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National Human Rights Commission issues notice on 08-04-2019 to Maharashtra DGP and Mumbai Police Commissioner over the reported abduction, rape, and murder of a 9-year old girl.

NHRC, India has taken suo motu cognizance of a media report that a nine year old girl, who had gone missing on 04-04-2019 from the Nehru Nagar slum area of Juhu Mumbai was found murdered on the 06-04-2019. Her body was recovered from a septic tank of her locality. Reportedly, preliminary medical reports have confirmed that she was raped and murdered. According to the media report, a similar had happened in the J.J. Marg area about one and a half years ago.

The Commission has issued notices to the Director General of Police, Maharashtra and the Commissioner of Police, Mumbai calling for a detailed report in the matter within four weeks. The Commission also expects to have a report giving details of the mechanism adopted by the police authorities to address the issue more effectively.

It has observed that it seems the area lacks proper patrolling and monitoring by the police authorities. The culprit in the instant case, has a criminal background as he was reportedly arrested by the police in the year 2013. The local police officials are expected be vigilant about suspicious activities of these anti-social elements so that such heinous crimes could be averted. The Right to Life and Dignity of the innocent victim has been grossly violated.

According to the media report, carried on the 07-04-2019, the mother of the victim has stated that the girl had gone to get a packet of tea when she disappeared. A missing complaint was lodged with the details about the location and uniform she was wearing. The police authorities have arrested the suspect with whom the girl was last seen by some people. The alleged offender was also arrested in a criminal case, in the year 2013. The news report also states that a similar incident had taken place in J.J. Marg area about one and a half years ago when a 6 year old girl was killed and after investigation, the accused has been convicted by the Court.


[Dated: 08-04-2019]

NHRC

Case BriefsHigh Courts

Punjab And Haryana High Court: The Bench of Rajiv Sharma and Kuldip Singh, JJ., dismissed the application filed under Section 378(4) CrPC against the Judgment passed by the Additional Sessions Judge acquitting the accused-respondents of the charges framed against them under Section 302 read with Section 34 IPC and Section 25 of the Arms Act on the ground that it was a case of mere suspicion. 

The facts of the case were that the accused was suspected of the murder of his brother whose body was found lying near the railway track. However, the Additional Sessions Judge acquitted the accused. The Court said that in this case, the prosecution relied upon the confession made by both the accused in their disclosure statements. However, the confession made in the disclosure statement is not admissible in evidence. The prosecution also led evidence to prove the enmity between the accused and the deceased and for this purpose, they have examined the brother of the deceased and the father of the deceased. Their cross-examination showed that both of them had heard about the quarrel between the accused and the deceased on the Diwali day. However, the accused proved that he was away to Delhi on the Diwali day. Therefore, their statements regarding quarrel was discarded as hearsay. 

The Court held that this was a case of circumstantial evidence. The entire chain was not complete to point out that the accused were the only persons who could commit the crime. It was merely a suspicion. It is established law that suspicion, however strong, cannot take place of the positive proof and cannot be made the basis of conviction. The prosecution could not prove its case against the accused beyond a reasonable shadow of doubt. The Court thus did not find any illegality in the impugned Judgment. Accordingly, application under Section 378(4) CrPC. for grant of leave to appeal was dismissed. [Abdul Rahman v. State of Haryana, 2019 SCC OnLine P&H 351, decided on 01-04-2019]

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 BriefsSupreme Court

Supreme Court: The 3-judge bench of NV Ramana, MM Shantanagoudar and Indira Banerjee, JJ has upheld the conviction and sentence of life imposed upon Saravana Bhavan Owner P Rajagopal by the Madras High Court for the abduction and murder of his employee Santhakumar.

Factual Background

  • Rajagopal, either upon the advice of an astrologer or having become besotted with deceased’s wife (PW1), had evinced a keen desire to take her as his third wife.
  • He helped PW1 financially and gave her costly gifts to gain her affection.
  • He and his henchmen abducted Santhakumar in an earlier attempt to kill him. Rajagopal had ordered his henchmen to kill Santhakumar but he managed to escape.
  • Meanwhile, Rajagopal took PW1 to an astrologer to remove the alleged influence of witchcraft (black magic) which was allegedly the cause of her being in love with Santhakumar.
  • When Santhakumar contacted his wife after escaping, she convinced him to come back and later, he, along with his wife, went to seek Rajagopal’s mercy, thus revealing to him that he was still alive.
  • Rajagopal again made a plan to kill Santhakumar and abducted the couple. He then handed over Santhakumar to his henchmen and ordered them to ‘finish him off’. Rajagopal took off with PW1.
  • Rajagopal took PW1 and her family to an astrologer again where PW1 was made to undergo certain rituals in the presence of the Rajagopal’s second wife.
  • Later, much to her shock, PW1 learnt that these rituals were traditionally conducted by the wife after the death of her husband. This made her suspicious and she lodges and FIR.

Circumstantial evidence

The prosecution mainly relied upon three circumstances to prove the guilt of the accused, i.e. motive, the last seen circumstance and the recovery of the dead body at the instance of the accused.  An additional link in the chain of circumstances is the non­explanation by the accused about the last seen circumstance in their statement recorded under Section 313 of the Cr.P.C.

