Delhi High Court
Case BriefsHigh Courts

   

Delhi High Court: In a case where revision petition was filed against the order passed by the Trial Court by which accused persons were discharged under Section 376 of Penal Code, 1860 (IPC), the Single Judge Bench of Swarana Kanta Sharma, J. held that an accused should not merely be discharged in a rape case because the victim had not stated about the same in her FIR, and hence, the Court set aside the Trial Court order to the extent of discharging the accused of rape.

Background

In 2016, the accused while he was getting some work done in the building near the house of the victim (complainant), made certain gestures towards the victim, to which she had objected. The accused along with his son and his friends went to quarrel with the victim but fled from the place when victim dialed the police control room. Three days later, the accused persons (respondents) unlawfully entered the victim’s house, who was five months pregnant, assaulted her with the intention to outrage her modesty.

On the next day of the incident, the complainant was taken to the hospital where she was medically examined due to stomach ache and bleeding from her genitals. During the investigation, the victim handed over a torn piece of kurta to the Investigating Officer (IO) and subsequently, her statement was recorded under Section 164 CrPC, wherein, the victim stated that one of the accused persons had inserted a finger inside her genitals. Thereafter, the charge sheet was filed under Sections 376, 323, 354, 354-B, 458, 509 and 34 of IPC and later, order on charge was passed by the Trial Court, by which the accused persons were discharged under Section 376 IPC.

Submissions of behalf of the Petitioner

Counsel for the petitioner submitted that the Trial Court, while passing the order, had exceeded its jurisdiction and had appreciated the evidence in detail at the stage of framing of charges. Further, it was stated that the complainant had revealed that she did not mention the occurrence of the incident earlier as she was afraid that her honour and dignity would be compromised. Counsel submitted that the Trial Court had ignored the settled law that even if two views were possible at the stage of framing of charge, the view in favour of the complainant should be accepted.

Submissions of behalf of the Respondent

Counsel for the respondent submitted that the medical examination of the victim revealed that there was an alleged history of physical assault by a neighbour, however, no history of any sexual assault, no complaint of pain in the abdomen/LPV/BPV and no fresh external injury on the body at the time of examination had been observed. Thus, the accusation of rape was a made-up story, hence, the petition should be dismissed.

Analysis, Law, and Decision

The Court relied on Asim Shariff v. National Investigation Agency, (2019) 7 SCC 148, wherein it was reiterated that the Trial Court was not supposed to divulge the evidence on the record to determine whether the accused would get acquitted or convicted if a particular charge was framed against an accused. The Court also relied on Vikram Johar v. State of Uttar Pradesh, 2019 SCC OnLine SC 609, wherein the Supreme Court had reiterated that during the stage of charge, the Court must not conduct a mini-trial and the decision should not be based on the prima facie appreciation of the materials placed on record.

The Court opined that the Trial Court at the stage of framing of charge, went on to marshal the evidence and found contradictions in the same. In relation to this, the Court relied on Hazrat Deen v. State of Uttar Pradesh, Special Leave to Appeal (Crl.) No(s). 9552 of 2021, wherein it was opined that “in her statement given by the prosecutrix under Section 164 CrPC after the prosecutrix attained majority, she categorically made statements which tantamount to offence under Section 376 IPC. Discrepancies between the FIR and any subsequent statement under Section 164 CrPC may be a defence. However, the discrepancies cannot be a ground for discharge without initiation of trial.”

The Court held that the Trial Court had committed an error in discharging the accused by giving undue weightage to the discrepancies in the statements of the complainant. Further, the Court stated that charge under Section 376 IPC could have been framed solely based on the statement made under Section 164 CrPC even if such an allegation was not made in the FIR or in statement under Section 161 CrPC. This was so because in offences like rape where only the victim was the witness in majority of the cases, the statement made by victim should be looked at from a considerate and liberal perspective at the time of framing charges. The Court also held that a statement made under Section 164 CrPC disclosing the offence of rape shall be sufficient to frame charges under Section 376 IPC and an accused should not merely be discharged under Section 376 IPC because the victim had not stated about the same in her FIR.

The Court held that the order passed by the Trial Court to the extent of discharging the respondents for an offence under Section 376 IPC was set aside and accordingly, charge under Section 376 IPC was framed against the respondents.

[State v. Mohd. Javed Nasir, Crl. Rev. P. 268 of 2018, decided on 23-11-2022]


Advocates who appeared in this case :

For the Petitioner: Additional Public Prosecutor Manoj Pant;

For the Respondent(s): Advocate R.K. Singh;

Advocate Gagan Gupta.

Delhi High Court
Case BriefsHigh Courts

   

Delhi High Court: In an appeal challenging the order passed by the Additional Sessions Judge convicting the Father (Appellant) under Sections 5 and 6 of the Protection of Children from Sexual Offences Act, 2012 (POCSO), the Single Judge Bench of Purushaindra Kumar Kaurav, J. upheld the judgment and order of conviction passed by the Trial Court, where the father was awarded 12-year imprisonment for raping his minor daughter.

Background

The police were informed by a caller/mother of the victim, that her husband had committed rape on their daughter, aged about seven years. The police reached the spot and found the mother of the victim with her family. She stated that she worked as a housemaid and her husband mostly stayed at home and was a habitual drinker. On 24-04-2014, she left her home for work and when she returned home after work, the victim told her that while she was not home, the victim had gone to take water, and her father had closed the window and door of the room and opened the chain of his pant and put his private part into her mouth and thereafter, he forcibly inserted his private part into the victim’s vagina. Thereafter, the police registered a case under Sections 376 and 377 of Penal Code, 1860 (Code) and under Section 6 of POCSO Act.

Submissions on behalf of the Appellant

Counsel for the appellant submitted that the judgment of conviction and sentence passed by the trial court was bad in law and deserved to be set aside as the trial court did not appreciate the evidence in proper perspective and there were material contradictions and omissions in the evidence of the prosecution witnesses. Moreover, there was no direct evidence against the appellant and the benefit of doubt should have been given to him.

It was further submitted that the testimony of the victim, mother of the victim and sister of the victim differed from each other. There were discrepancies regarding who was sleeping in the room when the alleged incident took place and the victim in her testimony stated that her mother had told her that they must teach the appellant a lesson as he was a drunkard and used to beat his wife and children. Moreover, the medical reasons for the presence of worms around the anal area of the victim could happen due to several reasons such as constipation, passing hard stool etc., and therefore, even the medical examination of the victim did not completely establish the commission of unnatural offence on the victim. Lastly, it was submitted that the Forensic Science Laboratory (FSL) Report had not been put to the accused and non-putting a vital piece of evidence was fatal to the case of the appellant.

Submissions on behalf of the Respondent

Counsel for the respondent opposed the submissions of the appellant and submitted that the offences committed by the appellant were heinous in nature and thus, the trial court had rightly convicted him. It was submitted that the Additional Sessions Judge had considered all the arguments made by the appellant and there was sufficient evidence to prove his guilt beyond a reasonable doubt. Moreover, the FSL Report also indicated presence of semen in the articles seized from the prosecutrix and appellant. Therefore, the judgment passed by the trial court was sound and did not warrant any interference.

Analysis, Law, and Decision

The Court noted that the trial court considered the following facts:

  1. whether the victim was below the age of majority.

