Case BriefsForeign Courts

Court of Appeal of the Democratic Socialist Republic of Sri Lanka: The Division Bench of N. Bandula Karunarathna and R. Gurusinghe, JJ. allowed an appeal which was filed assailing the judgment delivered by the Judge of High Court of Homagama by which accused-appellant was convicted and sentenced to 7 years’ rigorous imprisonment for having committed culpable homicide not amounting to murder of an infant.

The accused-appellant had pleaded guilty of committing offence of murder of an infant who was a new born, an offence punishable under Section 296 of the Penal Code but the High Court Judge decided to commence the trial considering that she pleaded not guilty and opted for a non-jury trial. On behalf of the accused-appellant, her willingness to plead guilty to culpable homicide not amounting to murder under Exception 5 to Section 294 of the Penal Code, was indicated. The State Counsel who prosecuted the trial in the High Court conceded the mitigatory circumstances which the appellant relied on, to bring the case against her within the ambit of the said exception. After plea bargaining, the accused pleaded guilty under exception 5 to Section 294 and in her plea, the trial Judge convicted the appellant for the lesser offence of culpable homicide not amounting to murder punishable under Section 297 of the Penal Code.

The appellant had filed this appeal claiming that this sentence is excessive. The counsel for the accused-appellant informed Court on the date this matter was taken up for the argument that he was not challenging the conviction as the accused-appellant had pleaded guilty. The counsel requested to consider the following mitigating factors to reduce the sentence.

The police statement of the appellant’s husband stated that the appellant did not look like she was bearing a child. It was an undisputed fact that the appellant delivered the baby alone, unattended and unassisted. Counsel for the appellant stated that the Trial Judge has not taken into account the unexpected and sudden turn of events which had taken the appellant by complete surprise when she had abruptly delivered a baby at the toilet of the house where she was serving as a domestic aid.

SSC appearing on behalf of the respondent informed the court that she is objecting to the application of the accused-appellant as the said act was a grave offence as the deceased in this case is a one-day-old infant who was found alive, abandoned near a shrub jungle. The accused-appellant had been identified as the biological mother of the deceased infant through DNA analysis and the relevant DNA report. The deceased infant had sustained several injuries identified as animal bites on the knees and face. It was revealed that the injuries found on the face and limbs are consistent with the ante -mortem injuries sustained after the live birth due to animal attack and ant bites.

Counsel for the appellant states that, following this unfortunate incident, her husband deserted her leaving the burden of both her children aged 11 and 14 on her shoulder. The appellant grieved that, if she was incarcerated in the execution of the custodial sentence imposed on her, her daughter would run the risk of her whole life further being disrupted and disorganised.

After hearing both the parties, the Court was of the view that the Trial Judge, in assessing a proper sentence for the appellant, has not duly appreciated the post conduct of the appellant by which she did not attempt to exonerate her. The appellant herself identified the dead body of the baby before Judicial Medical Officer, and confessed to the police. Then she readily surrendered to genus comparison thereby facilitating to truncate of what otherwise would have followed a daunting, prolonging and complex investigation process and demonstrating her remorse from the earliest. The appellant had pleaded guilty to the indictment at the very instance. During the trial, she did not raise any affirmative defence.

The Court held that since she has no previous convictions, the accused-appellant should be given some relief by this court and considering the circumstances of the case the Court decided to impose years of rigorous imprisonment instead of 7 years and suspend it for 10 years from today which would allow the appellant to re-integrate with the society.[Gamwarige Premawathie v. Attorney General, CA/HCC/ 225/2020, decided on 06-05-2022]


Kasun Liyanage AAL for the Accused-Appellant

Maheshika de Silva SSC for the Complainant-Respondent


Suchita Shukla, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Sikkim High Court: The Division Bench of Meenakshi Madan Rai and Bhaskar Rai Pradhan, JJ. partly allowed an appeal which was filed by the appellant who aged about 40 years, was accused of having committed the offence of aggravated penetrative sexual assault, as defined under Section 5(m) of the Protection of Children from Sexual Offences Act, 2012 (for short “POCSO Act”), on the victim, aged about 10 years. Trial Court on consideration of the evidence on record convicted the Appellant of the offence under Section 5(m) punishable under Section 6 of the POCSO Act, 2012 by the impugned Judgment and Order on Sentence, both dated 11- 11-2020, and sentenced him to undergo rigorous imprisonment for a term of 40 years and to pay fine of Rs.30,000/- (Rupees thirty thousand) only, with a default clause of imprisonment of 5 years.

In appeal the counsel for the appellant contended that FIR was lodged belatedly on 12-10-2019, the incident allegedly having taken place on 05-10-2019, but the delay was unexplained. It was further pointed out that the I.O. in his evidence has admitted that the vaginal swab of the victim and the penile swab of the Appellant were sent for chemical analysis to RFSL Saramsa, however, neither the document nor the examiner were before the Court. The I.O. admitted that no bodily fluids, blood or semen could be detected on the items forwarded to the FSL, which thereby negatives the Prosecution case, Doctor who examined the victim found no traces of penetrative sexual assault.

The question for consideration was whether the Trial Court was correct in its reasonings leading to the conviction of the Appellant?

The Court believed that Trial Court while examining a witness under the provision of the POCSO Act is required to be more careful and circumspect relying on Nipun Saxena v. Union of India, (2019) 2 SCC 703 and in the case at hand, it is unlikely that the child was aware of what she had stated to the Magistrate earlier or how “showing” her the Section 164 Cr.P.C. statement would enable her to understand or verify the contents, further it was stated that it was now no more res integra that a statement under Section 164 Cr.P.C. was not substantive evidence as held in R. Shaji v. State of Kerala, (2013) 14 SCC 266. The Section 164 Cr.P.C. statement of the victim was thus disregarded by the Court as being an unproven document.

The Court further believed Trial Court in its alacrity to come to the rescue of the child has decided on its own, without specific description of the act by the victim, to interpret the word “chara” as an act of penetrative sexual assault. This Court is all for the Trial Courts exhibiting sensitivity to the plight of a child victim but they cannot go overboard and stonewall the steps that are mandatorily to be complied with when analysing and interpreting the evidence given by the witnesses. If the victim was competent to testify she was also competent to explain the act and what it involved. If the act is not described, the Court cannot arrive at a conclusion based on its own assumptions.

Court on further perusal of evidence concluded that the Appellant was naked and had undressed the child as well, limiting the offence to one under Section 18 of the POCSO Act for an attempt to commit an offence under Section 7.

For the argument of delay in lodging of the FIR the Court reiterated what the Supreme court held in State of Punjab v. Gurmit Singh, (1996) 2 SCC 384 that delay in lodging of the FIR in such cases does not vitiate the Prosecution case.

The Court in the light of evidence concluded that the Prosecution has failed to prove its case under Section 5(m) of the POCSO Act. The Court stated that they were aware of the fact that it is now settled law that there does not necessarily have to be physical indications of the offence of penetrative sexual assault but at the same time it is to be borne in mind that the victim is aged about 9 years while the Appellant is a grown man of 40 years. In such a situation, the act of penetrative sexual assault on a child will have physical repercussions and the indications of such an assault would be apparent on the genital/private parts of the victim. Thus, the Court opined that there was no penetrative sexual assault committed by the Appellant on the victim. The Prosecution case on this aspect has remained unproved. However, the offence of an attempt to commit “sexual assault” as defined under Section 18 of the POCSO Act cannot be ruled out. Finally, partly allowing the appeal and in the light of provision of Section 222(2) of the Cr.P.C., the Appellant was convicted under Section 18 of the POCSO Act read with Section 7 of the same Act. He was sentenced to undergo rigorous imprisonment for one year six months and to pay a fine Rs 10,000/- (Rupees ten thousand) only.[Ash Bahadur Subba v. State of Sikkim, 2022 SCC OnLine Sikk 42, decided on 05-05-2022]


Mr Jorgay Namka, Advocate (Legal Aid Counsel) for the Appellant.

