Case BriefsHigh Courts

Punjab and Haryana High Court: Amit Rawal, J. dismissed an appeal against the decree of the suit for specific performance of the agreement to sell.

Factual matrix of the case was, respondent-plaintiff alleged that appellant-defendant after mutual decision extended the date for the performance of the agreement, but on the date decided to perform the defendant did not come forward. Subsequently, plaintiff sent a legal notice and filed a suit when the defendant failed to reply to notice. Contention of the appellant was he never entered into an agreement with the plaintiff.

Deepender Ahlawat, learned counsel for the appellant submitted that readiness and willingness on behalf of the respondent-plaintiff was conspicuously wanting. No documents in this regard were placed on record. Even if the agreement to sell was denied, extensions were also the testimony of the same.

Learned counsel for the respondent, submitted various pieces of evidence and witnesses to prove his case that the appellant had entered into alleged agreement to sell and a copy of the impugned notice was also presented before the Court.

The Court observed that such arguments were not sustained for the simple reason that if a person who has denied the agreement to sell cannot be permitted to take the plea of readiness and willingness particularly when extensions and earnest money had been proved on record. The Court held, “As an upshot of my findings, there is no illegality and perversity in the concurrent findings of fact and law to form a different opinion than the one arrived at by the Courts below.” Hence, there were no merits in the appeal found by the Court.[Balwan Singh Raghav v. Dalip Kumar, 2019 SCC OnLine P&H 709, decided on 24-05-2019]

Case BriefsForeign Courts

Court of Appeal for the Democratic Socialist Republic of Sri Lanka: A Division Bench of Deepali Wijesundera and Achala Wengappuli, JJ. dismissed an appeal against conviction by the High Court.

Facts giving rise to this appeal were, prosecutrix heard a noise outside her hut and went out to check, she was dragged by the appellant into a nearby compound. Prosecutrix knew and identified the appellant as the fish monger from nearby village and as she had seen him before, there was no doubt related to his identity. She then after the alleged rape went into her house and found her mother hiding as she was also threatened by the appellant. The prosecutrix then went to the police station and reported the crime. She identified the appellant by name while making a complaint. Prosecutrix contended that the medical examination report proved that she was allegedly raped, which was corroborated by the testimony of the doctors.

But according to the appellant, the prosecutrix had committed a mistake while identifying him and that on the night of the incident he was not present at the spot and was present elsewhere. Hence, the High Court had ignored his plea of alibi while convicting him. Appellant contended that, he was convicted for kidnapping and rape under Sections 357 and 364, Penal Code of Sri Lanka, 1883, and was sentenced to 16 years with fine. Further, he alleged that the High Court has committed an error in trial and wrongly convicted him.

The learned counsel for the appellant Tenny Fernando, submitted that the appellant was not properly identified by the victim. He stated that prosecutrix had stated that she knew the appellant by his name as he came to sell fish, hence it was a case of mistaken identity and same was not raised by the appellant during the trial. The other point of argument was that the learned High Court Judge failed to consider the evidence of the defence in the High Court and the defence of alibi.

The Court observed that when the issue was not raised before the High Court by the appellant the Judge was correct in his conviction. The Court relied on the judgment in Sigera v. Attorney General, 2011 vol 1 pg. 201, where the ‘Turnbull Principles’ had been referred, and various parameters when convicting on the identification must be considered. It was held in Sigera, cases against accused depends wholly or substantially on the correctness of one or more identifications of the accused, which the defence alleged to be mistaken, the Judge should warn the jury of the special need for caution before convicting the accused in reliance on the correctness of the identification(s). The Court found no irregularity or illegality in the judgment of the High Court while praising the evidence. Thus, dismissing the appeal and upheld the conviction of the High Court.[Attorney General v. Wijesinghe Mapa Hamilage Priyankara, Case No. CA 253/2015, decided on 17-05-2019]

Case BriefsHigh Courts

Bombay High Court: A Single Judge Bench comprising of Swapna Joshi, J. dismissed a criminal appeal filed against the decision of the trial court convicting and sentencing the appellant (accused) for offences punishable under Sections 323 and 354 IPC along with Section 8 of Prevention of Children from Sexual Offences Act, 2012.