  2. whether the victim was subjected to penetrative sexual assault.

  3. whether the penetrative sexual assault was by the victim’s father.

The age of the victim had not been questioned by either of the parties, so point ‘1’ remained unchallenged. The Court noted that the challenge in the present case was regarding points ‘2’ and ‘3’ and noted that the statement under Section 313 CrPC was recorded much before the production of FSL Report and therefore the incriminating evidence was not put before the appellant. The Court opined that the substantial right of the appellant stands violated by not putting entire incriminating material before him and therefore, the Court found it appropriate to ignore the FSL Report to be read in evidence against the appellant and proceeded to decide the matter on merits.

In relation to the testimonies of the witnesses, the Court relied on State of Punjab v. Gurmit Singh, (1996) 2 SCC 384, wherein the Supreme Court regarding the reliability of the statement of the victim, stated that “minor contradictions or insignificant discrepancies in the statement of a prosecutrix should not be a ground for throwing out an otherwise reliable prosecution case. Evidence of the victim of sexual assault was enough for conviction and does not require corroboration unless there were compelling reasons for seeking corroboration. The court may look for some assurances of her statement to satisfy judicial conscience”. The same was reiterated in Pappu v. State of Uttar Pradesh, 2022 SCC OnLine SC 176.

The Court also referred Phool Singh v. State of Madhya Pradesh, (2022) 2 SCC 74, wherein the Supreme Court observed that “generally, if credible, conviction of the accused could be based on sole testimony, without corroboration and that the sole testimony of prosecutrix should not be doubted by the court merely based on assumptions and surmises”.

The Court opined that the testimonies of the victim, mother of the victim and sister of the victim were consistent and did not suffer from any apparent material inconsistencies. Therefore, the conviction could not be interfered with due to inconsistencies in the prosecutrix’s evidence, and the Court did not find any justification to take a contrary view. Accordingly, the conviction and sentence were upheld by the Court.

[Ram Guru v. State (NCT of Delhi), Crl. M.A. 20472 of 2022, decided on 14-11-2022]


Advocates who appeared in this case:

Anu Narula, Advocate, for the Appellant(s);

Utkarsh, Additional Public Prosecutor, for the Respondent(s).

Allahabad High Court
Case BriefsHigh Courts

   

Allahabad high Court: In a case under Protection of Children from Sexual Offences Act, 2012 (‘POCSO’ Act), Ajay Bhanot, J. has said that it is the responsibility of the Secretary of the High Court Legal Services Committee to ensure that the counsels who are appointed by way of legal aid to represent the victim are diligent practitioners, who know the law and have mastered the facts of the case.

The Court noted its order dated 30-09-2022 and said that the Child Welfare Committee (‘CWC’) was directed to disclose whether the victim needs legal aid and has been provided with various support systems contemplated for the victims under the POCSO Act and also directed the District Legal Services Authority to file an affidavit in this regard.

The Court said that the Secretary informed the Court that a requisition has been made by the CWC for appointing a counsel under the protective provisions of POCSO Act, 2012 read with POCSO Rules, 2020.

The Court further said that the Secretary is processing the requisition and shall appoint a competent counsel to prosecute the case on behalf of the victim.

The matter will next be taken up on 17-11-02022.

[Shiva Singh v. State of U.P., 2022 SCC OnLine All 754, decided on 10-11-2022]


Advocates who appeared in this case :

Counsel for Applicant:- Advocate Pradeep Kumar Singh;

Counsel for Opposite Party:- Government Advocate.


Apoorva Goel, Editorial Assistant has reported this brief.

Karnataka High Court
Case BriefsHigh Courts

Karnataka High Court: In the instant petition for quashment, the issue arose that whether a legal heir should be permitted to come on record and prosecute the case in place of the informant or with the death of the informant, the act initiated by the informant also dies? The Bench of M. Nagappasanna, J., while relying upon several decisions rendered by the High Courts of Madras and Allahabad, inferred that a genuine victim must be permitted to come on record and the definition of ‘victim’ as found in Section 2(wa) of CrPC cannot be rendered a restrictive meaning and must be liberally construed.

Facts of the Case: K.T. Rajashekar (Complainant/2nd Respondent), approached the Scania Commercial Vehicles (1st Petitioner) in the capacity of Proprietor of SRS Travels, a business establishment in the field of tours and travels in the country and with a fleet of more than 4000 buses. The complainant showed interest in procuring Scania buses and by entering into an agreement to purchases buses from the petitioners.

The purchases took place in batches between 2014 and September 2018 and total of 77 buses were purchased by the complainant from Scania. However, after purchase of buses, the complainant registered a complaint before the jurisdictional police on the ground that the buses had some malfunctioning in them, and that the complainant was burdened with numerous problems in the operation and maintenance of vehicles which has led to huge loss of finance and goodwill of his customers.

The registration of complaint drove the petitioners to the Court and an interim stay was granted by the High Court in June 2020. However, during the pendency of the subject petition, the complainant died. An application was filed by his legal representative (daughter), to come on record and prosecute the case further, which was objected by the petitioners.

The petitioners contended that the legal representative of an informant/complainant has no personal right to come on record. Arguing on the lines of “Actio personalis moritur cum persona”, the petitioners submitted that the complainant had registered the complaint on his personal right; and since the complainantis dead, the cause of action is dead as well.

Per contra, the respondent argued that the matter is at the stage of investigation and the informant, or his legal heir is a necessary party to the proceedings. The respondent prayed that the meaning of “victim” should be given a liberal meaning and permit legal heir of the complainant to come on record.

Observations: Perusing the facts and contentions presented, the Court observed that whether locus standi is alien to criminal jurisprudence and liberal interpretation of the word “victim” as defined in Section 2(wa), CrPC, are the main issues involved in the instant petition.

The Court further observed the definition of “victim” and “charge” as defined in the CrPC and referred to the decision of the Allahabad High Court in Suneel Kumar Singh v. State of U.P., 2019 SCC OnLine All 957, wherein the Court had stated that “the victim should not be kept aloof from the judicial process in which the wrongdoers are undergoing the process of ascertainment of his guilt for wrong committed by him”.

The Karnataka High Court also referred to a decision rendered by the Single Judge Bench of Madras High Court in Sathyavani Ponrani v. Samuel Raj, 2010 SCC OnLine Mad 3758, wherein the Court had concluded that, “The word ‘victim’ would also include a legitimate and genuine person representing a victim”. The Karnataka High Court further observed that the Madras High Court’s decision considered in detail the entire spectrum of law with regards to the concept of ‘victim’ and held that victim would be necessary to be heard and has locus to step into the shoes of the informant.

Decision: Based on the afore-stated observations, the Court noted that due to the acts of the petitioners, the proprietorship of SRS Travels suffered huge losses and the same were transferred to the legal representative who claims to be the only legal heir of the complainant.

It was concluded that even on a restrictive meaning of the word “victim”, in the peculiar facts of this case, the legal heir in the instant case must be permitted to come on record, as the matter is still at the stage of investigation and the police have not yet filed the charge sheet.

The Court also rejected the petitioner’s argument of “Actio personalis moritur cum persona” and held that in the peculiar facts of the instant case, as the cause continues, the legal heir who has stepped into the shoes of the complainant is entitled to agitate the cause brought up by complainant.