Noticing that there is no direct evidence in this matter and the whole case rests on circumstantial evidence, the Court said that the evidence of PWs 1 and 2 with regard to the motive for commission of the offence, the last seen circumstance and recovery as well as the identification of the dead body is consistent with the case of the prosecution.   The Court also took note of the fact that one of accused made a confession based on which, recoveries of a wallet containing a photograph of PW1, gold chain etc were effected from his house.

Ruling

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.

[Pattu Rajan v. State of Tamil Nadu, 2019 SCC OnLine SC 444, decided on 29.03.2019]

Case BriefsHigh Courts

Delhi High Court: Sunil Gaur, J., dismissed a set of petitions filed by the husband and in-laws of the deceased impugning the order whereby they were put on trial for the offence inter alia under Section 302 read with Section 34 IPC.

As per the prosecution, the deceased had made a call to Police Control Room regarding she being beaten by her in-laws. When the police reached her house, she said that she would make a complaint to the Crime Against Women Cell on the next day. Next day, when the police again reached the spot, they found broken bangles and blood on the floor. The TV was switched on with full volume. The petitioners were absconding. the deceased was found hanging from the ceiling fan.

Senior Advocate Siddharth Luthra assailed the impugned order and drew the Court’s attention to the alleged suicide note. It was pointed out that the deceased’s father had affirmed that the note was in the handwriting of the deceased. It was submitted that it was a case of suicide and there was no basis to frame a charge of murder.

The High Court was of the opinion, “No doubt, it is recorded in the post-mortem report that the cause of death, in this case, was asphyxia due to ante mortem hanging and the suicide note is in the handwriting of deceased, but this by itself cannot rule out the possibility of murder being committed by petitioners. It is so said because the suicide note is undated and the aspect of ante-mortem hanging cannot be considered in abstract…”

Noting that at the initial stage, only prima facie opinion is to be formed, the Court stated, “Whether death of deceased was homicidal or suicidal is an aspect which cannot be pre-judged at this initial stage. In any case, the presence of lividity over the back and other areas prima facie justifies framing of charge under Section 302 read with Section 34 IPC.”

In such view of the matter, the Court found no merit in the petitions and therefore the same were dismissed. [Sukhbir Kataria v. State (NCT of Delhi), 2019 SCC OnLine Del 7603, Order dated 12-03-2019]

Case BriefsHigh Courts

Patna High Court: The Bench of Ahsanuddin Amanullah, J. quashed the criminal proceeding initiated against Bihar Chief Minister Nitish Kumar by a lower court in a 28-year-old murder case holding that the prosecution against him was mala fide, untenable and solely intended to harass him. With opposition parties, especially Rashtriya Janta Dal (RJD) targeting Mr Kumar over his name figuring in the case, the present judgment came as a huge relief to the Bihar CM.

The present case related to murder of a Congress worker, Mr Sitaram Singh, on 16-11-1991, during by-elections for the Barh Parliamentary constituency in Patna. The next day, a First Information Report was lodged by one Raja Ram Singh, brother of Sitaram, in which he accused Janata Dal candidate and incumbent Chief Minister of Bihar – Nitish Kumar (petitioner herein) – and several others of hatching a conspiracy to kill Sitaram. It was alleged that the petitioner fired at his brother with the intention to kill and Sitaram died on the spot.

A timeline of the facts of the case is mentioned below:

  • Police case was instituted under Sections 147, 148, 149, 302, 307 of the Penal Code, 1860 and Section 27 of the Arms Act, 1959.
  • As soon as the petitioner came to know about the FIR, he filed an application before the Investigating Officer stating that, at the relevant time, he was with the District Magistrate and Superintendent of Police, Nalanda and, thus, could not have been present at Barh.
  • 30-01-1993: After investigating the case, police filed a final form exonerating the petitioner stating that there was no evidence as to his involvement in the said crime (RJD Chief Lalu Prasad Yadav was the then CM).
  • 05-08-2008: After several adjournments in the matter, Additional Chief Judicial Magistrate (ACJM) of Barh accepted the final form submitted by police by which time petitioner had become the Chief Minister.
  • 20-01-2009: A Protest-cum-Complaint Petition was filed in ACJM’s Court, challenging petitioner’s exoneration.
  • 22-04-2009: Patna High Court ordered a stay on further proceedings in the case at the ACJM’s court, following an appeal by one of the charge-sheeted accused.
  • 31-08-2009: Learned ACJM took cognizance against petitioner directed him to appear before the Court on 09-09-2009.
  • 08-09-2009: Instant petition was filed by Mr. Kumar before this Court seeking quashing of cognizance order passed by the ACJM; and he succeeded in securing a stay on the lower court’s order on proceedings in the Protest-cum-Complaint Petition.
  • 28-10-2009: This Court issued a show cause notice to the ACJM to explain why the order of stay passed by this Court earlier was violated.
  • 15-05-2010: Patna High Court admitted an application by Radha Krishna Singh, who claimed to be Sitaram’s brother, challenging this Court’s order dated 08-09-2009 whereby cognizance stayed against petitioner.
  • 31-01-2019: This Court reserved its judgment on the instant petition.