Mr Sudesh Joshi, Public Prosecutor with Mr Yadev Sharma, Additional Public Prosecutor and Mr Sujan Sunwar, Assistant Public Prosecutor for the State-Respondent.


Suchita Shukla, Editorial Assistant has reported this brief.

Case BriefsSupreme Court

Supreme Court: While addressing the plea of a murder convict seeking remission on the ground of blindness, the Division Bench comprising of Sanjay Kisan Kaul and M. M. Sundresh, JJ., directed him to under go medical assessment under Rule 363 of the M.P. Prison Rules and thereafter approach the Governor under Article 161 of the Constitution.

The appellant herein was convicted along with three others in connection with an incident which caused death of two brothers of the complainant and injuries to his father. At the inception itself, by an Order dated 29-01-2010, in view of a medical certificate produced by the appellant that he is visually impaired and is suffering from 100% blindness, the appellant was granted exemption from surrendering and finally on 18-10-2011 the appellant was granted bail.

Notably, the appellant had already undergone sentence of 9 years 10 months and 6 days including remission (actual period 8 years 1 month and 23 days). While pleading remission of sentence to the sentence already undergone, the appellant submitted that instead of canvassing the appeal on merits, an alternative course might be adopted; i.e. Rule 363 of the M.P. Prison Rules, 1968 which provides that where the Medical Officer of the prison is of the opinion that the convicted prisoner has gone completely and incurably blind not as a result of any voluntary act of the prisoner or that a convict prisoner has become completely decrepit or has become disabled on account of incurable physical informity which incapacitated him from the commission of further crime on his release and as such where the release of such a prisoner is not likely to be attended with mischief or danger, he shall report the case of the prisoner to the Superintendent.

The appellant contended that since he is visually impaired to the extent of suffering permanently from 100% blindness and that was not a result of any voluntary act of the prisoner, the aforementioned provision would come to his aid for consideration of his case for release from serving out the remaining sentence.

Considering the case of State of Haryana v. Raj Kumar, (2021) 9 SCC 292, wherein it was held that the benefit of remission can only be granted by the State Government if a prisoner has undergone a minimum period of imprisonment of 14 years without remission as well as the provisions of 432, 433 & 433A of the CrPC read with Article 161 of the Constitution, the Bench agreed that the State can recommend and the power would have to be exercised by the Governor under Article 161 of the Constitution albeit on the aid and advise of the State.

Accordingly, the Bench directed that the appellant, though on bail, to report to the Medical Officer of the prison and stay in observation for few days if required to enable the authorities concerned to comply with procedure enshrined in Rule 363 of the M.P. Prison Rules, 1968 and assess disability of the appellant. Thereafter, the case of the appellant was directed to be laid before the Government.

Hence, the Bench observed that it is only after compliance of Rule 363 that the case of the appellant could be referred to the Governor for exercise of power under Article 161 of the Constitution. Therefore, the Bench directed that the appellant to invoke Rule 363 of the said rules and make an application with all the relevant material within three weeks and simultaneously apply to the Governor under Article 161 of the Constitution.

Since the Court had not addressed the appeal on merit, the matter was directed to listed for directions on 19-07-2022.

[Banshi v. State of M.P., Criminal Appeal No.1944 of 2011, decided on 02-03-2022]


Kamini Sharma, Editorial Assistant has put this report together


Case BriefsHigh Courts

Meghalaya High Court: The Division bench of Sanjib Banerjee, CJ. and W. Diengdoh, J. dismissed the appeal which was filed on behalf of the convict with counsel engaged by the Legal Services Authority.

A Criminal appeal was filed by the accused against the order of trial Court where the accused admitted to the commission of offence. In the case, FIR was filed by 14-year-old victim’s father on 28-04-2017 and the incident took place the previous afternoon. As per the FIR, victim was returning from school on 27-04-2017, when she was accosted by the present appellant and another person who forcibly took her to the nearby jungle and raped her one after another. The two left the victim bleeding and threatened the victim not to narrate the incident to any person.

Victim was medically examined and it was found that she had redness in the labia minora and her hymen was torn. Her “inner frock” was seized by the investigating officer and the medical examiner, who examined the victim, testified later in Court that it was his opinion that the victim had been violated and sexually assaulted.

The appellant’s statements at the Section 313 stage, amount to this: that neither the appellant nor the other person involved with him had any motive of committing rape on the victim or bore any grudge against the victim or her family but upon seeing the victim trudging back alone after school, they were overcome with carnal desire and committed the offence.

The appellant admitted to the fact that the victim was bleeding at the time that the appellant raped her and the juvenile offender committed rape thereafter. The appellant also admitted that the appellant and the juvenile offender had threatened the victim and had asked her not to disclose the incident to any person.

The Court opined that there was no merit in the appeal and it was established and proved beyond reasonable doubt in course of the trial that it was the appellant who committed the offence. The appeal was accordingly dismissed.[Witnar T. Sangma v. State of Meghalaya, 2022 SCC OnLine Megh 17, decided on 15-02-2022]


Advocats before the Court:

Dr. N Mozika, Legal Aid Counsel, for the petitioners/appellants

Mr K Khan, PP with Mr S Sengupta, Addl.PP, for the respondents


Suchita Shukla, Editorial Assistant has reported this brief.

Case BriefsSupreme Court

Supreme Court: In a case where a man was arrested in Mauritius after being found to be in possession of 152.8 grams of heroin and was sentenced to 26 years in prison by the Supreme Court of Mauritius, the bench of L. Nageswara Rao and BR Gavai has upheld the Central Government’s decision rejecting the request for scaling down the sentence from 26 years to 10 years and has found it to be in accordance with the provisions of the Repatriation of Prisoners Act, 2003 and the agreement entered into between India and Mauritius.

Factual Background

  • The respondent had travelled twice to Mauritius in the guise of doing business in scrap metal. On the third occasion, he was found to be in possession of 152.8 grams of heroin and was arrested. The Supreme Court of Mauritius convicted the Respondent and sentenced him to imprisonment for 26 years.
  • On 09.10.2015, an undertaking was given by the Respondent that he will abide by the terms and conditions of the sentence adaptability order issued under the agreement/treaty on transfer of sentenced prisoners entered into between India and Mauritius while making a request for his repatriation to India. Subsequently, his repatriation to India was approved on 04.03.2016 and a warrant of transfer was issued on 24.10.2016.
  • After the transfer of the Respondent to India under the 2003 Act, the Respondent preferred a representation to the Ministry of Home Affairs, Government of India for reduction of sentence from 26 years to 10 years which is the maximum punishment prescribed under Section 21 (b) of the NDPS Act as applicable for the quantity of heroin seized from the Respondent.
  • By an order dated 03.12.2018, his representation for reduction of sentence term was rejected.