The Court therefore permitted the daughter of the complainant to come on record in place of the complainant as the legal heir as she has locus to continue the case on the allegations initiated by her father particularly in the light of the offences being under Sections 406, 420 and 120-B of the Penal Code, 1860.

[Scania Commercial Vehicles India Pvt. Ltd. v. State of Karnataka, 2022 SCC OnLine Kar 1590, decided on 03-09-2022]


Advocates who appeared in this case :

C.V. Nagesh, Sr. Advocate A/W Shwetha Ravishankar, Advocate, for the Petitioners;

K.P. Yashodha, HCGP FOR R1; Sandesh J. Chouta, SR. Advocate for Ismail M. Musba R2, Advocates for Respondents.


*Sucheta Sarkar, Editorial Assistant has prepared this brief.

Delhi High Court
Case BriefsHigh Courts

Delhi High Court: While granting bail to the person accused of offences under Protection of Children from Sexual Offences Act, 2012 (POCSO), the Single Judge Bench of Jasmeet Singh, J. held that it was not the case where the girl was forced to be in relationship with the accused after noting that the girl herself wanted to stay with the accused.

In the present case, a minor’s father stated that his daughter was 17 years old when she got married to accused on 30-06-2021 and further stated that when his daughter went to the house of the accused, he took her to Punjab and performed marriage with her. Hence, the FIR was filed by minor’s father alleging that the accused took his daughter against her will.

Analysis, law and Decision

The Court opined that “the intention of POCSO was to protect children under the age of 18 years from sexual exploitation. It was never meant to criminalize consensual romantic relationships between young adults. However, this must be seen from the facts and circumstances of each case as there might be cases where the survivor of sexual offences may be under pressure or trauma, be forced to settle”.

The Court relied on the case of Vijayalakshmi v. State, 2021 SCC OnLine Mad 317, wherein the Madras High Court observed that “there can be no second thought as to the seriousness of offences under the POCSO Act and the object it seeks to achieve. However, it is also imperative for this Court to draw the thin line that demarcates the nature of acts that should not be made to fall within the scope of the Act, for such is the severity of the sentences provided under the Act, justifiably so, that if acted upon hastily or irresponsibly, it could lead to irreparable damage to the reputation and livelihood of youth whose actions would have been only innocuous. What came to be a law to protect and render justice to victims and survivors of child abuse, can become a tool in the hands of certain sections of society to abuse the process of law”.

The Court found that the girl married the accused out of her own will and without any undue influence. Therefore, the Court opined that this was not the case where the girl was coerced into the relationship with the boy and as a matter of fact, the girl herself went to the house of the accused and asked him to marry her. Moreover, the statement of the victim made it clear that it was a romantic relationship and the sexual act involved between them was consensual.

Although the victim was a minor and her consent did not have any legal bearing, the Court believed that “the factum of consensual relationship borne out of love should be of consideration while granting bail because it would amount to perversity of justice if the statement of victim was ignored and accused was left to suffer behind jail”.

It was observed that the proceedings before this Court were of grant of bail and not of quashing of FIR. Thus, the Court granted bail to the accused.

[Ajay Kumar v. State (NCT of Delhi), 2022 SCC OnLine Del 3705, decided on 20-10-2022]


Advocates who appeared in this case :

Omkar Sharma, Advocate, for the Petitioner(s);

Ajay Vikram Singh, Additional Public Prosecutor, for the Respondent(s).

Case BriefsHigh Courts

   

Allahabad High Court: In an appeal against the judgment passed by the Special Judge acquitting the accused persons in Babri Masjid demolition case, the division bench of Ramesh Sinha and Saroj Yadav, JJ. has held that the appellants cannot be treated as ‘victims’, therefore, they have no locus to maintain the instant appeal.

The issue in this case is whether the appellants are the ‘victims’ of the case or not, and do they have locus to file the instant appeal under Section 372 Code of Criminal Procedure, 1973 (‘CrPC’) or not?

The disputed structure, popularly known as “Ram Janam Bhoomi/Babri Masjid” at Ayodhya was demolished by a group of persons and consequently, two cases were registered on the same day for offences like robbery, rioting and mischief and other minor offences by different groups of persons against the media and 47 crimes were also registered for offences punishable under Sections 392, 394, 395, 147, 427, 336, etc. In the meanwhile, the appellants lodged First Information Report (‘FIR’) alleging that their house and other minority communities were looted and burnt by the lakhs of Kar Sewak. The accused persons were charged under Sections 395, 397, 436 of the Penal Code, 1860.

The respondent submitted that the appellants are neither complainants nor victims, therefore, they have no locus standi to challenge the impugned judgment.

The Court noted the definition of ‘victim’ as defined in Section 2(wa) CrPC and placed reliance on Manoj Kumar Singh v. State of U.P., 2016 SCC OnLine All 3250, wherein it was held that “only such person would be treated as ‘victim’, who is the subject-matter of trial, being direct sufferer of crime in terms of loss or injury caused to his own body, mind, reputation and property, and such loss or injury is one of the ingredient of the offence for which the accused person has been charged and, therefore, any other person cannot be accepted as victim within the first part of section 2 (wa) for the purposes of maintaining an appeal” and said that it is true that the right to appeal against the acquittal of the accused is not a mere matter of procedure, but is a substantive right of the ‘victim’.

Moreover, the respondent submitted that the appellants are only the prosecution witnesses of the case, thus it cannot be presumed that the appellants are the victims. Further, the allegations levelled by the appellants were not the subject matter of the trial and their allegations were tested by the trial Court in a separate sessions trial, wherein the Trial Court has acquitted the accused persons, vide judgment dated 02-02-1998, however, the said judgment has not been challenged by the appellants till date.

Also, the application filed by the appellants under Section 2(wa) and 24(8) CrPC, during the pendency of sessions trial, was also rejected by the trial Court vide order dated 25-08-2020, which has also attained finality and has not been challenged before any superior Court till date.

The Court said that it is quite apparent that accused persons were tried by the Trial Court and the allegations so made by the appellants were not the part of the charges upon which the accused persons were tried by the Trial Court and the impugned judgment was passed, rather the allegations so made by the appellant were tried in a separate sessions trial in which accused persons were acquitted by means of the judgment. Thus, in view of State v. Kalyan Singh, (2017) 7 SCC 444, the Court observed that the order dated 02.02.1998, and the final report dated 28.04.1993 can be regarded as res judicata.

The Court after placing reliance on Manoj Kumar Singh (supra) held that the appellants herein cannot be treated as ‘victims’ of the instant case. Thus, the appellants have no locus to challenge the impugned judgment passed by the Trial Court.

[Haji Mahboob Ahmad v. State of UP, 2022 SCC OnLine All 751, decided on 09-11-2022]


Advocates who appeared in this case :

Counsel for Appellant:- Advocate Khaleeq Ahmad Khan;

Advocate Mohemmed Amir Naqvi;

Advocate Najam Zafar;

Advocate Zafar, Rafat Farooqui;

Counsel for Respondent:- Government Advocate Shiv P. Shukla.


*Apoorva Goel, Editorial Assistant has reported this brief.

