Case BriefsSupreme Court

   

Supreme Court: In an appeal against the Karnataka High Court's reversal of acquittal of 2 out of the 22 accused acquitted by the Sessions Court in a murder case, the bench of V. Ramasubramanian*and Indira Banerjee, JJ has reversed the High Court's verdict observing that there were glaring contradictions between the testimony of the witnesses.

In this case all the 22 accused armed with deadly weapons formed themselves into an unlawful assembly and committed trespass by entering into the house of the deceased and committed his murder, in furtherance of a common object. The Sessions Court acquitted all 22 accused including the appellants, however, the High Court convicted the appellants, by observing that there was consistency in the evidence of eyewitnesses with regard to their participation in the commission of the offence and the Trial Court erroneously acquitted them, when there was sufficient material on record to hold them guilty.

The Court observed that the above findings of the High Court appear to be illogical as the primary charge of the prosecution was that all the 22 accused, formed themselves into an unlawful assembly with the common object of committing the murder of the deceased and that all of them being members of the unlawful assembly were armed with deadly weapons and that they committed the offence of rioting, trespass and murder.

The Court observed that:

“We do not know how, in the facts and circumstances of the case, the conviction of only 2 out of the 22 accused can be sustained and that too only for the offence under Section 302 when the allegation of unlawful assembly, common object, trespass, rioting etc. are held not proved against all of them”.

Moreover, the State has not come up with any appeal against the acquittal of all the other accused nor was there any explanation as to why there were two First Information Reports.

The Court took note of the ruling in Arvind Kumar v. State of Rajasthan, 2021 SCC Online SC 1099 wherein the court held that “the principle that when a witness deposes falsehood, the evidence in its entirety has to be eschewed may not have strict application to the criminal jurisprudence in our country”, and thus viewed that the High Court was right that the evidence of eyewitnesses cannot be rejected by invoking the theory of ‘falsus in uno falsus in omnibus', as this principle may not have unadulterated application to criminal jurisprudence. However, when there are glaring contradictions between the testimony of these two witnesses on the type of material object used and even on the role of one accused, the very foundation of the case of the prosecution stood shaken.

The Court observed that the High Court should have come up with stronger and cogent reasons than what has been recorded as the law on the scope of Section 378 of the Code of Criminal Procedure (CrPC), is too well settled.

Placing reliance on Ravi Sharma v. Government of NCT of Delhi, 2022 SCC Online SC 859 the Court viewed that the impugned judgment of the High Court is not in accordance with the law traced in this decision, hence, the conviction of the appellants cannot be sustained.

[Ramabora v. State of Karnataka, 2022 SCC OnLine SC 996 , decided on 10.08.2022]

*Judgment by: Justice V. Ramasubramanian

Allahabad High Court
Case BriefsHigh Courts

   

Allahabad High Court: Samit Gopal, J. acquitted the appellant of the charges leveled against him of Section 307 of Penal Code, 1860 (‘IPC') wherein he was ordered to undergo three years and six months of rigorous imprisonment by the Additional District & Sessions Judge holding that the prosecution couldn’t establish the case beyond reasonable doubt.

As per the FIR, the police informer informed the police that one person standing at Jalalpur Mod and is about to commit an incident who is having narcotics and a country made pistol with him. The S.O. along with accompanying officials proceeded towards the said person and he all of sudden fired upon them to which they escaped and then they followed him after which near Jalalpur Mod he showed them his weapon but they arrested him on 03-03-2003 at about 23:40 hrs . They recovered a 12 bore country made pistol from his right hand and immediately upon opening its barrel found an empty cartridge. He further told them that he has diazepam tablets with him. He told them to take his search after which from his left pocket something wrapped in paper was found, on opening of which small tablets were recovered which were on counting found to be 300 tablets. The matter was investigated and a charge sheet was filed against the accused-appellant under Section 307 IPC.

Sub-Inspector was examined as PW-1 and the accused in his statement recorded under Section 313 Criminal Procedure Code, 1973 (‘CrPC') stated that he committed a fault and pleaded guilty. The Trial Court thus after his confession concluded that the prosecution had succeeded its case beyond reasonable doubt and convicts him as stated above.

Amicus Curiae, Satya Prakash Rathor argued that the view as taken by the trial court is fully perverse and illegal. The prosecution has to stand on its own leg and prove its case beyond reasonable doubt. It was pointed out that there is no opinion of any expert or even evidence to the effect that the said weapon was sent for analysis to show that there was fire made by the accused-appellant. The corroboration in so far as the use of the said weapon is concerned, was missing. It was argued that even the prosecution has not come forward to show that the said weapon was sent to the ballistic expert for its testing which would go to corroborate its use in the present case. It was argued that merely by pleading guilty in the statement recorded under Section 313 CrPC, the accused cannot be held guilty.

The main issue for this Court to decide was whether after pleading guilty in the statement recorded under Section 313 CrPC and the prosecution proving the recovery memo and in presence of one witness and the deposing against the accused who was one of the team members of the arresting team, is sufficient for conviction or not.

