Case BriefsForeign Courts

Supreme Court of the Democratic Socialist Republic of Sri Lanka: A Full Bench of Priyantha Jayawardena, L.T.B. Dehideniya and S. Thurairaja, JJ., dismissed an appeal.

The Second Suspect – Appellant (Appellant) was originally charged under Section 368 (a) of the Penal Code by the Magistrate of Embilipitiya on the 1st of December 2012, for theft of five cows and a buffalo where he had pleaded guilty and the Magistrate had sentenced him to 6 months rigorous imprisonment and imposed a fine of Rs 1500, in default one-month simple imprisonment, aggrieved by which he had filed an appeal in the High Court and submitted that the sentence was excessive and, that he should be given a non – custodial sentence. The High Court had dismissed the appeal giving reasons. Thus, the instant appeal. The facts were not disputed and the appellant had pleaded guilty the appeal was regarding the bargaining of the sentence.

The Court while dismissing the appeal stated that after the perusal of the judgment of the magistrate and the records it was found that according to the fingerprint record the Appellant had a previous conviction and the High Court had found him guilty under Section 140 and Section 300 of the Penal Code and had sentenced him for 6 months and 2 years respectively and the same was suspended for a period of 10 years and it would be violation of law if the appellant expects magistrate to impose another suspended sentence when he was already serving a suspended sentence pending against him. Consequently, the Court directed the implementation of the sentence. [Mohamed Irupan Impar v. Officer-in-Charge , 2020 SCC OnLine SL SC 1 , decided on 29-01-2020]

Case BriefsHigh Courts

Gauhati High Court: A Division Bench of Mir Alfaz Ali and Nani Tagia, JJ., allowed an appeal filed against the order of the trial court whereby the appellant was convicted for the offence of murder punishable under Section 302 IPC.

The appellant was alleged to have murdered his son after a quarrel took place between the two. Apparently, there was no direct evidence against the appellant and his conviction was based on circumstantial evidence. The trial court held that the deceased was found dead in the house of the appellant and the appellant did not offer any explanation as to how the death of the deceased was caused. Thus, basically relying on the said circumstance, the conviction of the appellant was recorded putting a reverse burden on the appellant under Section 106 (burden of proving fact especially within knowledge) of the Evidence Act. Aggrieved by the order of the trial court, the appellant filed the instant appeal.

While perusing the record, the High Court noted that evidently, the body of the deceased was found in the rented house of the tenant of the appellant. Also, when the dead body was recovered and people came to the place of occurrence, the appellant was found in his own house in an inebriated condition. When the police came, then only, he came out on being called by the police. The trial court observed that the appellant was found inside the house where the occurrence took place, but, there was no evidence on record to support such observation, and as such, this finding of the trial court appear to be perverse.

Regarding the law on Section 106, the High Court observed:

“In a criminal trial burden is always on the prosecution to prove the guilt of the accused beyond reasonable doubt and Section 106 of the Evidence Act is not intended to relieve the prosecution of its burden. Only when prosecution proves certain fact from which reasonable inference can be drawn regarding certain other facts, which unless explained by the accused by virtue of his special knowledge, tend to inculpate the accused, in such circumstance the accused owe an explanation, otherwise section 106 of the Evidence Act does not put any burden on the accused to prove his innocence.”

Referring to the facts of the instant case, the Court held:

“In the present case evidently prosecution has not been able to prove any fact, from which an adverse inference could be drawn to attribute culpability to the appellant, in absence of any explanation. As already indicated above, the findings of the learned trial court, that the deceased was found with the appellant in his house was perverse. Once, these findings are discarded, there are no other materials on record to attribute any special knowledge to the appellant in respect of the death of the deceased.”

Accordingly, the appeal was allowed and the conviction and sentence awarded to the appellant was set aside. [Tunu Urang v. State of Assam, 2019 SCC OnLine Gau 5528, decided on 19-12-2019]

Case BriefsHigh Courts

Calcutta High Court: A Division Bench of Joymalya Bagchi and Suvra Ghosh, JJ. upheld the conviction of the appellants for the commission of the offence punishable under Section 21(c) read with Section 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985.

The prosecution case is based on the recovery at two places. Firstly, 3.5 kgs of heroin was recovered from the first appellant and 50 kgs of heroin was recovered from the rented house in the possession of the second appellant. The first appellant was sentenced to death and the second appellant was sentenced with rigorous imprisonment for 30 years and to pay a fine of Rs 3 lakhs in default to suffer rigorous imprisonment for one year or more. Aggrieved by these orders, first appellant filed the instant death reference which was clubbed with the appeal filed by the second appellant against his conviction.

Jayanta Narayan Chatterjee, representing the appellants, prayed for the acquittal of the appellants and argued that seizure of possession of 3.5 kgs of heroin is vitiated in law as it is not as per the terms of Section 50 of the Act. Also, the primary witness did not recognise the second appellant. Furthermore, the appellants denied making statements under Section 67 of the NDPS Act during their examination under Section 313 Code of Criminal Procedure, 1973.

The prosecution relied on the Supreme Court case of Bachan Singh v. State of Punjab, (1980) 2 SCC 684 and argued that death penalty ought to be awarded in the present case as the first appellant has been convicted of the possession of narcotic substance above commercial quantity on two occasions and in spite of commutation he has been convicted for the second time. It also argued that Section 50 of the Act doesn’t apply as the seizure was under the terms of Section 43 of the Act.