Ms Ritika Rani, learned counsel for Radha Krishna Singh, submitted that her client be allowed to be made opposite party no. 3 to oppose petitioner’s prayer. The Court noted that despite its specific order in 2010 directing an application to be filed for being added as a party, the same was not done until 2018. The timing of filing Radha Krishna Singh’s application casted doubts on his real intention, and thus his application lacked bona fide. It was opined that besides there being very limited scope of a third party to interfere or intervene in a criminal matter, the prominent factor militating against the Radha Krishna Singh was his conduct of conveniently remaining dormant from 2010 to 2018.

The Court also took note of its order passed in 2010 wherein repeated filing of applications through one counsel Mr Dinu Kumar was frowned upon by Court, after which he withdrew from the case. However, despite his withdrawal from the matter all applications for intervention or opposing the petitioner’s prayer, were filed or routed through his office. It was opined that once the said Advocate had himself withdrawn from the case, it was not appropriate for him to be associated in any manner and persist with appearing in the matter by changing the persons by whom various petitions were filed. This act was indicative of a personal vendetta to target the petitioner as well as misuse of process of the Court for oblique reasons, which totally lack any element of bona fide whatsoever.

The Court noted that proceedings had been initiated at the instance of opposite party 2, who had filed the Protest-cum-Complaint Petition. However, later he categorically denied having seen the alleged killing of Sitaram. He also admitted to having made false statements in complaint case under influence and persuasion to secure compensation for the deceased. Thus, all the averments made in the Protest-cum-Complaint Petition automatically lost their sanctity and ceased to have value, much less for proceeding against any person in a criminal case, that too, under grave sections of IPC.

Conduct of the applicants was deprecated by the Court stating: “it appears the Court is being taken for a ride and a game is being played in the Court proceedings where one after the other, persons are trying to intervene in the matter, without any legal or justifiable reason, as if it is a kind of race where one person passes the baton to another once his game stands exposed and he is ousted from the race. Such conduct not only needs to be thoroughly deprecated but is also required to be effectively and strictly dealt with so as to prevent such blatant and clear misuse and abuse of the process of the Court, as has been attempted by all the persons who have tried to unnecessarily and clearly with hidden agendas endeavoured to interfere in the present proceeding and in which they have been more than actively encouraged and supported by forces operating in the shadows.”

 The Court also took note of the gross judicial impropriety on the part of the then ACJM and opined that taking up of Protest-cum-Complaint Petition was wholly illegal in view of there being an order of stay of further proceedings by this Court. Further, after taking cognizance under Sections triable by a Court of Sessions, non-committal of the case to the Court of Sessions, was highly improper on the part of learned ACJM. Both these acts of ACJM raised a serious question with regard to fairness, propriety and purity of judicial proceedings, and directly pointed a finger at the concerned Presiding Officer.

Further, there were over-writings/scribblings in the Protest-cum-Complaint Petition where names of witnesses were struck-off from the original typed version and names of other persons were, handwritten, as witnesses. Further, it was also noted that one of the witnesses admitted that he was forced to make false statements and depose against petitioner to the effect that he had seen him with rifle in his hand at the time of killing of Sitaram Singh.

In view of the aforesaid, the Court concluded that petitioner was “a victim of false allegations which primarily appeared to have stemmed from him having reached a very high position in public life by virtue of holding Constitutional office and, thus, for damaging him, a concerted and sustained campaign had been orchestrated by elements, who by their own conduct had made themselves totally unreliable for any Court to attach any shred of credence to their evidence.”

Statement of Mr Rajiv Gauba, IAS, the then District Magistrate, Nalanda was considered and it was noted that on the day of polling, i.e., 16-11-1991, when he was in the Control Room, the petitioner had come and met him and complained with regard to some disturbances at a booth upon which he had sent the Magistrate. He further stated that according to his knowledge, petitioner had gone to Biharsharif from Harnaut and met administrative officers during the period when the alleged incident of the present case is said to have taken place.

In view of the aforesaid facts and evidence, it was held that the Protest-cum-Complaint Petition itself was malafide, frivolous, mischievous, without any basis and in fact, totally false and fabricated; and thus the instant petition was allowed. Relying on State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335, criminal proceedings against the petitioner were quashed under Section 482 of the Code of Criminal Procedure, 1973.[Nitish Kumar v. State of Bihar, 2019 SCC OnLine Pat 331, decided on 15-03-2019]

Case BriefsHigh Courts

Gauhati High Court: Rumi Kumari Phukan, J., allowed a criminal appeal and acquitted the appellants who were convicted under Section 304 Part-II IPC by the trial court.

The appellants were accused of killing one Abul Hussain. On the basis of FIR filed by Abul’s parents, a case was registered and they were charge-sheeted under Section 302 and 149 IPC. The trial court did not find any intention or motive on appellant’s part to commit murder. However, they were convicted for culpable homicide not amounting to murder punishable under Section 304 Part-II IPC. Aggrieved thereby, the appellants filed the present appeal.