The Court noted that the present case was a case of no injury. The Court noted that the prosecution is silent as to whether the said weapon was sent to the ballistic expert for examination which would corroborate its use at that point of time. Mere recovery of a weapon and one empty cartridge would not be sufficient to prove the use of the said weapon without any corroborating evidence.

Another question was that if accused pleads guilty in his statement under Section 313 CrPC then does the circumstance rest against him or not to which the Court answered that the law stands undisputed that the statement under Section 313 CrPC is not evidence. It is not a substantive piece of evidence. It can be used for appreciating evidence led by the prosecution to accept or reject it. However, it cannot be said to be a substitute for the prosecution evidence.

“It cannot be said that mere stating of being guilty in the statement under Section 313 CrPC will end the issue and would lead the route only to the guilt of the accused without prosecution establishing its case beyond reasonable doubt against him through cogent, reliable and admissible evidence.”

The Court was of the opinion that the accused-appellant deserves to be extended the benefit of doubt. The appeal was allowed.

[Gabbar Patel v. State, Jail Appeal No. – 5752 of 2007, decided on 11-08-2022]


Advocates who appeared in this case :

From Jail, Bhanu Pratap Singh A/C, Advocate, Counsel for the Appellant;

S.B. Maurya, Advocate, Counsel for the Respondent.


*Suchita Shukla, Editorial Assistant has reported this brief.

Gujarat High Court
Case BriefsHigh Courts

   

Gujarat High Court: The Division Bench of S.H. Vora and Rajendra M. Sareen, JJ. dismissed a criminal appeal which was filed on being dissatisfied with the order passed by Special (POCSO) Judge for the offences under section 376 of Penal Code, 1860 and also, u/s 3 and 4 of the Protection of Children from Sexual Offences Act, 2012 (POCSO).

The case of the prosecution was that from 26-12-2015 to 27-12-2015, the accused forcibly entered in the house of the complainant, threatened the victim to kill her parents and thereupon, forcibly made intercourse with the victim and thus, committed the offence punishable u/s 376 of IPC and also u/s 3 and 4 of the POCSO Act. After having found material against the respondent accused, charge-sheet came to be filed. After hearing both the sides and after analysis of evidence adduced by the prosecution, the trial Judge acquitted the respondent-accused of the offences, for which he was tried, as the prosecution failed to prove the case.

The Court noted that the prosecution has not brought on record any authentic and reliable evidence as to wherefrom the contents of the birth certificate being obtained and placed on record and that the victim had not disclosed anything regarding the act of intercourse when her statement u/s 164 of the Code of Criminal Procedure was recorded. In nutshell, the victim did not shout for help, or her brothers disclosed anything though were outside home for tuition and attending the school nor she sought any help by using her mobile. Not only that, she did not also disclose to any of her relatives, who came at her home despite she was asked. Thus, the Court agreed with the trial judge’s finding that birth certificate of the victim and occurrence of the incident as alleged by the victim were not reliable and trustworthy.

The Court reproduced what was said in Ramesh Babulal Doshi v. State of Gujarat, (1996) 9 SCC 225 and found that in the present case APP has not been able to point out to as to how the findings recorded by the trial Court are perverse, contrary to material on record, palpably wrong, manifestly erroneous or demonstrably unsustainable.

The Court finally relied on Rajesh Singh v. State of Uttar Pradesh, (2011) 11 SCC 444 and in the case of Bhaiyamiyan v. State of Madhya Pradesh, (2011) 6 SCC 394 where it was established that while dealing with the judgment of acquittal, unless reasoning by the learned trial Court is found to be perverse, the acquittal cannot be upset. It is further observed that High Court’s interference in such appeal in somewhat circumscribed and if the view taken by the learned trial Court is possible on the evidence, the High Court should stay its hands and not interfere in the matter in the belief that if it had been the trial Court, it might have taken a different view.

The criminal appeal was thus dismissed.

[State of Gujarat v. Pratap Prabhuram Devasi, R/Criminal Misc. Application No. 15092 of 2022, decided on 22-08-2022]


Advocates who appeared in this case :

CM Shah, Advocate, for the Applicant 1.


*Suchita Shukla, Editorial Assistant has reported this brief.

Rouse Avenue
Case BriefsDistrict Court

Rouse Avenue District Court: In the case of defamation filed in the year 2013 by Sh. Surender Kumar Sharma, Advocate, Shahdara Bar Association (Complainant) against three persons i.e., Sh. Arvind Kejriwal, presently the Chief Minister of Delhi and convener/founder of Aam Aadmi Party (Accused 1), Sh. Manish Sisodia, presently Deputy Chief Minister of Delhi and the then Member of Political Affairs Committee of Aam Aadmi Party (Accused 2) and Sh. Yogender Yadav, the then Member of Political Affairs Committee of Aam Aadmi Party (Accused 3), Vidhi Gupta Anand, J. acquitted the accused person, despite examination of plethora of witnesses and bringing several documents on record, Complainant failed to prove his case beyond all reasonable doubts as required in law.