Cases ReportedSupreme Court Cases

   

Constitution of India — Art. 21 — “Victim” of crime: Scope of rights of “victim” of crime, to participate in criminal proceedings, at various stages, including at stage of bail proceedings, particularly after insertion of S. 2(wa) vide CrPC Amendment Act of 2008, explained. [Jagjeet Singh v. Ashish Mishra, (2022) 9 SCC 321]

Constitution of India — Art. 32: In this case, there was incident of violence leading to multiple deaths and injuries involving son of senior politician/sitting Minister of the Union Government, which took place during public protests against Government action, in home region/State of such Minister/his son. But protests were being carried out by members of public hailing mainly from another State. Special Investigation Team (SIT) constituted to investigate the same as there is need to ensure that justice is seen to be done as well. [Violence in lakhimpur kheri (U.P.) Leading to Loss of Life, In re, (2022) 9 SCC 337]

Consumer Protection — Services — Housing and Real Estate — Possession — Delivery of possession — Delay — Refund of principal amount along with simple interest @ 10.25% p.a. to allottee — Grant of: Date of issuance of fire NOC i.e. the principle laid down in Abhishek Khanna, (2021) 3 SCC 241 is not relevant when flat not ready even by taking into account such date. [IREO (P) Ltd. v. Aloke Anand, (2022) 9 SCC 412]

Consumer Protection — Services — Housing and Real Estate — Possession — Delivery of possession — Delay: Date of issuance of fire NOC, for computing/determining date of delivery of possession is not relevant, when developer raises demand based upon stage of construction even prior to issuance of fire safety clearance. [Ireo Victory Valley (P) Ltd. v. Shamshul Hoda Khan, (2022) 9 SCC 423]

Education Law — Employment and Service Matters re Educational Institutions — Appointment/Recruitment — Appointment of Lecturer — Criteria/Eligibility: It is duty of courts, whether trying original proceedings or hearing appeal, to take notice of change in law affecting pending actions and to give effect to same. Further held, if it is found that an amendment speaks language which expressly or by clear intendment takes in even pending matters, court must have regard to intention so expressed and court of appeal may give effect to such law even after judgment of court of first instance. Where an enactment or an amendment is declaratory, curative or clarificatory, impelled by felt need to make intention clear, such amendment usually operates from antecedent date. [University of Kerala v. Merlin J.N., (2022) 9 SCC 389]

Insolvency and Bankruptcy Code, 2016 — Ss. 238-A and 7 — Limitation: Condonability of delay in approaching adjudicating authority (NCLT) i.e. beyond the period of three years from the date of accrual of the right to sue, that is, the date of default, explained. Grant of opportunity to financial creditor to explain delay i.e. that there was sufficient cause for delay, prior to rejection of application is necessary. [Kotak Mahindra Bank Ltd. v. Kew Precision Parts (P) Ltd., (2022) 9 SCC 364]

Integrated Goods and Services Tax Act, 2017 — Ss. 16 and 56 — Refund — Interest on account of delay in refund: Wherever a statute specifies or regulates the interest, the interest will be payable in terms of the provisions of the statute. However, wherever a statute is silent about the rate of interest and there is no express bar for payment of interest, any delay in paying the compensation or the amounts due, would attract award of interest at a reasonable rate on equitable grounds. [Union of India v. Willowood Chemicals (P) Ltd., (2022) 9 SCC 341]

Maharashtra Protection of Interests of Depositors (in Financial Establishments) Act, 1999 (16 of 2000) — Ss. 2(c) & (d) and S. 4 — Exchange for spot trading in commodities: Consideration of exchange for spot trading in commodities, as a financial establishment within the purview of the MPID Act, 1999, determined.Scope and ambit of term “financial establishment”, defined under S. 2(d) as any person accepting a “deposit” and meaning of the expression “deposits”, explained. Receipt of money/commodities, when can be regarded as “deposits” within the meaning of S. 2(c) of the MPID Act, 1999 and satisfaction of test of “return” i.e. return in cash, kind or service without the necessity of it being with the benefit of interest, bonus or profit, for determining if receipts are deposits, also explained. [State of Maharashtra v. 63 Moons Technologies Ltd., (2022) 9 SCC 457]

Penal Code, 1860 — S. 392 — Robbery with murder: Recovery of some cash, when not sufficient by itself, to establish guilt, explained. [Amrik Singh v. State of Punjab, (2022) 9 SCC 402]

Securities, Markets and Exchanges — Insider Trading: Determination of insider trading, explained. [Balram Garg v. SEBI, (2022) 9 SCC 425]

Allahabad High Court
Case BriefsHigh Courts

Allahabad High Court: In an appeal against the decision of the Trial Court whereby the accused/appellant has been convicted and sentenced to undergo imprisonment for life for the offence punishable under Section 376 of Penal Code, 1860 (IPC) with a fine of Rs. 10,000/- and in default thereof, to further undergo six months simple imprisonment, the bench of Ashwani Kumar Mishra and Shiv Shanker Prasad, JJ. has observed that the charge originally framed against the appellant of attempt to rape under Section 376/511 of Penal Code, 1860 (‘IPC’) is proved beyond reasonable doubt and the conviction of the appellant is altered from Section 376 IPC to Section 376/511 IPC and in view of the provisions contained in Section 57 IPC, the appellant was sentenced to undergo 10 years imprisonment. Further, as the appellant has already served the aforesaid sentence, he shall be released on compliance of Section 437-A Code of Criminal Procedure (CrPC). Thus, the Court sustained the order of conviction and partly allowed the present appeal.

In this case, the victim aged about 11 years went to jungle situated outside the village to collect wood, when the appellant with an evil intention grabbed the victim and dragged her inside the jungle and he attempted to rape her and threatened her to not disclose about the incident to her parents. However, the victim informed her mother about the said incident.

The Court noted that from the material placed on record, it did not appear that the statement of the victim was recorded under Section 164 of Code of Criminal Procedure, 1973 in the presence of the Magistrate and in her statement, recorded by the Police under Section 161 CrPC., she had only disclosed the offence of attempt of rape and not actual commissioning of offence of rape.

The Court observed that the complaint made orally by the informant did not contain any allegation regarding rape upon the victim. However, almost nine months after the alleged incident for the first time, the statements of the informant and the victim before the trial court contains a different story of actual commissioning of rape. Thus, these statements are not reliable or convincing.

The Court further observed that the statements of the informant and the victim about commissioning of offence of rape, appears to be clear improvement in the prosecution version, as no plausible explanation has been put forth as to why such disclosure was not made, when the first information report itself was lodged or when their statements were recorded under Section 161 CrPC. Moreover, even at the time of framing of charge such facts were not disclosed by the first informant or the victim. It further observed that “as these statements were made after nearly nine months from the date of alleged incident of commissioning of offence, therefore, does not inspire confidence of the Court”.

The Court also noted that the appellant has asserted in his statement recorded under Section 313 CrPC that he has been falsely implicated on account of enmity relating to election on the post of Village Pradhan, and the victim in her cross-examination has also admitted that her father was supporting the contestant for whom he worked, who had lost election of the said post to another contestant to whom the appellant and his family members supported.

The Court observed that “subsequent statements of the victim and the informant do not appear to be reliable, particularly when it is otherwise not supported by medical evidence”. It also observed that from the statement of the victim, coupled with the marks of injuries sustained by her and the statements of other witnesses, the charge originally framed against the appellant of attempt to rape under Section 376/511 IPC is proved beyond reasonable doubt. Thus, the Court sustained the order of conviction and released the appellant on compliance of Section 437-A CrPC, as he already served the given punishment of 10 years for attempt to rape.