A.Y. Chaudhary, Advocate for the appellants contended that there was no chain of facts to establish the hypothesis of appellants’ guilt. Per contra, B.J. Dutta, Additional Public Prosecutor, appearing for the State supported the trial court’s judgment.

The High Court noted that the trial court basically relied on the fact that Abul accompanied Bapan (one of the accused) while other accused were along with him.  This according to the Court, may be one of the circumstances for the prosecution, but there was no chain of facts as regards the other incriminating circumstances. It was observed that, “from the totality of the evidence on record, it can be held that the evidence is totally insufficient to hold the present appellant to be guilty under any of the offence, while the deceased died due to drowning as per the report of the Medical Officer. Although there is genuine ground of suspicion on the part of the informant but there is a lack of legal evidence to sustain the conviction of the accused persons.” In such view of the matter, the Court held that the appellants deserved to be acquitted. Therefore, the appeal was allowed. [Akbar Hussain Laskar v. State of Assam, 2019 SCC OnLine Gau 1027, decided on 05-03-2019]

Case BriefsHigh Courts

Bombay High Court: The Bench of A.S. Oka and A.S. Gadkari, JJ. modified the judgment of trial court and altered the appellant’s conviction under Section 302 (punishment for murder) to Section 326 IPC (voluntarily causing grievous hurt by dangerous weapons or means).

The deceased, Farukh Shaikh had two wives. He doubted that the appellant and his cousin Saddam (co-accused who was a juvenile) had affairs with his wives. The appellant and Saddam were accused of having injuries to Farukh by giving him blows with a wooden log and stick. Thereafter, Farukh was admitted to Civil Hospital. Dr Appasaheb Ingale, the expert Surgeon informed Farukh’s relatives that his condition was serious who were not willing to continue with his treatment in Civil Hospital. They shifted Faruk to a Neurosurgical Centre against medical advice where he developed a cardiac arrest and expired. The appellant was tried and convicted for murder under Section 302. Aggrieved thereby, the appellant filed the present appeal.

Dr Yug Mohit Chaudhary, counsel for the appellant submitted that the nature of injuries got aggravated by shifting Farukh against medical advice and the real cause of death was not “head injury” but “cardiac arrest”. Per contra, J.P. Yagnik, Additional Public Prosecutor supported the judgment of the trial court.

The question before the High Court was —“what offence the appellant had actually committed?”

The High Court relied heavily on the statement of Dr Ingale who stated that Farukh died due to “cardiac arrest”. According to the Court, “there are so many reasons to develop a cardiac arrest”. The Court found it difficult to hold that Farukh died due to assault caused by the appellant and Saddam. The Court observed, “In view of the evidence of Dr Appasaheb V. Ingale, it is clear that it is due to the causation i.e. shifting of Farukh Shaikh from Civil Hospital, Sangli to another hospital of Dr Sanjeev M. Kukarni, the patient ultimately expired due to ‘cardiac arrest’. As noted earlier, there is no direct co-relation of the head injury with the said cardiac arrest in view of admission given by Dr Sanjeev M. Kukarni.” Thus, the Court held, that the appellant was liable for causing grievous hurt to Farukh and his act would fall within the ambit of Section 326 and he could not be held guilty under Section 302. The impugned judgment was accordingly modified. [Akram Khalil Ahmed Inamdar v. State of Maharashtra, 2019 SCC OnLine Bom 333, decided on 27-02-2019]

Case BriefsSupreme Court

Supreme Court:

“The mercy petition is the last hope of a person on death row. Every dawn will give rise to a new hope that his mercy petition may be accepted. By night fall this hope also dies.” – Deepak Gupta, J

The 3-judge bench of NV Ramana, Deepak Gupta and Indira Banerjee, JJ commuted the death sentence of a man who was convicted for killing his wife and 5 children due to the the un­explained delay of 4 years in forwarding the mercy petition by the State of Madhya Pradesh leading to delay of almost 5 years in deciding the mercy petition.

The Court said that it has repeatedly held that in cases where death sentence has to be executed the same should be done as early as possible and if mercy petitions are not forwarded for 4 years and no explanation is submitted, it cannot but hold that the delay is inordinate and un­explained. The Court noticed:

“there not only was there a long, inordinate and un­explained delay on the part of the State of Madhya Pradesh but to make matters worse, the State of Madhya Pradesh has not even cared to file any counter affidavit in the Writ Petition even though notice was issued 4 years back on 18.11.2014 and service was effected within a month of issuance of notice.”