Analysis of the provisions of the Repatriation of Prisoners Act, 2003

The object of the 2003 Act is to provide an opportunity to the convicts to be repatriated to their country so that they can be closer to their families and have better chances of rehabilitation. One of the salient features of the 2003 Act is also that the enforcement of sentence of the repatriated prisoner has to be governed by the law of the receiving State, however in doing so, the receiving State is bound by the legal nature and duration of the sentence as determined by the transferring State.

While operating in accordance with this object and feature, Section 12 of the 2003 Act makes it clear that the transfer of a prisoner who is a citizen of India from a contracting State wherein he is undergoing sentence of imprisonment may be accepted by the Central Government, subject to certain conditions that may be agreed between India and the State. The decision to be taken by the Government on the representation preferred for transfer, therefore, shall be subject to the agreement entered into between Republic of India and Republic of Mauritius regarding the transfer of prisoners.

Article 8 of the said agreement categorically states that while continuing the enforcement of the sentence, India shall be bound by the legal nature and duration of the sentence as determined by transferring State.

On a combined reading of Section 12 and 13 of the 2003 Act and Article 8 of the Agreement, the following principles can be deduced: –

  1. Any request for transfer of a prisoner from a contracting State to India shall be subject to the terms and conditions as stated in the agreement between a contracting State and Government of India.
  2. The duration of imprisonment shall be in accordance with the terms and conditions referred to in Section 12 (1) of the 2003 Act, meaning thereby that the acceptance of transfer of a prisoner shall be subject to the terms and conditions in the agreement between the two countries with respect to the transfer of prisoners. To make it further clear, the sentence imposed by the transferring State shall be binding on the receiving State i.e., India.
  3. On acceptance of the request for transfer of an Indian prisoner convicted and sentenced in a contracting State, a warrant shall be issued for detention of the prisoner in accordance with the provisions of Section 13 of the 2003 Act in the form prescribed.
  4. The warrant which is to be issued has to provide for the nature and duration of imprisonment of prison in accordance with the terms and conditions as mentioned in Section 12(1) of the Act, that is, as agreed between the two contracting States.
  5. The imprisonment of the transferred prisoner shall be in accordance with the warrant.
  6. The Government is empowered to adapt the sentence to that provided for a similar offence had that offence been committed in India. This can be done only in a situation where the Government is satisfied that the sentence of the imprisonment is incompatible with Indian law as to its nature, duration or both.
  7. In the event that the Government is considering a request for adaptation, it has to make sure that the adapted sentence corresponds to the sentence imposed by the contracting state, as far as possible.

Applicability of the law to the case at hand

Considering the law and the facts of the case, it was held that the sentence imposed by the Supreme Court of Mauritius in this case is binding on India. A warrant of detention was issued in which it was specified that the Respondent has to undergo a sentence of 26 years. As per Section 13(4), the sentence shall be 26 years.

“The question of adaptation of the sentence can only be when the Central Government is convinced that the sentence imposed by the Supreme Court of Mauritius is incompatible with Indian law.”

Reference to Indian law in Section 13 (6) of the 2003 Act is not restricted to a particular Section in NDPS Act. Incompatibility with Indian law is with reference to the enforcement of the sentence imposed by the Supreme Court of Mauritius being contrary to fundamental laws of India. It is only in case of such an exceptional situation, that it is open the Central Government to adapt the sentence imposed by the Supreme Court of Mauritius to be compatible to a sentence of imprisonment provided for the similar offence.

“Even in cases where adaptation is being considered by the Central Government, it does not necessarily have to adapt the sentence to be exactly in the nature and duration of imprisonment provided for in the similar offence in India. In this circumstance as well, the Central Government has to make sure that the sentence is made compatible with Indian law corresponding to the nature and duration of the sentence imposed by the Supreme Court of Mauritius, as far as possible.”

The adaptation of sentence from 26 years to 10 years as per Section 21 (b) of the NDPS Act was rejected by the Central Government on the ground that it would amount to reduction of sentence by 16 years which would not be in consonance with Section 13 (6) of the 2003 Act and Article 8 of the Agreement. The Court held that te reasons recorded by the Central Government to reject the request for scaling down the sentence are in accordance with the provisions of the 2003 Act and the agreement entered into between India and Mauritius as discussed above. Hence, the Court upheld the order of the Central Government.

[Union of India v. Shaikh Istiyaq Ahmed, 2022 SCC OnLine SC 36, decided on 11.01.2022]


*Judgment by: Justice L Nageswara Rao


Counsels

For appellant: ASG Madhvi Divan

For respondent: Senior Advocate A.M. Dar

Case BriefsDistrict Court

Dwarka Courts, New Delhi: Sushil Anuj Tyagi, ASJ while addressing a case of drink and drive, expressed that,

“There has to be a zero-tolerance for drunken driving and such cases should be dealt with stern hands for flashing proper message in the society.”

The instant appeal was filed under Section 374 of Code Criminal Procedure against the decision of M.M. Dwarka Courts whereby the appellant was convicted and sentenced to undergo simple imprisonment for 4 days and fine under Sections 185 and 194B of the M.V. Act in default of payment of fine the appellant was further sentenced to imprisonment for 7 days.

Factual Background

Challan for the offence under Sections 185 and 194B MV Act was filed against the accused/appellant on the allegations that he was found driving a vehicle in drunken condition and he was not using his seat belt.

MM had taken cognizance of the above-stated. Appellant pleaded guilty.

The accused assailed the impugned order of the trial court on the grounds that the principles of natural justice were not followed, and that the appellant was not medically examined properly and that the report filed by the traffic police before the trial court was forged.

Further, the appellant was the victim of improper investigation and that the order passed by the trial court was hasty. Adding to this he stated that he was not a previous convict and had clean past antecedents.

It was also submitted that the appellant was running his business of Tours & Travels and he was the sole bread earner of his family which consists of his wife, minor daughter and old aged parents.

Analysis, Law and Decision

The Court stated that since the appellant had voluntarily pleaded guilty to the offences challaned against him, as per Section 375 CrPC, the appellant had no right to appeal as he has been convicted on his voluntary plea of guilt. Hence this Court found no illegality, infirmity or error in the impugned order, regarding the conviction.

Quantum of Sentence

Bench stated that it is true that drunkard driver is a menace on the overcrowded roads of Delhi.

The driver of motor vehicles is expected to be alert to the emergent contingencies which may arise on the road and he cannot be expected to lower his guard of reflexes. The consumption of alcohol impacts the senses of a person which results in delayed responses and reflexes which results in serious and fatal accident.

 “…drunken driver is injurious to his own life as well as to the life of innocent road users.’’

Analyzing further, Court stated that this Court cannot be oblivious to the fact that the appellant was the first-time offender and was not a previous convict, infact he had a clean past and was the sole earner of his family, he even expressed remorse for his conduct and undertook that he won’t repeat such act in future.

While considering the aggravating and mitigating circumstances, Court opined that the appellant deserved one chance for improving himself and hence took a lenient view by modifying the sentence of imprisonment Till the Rising of the Court.