The Court upheld the contentions of the prosecution and held that the possession of the 3.5 kgs and 50 kgs of heroin by appellants had been proven beyond doubt. The Court followed the Bachan Singh case and made a balance sheet of aggravating and mitigating circumstances to see if it had any alternative other than imposing the death penalty on the first appellant.

The Court held that Section 31 A of the NDPS Act provided for the death penalty in certain cases and the imposition of it may or may not deter others from committing similar crimes in the future. It modified the sentence imposed on the first appellant with the alternative sentence of rigorous punishment for 30 years and to pay a fine of Rs 3 lakh rupees in default to suffer rigorous imprisonment for three years more. The sentence imposed on the second appellant was upheld. The death sentence was discharged and the sentence appeal was allowed with the aforesaid modification.[State of West Bengal v. Ansar Rahman, 2019 SCC OnLine Cal 5189, decided on 26-11-2019]

Case BriefsHigh Courts

Calcutta High Court: Tirthankar Ghosh, J., reversed the order of the trial court (as confirmed by the first appellate court) whereby the petitioner was convicted and sentenced for committing an offence under Section 40(2) read with Section 51(1-A) of the Wild Life (Protection) Act, 1972.

The petitioner was accused of unlawfully possessing various wildlife material including tiger skin, elephant tusks, baby rhino born and tiger nails. All this material was seized during the search conducted by the Directorate of Revenue Intelligence. The petitioner was charged under provisions of the Wild Life (Protection) Act. At the conclusion of the trial, he was convicted and sentenced as mentioned above. His appeal against the order of the trial court was also dismissed by the appellate court. Aggrieved thereby, the petitioner filed the instant revision petition.

It may be noted, that during the investigation, the accused was summoned under Section 108 of the Customs Act, 1962, and his statement was recorded in response to enquiries which were made in presence of a senior intelligence officer.

While perusing the record and considering submissions made on behalf of the parties, the High Court noticed that the statement of the accused-petitioner recorded under Section 108 of the Customs Act was made the foundation of his conviction by the trial court. Relying on Noor Aga v. State of Punjab, (2008) 16 SCC 417 and State of Gujarat v. Anwar Osman Sumbhaniya, 2019 SCC OnLine SC 282, the High Court rejected the approach of the trial court and observed: “The statement under Section 108 of the Customs Act which has been made the foundation for conviction by the Ld. Courts below, firstly is a very weak piece of evidence, as no Court can rely upon a statement of the accused until and unless the same is corroborated by material particulars. Moreover, the said statement under Section 108 of the Customs Act were made before the DRI Authorities which can be used in a prosecution under the Customs Act and using the same as a foundation for an offence under the 1972 Act is against the settled principles of law. 

In such view of the matter, the High Court allowed the revision petition and acquitted him of the charges as aforementioned. [Quasim Ali v. Sajal Baran Das, 2019 SCC OnLine Cal 5130, decided on 23-12-2019]

Case BriefsTribunals/Commissions/Regulatory Bodies

The Special Judge CBI, Vyapam Cases, Bhopal (Madhya Pradesh) has sentenced the three accused, therefore the candidate Amit Gaur, the impersonator Nitish Kumar and the middleman Pankaj Kuma, all to undergo seven years rigorous imprisonment with a fine of Rs 3000 each.

CBI had registered a case on 15.12.2015 and taken over the investigation of the case from the Madhya Pradesh Police on orders dated 09.07.2015 & 11.09.2015 of the Hon’ble Supreme Court of India. It was alleged that unfair means were used in the Madhya Pradesh Police Constable Recruitment Test-2012 (PCRT-2012) conducted by the Madhya Pradesh Professional Examination Board (VYAPAM) involving candidate Amit Gaur (resident of Morena, MP) who had arranged and used the impersonator Nitish Kumar@ Montu Kumar (resident of Bihar) through racketeers/middlemen namely Pankaj Kumar (resident of Bihar) & Nemi Chand (resident of Morena, MP), for passing the written examination of PCRT-2012. The impersonator Nitish Kumar@Montu Kumar was caught while appearing in the said examination at a school in Piplani, Bhopal on 30.09.2012 in place of the candidate Amit Gaur. The two middlemen who were involved in this crime were identified/traced during the investigation.

After investigation, a charge sheet was filed against the accused persons in June 2016 before the Designated Court.

The Trial Court found the three accused guilty and acquitted one person.


Central Bureau of Investigation

[Press Release dt. 17-12-2019]

Case BriefsHigh Courts

Jharkhand High Court: Anubha Rawat Choudhary, J. allowed the interim application of the appellant by granting bail on the basis that the co-accused in similar cases have already been granted bail. 

Firstly, the appellant, in this case, has been charged with Dacoity, punishable under Section 395 of the Penal Code. The appellant and the co-accused were convicted and sentenced by the Additional Sessions Judge, II, Palamau at Daltonnganj, in Sessions Trial Case No. 152 of 2018, arising out of Sadar (Satbarwa) Police Station Case No. 132 of 2017 corresponding to G.R. No. 2129 of 2017. 

The Sessions Court, on 10-04-2019 and 15-04-2019, ordered the accused and the co-accused to go under rigorous imprisonment for a period of seven years along with a fine of Rs 5000. In default of payment of fine, the appellant and the co-accused will be liable for another 6 months of simple imprisonment. 