The Court also took note of the fact that the petitioner has now been behind bars for almost about 14 years as he was convicted on April 24, 2006. It, hence, held that regardless of the brutal nature of crime this is not a fit case where death sentence should be executed and it commuted the death sentence to life imprisonment. However, keeping in view the nature of crime and the fact that 6 innocent lives were lost, the bench directed that life imprisonment in this case shall mean the entire remaining life of the petitioner and he shall not be released till his death. [Jagdish v. State of Madhya Pradesh, 2019 SCC OnLine SC 250, decided on 21.02.2019]

Case BriefsHigh Courts

Bombay High Court: The Division Bench of S.S. Shinde and R.G. Avachat, JJ., pronounced an order while extending the provisions of Section 335 CrPC to the appellant in order to detain him in Yerwada Mental Hospital and setting aside the impugned order of conviction and sentence under Section 302 IPC.

The present challenge was made to the judgment and order passed by learned Additional Sessions Judge, Udgir. Appellant had been convicted for the offence of murder, punishable under Section 302 IPC.

Factual matrix of the present case is that the deceased was a daily wage earner and at times used to sell Pepsi candies as a hocker in summer. On one such day, appellant asked the deceased for a Pepsi candy for free but the deceased refused for the same. Result of the said circumstances was that the appellant picked up a stone and lynched the deceased due to which on reaching the hospital the deceased lost his life.

Appellant was arrested after the above-said facts took place in the form of an FIR filed by deceased’s uncle. Trial Court framed charge and appellant pleaded not guilty and claimed to be tried. His defence was that of insanity.

Learned Counsel for the appellant stated that appellant did not have intention to kill the deceased and therefore it would at most be an offence of culpable homicide not amounting to murder, punishable under Section 304 Part-B of the Indian Penal Code. On appreciation of the evidence in the case, the trial court found the appellant to have caused culpable homicide and found it to be a case of murder. In the trial court’s view, appellant failed to make out defence of his insanity.

Conclusion & Analysis

The High being not in agreement with the trial court’s finding addressed the issue of legal insanity with an in-depth analysis of Section 299 IPC, Sections 105 and 101 Evidence Act and reference was taken from the case of Dahyabhai Chhaganbhai Thakkar v. State of Gujarat, AIR 1964 SC 1563. 

Thus, in light of the above stated,  along with circumstances of the case, it was stated that there was no enmity between the deceased and the appellant and appellant had lynched the deceased for such a trivial issue. Further, as for representations regarding appellant’s mental health, PW-8 had testified that once appellant along with other villagers had visited a temple where he had hit his wife with a watermelon for no reason. Therefore in Court’s opinion, such acts could not be attributed to the person of sound mind.

Court stated that “the appellant may not have been found medically insane.  We, however, found him legally insane. The fact that none of the family members of the appellant stood by him during the proceeding before the trial court speaks in volume.”

Disagreeing with the decision of the trial court, the High Court held that the appellant did not know the nature of the act that would otherwise have constituted the offence of murder, and therefore impugned order is set aside by declaring the appellant legally insane and detaining him in Yerwada Mental Hospital as per the provisions of Section 335 CrPC. [Balaji Kishan Nagarwad v. State of Maharashtra, 2019 SCC OnLine Bom 116, decided on 30-01-2019]

Case BriefsHigh Courts

Allahabad High Court: A Division Bench comprising of Vipin Sinha and Ifaqat Ali Khan, JJ. dismissed the appeal as the applicant failed to prove the alleged charges against the accused.

The applicant through his counsel Afzal Ahmad Khan Durrani has filed an application seeking leave to appeal against the judgment by means of which all the accused persons have been acquitted for the offence punishable under Sections 394/34, 302/34, 201, 120B and 411 IPC along with Section 25/5/35 Arms Act. He has stated that along with the body of the deceased silver ornaments were also found at the spot.

It was important to note that the silver ornaments costed about Rs 5,000 which was a very meagre amount to commit murder plus neither the court could find a reason as to why the accused would commit the murder along with the fact that no active participation of the accused could be proved.

The High Court stated that a witness could lie but not the circumstances and in this case chain of pieces of evidence furnished by those circumstances were far from complete which failed to prove the guilt of the accused. Here the Court reiterated the basic rule of criminal jurisprudence according to which if two views were possible on the evidence adduced in a case of circumstantial evidence, one pointing to the guilt of the accused and the other to his innocence, the Court should adopt a view which is favorable to the accused. Hence as the applicant failed to prove the charges against the accused the appeal was dismissed. [Mira Devi v. State of U.P., 2018 SCC OnLine All 3307, Order dated 04-07-2018]

Case BriefsHigh Courts

“It took me quite a long time develop the voice and now that I have it, I am not going to be silent.”

-Madeleine Albright

Bombay High Court: A Division Bench comprising of Ranjit V. More and Bharati H. Dangre, JJ. confirmed the death sentence awarded to the accused in the gruesome case of rape and murder of a 23 year old software engineer in Mumbai.

The incident

The victim was a software engineer working in Mumbai. She took a leave in December 2013 went to meet her parents in Andhra Pradesh. She was returning on 4 January 2014. Next morning, when her train was scheduled to reach Mumbai, her father attempted to contact her but without success. On the same day, a missing complaint was lodged with police. Thus began a frantic search for the victim. After 11 days, on 16 January, her half-burnt body was traced in the bushes on express highway.