In view of the above discussion, the appeal was disposed of. [Ishan Gaur v. State, CA No. 136 of 2021, decoded on 13-12-2021]

Case BriefsSupreme Court

Supreme Court: A Division Bench of Sanjay Kishan Kaul and Hrishikesh Roy, JJ. agreed to reduce the sentence of the appellant−husband convicted for offence of cruelty to woman punishable under Section 498-A IPC, if he pays Rs 3 lakh as compensation to his wife and children. The Supreme Court observed that:

“The object of any criminal jurisprudence is reformative in character and to take care of the victim. It is towards this objective that Section 357 CrPC is enacted in the statute. The objective of which is to apply whole or any part of the fine recovered to be applied on payment to any person of compensation for any loss or injury caused by the offence. In the present case, it is one of voluntarily offering the amount albeit to seek a reduction of sentence.”

Complainant was the second wife of the appellant. Two children were born to them from the wedlock. The complainant alleged that on instigation of the first wife, the appellant started mental and physical torture and made dowry demands. Consequently, the complainant had to go back to her parent’s house. A complaint was registered and the appellant was convicted by the trial court for the offence punishable under Section 498-A IPC. He was sentenced to three years rigorous imprisonment. Appeal filed by the appellant was dismissed by the first appellate court. Criminal revision preferred by the appellant before the High Court met the same fate. Aggrieved, the appellant approached the Supreme Court.

The appellant prayed for extension of benefit of Probation of Offenders Act, 1958 which was declined by the Supreme Court. However, the Court expressed that it was not averse to consideration of reduction of sentence subject to the condition that the petitioner gave adequate compensation to the complainant for herself and the children apart from whatever maintenance was being paid under Section 125 CrPC.

The appellant submitted that he was willing to pay a compensation of Rs 3 lakh to the complainant and the children. The complainant was agreeable to receive the compensation of Rs 3 lakh. Further, on compensation being paid, she had no objection if the sentence of the appellant is reduced and/or if he is granted the benefit of the Probation of Offenders Act. In such view of the matter, the Court said that:

“[K]eeping in mind the nature of the offence, we had declined the benefit of the Probation of Offenders Act to the appellant. However, if the petitioner/appellant is showing remorse and is willing to make arrangements for [the complainant] and his two children born out of the wedlock, we would not like to come in the way of such an arrangement, which should be beneficial to [the complainant] and her children.”

Noting that the appellant had undergone about seven months of imprisonment, the Court was inclined to reduce the sentence to the period already undergone in case he pays a sum of Rs 3 lakh to the complaint for her benefit and the children’s benefit. The Court however made it clear that if the amount is not paid, the appellant will have to undergo the remaining part of the three years’ sentence. [Samual Sk. v. State of Jharkhand, 2021 SCC OnLine SC 645, decided on 31-8-2021]


Tejaswi Pandit, Senior Editorial Assistant has reported this brief. 

Case BriefsSupreme Court

Supreme Court of India: The Division Bench of Navin Sinha and R. Subhash Reddy, JJ., reiterated the value of ocular evidence while reversing the acquittal of the accused.

Instant appeal arose from an acquittal order reversing the conviction of respondents 1 to 4 under Sections 302, 34, 120 B of the Penal Code, 1860 sentencing them to life imprisonment and 15 days imprisonment under Section 135(1) of the Bombay Police Act.

The deceased was assaulted while he was returning on a motorcycle with PW-2 who was the pillion rider.

Acquittal was premised on the reasoning that the evidence of the eye-witnesses PW-2 and PW-10 was inconsistent with the medical evidence, regarding the nature of injuries vis-à-vis the weapons of offence.

High Court erred in the appreciation of evidence by failing to take note that the iron rod had a sharp edge by which the injuries on the deceased were possible. It is only if the medical evidence was totally inconsistent with the ocular evidence, the former was to be given precedence.

Analysis, Law and Decision

Bench stated that it was not disputed that PW-2 who was accompanying the deceased on the motorcycle, took him to the hospital.

FIR was lodged barely hours later naming the respondents. There was no time for the witness to consider and ponder for naming the accused except to state the truth.

The respondents were not strangers, but were well known to PW­2 and the deceased. PW­12 deposed that the respondents had threatened the deceased earlier also and were compelling him to withdraw the case and would also demand money from him because of which the deceased had shifted from the locality where they all they lived earlier.

Court stated that there is evidence about the availability of light near the place of occurrence. Even otherwise, that there may not have been any source of light was hardly considered relevant in view of the fact that the parties were known to each other from earlier.

Bench expressed that, Criminal jurisprudence developed in this country recognizes that the eye sight capacity of those who live in rural areas is far better than compared to the town folks. Identification at night between known persons is acknowledged to be possible by voice, silhouette, shadow, and gait also. 

Court relied on Nathuni Yadav v. State of Bihar, (1998) 9 SCC 238 with regard to the identification in the dark.

Supreme Court expressed that it is only in a case where there is a gross contradiction between medical evidence and oral evidence, and the medical evidence makes the ocular testimony improbable and rules out all possibility of ocular evidence being true, the ocular evidence may be disbelieved.

In the present matter, Court found no inconsistency between the ocular and medical evidence.

High Court grossly erred in appreciation of evidence.

Conclusion

The acquittal by the High Court was based on misappreciation of the evidence and the overlooking of relevant evidence thereby arriving at a wrong conclusion.

Further, the Court stated that the present case was not where two views were possible or the credibility of the witnesses was in doubt. Neither was it a case of a solitary uncorroborated witness.

Conclusion of the High Court was therefore held to be perverse and irrational.

Therefore, in the nature of the assault, Section 304 Part II, IPC has no application.

Supreme Court directed respondents 1 to 3 to surrender within 2 weeks and Director General of Police, State of Gujarat shall take all necessary steps to apprehend the absconding, fourth accused and bring him to justice.

In view of the above, appeal was allowed. [Pruthviraj Jayantibhai Vanol v. Dinesh Dayabhai Vala, 2021 SCC OnLine SC 493, decided on 26-07-2021]

Op EdsOP. ED.

If I were “death” I would be inevitable but I am not death and I fight death every day. How do I do that? Well, I go out on the road and escape moronic drivers running over people, at home I hope to survive falling roofs, accidental fires, etc. Adding to other factors, if I am not a male foetus I hope I am able to beat death even before I am born. I try and survive thoughts of self-harm and suicide. So, I survive death every day in a million ways. Interestingly, the Government wants me to live too even though it may seem like they do not care. The laws and the Constitution very categorically promote living happily, so much so that an attempt to suicide is punishable with imprisonment. One can say they are granting the death wish sending him/her to jail. Peter Cook said “One should realise suicide is a criminal offense, in less enlightened times they would have hung you for it.”  While we are talking about life, we are focused on human life here, though animals have rights too they cannot sue the offending party. So, they do not get to fight death the way humans do.

Life, a precious gift

In Hinduism life and death are the gift of God and no human being has the right to take away the said gift; in Islam, human dignity stems from the belief that man is a creation of God – the creation that God loves more than any other. There is no debate that life is the most precious thing that the human world can possess.

It is ironic that once one enters the world, one loses control over one’s life, the Government takes over in the name of the God of course. No one reserves the right to end any life even one’s own, the right reserves with God and the almighty State. Governments yield powers which even God does not presume, therefore, they have taken up the responsibility of doing God’s work and enabled themselves to end lives under the procedure established by law. Arnaud Almaric said “ask no questions. Just shoot them all, and let God sort them out”. Well, it is a little more complicated than that, at least for now. Our Constitution provides for the “Rule of Law” and protection of life and personal liberty.