Secondly, the appellant and the other co-accused have also been sentenced for rigorous imprisonment of 3 years along with a fine of Rs 3000, under Section 25(1-B) of the Arms Act, 1959, by the Sessions Court. In default of payment of fine, the appellant and the co-accused will be liable for simple imprisonment of 4 months. The court also clarified that all the sentences are to run concurrently.

The appellant prayed in the Interim Application No. 5115 of 2019 for suspension of sentence and a release on bail during the pendency of the case. The counsel for the applicant, Manoj Kumar, contends that the appellant has been awarded maximum punishment for 7 years and the appellant has already spent 2 years in jail in connection with the present case. The counsel for the appellant informed the Court that already an appeal regarding a similar case, of a co-accused has been put up in the Court and the Court has already granted bail to the co-accused, Nirantan Kumar Singh, order dated 25-09-2019. [Cr. Appeal (S.J.) No. 554 of 2019].

The counsel for the opposite party, Azeemuddin (APP), stated that the prayer for the bail should not be accepted because unlike the co-accused, the allegations against the appellant are direct. The Counsel requested the Court, in case the sentence is suspended, the appellant should be directed to deposit the fine along with the request that one of the bailors should be his father, pairvikar of the case.

The Court held that the appellant shall be granted the bail as he has already spent 2 years in jail, in connection to this case. Secondly, the appeals for bail of the co-accused have already been granted, hence, the appellant can also be granted bail on similar grounds. Hence, during the pendency of the appeal, the appellant was directed to be released on bail of Rs 25000 with two sureties of Rs 25000 each, one surety being the appellant’s father. The appellant was directed to submit a Xerox copy of his Aadhar Card and cell phone number, at the time of furnishing bail bonds. [Gulab Singh v. State of Jharkhand, Cr. Appeal(S.J.) No. 802 of 2019, decided on 05-12-2019]

Case BriefsHigh Courts

Sikkim High Court: Bhaskar Raj Pradhan, J., upheld the decision passed by the Sessions Judge while rejecting the present appeal filed.

In the present case, FIR was lodged by PW 1 complaining that her sister, i.e. the victim (PW 12) was burnt and bitten by the appellant. In lieu of the same case was registered under Section 307 of the Penal Code, 1860 against the appellant.

The  Sessions Judge framed the charge under Section 307 IPC and on the plea of “not guilty” the trial commenced.

At the time of the trial, Sessions Judge examined the appellant under Section 313 of the Code of Criminal Procedure, 1973. Sessions Judge delivered the impugned judgment holding the appellant guilty as charged.

Present appeal challenges the conviction and sentence.

C. Sharma, was the Counsel for the appellant and Thupden Youngda, learned Additional Public Prosecutor, represented the State-respondent.

Victim stated that appellant, who she was in a relationship with, had a fight with her and started damaging the furniture after which she called the police. Appellant picked up the kerosene jar, poured kerosene oil over her and burnt her after lighting a matchbox. Eyewitness tried to douse the fire by putting water and thereafter took the victim to the hospital.

Defence alleged that she had pressurised the appellant to marry him and so they had a discussion and in a fit of anger, poured kerosene upon herself, lighted a matchbox and set herself on fire.

Dr Simmi Rasaily (PW 13) who examined the victim found burn injuries and recorded in her report that there was kerosene smell on her body, which corroborates victim’s deposition.

Deposition of the victim was adequately corroborated by both oral and material evidence. Failure of PW 1 to give certain details about her visit to see the victim at the hospital does not dislodge the fact that she had lodged the FIR after visiting the victim. Further, the only issue raised by the Appellant’s Counsel that required examination is an alleged failure of the prosecution to produce the eyewitness.

“In a criminal trial, an accused person is considered innocent until proven guilty. It is for the prosecution to establish its case beyond all reasonable doubt.”

It was further noted that P. Dewan (DW 1) had recorded the statement of the eyewitness during the appellant’s departmental inquiry which must be given credence.

However, whether what P. Dewan heard and the eyewitness stated in her statement was the truth could have been found only if she had been produced as a witness and subjected to cross-examination. Evidence of P. Dewan is, therefore, hearsay to that extent. Therefore, there is no credible evidence led by the defence to create enough doubt in the mind of the Court to defeat the prosecution case.

High Court with respect to the above stated that the defence evidence does not make probable his innocence in view of the overwhelming evidence led by the prosecution.

Further adding to its observation, Court stated that the victim’s deposition cannot be doubted, her testimony has its own significance.

Therefore, in the present case prosecution has established its case that it was only the appellant who had poured kerosene over the victim and burnt her with the knowledge that if he by that act caused death, he would be guilty of murder and consequently, by such an act, the victim was hurt.

Appeal is rejected in the above terms and Sessions Judge’s judgment of conviction and order on sentence, both have been upheld. [Deepen Pradhan v. State of Sikkim, 2019 SCC OnLine Sikk 195, decided on 30-11-2019]

Case BriefsHigh Courts

Delhi High Court: A Division Bench of Manmohan and Sangita Dhingra Sehgal, JJ., held that the appeal filed by the complainant (father of the deceased victim) against the judgment of the trial court, challenging the inadequacy of sentence awarded to the convict, was not maintainable.