The investigation

An FIR under Section 302 and 201 was registered. CCTV footage from Lokmanya Tilak Terminus was obtained which revealed that the victim walked out of the railway station on 5 January along with a stranger who was carrying her trolley bag. The man was identified as one Chandrabhan Sanap (accused) and was arrested. On his disclosure, articles belonging to the victim as well motorcycle on which she was driven to the crime spot was seized.

Prosecution case and the trial court decision

The accused was charged for abducting the victim on 5 January 2014 at 5.30 am from LTT Station on the pretext of dropping her at the hostel and thereafter he drove her on his bike to crime spot and committed rape on her. He was charged with Sections 364, 366, 376(2)(m), 376-A, 392 read with Section 397, 302 and 201 IPC. After the conclusion of the trial, the trial court convicted the accused and sentenced him to be hanged by neck till he is dead.

Confirmation case and appeal to the High Court

As per Section 28(2) CrPC, on imposition of death sentence, the matter has to be referred for confirmation of the High Court. The confirmation case was tagged with the appeal filed by the accused against the judgment of the trial court. The case of prosecution was based on circumstantial evidence and the prosecution had relied on 39 witnesses to establish its case along with several documentary evidence. After considering the evidence in detail including witness testimony, CCTV footage, DNA reports, post-mortem report, etc., the Court was of the opinion that prosecution was able to establish a complete chain of circumstances by cogent and reliable evidence. It was held that the prosecution had established the case against the accused beyond reasonable doubt.

Death Sentence

In order to decide the question of confirmation of the death sentence, the Court relied on Bachan Singh v. State of Punjab, (1980) 2 SCC 684 and after praying due regard to both crime and criminal, drew a balance sheet of aggravating and mitigating factors. The Court observed,

” The way in which a society protects its victims of crime is a barometer of that society’s standards of human dignity and decency. When a woman in the society is raped, it is not only she who is subjected to rape, but it is the tendency that is reflected to overpower, to violate and to crash the dignity of the entire woman creed in the society.”

It was further observed that for a small pleasure, a young woman who had just stepped into womanhood was done to death with extreme vileness. The abhorrent, grotesque and perverted manner in which she was murdered by the accused was also taken note of. In Court’s specific opinion, although ‘reformative theory’ is recognised as one of the leading theory for imposition of penalty but undue stress on the same would defeat basic tenets of imposition of penalty where crime committed obnoxiously shocks the collective conscience of the society. Furthermore, merely because behaviour of accused as under-trial prisoner was good, could not be a ground to absolve him of the most gruesome act he committed. In the present case, the only fault of victim was that she fell prey to the sinister design of the accused to fulfill his lust. As such, the Court upheld the death sentence awarded to the accused holding it to be ‘rarest of rare’ case which amounts to the devastation of social trust, shocks social conscience and calls for extreme penalty of capital punishment.

Accordingly, the death sentence was confirmed and the criminal appeal filed by the accused was dismissed. [State of Maharashtra v. Chandrabhan Sudam Sanap, 2018 SCC OnLine Bom 6576, dated 20-12-2018]

Case BriefsHigh Courts

Punjab and Haryana High Court: This petition was filed before a Single Judge Bench of Daya Chaudhary, J., under Section 482 CrPC for transfer of investigation of an FIR registered under Section 306 IPC.

Facts of the case were such that petitioner was the mother of deceased who filed an FIR for the murder of deceased but the same was registered under Section 306 IPC. Petitioner was aggrieved by the fact that the case was not being investigated. Thus, petitioner prayed for the investigation to get a transfer to an officer of the rank of Superintendent of Police outside the jurisdiction where it was earlier being investigated or hand over of the investigation to an independent agency. Whereas respondent contended that investigation was being done fairly with continuous status report filed by the investigating officer.

High Court observed that according to the status report the investigation was complete and allegations alleged was not proved as a consequence of which cancellation report was also prepared. Court noticed the fact that the FIR was registered under Section 306 IPC without taking into consideration the outcome of FSL examination. Therefore, Court said that it is in the interest of justice to transfer the investigation of the case to the Special Investigating Team (SIT) under the supervision of the Superintendent of Police. [Neelam v. State of Haryana,2018 SCC OnLine P&H 2044, decided on 29-11-2018]

Case BriefsForeign Courts

High Court of South Africa, Kwazulu-Natal Division: This appeal was filed before a 3-Judge Bench comprising of Henriques, Lopes, and D Pillay, JJ., where the sentences passed against accused charged with murder was in question.

The facts of the case were that appellant was alleged for murder and other offences and as consequence of the same he was punished for 30 years, 30 years and 10 years for different counts. The sentences imposed for first and last count were ordered to run concurrently. This means that the accused was to be sentenced for 60 years of imprisonment. Appellant contended that the trial court did not consider his age while sentencing him which was 23 years and that court committed misdirection in not declaring all the sentences were to be run concurrently. It was to be noted that the offences he was charged under were in proximity of time with common intent. Respondent made a submission that a sentence of life imprisonment was appropriate in respect to offence of murder. Respondent justified the punishment by bringing it to the notice of court appellant’s previous conviction and the particularly vicious and brutal circumstances under which the present offences were committed.