The appellant was accused of outraging the modesty of the prosecutrix (her daughter). It was alleged that on the night of 9-8-15, while the prosecutrix was sleeping, the appellant fondled her private parts, which continued for 2-3 nights. Thereafter, the prosecutrix went to the house of her maternal aunt, where again, the appellant came and abused her maternal aunt and tried to take the prosecutrix with him. She told the incident to her aunt who informed the mother of the prosecutrix. The appellant was given a chance to improve but in vain. He repeated the incident, and therefore, a complaint was lodged by the prosecutrix with the Women Cell. Learned Counsel for the appellant challenged the decision of the trial court on various grounds. He inter alia contended that the inordinate delay in lodging the complainant was not appreciated by the trial court and thus the court erred in convicting the appellant.

The High Court perused the record and found that at the time of the incident, the prosecutrix was 15 years of age. She did not inform about the incident as she wanted to give a chance to the appellant- her father, to improve. When she went to her maternal aunt’s home, the appellant tried to repeat the incident and thereafter she informed about the incident to her aunt. The appellant was warned but he did not mend his ways. It was only thereafter, that a formal complaint was lodged with the Women Cell. The Court observed, “it is a settled law that the delay in lodging complaint, in case of sexual offences is to be considered in favour of the victim if her testimony inspires confidence as under normal circumstances the reputation of the entire family of the prosecutrix is at stake.” The Court was of the opinion that the prosecutrix lodged the complaint after giving a full thought and the resultant delay was properly and convincingly explained by her. In such facts and circumstances, the High Court upheld the impugned decision of the trial court and dismissed the appeal. [Ajay v. State of Maharashtra,2018 SCC OnLine Bom 1202, dated 05-06-2018]

Case BriefsHigh Courts

Delhi High Court: A Division Bench comprising of Vipin Sanghi and P.S. Teji, JJ, modified the conviction of the appellant to a conviction under Section 18 of the POCSO Act (hereinafter the Act) instead of Section 6 of the Act.

The appellant made only one submission that the offence proved against the appellant is not of ‘penetrative sexual assault’ and as such does not fall under Sections 5(k) and 6 of the Act. Counsel for the appellant relied on the testimonies of the prosecutrix and other prime witnesses in which none of them had claimed penetration. Medical examination of the victim and the appellant also indicated absence of penetration. There also were some contradictions in the testimony of the prosecutrix which did not corroborate with the reports of medical examination. The counsel pleaded that, at best, the conviction could be of attempt to commit penetrative sexual assault and the most the appellant could be convicted under is Section 18 of the POCSO Act.

The Court held that in the absence of penetrative sexual assault, offence and sentence under Sections 5(k) and 6 cannot be made out. Consequently, the sentence was set aside. However, the evidence led in the case established an offence under Section 18 of the Act. Hence, the appellant was sentence to 10 years’ rigorous imprisonment with a fine of Rs. 10,000. In default of payment of fine, he was to undergo simple imprisonment for six months. Appeal allowed. [Manoj v. State, Crl. Appeal 647/2014, decided on 21.11.2017]

Case BriefsHigh Courts

Delhi High Court: A Single Judge Bench comprising of Vinod Goel, J, upheld the conviction of the appellant under Section 10 of the Protection of Children from Sexual Offences Act, 2012.

The appellant had raised a question as to admissibility of the minor victims/witnesses’ testimonies. The Court relied on Panchhi v. State of UP, (1998) 7 SCC 177 where it was held that it cannot be said that a child witness’ evidence would always stand irretrievably stigmatized. A child witness’ evidence does not get automatically rejected, it must however, be evaluated more carefully, since a child is more susceptible to tutoring.

The cross-examination revealed no material inconsistencies between the testimonies of the child witnesses and other witnesses. Hence, appeal dismissed. [Hans Raj @ Bhola v. State, 2017 SCC OnLine Del 10589, decided on 21.09.2017]

Case BriefsHigh Courts

Delhi High Court: A Single Judge Bench comprising of S.P Garg, J held that the sole testimony of the investigating officer cannot be grounds for convicting the accused under the NDPS Act in the absence of other evidence.

In this case, an intelligence officer, Directorate of Revenue Intelligence received a secret information on phone about two persons of certain descriptions who would arrive at a certain bus stop on Wazirabad road at about 9:00 p.m. carrying contraband. The said call was allegedly made at around 5:00 p.m. This information was recorded in writing and placed before senior officers and the complainant was directed to take necessary steps which resulted in the arrest of two persons matching the description given by the anonymous caller with around 6 kg of heroine in their possession. The DRI claims that during the arrest, two public persons joined the raiding team at about 8:30 p.m.