The convict was sentenced to life imprisonment for the commission of offences under Sections 302 and 364-A IPC. The complainant (father of the deceased victim), feeling aggrieved by the inadequacy of sentence, filed the instant appeal contending that the sentence awarded to the convict should be sentenced to the death penalty.

C.L. Gupta, Advocate made contentions on behalf of the complainant. Per contra, Amit Gupta, APP, appearing for the State, argued that the appeal was not maintainable.

The High Court reiterated that it is settled law that an appeal is a creature of a statue and cannot lie under any inherent power. It was noted that the proviso to Section 372 CrPC (no appeal to lie, unless otherwise provided) confers upon the victim, the right to prefer an appeal against the order of the Criminal Court in the following three instances: (a) Acquittal of the accused person; (b) Conviction of the accused person for a lesse offence; and (c) Imposition of inadequate compensation.

Relying on a catena of decisions, including that of the Supreme Court in National Commission for Women v. State (NCT of Delhi), (2010) 12 SCC 599, the High Court restated: “An appeal by the victim under Section 372 CrPC, is not maintainable if it only challenges the order on sentence on the ground that it imposes inadequate punishment.”

In view of such a mandate of law, the High Court held that the instant appeal was not maintainable, which was, therefore, dismissed. [Pravinder Kansal v. State (NCT of Delhi), 2019 SCC OnLine Del 11508, decided on 27-11-2019]

Case BriefsForeign Courts

Supreme Court of the Democratic Socialist Republic of Sri Lanka: A Full Bench of Jayantha Jayasuriya, PC, CJ and Priyantha Jayawardena, PC, and Murdu N.B. Fernando, PC, JJ., allowed appeals filed by two appellants out of eight accused.

The two Accused-Appellant-Petitioners (hereinafter called Appellants) were charged along with six others in the Magistrate’s Court of Jaffna. They were charged for “Joining an Unlawful Assembly armed with any deadly weapon”, an offence punishable under Section 141 of the Penal Code; “Voluntarily Causing Grievous Hurt by dangerous weapons or means” while being members of an unlawful assembly, an offence punishable under Section 317 read with Section 146 of the Penal Code; and “Voluntarily Causing Grievous Hurt by dangerous weapons or means” punishable under Section 317 read with Section 32 of the Penal Code.

The Magistrate convicted all eight accused for the first two counts, after trial. The two appellants being aggrieved with the conviction and the sentence appealed to the High Court of Jaffna.

The High Court Judge affirmed the conviction and sentence. Thus the instant appeal was filed.

The Counsels for the appellants M.A. Sumanthiran, PC, J. Arulanantham and D. Mascarange contended that he would mainly address the issue of dock identification as there was no proper dock identification relating to two appellants and there was no sufficient evidence to establish the identity of the two appellants. There was no dispute that neither the victim nor any other witness, in this case, knew the two appellants.

The Court while allowing the appeal opinioned that the evidence was unsatisfactory and the conviction and sentence of the two appellants was set aside accordingly acquitted. [Rathnasingham Janushan v. Officer In-charge, SC (Spl) Appeal No. 07 of 2018, decided on 04-10-2019]

Case BriefsForeign Courts

Malaysia Court of Appeal: A Full Bench of Kamardin Hashim, Hanipah Farikullah, Mohamad Zabidin Mohd Diah, JCA dismissed the appeal filed by a person who was convicted for drug trafficking and affirmed the conviction and sentence of the death penalty by High Court.

The appellant was a Thai national female who was found in the possession of drugs and she was trying to hide it by sitting on it. When cops did the body check of appellant then drugs were found. She was charged under Section 39B(1)(a) of the Dangerous Drugs Act, 1952. The learned trial judge invoked the statutory presumption under Section 37(da)(ix) of the Act based on the weight of the drugs which was more than 40 grams of Cocaine, and sentenced her to death penalty. The said order was challenged in this appeal.

The appellant argued that drugs could have been left by the previous guest and also there are chances that police may fabricate evidence against her but there was no reason for police to do that. She also emphasized that her luggage was scanned at the airport and nothing incriminating was found. But the argument was made that there is a possibility she got possession of drugs after she left airport. 

The respondent argued that they got information about drugs so they checked the room acting on that information they checked the room and drugs were found in that room. Drugs found were sent for check which confirmed the presence of cocaine in those things which further affirms the allegation on the appellant. Moreover, there will be no reason to defame a person who had just arrived in a country. 

The Court opined that High Court had analysed all the witness and was satisfied there was no break in chain of evidence to the drugs produced and identified by prosecution witness in court. The High Court Judge had relied on the conduct of appellant in concealing the drugs by sitting on them, which established that she had knowledge about it.

Giving due regard to appreciation of evidence by the High Court and circumstances of this case, the Court held the appellant guilty for trafficking charges without any reasonable doubt. The court also remarked that it is illogical for the person to leave such valuable drugs in the room. It was opined that there was no merit in the appeal and also the arguments made by the appellant. [Napalai Narapattarawong v. Public Prosecutor, 2019 SCC OnLine MYCA 3, decided on 24-09-2019]

Case BriefsForeign Courts

South Africa High Court, Kwazulu-Natal Division: The Division Bench of Lopes and Radebe, JJ. while allowing the appeal reduced the sentence for murder and conviction for robbery was converted into the theft.