High Court was of the view that 60 years of punishment was a “Methuselah” sentences and was contrary to the objective of sentencing i.e. rehabilitation. Therefore, according to the circumstances of the offence and personal circumstances of the accused, the appellant was sentenced to 30 years of imprisonment. [Dazi v. State, Case No. AR708 of 16, dated 10-08-2018]

Case BriefsForeign Courts

High Court of South Africa, Kwazulu-Natal Division: A Single Judge Bench of Mbatha, J., mitigated sentence to accused alleged for the offence of murder.

Facts of the case were that the accused killed one person alleging that person to have used witchcraft in order to kill a child. One person, Induna called a meeting and went to find the culprit behind the child’s death. When he returned he disclosed the name of accused due to which the incident leading to the alleged death occurred. The question before Court was whether the belief in witchcraft should still be considered as a mitigating factor where Section 11 of the Bill of Rights recognises that everyone has a right to life.  Court viewed that some of the accused before the Court were educated, having attended high school. Those without a formal education had been exposed to religion.

High Court considered personal circumstances such as the fact that they belong to stable family backgrounds, the breadwinner of their family with some accused were primary caregivers to their children. Thus, accused found to be primary caregivers Court considered Section 28(2) read with Section 28(1)(b) of the Constitution. Accepting the probation officer’s reports and considering all the relevant facts of this case court was persuaded that there were substantial and compelling circumstances justifying Court’s departure from imposing the prescribed minimum sentence for life imprisonment. Therefore, the Court directed the accuses person’s punishment to be mitigated. [State v. Mkhombi Xaba, CC 48 of 2016, dated 03-07-2018]

Case BriefsHigh Courts

Bombay High Court: A Division Bench comprising of S.S. Shinde and A.S. Gadkari, JJ., allowed a criminal appeal filed against the judgment of the trial court whereby the appellant was convicted for murder under Section 302 IPC.

The appellant and the deceased were living in a live-in-relationship. Both were married to different spouses. The allegation against the appellant was that on the fateful day, he attacked the deceased with a hammer on her head and this resulted in her death. It was alleged by the prosecution that the appellant was fed up by the frequent bickering between him and the deceased as she did not allow him to meet his wife and children. Thus, the appellant attacked the deceased and murdered her. The appellant was tried and convicted by the trial court under Section 302. Aggrieved thereby, the instant appeal was filed.

The High Court, at the outset, noticed that appellant’s conviction was based on circumstantial evidence. It was reiterated that for basing a conviction on circumstantial evidence, it is necessary that all the circumstances must point towards guilt only of the accused and nothing else. Furthermore, the main ground for the conviction was that appellant failed to rebut the presumption under Section 106 Evidence Act exclusively within his knowledge. The Court made reference to Shambhu Nath Mehra v. State of Ajmer, AIR 1956 SC 404, wherein it was held that Section 106 is not a substitute for the burden of proof that rests upon the prosecution. It was noted that in the instant case there was no evidence on record even to remotely suggest that the appellant was in fact last seen in the company of the deceased either at the time of noticing the dead body or prior thereto. In absence of such evidence, the Court held that the failure of the appellant to offer any explanation under Section 106 could not be used against him to base his conviction. The Court further held that the case of the prosecution was based on mere presumption the appellant being in the same room with the deceased at the time of her death. In view of the aforesaid appellant’s conviction was set aside, and the appeal was allowed. [Ulhas Sudam Gorhe v. State of Maharashtra,2018 SCC OnLine Bom 3389, decided on 12-10-2018]

Case BriefsSupreme Court

Supreme Court: A Bench comprising of Ranjan Gogoi, Navin Sinha and K.M. Joseph, JJ. dismissed an appeal filed against the order of Bombay High Court whereby the appellant’s conviction under Section 302 IPC was upheld.

The appellant was convicted for the murder of his father. The occurrence was stated to have taken place in the night of  01-12-2003. The police report was lodged next morning by PW-­2 Ratanchand, another son of the deceased. The appellant was stated to be a wayward, addicted to alcohol, and nursed a grudge against his father with regard to his claim to a share in the lands of the deceased. There was no eye witness to the occurrence and the conviction was based on circumstantial evidence. He was convicted by the trial court under Section 302 IPC which was upheld by the High Court. Aggrieved thereby, he had filed the instant appeal.

The Supreme Court perused the record and noted that the High Court has rightly held that motive stood established because of the grudge that the appellant nursed against his father with regard to agricultural lands. The evidence of the witnesses cumulatively established that the appellant had gone to the agricultural fields where the deceased had gone at night. The lands of PW-­8 were adjacent to that of the deceased. The evidence of the witness conclusively established the presence of the appellant in the agricultural fields.   No explanation was offered by the appellant with regard to the presence of blood on his clothes. It was not the case of the appellant that he had suffered injuries in any other manner leading to the presence of blood. The recovery was at his instance. The conduct of the appellant in absconding till he was arrested, and abstaining during the funeral rites of his father, was completely contrary to normal human conduct and was therefore considered an additional incriminating factor against the appellant. In the entirety of the facts and circumstances of the case, the Court saw no reason to interfere with the conviction of the appellant. The appeal was dismissed. [Basavaraj v. State of Maharashtra,2018 SCC OnLine SC 1720, decided on 01-10-2012]

Case BriefsHigh Courts

Delhi High Court: A Division Bench comprising of S. Muralidhar and V. Kameswar Rao, JJ. dismissed an appeal filed against the order of the trial court whereby the appellant was convicted under Section 302 IPC.