[Mahesh Rathaur v. State of UP, 2022 SCC OnLine All 608, decided on 7.9.2022]


Advocates who appeared in this case :

Counsel for Appellant:- Advocate Sushil Kumar Dubey

Advocate Shivanand Mishra

Counsel for Respondent:- Government Advocate

Delhi High Court
Case BriefsHigh Courts

   

Delhi High Court: C Hari Shankar, J. opined that Section 5 of the Limitation Act, 1963 will apply in respect of appeals preferred under Section 18 Sexual Harassment of Women at Workplace (Prevention, Prohibition & Redressal), Act 2013 (‘POSH Act') because if a Court were to refuse to condone a delay of as little as 36 days in an alleged victim of sexual harassment preferring an appeal under Section 18 against the report of the inquiry committee the objective behind the legislation fails.

Respondent 1 accused Respondent 2 of having harassed her, sexually, at the workplace. The complaint was referred to an internal complaints committee which exonerated Respondent 2. Respondent 1 preferred appeal under Section 18 POSH Act before Central Government Industrial Tribunal wherein the impugned order was passed condoning the delay application by Shailja Naqvi for a delay of only 36 days. Aggrieved by the condonation grant, the petitioner invoked Article 227 of the Constitution of India.

Counsel for petitioner contended that no provision for condonation of delay is to be found in Section 18 of the POSH Act, and as Section 18(2) uses the word “shall”, CGIT could not have condoned the delay in filing of appeal by the respondent.

Reliance was placed on Commissioner of Customs and Central Excise v. Hongo India Pvt Ltd., (2009) 5 SCC 791 wherein it was observed that where the Central Excise Act envisaged condonation of delay in preferring appeals or application, it specifically so provided. As no such provision for condonation of delay, appropriate applications under Section 35-H of the Central Excise Act, 1944 found place therein, the Supreme Court held that it was not permissible to seek recourse to Section 5 of the Limitation Act for condonation of delay in filing such an application.

The Court relied on Hongo India case (supra) and New India Assurance Company Ltd. v. Hilli Multipurpose Cold Storage Pvt. Ltd. (2020) 5 SCC 757 to note that in light of the facts of the present case, the approach of CGIT is completely in accordance with the scheme of the POSH Act. The POSH Act is an ameliorative statute, intended to redress a serious social evil and victims of sexual harassment at the workplace suffer untold trauma, mental, physical and spiritual.

The Court further affirmed the view of CGIT that a victim of sexual harassment remains in a state of trauma and it cannot be expected that she would immediately rush to a Court seeking appellate remedies. It would be completely antithetical and inimical to the very scope and purpose of POSH Act, if a Court were to refuse to condone a delay of as little as 36 days in an alleged victim of sexual harassment preferring an appeal under Section 18 against the report of the inquiry committee.

Thus, the Court held that Section 5 of the Limitation Act would apply in respect of appeals which may be sought to be preferred under Section 18 of the POSH Act.

[DB Corp Ltd. v. Shailja Naqvi, CM (M) No. 705 of 2022, decided on 21-07-2022]


Advocates who appeared in this case :

Mr. Rajat Manchana, Ms. Tanya Singh and Ms. Radhika Jain, Advocates, for the Petitioner;

Mr. Manu Mishra, and Ms. Shreya Dutt, Adv. for R-2.


*Arunima Bose, Editorial Assistant has reported this brief.

Delhi High Court
Case BriefsHigh Courts

Delhi High Court: Anoop Kumar Mendiratta, J. rejected bail to an accused allegedly kidnapping and raping a minor girl of 14 years. The Court held that merely because sometimes sexual abuse results in tying of knot between the victim and the accused in violation of provisions of law or results in birth of a child, it does not mitigate the act of the petitioner in any manner, since the consent of a minor is immaterial and inconsequential in law.

A complaint was filed by the mother of the victim alleging that some unknown person had kidnapped her daughter of 15 years, missing since 09-07-2019. On investigation, the complainant was charged for offences under Sections 363, 366 and 376 Penal Code, 1860 and Section 4 &6 Protection of Children from Sexual Offences Act, 2012 (‘POCSO Act’) as the victim was recovered along with her 8-month-old female child from the house of petitioner/accused and was about 1½ months pregnant. The complainant was arrested and thus, the present bail application was filed contending that the victim is wife of the petitioner-accused and is suffering on account of incarceration of the petitioner and he needs to take care of his wife and child.

State submitted that that victim was merely 14 years and 06 months of age, at the time she was lured and kidnapped by the petitioner and the entire machinery was kept in the dark by the petitioner who deliberately concealed the particulars of the victim and misled the investigating agency on the wrong path despite filing of the Habeas Corpus petition by the mother of the victim.

The Court noted that alleged marriage with a minor as claimed by the petitioner is in violation of the provisions of the Prohibition of Child Marriage Act, 2006.

Placing reliance on Independent Thought v. Union of India, (2017) 10 SC 800 and Jayanti Lal Dabgar v State of Gujarat, (2015) 7 SCC 359 wherein it was observed that sexual intercourse or sexual act by a man, even with his own wife under 15 years of age, has been classified as rape, the Court opined that sexual relationship with minor is prohibited and the law clearly treats them as offences even if the same is based upon alleged consent of a minor.

The Court observed that such incidents of luring a minor and entering into physical relationship, accused thereafter claiming consent of the minor, cannot be treated in a routine manner. Merely because the petitioner has claimed that marriage had been performed with the victim in a temple, the same cannot sanctify the offence as the victim was a minor and under 15 years of age at the time of the incident. The claim of marriage is also yet to be proved on record.

Thus, the Court rejected the bail being devoid of evidence in favour of accused suggesting consent of the parents to take their minor daughter away from their lawful custody along with constantly misleading the Court during investigation and his claim of consent by minor for sexual intercourse being irrelevant.

[Jagbir v. State, 2022 SCC OnLine Del 2159, decided on 22-07-2022]


Advocates who appeared in this case :

Mr. Lokesh Kumar Mishra, Mr. Himanshu Sharma and Mr. Haider Khan, Advocates, for the Petitioner;

Mr. Adhishwar Suri, Advocate for Ms. Supriya Juneja, Advocate for complainant with Complainant in-person, for State.


*Arunima Bose, Editorial Assistant has reported this brief.

Case BriefsSupreme Court

Supreme Court: In a highly controversial extortion case of about Rs. 200 crores in Delhi’s Tihar jail, the 3-judge Bench of Uday Umesh Lalit, S. Ravindra Bhat, and Sudhanshu Dhulia, JJ., has directed conman Sukash Chandra to reveal names of the persons involved in the alleged crime syndicate.

The petitioner, Sukash Chandra Shekhar-infamously known as Conman Sukash for extorting about Rs 200 crores while sitting in a cell of Delhi’s Tihar jail-had filed the instant petition under Article 32 of the Constitution alleging that he was subjected to threats and was a victim of extortion racket run by some of the officers of the prison where he is presently lodged. Asserting that his health and safety are in danger, he has prayed for various reliefs including his transfer from Tihar jail.