In the present case, the appellant, Mthobisi Mtho Mgidi was convicted of one count of robbery with aggravating circumstances and one count of murder and sentenced to 15 years’ imprisonment on the count of robbery, and life imprisonment on the murder count by the Umlazi Regional Court.

The facts surrounding the conviction are as follows: One night, the appellant and his friend Sikhakhane were walking along the road in a drunken state. Along the road, they met the deceased and he was too in a drunken state. While Sikhakhane was ahead of Mgidi, he heard someone calling him and he looked back and saw Mgidi stabbing the deceased with a knife. Sikhakhane then went up to Mgidi and pushed him away from the deceased and saw him covered in blood, and carrying a belt and either shoes or takkies which Sikhakhane stated belonged to the deceased. Sikhakhane and Mgidi’s mother testified where it was found that Sikhakhane had no knowledge of the circumstances under which Mgidi obtained possession of the knife and that Mgidi’s mother also saw his blood-stained clothes and knife.

Mgidi testified that he could not recall what happened that day and he ran away from his home after knowing that the police is looking for him.

The Counsel for the appellant, N.B. Dlamini submitted that the State bore the onus of proving criminal capacity and had failed to discharge that onus. He referred to a Judgment of Supreme Court of Appeal of South Africa, The Director of Public Prosecutions, Kwazulu-Natal v. Ramdass [2019] ZASCA 23 in which the accused was acquitted of both robbery and murder because it was found that the State had not proved that he had the necessary criminal capacity.

Counsel on behalf of the State, N. Dube submitted that Ramdass (accused in the abovementioned case) pertinently raised the defences, whereas in the present matter Mgidi pleaded not-guilty, because he could not recall having committed the offences and the memory of Mgidi was selective, because he remembered things which had taken place shortly before and after the incident. It was further submitted that in S v. Chretien 1981 (1) SA 1097 (A) at 1108C, it was mentioned that the fact that a person cannot remember what they did, does not mean that they were not criminally responsible.

The Court after analyzing the facts and circumstances of the case, observed that the evidence of the State witnesses clearly established that alcohol played a role in the unfolding events, it is clear that Mgidi was of sound enough mind to procure the knife with which he assaulted the deceased. The appellant remembered his interaction with his mother after arriving at home, and his actions in crying and then fleeing, indicate that he must have known what he did. In the circumstances of the present case, there is no evidence that the violence occasioned to Mr Khanyile by Mr Mgidi was instigated with the intention of depriving him of his property. In those circumstances, Mr Mgidi should have only been convicted of the murder of Mr Khanyile and the theft of a belt and a pair of takkies. The murder was neither planned nor premeditated.

The conviction for robbery was set aside, and replaced with a conviction on one count of theft and sentenced to undergo two years’ imprisonment on the conviction of theft. The appeal against conviction on the murder charge was dismissed and its sentence succeeded and a sentence of twelve years’ imprisonment was imposed. [Mthobisi Mtho Mgidi v. State, Case No. AR212 of 2017, decided on 31-05-2019]

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 BriefsHigh Courts

Orissa High Court: S.K. Sahoo, J. dismissed a criminal appeal for the acquittal of the appellant under Section 376 of the Penal Code, 1860.

The victim in the present case was forcibly raped by the appellant on the pretext that he will marry her. The appellant visited the victim on many occasions and raped her and would give her the assurance of marriage. Even after the victim became pregnant, the appellant continued raping her. The news of the pregnancy of the victim spread in the village and the appellant confessed his guilt before the uncles of the victim. He also admitted to having impregnated the victim in presence of the entire village post which, on 11-04-2011, she lodged an FIR. The trial Court acquitted the appellant on 28-06-2012 under Section 417 of the Penal Code but found him guilty under section 376 and sentenced him to undergo rigorous imprisonment for a period of ten years and to pay a fine of rupees five thousand.

The appellant challenged this judgment and order of conviction on the grounds that there was a delay in filing the FIR by the victim and the prosecution has not satisfactorily explained this delay. It was further contended that there is no hard evidence to prove the age of the victim, and if the age of the victim is held to be more than sixteen years then it can be said that she was a consenting party.

Priyabrata Tripathy, Additional Standing Counsel for the victim, submitted that delay in lodging the FIR in a rape case cannot be a ground to hold the entire prosecution case suspicious. He argued that the victim remained silent an account of assurance of marriage given by the appellant and when the victim disclosed about her pregnancy, an FIR was lodged. Further, there is no infirmity in the evidence of the victim.

The Court held that, “the law is well settled that delay in lodging the FIR in an offence of rape is a normal phenomenon as the FIR is lodged after deliberation. It takes some time to overcome the trauma suffered, the agony and anguish that create the turbulence in the mind of the victim, to muster the courage to expose one in a conservative social media, to acquire the psychological inner strength to undertake a legal battle against the culprit.”

Secondly, the victim stated her age to be fifteen years at the time of her deposition, which was recorded on 13-08-2011. She stated that the occurrence last took place in 2010. No evidence was brought out in the cross-examination to challenge her age. The doctor who conducted ossification test of the victim stated that on the basis of the physical findings, dental examination and development of secondary sexual characteristics and menstrual history and ossification test, that the age of the victim to be more than fourteen years and less than sixteen years. Therefore, the question of the victim being a consenting party was not taken into account.