The Court found many discrepancies in the investigation and arrest. The Court questioned the absence of the two public persons during cross-examination. Moreover, the anonymous tip was recorded in a loose sheet of paper. Moreover, the DRI was unable to make a case as to where the accused persons had come from, where they were headed, who they were bringing the contraband for where they got the contraband from. In light of the above-mentioned circumstances surrounding the case, the Court allowed the appeal setting aside the sentence. [Mohammad Burhan v. Directorate of Revenue Intelligence, 2017 SCC OnLine Del 10060, decided on 24.08.2017]

Case BriefsHigh Courts

Delhi High Court: Deciding an appeal filed by the State against acquittal of the accused for an offence under Section 354 of the Penal Code, the Bench of Sunita Gupta, J., reversed the acquittal and held that there is no legal impediment in convicting a person on the sole testimony of a single witness. In a case where an FIR was filed against the gym instructor and who despite the complainant’s refusal, forceably, in the garb of giving her a body massage pressed her thighs and touched her private parts, the accused was acquitted by the Metropolitan Magistrate on the ground that during the cross-examination of the complainant, it had come that  there was one more lady present inside the gym and that lady was not examined by prosecution. Since that lady was an independent witness, conviction could not be based on the solitary testimony of the complainant. The Public Prosecutor submitted that the trial court fell in error in acquitting the respondent solely on account of non-examination of one more lady who was alleged to be present in the gym and no reason was assigned as to why the testimony of the complainant should be disbelieved.

On the other hand, learned counsel for the respondent submitted that this appeal is against acquittal and, therefore, no interference is called for. It was further submitted that the prosecution case is based on solitary testimony of the complainant.

Rejecting the reasoning of the trial court and in the light of the above arguments, the Court held that the law under Section 134 of the Evidence Act, 1872 states that the Court may act on the testimony of a single witness on a condition that he is wholly reliable according to the wellsettled principle that evidence has to be weighed and not counted. The Court further held that non-investigation regarding presence of any other girl in the gym at the time of incident can be termed as lapse on the part of Investigating Officer however, the defect in the investigation cannot be a ground for acquittal and if primacy is given to such negligent investigation or lapses by perfunctory investigation, the faith and confidence of the people in the criminal justice administrated would be destroyed. Thus, merely that some other girl was present in the gym, who was not examined by prosecution is not enough to draw an adverse inference against the prosecution. [State (NCT of Delhi) v. Pratap Singh, 2016 SCC OnLine Del 3207, 25 May 2016].

High Courts

Delhi High Court: In a landmark judgment in a case involving brutal rape of a 3 year old girl in 2012, the Bench comprising of Pradeep Nandrajog and Mukta Gupta, JJ has ruled that the evidence of a child witness cannot be rejected per se. It is a rule of prudence that the Court has to closely scrutinize such evidence and if it is convinced about the quality thereto and the reliability of the child witness it can record conviction based on his testimony. While recognizing the fact that assessing the competency of a child witness is not easy and is filled with various difficulties, the Court also passed detailed guidelines on the nature of questions that should be put to a child witness for the said purpose.

In the instant case a 3 year old girl was brutally raped by the accused which resulted in serious injuries to her person, requiring her to undergo three consecutive surgeries. It is important to mention here that the trial court had acquitted the accused while raising doubts on the testimony of the victim being tutored due to that fact that she did not say anything about rape or the person who had raped her, before the Magistrate about one month & twenty days after the incident and her testimony was recorded after about six months after the incident. The State had filed a leave to appeal against the said judgment.

The Court while reversing the trial court’s decision, has held that as per the provisions of Section 118 of the Evidence Act, 1872, all persons are competent to testify, unless the Court considers that by reason of tender years they are incapable of understanding the questions asked and of giving rational answers. It is for the Judge to satisfy himself regarding fulfillment of the requirement of the said provision.

Allowing the appeal and convicting the accused of raping the victim, the Court took note of the medical papers relating to the severe injuries on the victim and has directed the State to ensure that best medical treatment be provided to the victim so that her wounds heal and they do not cause any permanent disablement. It was also directed that if the need be, her treatment should be done at a reputed private hospital and the Secretary (Health), Government of NCT of Delhi shall bear all the expenses. The matter will be heard on the subject of sentence on 27-10-2014. 

To read the full judgment, refer SCCOnLine