Earlier, by the order dated 17-06-2022, the Court had directed the authorities concerned to suggest the appropriate jail for transferring conman Sukash to which the respondents had suggested that Mandoli jail in Delhi, which is guarded by paramilitary forces, would be appropriate. However, the respondents had pressed that shifting of the petitioner from Tihar Jail is unwarranted. Similarly, the Enforcement Directorate had also approached the Court seeking vacation/recall of order dated 17-06-2022.

On the contrary, the Commissioner of Police, NCT of Delhi (Respondent 2) asserted that while being inside Tihar Jail, the petitioner was running a crime syndicate and was paying approximately Rs. 1.5 crores every month for getting certain facilities, including mobile phone, without any hindrance, to pass messages to the members of his syndicate. It was further alleged that some of the jail officials were on a monthly payroll of the petitioner.

Relying on the assertions made by Respondent 2, counsel for the petitioner, Senior Advocate R. Basant submitted that Respondent 2 itself had accepted that the jail officials were receiving certain money from and on behalf of the petitioner. It was further submitted that during the period between July, 2020 to August 2021, the amounts paid by the petitioner or on his behalf aggregated to about Rs. 12.5 crores, major part of which was in cash.

However, on being asked by the Court as to who were the persons who made payments on behalf the petitioner, the petitioner expressed his inability to respond to the query immediately, only to add later that the persons could be identified from the affidavit submitted in reply. The Court noted,

“If we go by the assertions made in the affidavit in response, while being in jail, the petitioner was able to garner support from outsiders who paid Rs. 12.5 crores on his behalf to the public servants or other interested persons.”

Opining that in order to come to the conclusion, whether the petitioner was subjected to extortion (as asserted in the petition) or he was running a crime syndicate and was bribing his way through (as asserted by the respondents), it would be necessary to understand the identity of the persons and the manner in which they made the payments on behalf of the petitioner, the Court directed the petitioner to submit a list of persons, giving all the details as to the payments made by any and every one of them and to whom the payments were made.

The matter is listed on 26-07-2022 for further hearing.

[Sukash Chandra Shekhar v. Union of India, 2022 SCC OnLine SC 894, decided on 13-07-2022]


Advocates who appeared in this case :

AOR Aftab Ali Khan, Senior Advocate R. Basant and Advocates Ashok K. Singh, Ankita Baluni, Sandeep Kumar Bhardwaj, Deepak Kumar, Akshay Sahay, Sonakshi Monga, Tanishq Mehta, Advocates, for the Petitioners;

SG Tushar Mehta, ASG S.V. Raju, ASG K.M. Nataraj, AOR Mukesh Kumar Maroria, AOR Gurmeet Singh Makker, Zoheb Hossain, Piyush Beriwal, Rajat Nair, Sairica Raju, Swati Ghildiyal, Anand Kirti, Advocates, for the Respondent(s).

Case BriefsHigh Courts

Meghalaya High Court: W. Diengdoh, J. allowed a petition which was filed with a prayer to set aside and quash the criminal proceedings against the petitioner whereby, charges were framed against the petitioner in a Special (POCSO) Case.

The FIR alleged that the minor, nine years old, while she was playing near her house, some persons were playing cards and one of them asked her for a glass of water and at that time, he grabbed her hand, but the said minor daughter managed to run away. The Investigating Officer followed due procedure and after examination of witnesses and recording of relevant statements, filed the final report under Section 173 Cr.P.C indicating a finding of a prima facie case under Section 9(m)/10 POCSO Act against the petitioner herein. Special Judge (POCSO) on consideration of the charges after hearing the parties has found it fit frame charges against the petitioner herein under Sections 354/354A IPC and under Sections 7/9(m)/10 of the POCSO Act and has also directed that trial shall proceed against the petitioner herein.

The Court herein had to decide whether the alleged act of the petitioner against the alleged victim girl would attract the provision of Section 7 of the POCSO Act. The Court in order to elaborate on the meaning and purpose of the term ‘sexual assault’ vis-à-vis ‘sexual intent’ reiterated what Supreme Court had said in the case of Attorney General of India v. Satish, 2021 SCC Online SC 1076:

“72. A close analysis of Section 7 reveals that it is broadly divided into two limbs. Sexual assault, under the first limb is defined as the touching by a person – with sexual intent – of four specific body parts (vagina, penis, anus or breast) of a child, or making a child touch any of those body parts of “such person” (i.e. a clear reference to the offender) or of “any other person” (i.e. other than the child, or the offender). In the second limb, sexual assault is the doing of “any other act with sexual intent which involves physical contact without penetration”.

In the present case the prosecution’s case is that because of the fact that the petitioner/accused had held the hands of the alleged victim girl and commented that she has beautiful hands, therefore he is said to have committed an act of sexual assault on a girl who is below 12 years old and as such has committed an offence under Section 9(m) of the POCSO Act. In this regard the Court noted that it is apparent that the place of occurrence is a public place with a number of people present and the alleged incident happened in broad daylight. The fact that the petitioner had held and commented on the hands of the alleged victim girl which contact is probably of a few seconds, the same cannot be read to imply that there is sexual intent on the part of the petitioner. At best, a non-sexual purpose of the contact can be presumed.

The Court relied on the decision of the Bombay High Court in Bandu Vitthalrao Borwar v. State of Maharashtra, 2016 SCC OnLine Bom 16128 wherein it was opined that,

“It is obvious that the intent, which is nothing but the state of mind, must be to establish some sort of physical contact or must be related to or associated with sex or indicative of involvement of sex in the relationship, if it is to be considered as sexual, I have already stated that the utterance indicating an expectation of a person that the other person should love him would not by itself amount to sexual intent as contemplated by the legislature”.

The appellant was consequently acquitted of all charges against him.

The Court thus opined that action of the petitioner in holding the hands of the alleged victim girl and saying that her hands are beautiful would not in any way amount to sexual intent and thereby, would not be considered an act of sexual assault. The petition was allowed and a Special (POCSO) Case against the petitioner was quashed.[Mohammad Saimullah v. State of Meghalaya, 2022 SCC OnLine Megh 201, decided on 26-05-2022]


For the Petitioner/Appellant(s): Mr S.C. Chakrawarthy. Sr. Adv. with Ms A. Barua

For the Respondent(s): Mr B. Bhattacharjee, AAG with Ms R. Colney


Suchita Shukla, Editorial Assistant has reported this brief.

Case BriefsForeign Courts

Supreme Court of the Democratic Socialist Republic of Sri Lanka: The Full Bench of P. Padman Surasena, E.A.G.R Amarasekara and A.H.M.D Nawaz, JJ., dismissed an application in the matter related to political victimisation of police officers.

In the present matter the petitioners were police officials and they were subjected to victimisation due to political pressure during the period of 1994-2004. It was finally in the year 2015. that the concerned cabinet minister abiding  by the memorandum dated March 09, 2015, allowed such aggrieved police officials to submit their appeals and subsequently a high level committee was set up to examine such appeals.

After the abovementioned chain of events it came to light that the committee thus constituted made some conflicting recommendations and eventually a new committee was set up and it suggested that the relief is to be provided to 129 police officials.

The petitioners contended that out of the list of the proposed 129 officials only as many as 3 officials get the desired relief.

Another important contention from petitioners was that that as far as the cabinet decision is concerned, it should be uniformly applicable to all the officials in accordance with the rules and that differential treatment on such basis is violating the fundamental rights of the petitioners guaranteed under article 12 (1) of the Sri Lankan constitution.