Going to primitive times, the trials were bizarre. Guilty or innocent, history is replete with trials that ensured the death of the undertrial. The times have evolved and so did the trials and the sentencing. The death penalties were frequent in the early 18th and 19th centuries. However, over the period death penalties have not been the norm. The courts have relied on the facts that life and death are acts of the divine and the divine’s authority has been delegated to the courts of law to be only exercised in exceptional circumstances with utmost caution. Therefore, the first and foremost effort of the courts should be to continue the life till its natural end. This delegated authority should be exercised cautiously under extreme judicial checks. The Code of Criminal Procedure, 1973 makes it mandatory that “when the Court of Session passes a sentence of death, the proceedings shall be submitted to the High Court, and the sentence shall not be executed unless it is confirmed by the High Court”1. The High Court is duty-bound to ensure that only after concluding that no other punishment but for death will serve the ends of justice the death penalty shall be confirmed. This shows the seriousness and thoughtfulness that our legal system puts into a decision of death. Status quo ante in terms of life cannot be obtained, therefore, it is only fair that no such decisions are taken in haste.

Reformative, not retributive

It is never the endeavour of the State or the courts to take away life. The endeavour is to achieve an orderly society while protecting the rights and liberties of the citizens. The objective of the State, through laws and penalties, is to achieve deterrence, prevention, reformation and rehabilitation. Our penal system is reformative and not retributive. Wherever there seems a possibility of reformation, the courts may be inclined to not punish with a death sentence. We have witnessed some extremely gruesome crimes. Some were punished with death sentences, while a lot of them were given life sentences while a few may have walked out of jail with some punishment. Regardless of their outcomes the nation unanimously prayed for a death sentence in a number of these cases. But the judicious minds may not have concurred with the minds of ordinary citizens. After all, they deliver justice and not revenge. Francis Bacon2 said “revenge to be a kind of wild justice that offends the law and putteth the law out of office”. Many philosophers and jurists oppose capital punishment as they find death sentences to include an instinct of revenge which is barbarous. Capital punishment in modern jurisprudence will always be a matter of debate. Reformation and rehabilitation of a criminal is the primary object of punishment. The imposition of the death penalty nullifies that purpose. Retribution in the sense of vengeance is no longer an acceptable end of punishment. It is for these reasons noted jurists even opposed the hanging of those convicted in the infamous Nirbhaya case.3  Having said that, a Constitutional Bench of the Supreme Court4 had unanimously upheld the validity of capital punishment by reserving the death penalty. Law helps the element of retribution merge into the element of deterrence based on the philosophy of “gravest crime deserves the gravest punishment”. The Supreme Court held that a real and abiding concern for the dignity of human life postulates resistance to taking a life through law’s instrumentality. Therefore, that ought not to be done save in the rarest of rare cases when the alternative option is unquestionably foreclosed.5

Rarest of rare doctrine

Sentencing follows conviction, sentence is proportional to the degree of the crime. However, there is no straitjacket formula that can be applied in awarding punishment. Everything boils to the facts and circumstances of the case. Taking an example of Section 3026 of the Penal Code which states that “whoever commits murder shall be punished with death, or imprisonment for life and shall also be liable to fine”, shows that not all murders deserve a death sentence. Ordinarily, courts find life imprisonment to be sufficient, but the discretion lies with the judicial minds. The cases in which a death sentence can be given are a few with a peculiar set of facts being grave and gruesome thereby falling in the category of the rarest of rare crimes. The legislature in Section 354(3)7 mandates that in case of a death sentence the court must record special reasons which show that the sentence of life imprisonment shall not be a sufficient punishment.

Rarest of rare is an expression to convey the horrific and dastardly nature of the act. The actions which shake the conscience of human existence, which affect the very existence of our humanistic values. It is more to do with the perpetrator than the offense itself, when a convict would be a menace and threat to the harmonious and peaceful coexistence of the society. The perpetrators of such acts cannot be considered to be capable of being reformed and pose a threat to society at large. Though debatable and unproven, a death sentence is considered a deterring force in the prevention of crime. The rationale given by the courts is that when a crime shocks the collective conscience of the community, sympathy in any form would be misplaced. It would shake the confidence of the public in the administration of the criminal justice system irrespective of their personal opinion as regards desirability or otherwise of retaining the death penalty.8 However, should a court take into account the desires of the community, because the community does not always look for legally valid solution and maybe blinded by hate and emotions.

Determining rarest of rare

The Supreme Court, over some time, has put several cases in the rarest of rare category. But, the power to judge a case to be in that category is discretionary. There are parameters to hold it, but those parameters are subjective. The Supreme Court stated that a court may look into aggravating and mitigating circumstances while imposing the death penalty in its discretionary power. The Supreme Court stated that a balance sheet of aggravating and mitigating circumstances has to be drawn up and in doing so the mitigating circumstances have to be accorded full weightage and a just balance has to be struck between the aggravating and the mitigating circumstances before the option is exercised.9 This discretion may be arbitrary, while discretion and equity are the rightful prerogative of courts but in the matter of death, any discretion could lead to arbitrariness. What if something was considered rarest of rare a decade ago but has become not so rare owing to the decadent society. Would it be fair to let a man off a death sentence when someone had been hanged a few years ago with a unanimous verdict?

One of the observations in the infamous Nirbhaya case by the Supreme Court was where the victims are helpless women, children or old persons and the accused displayed depraved mentality, committing a crime in a diabolic manner, the accused should be shown no remorse and the death penalty should be awarded. However, in a recent case, the Supreme Court commuted the death sentence of a convict to life imprisonment whose 2-year-old niece fell prey to his savage lust and thereafter lost her life.10 This shows that how discretionary powers in matters of death sentence could be arbitrary. As the saying goes “Equity is as big as the Chancellor’s foot.” The Supreme Court has attempted to remove arbitrariness, yet the discretionary powers are wide. What constitutes the rarest of rare is not set in strict terms. What moved the society a decade ago may not affect the society to the same level as before. If capital punishment has to prevail, it must be under strict norms and set principles of law. One of the mitigating factors is the probability that the accused can be reformed and rehabilitated. If not, then the death sentence can be confirmed.

Conclusion

Articles 7211 and 16112 show that the framers of our Constitution had always intended it to be a part of our penal system. Therefore, capital punishments are not unconstitutional but they were aware of the seriousness and severity. It is for this reason, a remedy of clemency is provided enabling the executive of the State outside the purview of the judiciary. The judicial process is also carefully crafted in terms of the death penalty. The requirement of confirmation of a death penalty by the High Court is a step to ensure that there are no slips. However, the test of “the rarest of rare” is open to interpretation, which allows room for arbitrariness. The argument favour of capital punishment is that some people are beyond redemption and rehabilitation. But the biggest flaw in this argument is that one undermines the reformative capability of a human being. Buddhists believe anyone can attain enlightenment and the story of Angulimala is the prime example. Somewhere, it is the failure of the society to not tap into one’s highest potential, so we are punishing a soul for our failure? Dr Sarvapalli Radhakrishnan said “even the worst sinner has a future, even the greatest saint has had a past”. In the end, the courts and the Judges are doing God’s work as God created life. Will ending a life before its natural course be God’s work? But why let a life prosper who endangers the lives of several others. It is a simple calculation, more than one life is more important than one life. So, it is done in the name of the greater good. Abraham Lincoln said “my concern is not whether God is on our side; my greatest concern is to be on God’s side, for God is always right”. I guess we will never know if by allowing capital punishment we are being on God’s side or are just doing the easy thing.