The appellant also submitted that he has been in judicial custody since 14-04-2011 and he was never released on bail either during pendency of the trial or during pendency of this appeal and therefore, he has already undergone the substantive sentence of eight years and three months and therefore, the substantive sentence should be reduced to the period already undergone.

The Court upheld the order of conviction of the appellant under Section 376 of the Penal Code, 1860 but reduced the substantive sentence from rigorous imprisonment for ten years to the period already undergone. In view of the enactment of the Odisha Victim Compensation Scheme, 2012, keeping in view the age of the victim at the time of occurrence and the nature and gravity of the offence committed and the family background, the Court recommend the case to District Legal Services Authority, to examine the case of the victim for grant of compensation under the Scheme.

The Criminal Appeal was dismissed and the appellant was released from jail custody.[Budha v. State of Odisha, 2019 SCC OnLine Ori 262, decided on 01-08-2019]

Case BriefsHigh Courts

Rajasthan High Court: A Division Bench of Sandeep Mehta and Abhay Chaturvedi, JJ. partly allowed a criminal appeal wherein they reduced the sentences of the accused-applicant due to lack of evidences produced by the prosecution.

In the present case, the accused-applicant was charged under Sections 307 and 326 of the Indian Penal Code, 1860 in an order passed by the learned trial court. The learned trial court passed a strict sentence under the aforementioned provisions. It was alleged that the accused-applicant had indulged in looting and scandalizing the informant’s shop. The informant had lodged a report of the incident to the police. Thereafter, accused-applicant, armed with an acid bottle, assaulted the informant and his son by throwing acid on them. The incident left both the informant and his son with severe burns on their body. On the basis of the report, an FIR was registered by the police station for the offences under Section 323 and 326-A IPC. During the proceedings in the trial court, the accused-applicant had provided a different set of facts. He presented that the accused applicant had visited the shop to purchase some groceries and upon not being able to pay the full amount the informant was furious. While passing by their shop, the accused-applicant was accosted and beaten up with an acid bottle. However, the trial court upon perusal of the evidences and medical report placed on record, framed charges against the accused-applicant for the above offences.

Anand Purohit, Senior Advocate, assisted by Kapil Purohit representing the accused-applicant, challenged the trial court order and stated that the facts presented by the prosecution were incorrect. The Senior Advocate, without challenging the fact that the accused-applicant had caused the injuries, submitted that due to the incident occurring at the spur of the moment and not being pre-mediated, the Court should reduce the sentences awarded by the trial court.

Public Prosecutor representing the Respondents, N.S. Bhati, claimed that the accused-applicant was merely a drug addict hence such an act was expected from him. Adding to that, he had troubled the respondents twice on that fateful day. He, therefore, stated that the impugned judgment is just and legal and does not deserve any sort of interference.

The High Court noted the fact that the accused-applicant did not challenge the fact that the acid-attack was perpetrated by him. However, the court also put forth that there was no police report by the injured party about the incident of looting thus there was a falsification of facts however it considered the medical report proving the injuries to be caused by acid. There was also a medical report proving the accused-applicant bearing a hole in his heart thereby mitigating the circumstances of causing an attack on others and thus, the Court felt the sentences passed by the trial court needs to be revisited. The High Court awarded a sentence of 10 years of rigorous imprisonment to the accused-applicant in light of the above facts.[Mohd. Rizwan v. State, D.B. Criminal Appeal No. 967 of 2017, decided on 29-07-2019]

Case BriefsInternational Courts

International Court of Justice (ICJ), Hague, Netherlands: A 16-Member Bench comprising of President Yusuf; Vice-President Xue; Judges Tomka, Abraham, Bennouna ,Cancado Trindade, Donoghue, Gaja, Sebutinde, Bhandari, Robinson, Crawford, Gevorgian, Salam, Iwasawa; Judge ad hoc Jillani; pronounced the long-awaited verdict of a four day hearing in the Kulbhushan Jadhav Case unanimously with 1 dissenting opinion of the ad hoc Judge Gillani.

The present high-profile case, involving great significance for the Member States, India and Pakistan both, was carried on with keeping in mind the following facts:

Individual named Kulbhushan Sudhir Jadhav has been in the custody of Pakistani authorities. The circumstances of his apprehension remain in dispute between the Parties. According to India, Jadhav was kidnapped from Iran, where he was residing and carrying out business activities after his retirement from the Indian Navy. He was subsequently transferred to Pakistan and detained for interrogation. Pakistan contends that Jadhav, whom it accuses of performing acts of espionage and terrorism on behalf of India, was arrested in Balochistan near the border with Iran after illegally entering Pakistani territory. Pakistan explains that, at the moment of his arrest, Jadhav was in possession of an Indian passport bearing the name “Hussein Mubarak Patel”. India denies these allegations.

India filed an application for the institution of the proceedings on 08-05-2017 against Pakistan on grounds of the alleged violation of the Vienna Convention on Consular Relations by Pakistan pertaining to Kulbhushan Jadhav’s detention and his trial. Jadhav was accused of performing acts of espionage and terrorism on behalf of India and further sentenced to death by a Military Court of Pakistan in 2017. Therefore, India contended that Pakistan breached Article 36 of Vienna Convention:

  • By not informing India, without delay, of the detention of Jadhav;
  • By not informing Jadhav of his rights under Article 36;
  • By denying consular officers of India access to Jadhav

On 18-05-2017, Court indicated the following provisional measures –

“Pakistan shall take all measures at its disposal to ensure that Mr Jadhav is not executed pending the final decision in these proceedings and shall inform the Court of all the measures taken in implementation of the present Order.”