Relief prayed by the petitioners:

(a) Declare that the fundamental rights of the petitioners guaranteed under article 12 (1) of the constitution has been violated.

(b) That the petitioners are eligible for promotion

(c) Direct the respondents to grant promotion to petitioners.

The respondents (Inspector General of Police) informed the bench that the implementation of the relief thus given was in accordance with official cabinet decision and there is nothing wrong in the process thus followed.

The Court relying on the judgment of Farook v. Dharmaratne, Chairman, Provincial Public Service Commission, 2005 (1) Sri L. R. 133 at page 140, concluded that the petitioners did not hold any solid ground in their case and therefore were not entitled to succeed with the prayers and eventually the case went to be decided in the favour of the respondents.[Kalwahandi Garvin Premalal Silva v. K. W. E. Karaliyadda, SF FR 383 of 2016, decided on 16-12-2021]


Suchita Shukla, Editorial Assistant has reported this brief.


Advocates for Petitioners:  

Harsha Fernando

Chamith Senanayake

Yohan Coorey

Ruven Weerasinghe

Advocates for Respondents:

Rajiv Goonetilleke

Case BriefsHigh Courts

Gujarat High Court: Paresh Upadhyay, J., allowed an appeal which was filed against the judgment and order passed by the Special Judge (POCSO) and 3rd Additional Sessions Judge wherein appellant was convicted under Section 376 of the Penal Code, 1860 and Sections 4, 6, 8 and 12 of the Protection of the Children from Sexual Offences Act, 2012 and ordered to undergo sentence of rigorous imprisonment for ten years and fine of Rs 5,000/- was also imposed and in default thereof, to undergo further simple imprisonment.

Advocate for the appellant had submitted that, the appellant and the so-called victim were husband and wife and they had two children from this relationship. It was submitted that, the conviction was unsustainable and the same be quashed and set aside.

The Court found that it was an admitted position that the appellant and victim were in a relationship and that the victim, on her own, had walked out of home with the appellant, they stayed together since then at the house of the appellant, as husband and wife and she had given birth to two children.

The appellant is arrested by the police and was tried before the Special Judge (POCSO) and the Trial Court and was hence convicted.

The Court noted that the “victim” who stated that, she on her own, because of her wish had walked out of home and she started living with the present appellant and with that relation she has given birth to two children and neither the mother nor the father of these two children disown their birth nor paternity and still the father is convicted inter alia under Section 376 of the Indian Penal Code and is ordered to undergo RI for 10 years. The Court allowed the appeal and found that the conviction recorded by the Sessions Court needed to be set aside.

Standing at the place of law enforcement agencies, in the peculiar facts of the case, this can be termed as an offence under the Prohibition of Child Marriage Act, which is observed more in breach than in compliance, more particularly in the lower strata of society. Non-interference by this Court would reduce the lady and two children without shelter of husband / father, which in no way would be in furtherance of justice.

[Ashwinbhai v. State of Gujarat, R/Criminal Appeal No. 1089 of 2021, decided on 01-10-2021]


Suchita Shukla, Editorial Assistant has reported this brief.


For the Appellant: Mr MS Padaliya

For the Respondent: Mr Hardik Soni

Hot Off The PressNews

The National Human Rights Commission, NHRC, India, in order to ensure effective prosecution leading to conviction in cases of sexual assault on women, has prepared a ‘Standard Operating Procedure (SOP) on Collection & Processing of scientific/forensic evidences.’ The SOP, prepared in consultation with medical experts, has been sent to the States/UTs for issuing instructions to all the officers concerned for implementation.

The SOP has been divided into seven sections of key operating procedures. These are: victim care, promptness and examination, collection of samples, collection of blood and urine samples, genital and anal evidence, handing over samples to FSL and general. It can be accessed through the link: https://nhrc.nic.in/acts-and-rules/standard-operating-procedure-sop-collection-processing-scientificforensic-evidences

The Commission has come out with this SOP after it observed that in many cases of alleged rape and sexual assault, there is a substantial delay in medical examination, collection & processing of scientific/forensic evidences of the victim of sexual assault. The exhibits are forwarded to the Forensic Science Laboratory, FSL after much delay and by that time, the samples deteriorate/autolyse and become unsuitable for examination. This delay adversely affects the investigation for effective prosecution leading to a conviction.

The NHRC has expressed the hope that this Standard Operating Procedure if implemented in letter & spirit by the concerned authorities, will definitely help improve the system of medicolegal investigation in cases of sexual assault on women in the country.


National Human Rights Commission

[Press Release dt. 16-12-2020]

Case BriefsHigh Courts

Bombay High Court: Vinay Joshi, J., altered the conviction for rape and penetrative sexual assault to an act of aggravated form of sexual assault punishable under Section 10 of the POCSO Act in light of touching the breast of the child.

Appellant aged 67 years was convicted under Sections 376 and 450 of the Penal Code, 1860 and Sections 4 and 6 of the Protection of Children from Sexual Offences Act, 2012 (POCSO).

Accused was acquitted from the charge of committing offence punishable under Section 377 IPC.  Accused challenged the conviction in the instant appeal.

Informant was residing along with his family members, including his daughter/victim girl aged 8 years. Two sons of the informant had been to their school and the minor victim was alone at the house as she was ill. In the afternoon the informant returned to his house for lunch and found that the house was locked from within, therefore, he peeped from the window and saw that appellant by lifting frock of the victim was moving his hand on her neck, cheek and chest.

Later, the informant shouted to open the door and hurriedly left the place. Victim disclosed that the accused moved his hand on her body, kissed her as well as put his finger in his anal part.

In regard to the above reference, informant lodged a report against the said incident.

Special Judge framed charge under relevant provisions of IPC and POCSO Act further on the appreciation of evidence held that the prosecution succeeded in proving the offence punishable under Sections 376 and 450 IPC, Sections 4 and 6 of the POCSO Act.

The prosecution case, in short, is about rape and aggravated penetrative sexual assault by the accused on a minor victim aged 8 years.

Analysis and Decision

Bench stated that the act of accused of touching the breast of the victim with sexual intent amounts to an aggravated form of sexual assault, which is punishable under Section 10 of the POCSO Act.

Since the medical evidence nowhere supported that there was insertion or penetration of finger into the anal region, it is doubtful whether the accused penetrated his finger into the anal region of the victim.

If two view emerges from the situation, the view favourable to the accused would take precedence. On mere assumption or possibility, the accused cannot be convicted.

 All the sexual assaults on children below 12 years amount to an aggravated form of sexual assault.

With regard to the age of the accused, which is near about 70 years, the imprisonment of 5 years would meet the ends of justice. From the set of circumstances laid down, it is clear that the house-trespass was merely in order to commit an offence punishable with imprisonment, which is punishable under Section 451 of the Penal Code, 1860.

In view of the above, criminal appeal as partly allowed.

Conviction under Section 376 of IPC and Sections 4 and 6 of the POCSO Act, is hereby quashed and set aside, instead the accused was convicted for the offence punishable under Section 10 of the POCSO Act and.

Further, instead of conviction under Section 450 IPC, the appellant is convicted for the offence punishable under Section 451 of the IPC.

