreversible in nature on the basis of their confessions, the said confessions warranted careful scrutiny.

It was noted that both the appellants appeared before the Magistrate one after another on the same date which was quite intriguing. Both of them conducted themselves in a comfortable unison even in an extreme crisis situation; and both were in tune with the prosecution, which reasonably excluded the hypothesis of voluntary disclosure, free from taints of inducement or persuasion. The Court observed that it appeared to be more of a negotiated settlement rather than a volitional representation as there was a remarkable similarity in both the statements, in terms of sequential order as well as the pattern these were reduced into writing.

The Court observed that The fate of the prosecution’s case is hinged upon confessional statements, made by the convicts before a Magistrate and it is on the basis of their disclosures that they have been handed down the ultimate corporal penalty, irreversible in nature and thus warrants most careful scrutiny.” On overall analysis of the prosecution’s case, it was held that the confessional statements could not be relied upon without potential risk of error. The Court held that, “In the absence of evidentiary certainty, it would be unsafe to maintain the convictions on moral satisfaction that certainly cannot equate with legal proof.”

In view of the above, the appellants were held entitled the benefit of doubt and their appeal was allowed, thus setting aside the impugned judgments.[Muhammad Azhar Hussain v. State, 2019 SCC OnLine Pak SC 10, decided on 02-05-2019]

Case BriefsHigh Courts

Tripura High Court: A Division Bench of S. Talapatra and Arindam Lodh, JJ. dismissed an appeal filed against the decision of the Sessions Judge whereby the appellant was convicted and sentenced under Section 302 IPC for committing the murder of his wife.

The appellant was alleged to have poured kerosene on his wife and put her ablaze. He was accordingly convicted by Sessions Judge. Senior Advocate P.K. Biswas assisted P. Majumdar, Advocate representing the appellant challenged the dying declaration made by the deceased wife. It was argued that the dying declaration was not taken in accordance with the established principles of law and thus could not form the basis of recording conviction against the appellant. Per contra, A. Roy Barma, Additional Public Prosecutor appearing for the State submitted that the objections relate to some technical defects which should be ignored.

The High Court, on careful scrutiny of evidence, found that the signature or thumb impression of the victim could not be taken on the dying declaration as her hands were totally burnt. The Court put reliance on Inder Singh v. State (UT of Delhi), (1978) 4 SCC 161 and Pattu Rajan v. State of T.N. (2019) 4 SCC 771. It was stated: “There is no thumb rule that dying declaration must be certified by doctors. It can be said to be only a rule of prudence. In our considered view, if the person who records the dying declaration is convinced with the fitness of the victim at the time of recording the declaration in question, then, there is no reason to doubt the reliability or credibility of the dying declaration.”

The Court further observed: “Another important aspect to be borne in mind is that in our country, the Executive Magistrates or the Doctors are not adequately trained in such affairs. Keeping in mind the principle enunciated in Pattu Rajan case we are also of the considered view that the traditional dogmatic hyper-technical approach should be replaced by the realistic and traditional approach  for administering justice in a criminal trial.” In such conspectus, it was held that there was no reason to interfere with the impugned judgment and the appeal was, therefore, dismissed.[Khokan Sarkar v. State of Tripura, 2019 SCC OnLine Tri 197, decided on 25-04-2019]

Hot Off The PressNews

As reported by media, In the barbarous Kathua Rape case, the rape and murder of an 8-year old girl in Jammu and Kashmir, District and Sessions Judge Pathankot, Tejwinder Singh pronounced the verdict today.

Out of 7 accused’s 1 has been acquitted and the remaining 6 have been found guilty for the rape and murder of an 8-year-old girl in Kathua. The six accused have been held guilty under different sections of Ranbir Penal Code (RPC), and the quantum of the sentence pronounced is: Of the six convicted, three convicts-Sanjhiram, Deepak and Pravesh sentenced with life imprisonment, and remaining three with 5 years of imprisonment.

Due to the highly sensitive nature of the case, the Supreme Court ordered shifting of the trial from a Kathua court to the district and session judge’s court in Pathankot town of neighbouring Punjab.


[Source: NewsMinute]

[Pictrure credits: Indiatoday.in]

Case BriefsHigh Courts

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

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

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

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

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

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

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

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

Presumption under Section 106 Evidence Act:

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

Proof beyond a reasonable doubt versus suspicion:

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

Establishing guilt on the basis of circumstantial evidence:

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

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

Case BriefsHigh Courts

Jharkhand High Court: The Division Bench of Shree Chandrashekar and Deepak Roshan, JJ. dismissed a petition on the ground that prosecution has miserably failed to establish its case against the appellant.

The present prosecution case was based on the circumstantial evidence where there was no eye-witness to the actual occurrence in which the deceased (Birsu Oraon) was killed. And the Additional Judicial Commissioner held that the circumstances brought on record “make him believe” that the accused-appellant has caused the death of Birsu Oraon. The facts of the case being Birsu Oraon had gone to observe paddy crop, who was found dead by his brother, who later informed the villagers who rushed to the jungle. The witness-Chandari Kumari has deposed in the court that the accused-appellant and the deceased-Birsu Oraon had gone to Tand. Wife of the deceased has also spoken on similar lines.