Further, Public Hearings of the said case were held from 18-02-2019 to 21-02-2019, in which India was represented by Deepak Mittal and Harish Salve, while Anwar Mansoor Khan, Khawar Qureshi presented arguments on behalf of Pakistan.

Claims made by India are as follows:

  • Relief by way of immediate suspension of death sentence
  • Relief by way of restitution in integrum by declaring the sentence of the military court arrived at, in brazen defiance of Vienna Convention rights under Article 36
  • Restrain and annul the decision of the Military Court of Pakistan
  • If Pakistan fails to annul its decision, then ICJ to declare it illegal and violative of International Law.

The objections placed by Pakistan in regard to the admissibility of India’s application are based on the following:

  • Abuse of process
  • Abuse of rights
  • Unlawful conduct

Court’s Analysis of the facts and contentions placed

ICJ notes that, Pakistan placed contentions in regard to the applicability of certain provisions of the Vienna Convention.

  • Pakistan argued that Article 36 of Vienna Convention does not apply in “prima facie cases of espionage”.
  • Customary International Law governs cases of espionage in consular relations and allows States to make an exception to provisions on consular access contained in Article 36.
  • Pakistan maintains that it is the 2008 Agreement on Consular Access between India and Pakistan rather than Article 36 of the Vienna Convention, which regulates consular access in the present case.

To all the above-stated contentions, Court concluded that the Convention is applicable in the present case, regardless of the allegations that Mr Jadhav was engaged in espionage activities.

Court infers that Pakistan did not inform Jadhav of his rights under Article 36, paragraph 1 (b), of the Vienna Convention, and thus concludes that Pakistan breached its obligation under that provision. In the Court’s view, there is no basis under the Vienna Convention for a State to condition the fulfillment of its obligations under Article 36 on the other State’s compliance with other international law obligations.

Therefore, the Court unanimously decided:

  • Application of the Republic of India is admissible.

Further, by a majority of fifteen votes to one, it was decided:

  • By not informing Jadhav without delay of his rights under Article 36, paragraph 1 (b), of the Vienna Convention on Consular Relations, Pakistan breached the obligations incumbent upon it under that provision.
  • India was deprived of the right to render the assistance provided for by the Vienna Convention to the individual concerned; Pakistan breached the obligations incumbent upon it under Article 36, paragraph 1 (b), of Vienna Convention on Consular Relations.
  • Pakistan deprived India the right to communicate with and have access to Jadhav to visit him in detention and arrange legal representation.
  • Pakistan is under obligation to inform Jadhav without delay regarding his rights to provide India consular officers access to him in accordance with Article 36 of VCCR.
  • Effective review and reconsideration of the conviction and sentence of Jadhav.[India v. Pakistan, General List No. 168, decided on 17-07-2019]

Case BriefsHigh Courts

Punjab & Haryana High Court: Shekher Dhawan, J. disposed of the writ petition after modifying the sentence already undergone by the petitioner.

A revision petition was directed against the judgment passed by the Sessions Judge whereby the appeal was preferred by the present petitioner which was dismissed by the Judicial Magistrate 1st Class.

The petitioner was held guilty under Sections 304-A and 337 of the Penal Code.

Facts, in brief, are that complainant-Rakhpal along with Prem Singh were going on a motorcycle. While they were on their way they found that the four other persons were going in a jeep being driven by the driver was hit by the truck which was driven by the driver in a rash and negligent manner.  Because of the collision, persons sitting in the jeep sustained injuries and out of them, Gajender and Pawan died on the way to the hospital and injured Sompal alias Billu and Devender were admitted to the hospital. The driver of the offending truck ran away from the spot but was identified by the complainant and Prem Singh. Injured Sompal alias Billu also succumbed to the injuries. On the basis of the statement of the complainant, the present FIR was registered.

The trial court held that the petitioner was guilty of commission of offence under Sections 337 and 304-A IPC. It was contended by the counsel that he does not challenge the judgment of conviction and a lenient view on the point of the sentence be taken as the petitioner has already undergone the actual sentence of 8 months and 22 days (including remissions) against the awarded sentence of 1 year as per the custody certificate.

Ashish Sanghi, counsel for the State contended that petitioner does not deserve any concession regarding the sentence and the present revision petition be dismissed.

The Court opined that both the Courts below have already appreciated the evidence in its perspective manner. As such, the present revision petition, qua judgment of conviction passed by the Court below, stands dismissed. It was further held that as the petitioner had already undergone the actual sentence and thus the same was to be modified and reduced to the period already undergone while remaining in the custody.[Krishan v. State of Haryana, 2019 SCC OnLine P&H 1226, 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 the appeal by the accused against the order given by Lahore High Court and set aside his conviction and sentence.

Appellant herein was tried alongside two persons Abdul Razzaq and Sakina Bibi who were co-accused for committing the murder of one Khalil Ahmed. The accused were presented before the Additional Sessions Judge who acquitted them. The said order was challenged in Lahore High Court wherein the appellant stood convicted under Section 302(b) of the Pakistan Penal Code, 1860 and was sentenced to imprisonment for life. This order was under challenge in the present appeal.