Advocate, Delhi High Court.

1 S. 366, Code of Criminal Procedure, 1973

2 Francis Bacon, 1st Viscount St Alban also known as Lord Verulam, was an English philosopher and statesman who served as Attorney General and as Lord Chancellor of England. His works are seen as developing the scientific method and remained influential through the scientific revolution.

3 <https://www.thehindu.com/news/national/indira-jaising-urges-nirbhayas-mother-to-follow-sonia-gandhis-example/article>.

4 Jagmohan Singh v. State of U.P., (1973) 1 SCC 20

5 Bachan Singh v. State of Punjab, (1980) 2 SCC 684

6 <http://www.scconline.com/DocumentLink/36kB36D7>.

7 When the conviction is for an offence punishable with death or, in the alternative, with imprisonment for life or imprisonment for a term of years, the judgment shall state the reasons for the sentence awarded, and, in the case of sentence of death, the special reasons for such sentence. <http://www.scconline.com/DocumentLink/7S71Hz0t>.

8 Mukesh Kumar v. State (NCT of Delhi), (2017) 6 SCC 1

9 Mukesh Kumar v. State (NCT of Delhi), (2017) 6 SCC 1

10 Shatrughna Baban Meshram v. State of Maharashtra, (2021) 1 SCC 596

11 < http://www.scconline.com/DocumentLink/nA4c4Sy5>.

12 < http://www.scconline.com/DocumentLink/nA4c4Sy5>.

Case BriefsHigh Courts

Allahabad High Court: The Division Bench of Ved Prakash Vaish and Vikas Kunvar Srivastav, JJ., expressed that:

“Justice demands that courts should impose punishment fitting to the crime. The courts must not only keep in view the rights of the criminal but also the rights of the victim of crime and the society at large while considering imposition of appropriate punishment.”

Appellant was convicted for the offence under Section 376 of the Penal Code, 1860, though he was acquitted for the offence under Section 506(2) of the Penal Code, 1860.

Father of the Prosecutrix had lodged a complaint that his daughter had gone for easement by the roadside and did not return to the house for a long time and on inquiry, his son Kalim Ahmad aged 13 years informed that Prem Chamar forcibly took the prosecutrix on his bicycle.

On reaching outside the village, he saw his daughter (prosecutrix) weeping who disclosed the entire incident and found the bloodstains on her undergarments and concluded that Prem Chamar had committed rape on his daughter.

In light of the above sequence of events, offence under Section 376 IPC was registered.

Trial Court found the appellant to be guilty of having committed the offence under Section 376 IPC and sentenced the appellant.

On being aggrieved with the above, appellant preferred the present appeal.

Analysis and Decision

“It is settled law that refusal to act on the testimony of the victim of sexual assault in absence of corroboration as a rule, is adding to insult to injury.”

 Bench further in light of the above expressed that, a girl or a woman in the tradition-bound non-permissive society of India would be extremely reluctant even to admit that any incident which is likely to reflect on her chastity had ever occurred.

“A woman or a girl who is raped is not an accomplice. Corroboration is not the sine qua non for conviction in a rape case.”

 Court referred to the decisions of Supreme Court in State of Punjab v. Gurmit Singh, (1996) 2 SCC 384 and Takhatji Hiraji v. Thakore Kubersing Chamansingh, (2001) 6 SCC 145, Vijendra Singh v. State of U.P., (2017) 11 SCC 129, State of H.P. v. Gian Chand, (2001) 6 SCC 71, Aslam v. State of U.P., (2014) 13 SCC 350, State of Haryana v. Basti Ram, (2013) 4 SCC 200, Raju v. State of M.P., (2008) 15 SCC 133.

High Court stated that Supreme Court had observed in Raju v. State of M.P., (2008) 15 SCC 133, that it cannot be lost sight of that rape causes the greatest distress and humiliation to the victim but at the same time a false allegation of rape can cause equal distress, humiliation and damage to the accused as well. The accused must also be protected against the possibility of false implication. There is no presumption or any basis for assuming that the statement of such a witness is always correct or without any embellishment or exaggeration.

“Courts while trying an accused on the charge of rape, must deal with the case with the utmost sensitivity, examining the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the evidence of the witnesses which are not of a substantial character.”

 Bench noted that considering the statement of the prosecutrix (PW2), a girl of nine years, corroboration from an independent source of the evidence of prosecutrix is not required. The evidence of the prosecutrix establishes that the appellant committed rape on her.

Court opined that the trial court did not commit any mistake in convicting the appellant for the offence under Section 376 IPC. Accordingly, appellant’s conviction was upheld.

Sentence

With regard to the question of sentence, Court stated that it may be mentioned that the protection of society by stamping out criminal activity is an essential function of State.

The facts and given circumstances of each case, the nature of the crime, the manner in which it was planned and committed, the motive for commission of the crime, the conduct of convict and all other attending circumstances are relevant facts for imposing appropriate sentence.

Hence, the object of sentencing is that the offenders do not go unpunished and the justice be done to the victim of crime and society. It is, therefore, the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed.

Therefore, in the instant case, Court held that the interest of justice would be met if the sentence imposed by trial court would be modified to that of rigorous imprisonment for 10 years and to pay a fine of Rs 2,000.

Concluding the decision, Court in view of the above discussion dismissed the appeal. [Prem Chamar v. State of U.P., Criminal Appeal No. 1078 of 2012, decided on 22-01-2021]

Case BriefsHigh Courts

Kerala High Court: N.Anil Kumar, J., allowed the instant revision petition against the concurrent findings of the Trial Court and the Appellate Court.

The facts of the case are such that, on 24-10-1998 the accused was found in possession of 2.5 litres of illicit arrack in contravention of the Kerala Abkari Act, 1077 (“the Act”). The Trial Court convicted and sentenced the accused to undergo rigorous imprisonment for a period of one year and also to pay a fine of Rs1,00,000, and in default of payment of fine to undergo simple imprisonment for six months. Against which, the petitioner preferred an appeal before the Court of Additional Sessions Judge. The Appellate Court while retaining the sentence of fine; reduced the substantive sentence of rigorous imprisonment for one year to rigorous imprisonment for six months.

In the instant case, the petitioner had challenged the impugned judgment of the Appellate Court. The counsel for the petitioner, V. Rajendran, submitted that the petitioner had already undergone the sentence imposed in this case. The Court, on recording the submission, directed the Superintendent, Central Prison, Kannur to furnish the detail of sentence undergone by the petitioner. The Superintendent of Prison submitted that the accused was released from prison after completion of sentence and default sentence for failure to pay fine.

On going through the evidence on record, the Court found no legal infirmity or perversity to set aside the concurrent conviction imposed by the two Courts. Thus, the Court confirmed the conviction concurrently imposed by the Trial Court as well as the Appellate Court. While dismissing the revision petition the Court directed that no further coercive steps shall be initiated against the petitioner anymore. [Prabhakaran Chirangodan v. State of Kerala, 2020 SCC OnLine Ker 7728, decided on 22-12-2020]

Case BriefsHigh Courts

Chhattisgarh High Court: Arvind Singh Chandel J., allowed the appeal and reduced the sentence to the period already undergone by the petitioner for an offence punishable under Section 498-A Penal Code, 1860.