The appellant was charged for murdering his wife by stabbing her with a knife. In medical examination of the deceased, as many as 11 incised wounds were noticed all over the body. The knife recovered on disclosure of the appellant was produced before the medical expert who opined that commission of the crime was possible with such weapon. The trial court tried the appellant under Section 302. He was found guilty and sentenced accordingly. Aggrieved by the same, the appellant filed the instant appeal.

The High Court perused the entire record of the case. The Court noted that the prosecution relied heavily on evidence of PW-2, daughter of the appellant and deceased. PW-2 in her statement had said that she along with her mother was separating junk near Jain Mandir when her father came with a knife and asked her mother about one Rafiq. Exchange of words ensued, after which the appellant was stated to stab the deceased and run away. On basis of the testimony of 12 years old daughter of the appellant and deceased, the Court was of the opinion that the order impugned does not require interference. There was no reason for the daughter to falsely implicate her father for commission of the crime. The appeal was accordingly dismissed. [Jameel v. State (NCT of Delhi),2018 SCC OnLine Del 10986, dated 04-09-2018]

Case BriefsHigh Courts

Delhi High Court: A Division Bench comprising of Vipin Sanghi and I.S. Mehta, JJ. allowed an appeal filed against the judgment and order of the trial court whereby the appellant was convicted for the offence punishable under Section 302 IPC.

The appellant was convicted for murder of his co-brother (sadoo). It was alleged that firstly, the deceased was last seen with the appellant. Secondly, the knife used in the commission of crime was recovered on disclosure made by the appellant. Thirdly, the appellant went missing after the death of the deceased and his mobile phone was also switched off. Fourthly, police claimed to recover clothes of the accused with involvement of an independent witness. Lastly, the motive behind the commission of murder was said to be that the appellant was suspicious of an illicit relationship between his wife and the deceased. The trial court convicted the appellant under Section 302, against which the appellant had filed the instant appeal.

The High Court perused the record and considered the submissions made by the parties. The Court was of the view that there were serious gaping holes in the prosecution story. The matter was dealt in a point-wise manner. Firstly, the last seen theory was unacceptable because the there was a time gap of over five hours between last seen and the death of the deceased. Moreover, undigested food was found in the intestines of the deceased in the post-mortem report; there was no record as to when, where and with whom the deceased had his last meal. Secondly, the blood on the knife which was recovered from the bushes did not match with the blood group of the deceased. Thirdly, the fact that the appellant went missing and switching off his mobile phone was the only fact that raised suspicion of his involvement in the crime. Fourthly, the independent witness involved in recovery of the clothes allegedly of the appellant did not support the recovery during his examination and turned hostile. Lastly, as to the motive for murder, the Court observed that in Indian culture, the relationship between a sister-in-law and brother-in-law is known to evoke playful and fun-filled conversations. Even the appellant would have been aware of the fact. Even if he did not appreciate such interactions between his wife and the deceased, there was no immediate provocation prior to the murder to trigger such an act. In light of the above, the Court held that the appellant deserved the benefit of doubt. Accordingly, the appeal was allowed, the judgment impugned was set aside and the appellant was acquitted of the charges against him. [Dinesh Dass v. State (NCT of Delhi),2018 SCC OnLine Del 10970, dated 29-08-2018]

Case BriefsHigh Courts

Madhya Pradesh High Court: A Division Bench comprising of J.K.Maheshwari and Akhil Kumar Srivastava, JJ., addressed the issue of rape and murder of a minor girl to see if capital punishment of death penalty could be imposed upon the accused.

Accused in this case was alleged under Sections 376A, 302, 342, 201/511of IPC. He raped a minor girl aged 12-year old after which the girl died. The court had no doubt as to the commission of rape by the accused as many people witnessed the accused running away from the hut where the girl was found dead. The post-mortem report confirmed rape but the reason for her death was stated to be asphyxia. Trial Court observed that the case was proved beyond reasonable doubt. While sentencing accused, Trial Court took aid under Section 42 of POCSO Act as the victim was a minor girl. Stating instant case as rarest of rare case capital punishment of death was awarded.

The appeal went before High Court where the question of whether it was a “rarest of the rare case” was to be decided. Court referred various judgments of Apex Court to understand “rarest of the rare case” and on perusing the aggravating and mitigating circumstances court was of the view that the instant case would not come under “rarest of the rare case”. Therefore, Court set aside the capital punishment given for the offence under Section 376A of the I.P.C. [Sunil Adiwasi v. State of M.P., Criminal Appeal No.5015 of 2018, dated 17-08-2018]