Amrita Banerjee, the Amicus had raised two-fold contentions that (i) the circumstances referred by the learned Additional Judicial Commissioner, do not complete the chain of circumstances so as to convict the appellant under Section 302 of the Penal Code and (ii) suspicion howsoever strong cannot be a substitute for the legal evidence so as to convict an accused, more particularly, in a serious offence like murder. The case of Navaneethakrishnan v. State, (2018) 16 SCC 161 was referred to, to contend that the incriminating circumstances must be clearly established by the reliable and clinching evidence and the circumstances so proved must form a chain of events from which it can be safely inferred that it was the accused and accused alone who has committed the crime. On the other hand, Arun Kumar Pandey, the APP had contended that once the accused has failed to explain satisfactorily the incriminating circumstances put to him in his examination under Section 313 CrPC, that he was last seen together with the deceased-Birsu Oraon, and he has failed to lead any evidence to establish. And that the circumstances brought on record “make him believe” that the accused-appellant has caused the death of Birsu Oraon.

The Court held that “the only circumstance which has been proved by the prosecution is that the accused was last seen in the company of the deceased. This may be one of the circumstances, but not the only circumstance on the basis of which an accused can be convicted for the offence under Section 302 IPC. The law assumes that when a man is last seen in the company of the accused and soon thereafter his dead body has been recovered it may be the accused who has committed the crime, but then, if the accused has offered an explanation what has happened thereafter, he has discharged his onus. To hold that an accused must answer each and every incriminating circumstance during his examination under Section 313 CrPC, would be against the basic principle in law. We find that the prosecution has miserably failed to establish its case against the appellant”. The Court appreciated the efforts of Amrita Banerjee, the learned Amicus who had prepared notes on the prosecution evidence and ably assisted the Court arguing this criminal appeal on behalf of the appellant.[Chari Oraon v. State of Bihar, 2019 SCC OnLine Jhar 544, decided on 04-04-2019]

Case BriefsHigh Courts

Allahabad High Court: This Jail Appeal was filed before the Division Bench of Sudhir Agarwal and Vivek Varma, JJ., under Section 383 CrPC which prescribed the procedure to be followed when an appellant is in jail.

The facts of the case were such that the appellant was alleged for commission of crime of murder under Section 302 of Penal Code, which the Trial Court found to be proven beyond reasonable doubt and had sentenced him to undergo life imprisonment with six months simple imprisonment for default in payment of fine on the basis of ocular evidence of material witnesses and medical evidence. Hence, this appeal before this Court.

Ravi Chandra Srivastava, learned Amicus Curiae on behalf of the appellant submitted that witnesses of prosecution were interested witness who were in close relationship with the deceased thus were not independent. Further, prosecution had failed to show motive behind the alleged crime in addition to the non-supported ocular version of events by witness. Whereas Rishi Chaddha, learned Additional Government Advocate for State submitted that FIR was corroborated by the medical evidence brought before Court. The instrument used to commit the crime was found with the accused and accused had a strong motive to kill the deceased.

High Court was of the view that the argument advanced by accused that the eye witness’s version of the events cannot be accepted as they were closely in relationship with the deceased i.e. wife, cannot be accepted in view of the evidence presented before the Court. If the evidence provided by eye-witness inspires confidence then the same cannot be discarded on the ground of their relationship with the deceased. Therefore, this appeal was dismissed. [Shishu Pal v. State of U.P., 2019 SCC OnLine All 2112, decided on 19-04-2019]

Case BriefsHigh Courts

Tripura High Court: A Bench of S. Talapatra and Arindam Lodh, JJ. allowed an appeal filed against the Judgment of the trial court whereby the appellant was convicted for an offence of murder punishable under Section 302 IPC.

The appellant was alleged to have committed the murder of his wife. The trial court had observed that the appellant was found on the previous day of the incident as well as on a fateful evening in his rented house by the witnesses, and he alone committed his wife’s murder and none else. The plea of alibi taken as defence by the appellant was not accepted.

Explaining the law regarding the plea of alibi and burden of proof thereof, the High Court stated:

  “Latin word ‘alibi’ means ‘elsewhere’ and that word is used for convenience when an accused takes recourse to a defence line that when the occurrence took place he was so far away from the place of occurrence that it is extremely improbable that he would have participated in the crime. It is basic law that in a criminal case, in which the accused is alleged to have inflicted physical injury to another person, the burden is on the prosecution to prove that the accused was present at the scene and has participated in the crime. The burden would not be lessened by the mere fact that the accused has adopted the defence of alibi. The plea of the accused in such cases need be considered only when the burden has been discharged by the prosecution satisfactorily.”

Explaining further:

  “When the presence of the accused at the scene of occurrence is established satisfactorily by the prosecution through reliable evidence, normally the court would be slow to believe any counter-narrative to the effect that he was elsewhere when the occurrence happened. But if the evidence adduced by the accused is of such a quality and of such a standard that the court may entertain some reasonable doubt regarding his presence at the scene when the occurrence took place, the accused would, no doubt, be entitled to the benefit of reasonable doubt. For that purpose, it would be a sound proposition that in such circumstances, the burden on the accused is rather heavy. It follows, therefore, that strict proof is required for establishing the plea of alibi.”

In the present case, the prosecution had failed to prove appellant’s presence at the scene of the crime. Thus, there was no occasion to consider whether his plea of alibi could be considered or not. Accordingly, the impugned order was set aside and the appellant was set at liberty on the benefit of doubt. [Suman Nama v. State of Tripura, Crl. A. (J) No. 33 of 2015, decided on 03-05-2019]