The facts of the case are such that about 1 ½ year prior to the date of incident marriage of the present Appellant was solemnized with the deceased Anuradha Mishra. After marriage, Appellant, as well as his relatives, used to torture the deceased on account of demand of dowry, due to which she committed suicide on 19-12-2002 and thereafter morgue was lodged consequent to which offence was registered. After completion of the trial, Trial Court acquitted the co-accused and present Appellant for the charges under Section 304- B of Penal Code, 1860 i.e. IPC however, Trial Court convicted the Appellant for the offence punishable under Section 498-A IPC and sentenced him. Aggrieved by the same, the present appeal was filed.

Counsel for the appellant submitted that Appellant has already undergone about 13 months out of total jail sentence of 03 years, he has no criminal antecedent and he is facing the lis since 2002, i.e., for about 18 years. Therefore, the jail sentence awarded to the Appellant may be reduced to the period already undergone by him.

Counsel for the respondents submitted that opposed the appeal and supported the impugned judgment.

In view of the facts and submissions the Court held that “out of total jail sentence of 03 years, the Appellant has undergone about 13 months, he is facing the lis since 2002 and there is no criminal antecedent against him, I am of the view that the ends of justice would be met if, while upholding the conviction imposed upon the Appellant, the jail sentence awarded to him is reduced to the period already undergone by him.”

 In view of the above, appeal was allowed.[Rajesh Mishra v. State Of Chhattisgarh, 2020 SCC OnLine Chh 1303, decided on 14-01-2020]


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Case BriefsHigh Courts

Allahabad High Court: Saurabh Shyam Shamshery, J., while addressing a criminal appeal observed that “Conviction for “Dacoity” of less than five persons is not sustainable in the absence of finding that five or more persons were involved in the crime”. 

Three appellants filed the criminal appeal under Section 374 of the Criminal Procedure Code against the judgment and order dated 11-03-1983, wherein appellants Balbir and Lalaram were convicted under Section 395 of Penal Code, 1860 and Mohar Pal under Sections 395 read with 397 IPC.

Trial Court held that the appellants committed dacoity in the house of Raj Kumar.

Analysis, Law and Decision

Section 395 IPC | Punishment for Dacoity:

Whoever commits dacoity shall be punished with imprisonment for life, or with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine.”

Section 397 | Robbery, or dacoity, with attempt to cause death or grievous hurt:

If, at the time of committing robbery or dacoity, the offender uses any deadly weapon, or causes grievous hurt to any person, or attempts to cause death or grievous hurt to any person, the imprisonment with which such offender shall be punished shall not be less than seven years.

“Dacoity” is defined in Section 391 IPC, which is reproduced as under:

“391. Dacoity.–When five or more persons conjointly commit or attempt to commit a robbery, or where the whole number of persons conjointly committing or attempting to commit a robbery, and persons present and aiding such commission or attempt, amount to five or more, every person so committing, attempting or aiding, is said to commit “dacoity”.

Supreme Court in the decision of Raj Kumar  v. State of Uttaranchal (Now Uttarakhand): (2008) 11 SCC 709, held that 

“…conviction of an offence of robbery, there must be five or more persons. In absence of such finding, an accused cannot be convicted for an offence of dacoity.”

“In a given case, however, it may happen that there may be five or more persons and the factum of five or more persons is either not disputed or is clearly established, but the court may not be able to record a finding as to the identity of all the persons said to have committed dacoity and may not be able to convict them and order their acquittal observing that their identity is not established. In such case, conviction of less than five persons–or even one–can stand. But in absence of such finding, less than five persons cannot be convicted for an offence of dacoity.”

Hence, in view of the above decisions, Court stated it clear that in case there is a conviction of less than five persons under Sections 395/397 IPC, trial court must arrive at a finding that there was the involvement of five or more persons.

In absence of the above-stated finding, no conviction could be made out under the aforestated Sections.

Prosecution completely failed in the present case, either to prove the participation of five or more persons in the commission of the offence or establish their identity.

Hence, Court held that the appellant’s conviction and the sentence are repugnant to the letter and spirit of Sections 391 and 396 IPC, therefore it cannot be sustained and trial court’s decision was set aside in the view of the said reasoning.[Balbir v. State of U.P., 2020 SCC OnLine All 845, decided on 09-07-2020]

Case BriefsHigh Courts

Uttaranchal High Court: N.S. Dhanik, J., partly allowed a criminal revision which was preferred against the Judgment and order passed by the District and Sessions Judge whereby he had confirmed the judgment and order passed by Chief Judicial Magistrate and also against the judgment and order passed by Chief Judicial Magistrate in a Criminal Case under Section 3/7 of the Essential Commodities Act, whereby the revisionist were convicted for the offence punishable under Section 3/7 of the Essential Commodities Act and sentenced to undergo one-year simple imprisonment and to pay a fine of Rs 5,000.

The informant lodged an FIR alleging therein that on information, the informant came to know that two Nepali people who often smuggling the cement, compost, kerosene oil, etc from Tankpur to Nepal upon their motorcycles. The informant along with other police officials reached the Gandhi Park and seeing two persons who were tying the plastics canes in their motorcycles outside the warehouse of Naresh Chandra Gupta. Both tried to run away, but they were arrested on the spot. From the possession of the accused persons, Jaricanes were recovered and on asking regarding the said recovery, they told that they had purchased the Kerosene oil from the Naresh Chandra Gupta (present revisionist) and 20 litres kerosene oil was also recovered from the warehouse of Naresh Chandra Gupta. After investigation, the charge sheet against the accused revisionist for the offence punishable under Section 3/7 of the Essential Commodities Act was filed. The Counsel for the revisionist, Mr. Bhuwanesh Joshi submitted his arguments only on the quantum of sentence. He submitted that the revisionist had served about 27 days in the jail and that he was a poor person and the matter relates back to the year 2008.

The Court while partly allowing the revision modified and reduced the sentence to three months considering the contention that matter related back to the year 2008 and ends of justice would be sub-served if the jail sentence of the revisionist is reduced adjusting the period already undergone by him, although the sentence of the fine was enhanced from Rs 5,000 to Rs 10,000.[Naresh Chandra Gupta v. State of Uttarakhand, 2020 SCC OnLine Utt 550, decided on 16-09-2020]


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Case BriefsHigh Courts

Delhi High Court: Vibhu Bakhru, J., in the present petition observed that,

“A deadly weapon is one, which is lethal and is likely to cause death when used in the manner in which it is intended. By its very nature, a deadly weapon is one, which is likely to result in a fatality.”

Appellant was convicted of the offences punishable under Sections 393/398 of the Penal Code, 1860 and Sections 25/27 of the Arms Act, 1959.

The present appeal has been filed impugning the judgment for the above-stated conviction and order of sentence.

It has been submitted that the accused was armed with a pistol which he placed on the complainant’s temple and asked him to hand over whatever he had.

While the accused was fleeing from the spot, two patrolling police officials pursued and apprehended him and the police officials snatched the pistol carried by the accused.

Analysis and Decision

Police Officials Testimony

Bench while analysing the facts and submissions in the present case stated that merely because witnesses from the general public that had allegedly assembled at the spot, were not examined does not mean that the testimony of the police officials is required to be discarded.