Hence appellant will be entitled to set off under Section 428 of the CrPC. [Tukaram Ashruji Khandare v. State of Maharashtra, 2020 SCC OnLine Bom 2802, decided on 22-10-2020]


Advocate for the appellant, R.V. Gahilot and H.R. Dhumale, A.P.P. for the respondent.

Case BriefsHigh Courts

Delhi High Court: Sanjeev Sachdeva, J. dismissed an appeal filed against the decision of the trial court whereby the accused-appellant was convicted for the offences punishable under Section 4 of the Protection of Children from Sexual Offences Act, 2012 and Sections 367, 377 and 506 Penal Code, 1860.

It was alleged against the appellant that he lured the victim, a 13-year-old boy, towards the side of a drain and committed unnatural sex with him; however, the victim shouted and somehow got himself released. The victim narrated the incident to his mother, whereafter, the complaint was made to the police. The victim was taken for the medical examination. Based on the testimony of the victim, the trial court convicted the appellant as mentioned above.

Aditya Wadhwa, Advocate for representing the appellant, contended, inter alia, that the version of the victim was contradicted by a report of the Forensic Science Laboratory (FSL). He contended that since no marks of external injury were found on the victim during a medical examination, the allegation that the appellant had started to insert his penis into the victim’s return was not established.

The High Court took note of the trial court’s observation that the victim appeared to be a completely credible witness and had been consistent with his version of the incident starting from the initial complaint to the statement under Section 164 CrPC and his deposition before the court.

Noting that there was no material produced either before the trial court or before the High Court which could shake the testimony of victim or create any doubt on the manner in which the alleged incident had happened, the High Court observed: “Merely because there is no positive FSL report, would not cast any doubt on the testimony of the victim. FSL report is only a corroborative piece of evidence and merely because it does not corroborate the testimony of the victim would not, in any manner, render the testimony of the witness, which is otherwise reliable, as unreliable or liable to be discarded.”

It was further noted that no motive was attributed to the false implication of the accused. The Court was of the opinion that the trial court had rightly held that testimony of the victim was credible and of sterling quality, sufficient to bring home guilt of the accused. In such view of the matter, the instant appeal was dismissed and the impugned order of conviction and sentence was upheld. [Vijay v. State, 2019 SCC OnLine Del 10485, decided on 10-10-2019]

Jammu and Kashmir and Ladakh High Court
Case BriefsHigh Courts

Jammu & Kashmir High Court: A Single Judge Bench of Sanjay Kumar Gupta, J., dismissed a petition filed under Section 561-A of the Jammu & Kashmir Criminal Procedure Code, 1889 (CrPC), whereby the order of framing of charge passed by the Additional Sessions Judge, Jammu, was challenged.

The respondent/complainant was traveling in his car along with his family members when petitioners in their car and a bike started following the respondent’s car. The petitioners were sometimes coming in front of the respondent’s car and sometimes behind it. On enquiring about the actions of petitioners, the respondent and his wife were beaten by the petitioners with a baseball stick. The respondent cried for help and some passerby intervened and the petitioner fled away from the scene thereafter.

The main issue that arose before the Court was whether the order of the ASJ suffered from any sort of legal infirmities.

The Court observed that according to the reports of the doctor, the injuries received by petitioner and his wife were not grievous in nature, however, non-seriousness of injuries should not be a criterion for framing charges against the accused. Factors such as place of injury; the intentions of accused at the time of inflicting the injuries, weapon of offence with which injuries are caused and other circumstances of the case must be kept in mind while framing the charges. The Court observed that in the instant case, the petitioners dragged the respondents out of their car and started beating them, it was only after the respondent started making hue and cry, some pedestrians gathered and saved the respondent and his wife. Had some person not come on spot, respondent and his wife would have been killed by the accused persons.

The Court held that considering the totality of facts and circumstances of the case, the ASJ did not commit any error while framing charges against the accused under Sections 307, 504 and 506 of the Ranbir Penal Code. Resultantly, the petition was dismissed.[Babloo Kumar v. State of J&K,2018 SCC OnLine J&K 834, order dated 16-11-2018]

 

Case BriefsHigh Courts

Bombay High Court: A Division Bench comprising of B.R. Gavai and Sarang V. Kotwal, JJ. decided a criminal appeal wherein the sentence of the appellant (convict) was reduced from life imprisonment to eight years.

The appellant, who threw acid on the victim, was convicted for the offences punishable under Sections 326 and 341 IPC. According to the High Court, the incident appeared to be an outcome of a love affair between the appellant and the victim. It appeared that both were in love with each other for a long time. However, when the appellant asked the victim for marriage, she refused. On such refusal, the appellant became angry and threatened the victim. On the date of the incident, when the victim was proceeding towards her college, the appellant threw acid on her face and shoulder. The appellant was convicted as stated above and sentenced to life imprisonment. In the High Court, the appellant confined his challenge to the quantum of punishment.

The High Court, considered the factual matrix as mentioned hereinabove. It was further noted that during the pendency of the appeal, the matter had been amicably settled between the appellant and the victim. They had solemnized marriage with each other. Further, the victim was undergoing plastic surgery for which the expenses were being paid by the appellant. Not only this, but the appellant had also undertaken to donate skin for the surgical procedure. It was noted that the appellant had already undergone the sentence of more than eight years, which, considering the nature of the factual background, was found to be more than sufficient. The Court held it to be just and necessary that the appellant and the victim be permitted to lead a peaceful life. Accordingly, while upholding his conviction, the sentence awarded to the appellant was reduced to the period already undergone by him. The appeals were disposed of in above terms. [Anil Shivaji Patil v. State of Maharashtra,  2018 SCC OnLine Bom 1408, decided on 27-06-2018]

Case BriefsHigh Courts

Madhya Pradesh High Court: The vacation bench comprising of Vandana Kasrekar, J. allowed the writ petition filed by a rape victim for termination of her pregnancy.

The petitioner was an unmarried girl, who became pregnant as a result of rape committed on her. She was raped by the accused who initially expressed the desire to marry her, however afterwards, he refused. FIR was filed against the accused of the offence punishable under Section 376 IPC. During the investigation, MLC was conducted and it was found that the petitioner was carrying a pregnancy of 8-9 weeks. The petitioner submitted an application before the Additional Sessions Judge under Section 3 of Medical Termination of Pregnancy Act 1971, for termination of her pregnancy praying that she did not want to give birth to such unwarranted baby. The Additional Sessions Judge dismissed the application on the basis of the report of Respondent 6 that the petitioner was carrying a pregnancy of more than 10-11 weeks. Being aggrieved, the petitioner filed the instant writ.

The High Court, on 7-6-2018, had directed the Government Advocate to examine the petitioner before the District Medical Board. In pursuance of the said direction, the petitioner was examined by the District Medical Board on 11-6-2018. The report of the Board was placed on record by the learned Government Advocate. The Court perused the report and found that no such fact was mentioned in the report which would compel the Court not to grant relief to the petitioner. On the basis of the opinion of the Board, the High Court held that there was no impediment to order termination of petitioner’s pregnancy. Accordingly, the petition was allowed and the order passed by Additional Sessions Judge was set aside. The respondents were directed to provide proper medical facilities to the petitioner for terminating her pregnancy by a team of doctors. [‘X’ v. State of M.P., WP No. 12463 of 2018, decided on 14-06-2018]