Learned counsel for the appellant Shahid Azeem, ASC, contended that High Court should not have reversed the appellant’s acquittal after he extended benefit of doubt to co-accused. Further, it was contended that the acquittal order given the trial court was on the basis of the evidence presented and was not open to any exceptions.  

The Court noted that the reasons given by the learned trial Judge to acquit the accused from the charge which included – improbability of witnesses’ presence; their enmity with the accused, and contradictions in their disposition, were observed to be genuine. It was further opined that acquittal carries with it a double presumption of innocence and it could be reversed only when finding blatantly perverse. It could not be set aside merely on the possibility of contra view. 

It was held that High Court did not act according to settled principles of law and thus appeal was allowed, and impugned judgment given by High Court was set aside. The appellant was acquitted from the charge and was ordered to be released if not required in any other case.[Muhammad Shafi v. State, Criminal Appeal No. 48-L of 2016, decided on 07-05-2019]

Case BriefsHigh Courts

Gujarat High Court: R.P. Dholaria, J. whilst partly allowing the appeal reduced the sentence of the appellant.

In the present case, the deceased, Deepali committed suicide by setting herself on fire on 22-10-2014. The deceased’s marriage took place four months prior to the incident and since then the accused father-in-law picked up a quarrel for the promised dowry of Rs 30,000 of which Rs 10,000 had already been by paid by the deceased’s mother. The other two accused – husband and mother-in-law did not appeal.

Counsel for the appellant father-in-law, Shubha Tripathi confined to only challenging the conviction and pointed out that the appellant has already undergone a sentence of roughly five years and no acquittal is to be sought. The appellant’s prime concern is for a reduced sentence.

The Court observed from the facts and circumstances of the case that the grave allegations were levelled against the husband and mother-in-law alone. Therefore, it reduced the sentence to the extent of 5 years rigorous imprisonment for the offence punishable under Sections 304-B read with 114 IPC. [Aakash Madhukarbhai Egole v. State of Gujarat, 2019 SCC OnLine Guj 1288, decided on 01-07-2019]

Case BriefsHigh Courts

Punjab and Haryana High Court: Rajbir Sehrawat, J. upheld the decision of the lower court on the set principle of law which was already decided by the court.

A petition was filed to quash the order passed by Additional Session Judge, Faridabad in an appeal against the conviction and sentence in a complaint under Section 138 of the Negotiable Instrument Act, 1881 directing the appellant/petitioners to deposit 25 per cent of the amount awarded by the trial Court, during the pendency of the appeal.

Kunal Dawar, Counsel for the petitioner submitted that complaint was made in the year 2017, for which the petitioner was convicted. That during the pendency of the appeal, the appellate court passed the order whereby it was directed to deposit 25 per cent of the amount of the compensation to the appellate court. The counsel for the petitioner submitted that the act was introduced for the first time in the year 2018 and there cannot be any retrospective effect of the same. Thus, the provision contained in newly added Section 148 of the Act cannot be applied to the present appeal, which had arisen from the case where the trial was pending on the date of enforcement of the amended provision. Thus, prayed for the quashing of the order.

The court opined that the point of law which was raised by the petitioner had already been considered and decided by this court in the judgment of Ginni Garments v. Sethi Garments; CRR No. 9872-2018 (O&M), in which it was held that the “procedure for recovery of fine or compensation from appellant in pending appeal already existed in CrPC even before advent of the provision as contained in Section 148 of the Act. Hence, no new aspect of coercive recovery of fine or compensation from the appellant is being freshly created through this amended provision. Rather this provision is beneficial to the convict/appellant because it reduces the liability of the appellant qua immediate deposit of fine or compensation, if not otherwise stayed by Appellate Court.”  Thus the impugned order was upheld in the present petition.[Ebullient Cables (P) Ltd. v. Supertech Machines (P) Ltd., 2019 SCC OnLine P&H 1013, decided on 02-07-2019]

Case BriefsHigh Courts

Tripura High Court: Arindam Lodh, J. reduced the sentence of 5 years rigorous imprisonment awarded to the appellant by the trial Judge to 3 years for the commission of an offence under Section 7 (sexual assault) made punishable under Section 8 of the Protection of Children from Sexual Offences Act, 2012.

The appellant was tried and convicted for committing the offence of sexual assault on the prosecutrix when she was returning from mela. The appellant had filed the present appeal against the said judgment. R.G. Chakraborty, Advocate representing the appellant strenuously argued that the entire story was false and the appellant was totally innocent. Per contra, A. Roy Barman, Additional Public Prosecutor appearing for the State submitted that the prosecution had been able to prove the case beyond any shadow of doubt.

As per prosecutrix’s evidence, the High Court found that the appellant came in contact with the prosecutrix physically with sexual intention. However, there was no evidence that the appellant touched private parts of the prosecutrix. The Court was of the opinion that while maintaining the appellant’s conviction, the order of sentence passed against him warrant’s alteration. It was observed: “Since there is no specific evidence that the appellant had touched the private parts of the prosecutrix, in my opinion following the doctrine of proportionate punishment, justice would be made if the sentence of 5 years is reduced to 3 years.” The sentence was reduced accordingly. At the same time, other parts of the impugned judgment relating to conviction and sentence under Section 341 and 342 IPC remained unaltered. [Asok Das v. State of Tripura, 2019 SCC OnLine Tri 190, decided on 13-05-2019]