Supreme Court’s decision in Kalpnath Rai v. State, (1997) 8 SCC 732  was referred in the above context, wherein following was the Court’s proposition:

“There can be no legal proposition that evidence of police officers, unless supported by independent witnesses, is unworthy of acceptance.”

Further, there wasno doubt on the fact that a country made pistol (katta) was recovered from the accused also the fact that he was apprehended while he was fleeing from the spot has also been established.

Question to be determined is whether the appellant’s conviction under Sections 25 and 27 of the Arms Act is maintainable?

The country made pistol (katta) recovered from the appellant was designed to discharge a projectile and therefore, even though it may have fallen into disrepair it, nonetheless, falls within the definition of a ‘firearm’ within the meaning under Section 2(e) of the Arms Act.

Further the Court observed that the possession of ammunition is a punishable offence under Section 25 of the Arms Act. The use of such ammunition is punishable under Section 27 of the Arms Act.

Thus, there is little doubt that the appellant is guilty of committing an offence punishable under Sections 25 and 27 of the Arms Act.

Next issue to be examined is whether the country made pistol (katta) can be termed as a “deadly weapon” under Section 398 IPC?

Section 398 IPC states that if an offender is armed with a deadly weapon at the time of robbery or dacoity, the same would constitute an offence under Section 398 IPC.

Key Question:

Whether the country made pistol (katta) can be termed as a “deadly weapon” even if it is in a state of disrepair?

Court stated that in order for any weapon to be termed as deadly, it should one which is capable of or likely to cause death if used in the manner in which it is intended to be used.

There may be a large number of instruments or objects, which can be used in a lethal manner, however, if they are not intended or meant to be used in that manner, they cannot be understood to be weapons for the purposes of Section 398 of the IPC.

Bench also noted that there are a large number of instruments which if used in a particular manner, may result in a fatality. A pen is not a deadly weapon and merely carrying the said writing instrument, at the time of committing robbery or dacoity, would not constitute an offence punishable under Section 398 of the IPC.

Two necessary ingredients of a ‘deadly weapon’:

first, that it should be a weapon and capable of being used as such

second, that it must be inherently lethal and if used in the intended manner is likely to result in death.

Hence in view of the above analysis, it can be construed that even though the country made pistol recovered from the appellant constitutes a firearm, it cannot be considered as a deadly weapon.

In the present matter, at the material time, the pistol could not be used to inflict any fatal injury, if used in the manner in which it was meant to be used — that is, for the purpose of firing a bullet — on account of it being in disrepair.

Thus the impugned judgment convicting the appellant under Section 398 of the IPC was set aside and his sentence was also reduced.[Sonu v. State, 2020 SCC OnLine Del 1213, decided on 15-09-2020]

Case BriefsForeign Courts

Islamabad High Court: The Bench of Athar Minallah, C.J., Aamer Farooq and Miangul Hassan Aurangzeb, JJ., while observing that the right to a fair trial is the foundation of the rule of law and criminal justice system and its essence is to assure to every party that he or she, would be treated fairly and justly by an impartial and independent judicial forum; held that another opportunity should be extended to the Government of India to consider taking appropriate measures to ensure effective compliance with the judgment of the International Court of Justice wherein it had ordered Government of Pakistan to review and reconsider Kulbhushan Jadhav’s conviction and sentence and provide him with consular access. The Court also extended its assurance to Jadhav that his rights, especially that of fair trial is a vital factor while reviewing his sentence.       

Following the decision of the ICJ, the Govt. of Pakistan had promulgated the International Court of Justice (Review and Reconsideration) Ordinance, 2020 to meet its obligations regarding giving effect to the judgment. As per Attorney General Khalid Javed Khan’s Report, Jadhav had reiterated his earlier stance and has preferred to pursue the remedy of clemency instead of invoking his right under the Ordinance of 2020. Attorney General further reported that the Government of India has been duly informed regarding the proceedings of this Court held on 03-08-2020 in pursuance of which concerned officials gave a detailed briefing to Jadhav regarding his right to avail the statutory remedy provided under the Ordinance of 2020. It was noted that the Govt. of India’s response is awaited.

Perusing the existing the scenario, the Bench observed that, “We are of the opinion that these proceedings and judicial review, on the basis of the judgment of the International Court, may not be meaningful and effective if Commander Jadhav and the Government of India decide not to exercise the course of action highlighted in the judgment of the International Court”. Concluding the Order and fixing the next proceeding on 06-10-2020, the Bench issued following directions to ensure effective review and reconsideration so as to give effect to the judgment of the International Court-

  • Attorney General shall ensure that copy of this order is provided to Jadhav
  • of Pakistan shall once again convey the orders passed in this petition to the Govt. of India to enable the latter to consider taking appropriate measures in order to ensure compliance with the judgment of the ICJ.
  • The Registrar of the Court to send to the learned amici curiae copies of the petition and documents placed on the record, so that they can assist this Court on the status of compliance with the judgment of the ICJ in the event that Jadhav or the Govt. of India decide against availing the remedy provided under the Ordinance of 2020

[Secretary, Ministry of Law and Justice v. Federation of Pakistan, Misc. Petition No. 01 of 2020, decided on 03-09-2020]


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Case BriefsHigh Courts

Jharkhand High Court: Anubha Rawat Choudhary J., upheld the findings of the impugned judgment and modified the sentence to meet the ends of justice.

The facts of the case are that the complainant was a sole owner of a piece of land acquired by the complainant from its erstwhile owner namely, Sokra Gope by virtue of a registered deed of sale dated 29-03-1972 becoming the absolute owner of the land. It was further alleged that the petitioner started dumping iron ore, boulders, etc. on a portion of the said piece of land and had diminished the value of cultivable land and caused a loss of more than Rs 10,000. It was also alleged that the complainant was deprived from using the agricultural land for cultivation.  A complaint under Section 427 and 447 IPC was made and Court of Judicial Magistrate Ist class convicted the petitioner and Sessions Judge affirmed the said judgment dated 18.07.2013. Hence instant revision petition has been filed challenging the judgment dated 18.07.2013.

Counsel for the petitioner, Gouri Debi submitted that the court of the impugned judgment has failed to properly consider the sale-deed. It was further contended that the present case is a civil dispute and not a criminal dispute as it relates to the title of land.

Counsel for the respondents, Ravi Prakash submitted that the learned courts have duly considered both the sale-deeds of the complainant as well as the defense. It was also submitted that there is no scope of re-appreciation of the evidence and hence there is no illegality or perversity in the impugned judgments.

The Court observed

“The act i.e. dumping of iron ore over the complainant’s land certainly intimidate him and would cause annoyance so the basic ingredients of the criminal trespass is present in this facts and circumstances of the case so accused is also liable to be convicted for the offence committed under Section 447 IPC.”

After hearing the arguments and witnesses being cross-examined thoroughly, Court held that both the sale-deeds were in connection with the same property. It was further held that the basic ingredients of Sections 427 and 447 were satisfied and the petitioner’s actions caused wrongful loss to the complainant and the land became infertile and was not useful for cultivation. It was further held that as the basic ingredients of offence were present in the case, hence merely because there is a dispute in connection with land, it will not be a civil dispute.

In view of the above, the petition was disposed off and sentence modified.[Md. Kausar Ali v. State of Jharkhand, 2020 SCC OnLine Jhar 742, decided on 20-08-2020]


Arunima Bose, Editorial Assistant has put this story together

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]