It has been alleged in the instant case that in June 2013, accused 1 was impressed by the social services provided by the Complainant and granted him ticket of MLA from Shahdara Constituency which has been published in several esteemed newspapers of the country. The grievances of the Complainant with respect to his alleged defamation came to the fore on 14-10-2013 when he read some newspaper articles in the leading Hindi and English newspapers pertaining to his replacement as the candidate of seat of MLA from Shahdara Constituency on the ticket of Aam Aadmi Party having headlines AAP replaces candidate with ‘criminal’ record. Allegedly, similar derogatory and defamatory language has also been used and got published by the Accused persons in other daily leading Newspapers i.e., Hindustan Times (Hindi) and Rastriya Shahara on 14-10-2013.

The complainant alleges that the aforesaid derogatory and defamatory words have lowered his image and reputation at the Bar as well as in the eyes of the general public and society at large and caused mental trauma to the Complainant and his family members and also affected his business of Advocacy as well as that of his nephew Yogesh Kumar Gaur. The complainant has stated that most of their litigants stopped coming to them because of their defamation. Thus, Complainant had prayed for taking lawful action against the Accused persons for offences U/s 120-B/420/499/500/34 Penal Code(‘IPC’).

Law of Defamation in India

The offence of defamation is defined u/s 499 of the IPC and punishable under Section 500 IPC. Placing reliance on Subramanian Swamy v. Union of India, (2016) 7 SCC 221, the Court noted that it is manifest that mens rea i.e., intention of defame is indispensable to establish the offence of defamation. There must be an intention on the part of the Accused to cause harm to the reputation of the complainant. The ingredients of the offence are as follows:

  1. Imputation made by the Accused: In the case at hand, it has been denied by the Accused persons that they gave any press-release on the basis of which the alleged defamatory news articles were published. Hence, it becomes a question of determination of this court as to whether the alleged defamatory news articles were published at the behest of the Accused persons or not.

  2. Statement/Imputation must be published: In the case at hand, the entire basis of the alleged defamation is several news-articles published in leading newspapers on 14-10-2013. Hence, as regards publication of the statement/imputation, there remains no scope of doubt as undoubtedly, newspaper is a document in public domain which can be accessed by any person and rather the entire purpose of publication is such that the information reaches as many people as possible.

  3. Intention to cause harm to the reputation of the Complainant: The Court noted that the parameter to judge as to whether a particular statement or imputation has harmed the reputation of a person or not, as encoded in Explanation — 4 to Section 499 IPC, is whether the imputation, directly or indirectly, in the estimation of others, lowers the character or credit of that person or causes it to be believed that the person is in a loathsome or disgraceful state. Thus, in order to prove that the injury was caused to his reputation, it is essential for the Complainant to prove that in the eyes of a third person, his character and credentials were questioned.

Appreciation of Evidence

Issue 1: Whether the alleged defamatory news articles were published at behest of accused persons or not?

The source of publication of alleged defamation is an e-mail sent by one Aswathi Muralidharan on 13-10-2013, which has been testified by different witnesses. According to her testimony, she denied being the Media Manager of the Aam Aadmi Party meaning thereby, that Aswathi Muralidharan has cut-off the chain linking the Accused persons to the alleged defamatory news articles. The ideal flow of information would have been from the Political Affairs Committee of the Aam Aadmi Party to Aswathi Muralidharan and from her to the Media Channels.

Thus, the source of the news articles which was determined after going through testimonies of several witnesses i.e., the e-mail from Aswathi Muralidharan, could not lend much support to the Complainant’s case so as to attribute the actus reus to the Accused persons.

Admissibility of Electronic Records

Placing reliance on Anvar P.V. v. P.K. Basheer, (2014) 10 SCC 473, the Court noted that any document on a computer device, unless produced in original, is admissible in the form of secondary evidence only when supported by a mandatory certificate as required u/s 65B (4) of Evidence Act.

The Court noted in light of the instant case that no certificate at all has been produced by any witness from other news publications i.e., Times of India and Rashtriya Sahara, with respect to the e-mails received by them. No primary evidence has been produced during the trial with respect to the receipt of the e-mail by Aswathi Muralidharan, hence, in view of the law elucidated above, filing of a certificate u/s 65B (4) of the Evidence Act was mandatory in this case. Thus, the admissibility of the e-mails relied upon by the Times of India and Rashtriya Sahara becomes questionable.

Thus, the Court observed that as is manifest from the essentials quoted above, merely stating that the electronic record is generated from the computer and printer maintained in the office in regular course of business shall not suffice and specifications of the devices used to generate the copy of the electronic record has also to be mentioned in the certificate u/s 65B (4) of the Indian Evidence Act. Hence, the source of news articles in question are inadmissible in evidence.

The Court remarked despite scrutiny of the entire evidence on record, it could not be established that the news publication was made by the Accused persons. The most essential ingredient of the offence i.e., Actus Reus could not be established on the part of the Accused persons. Thus, this Court shall not get into the question as to whether the alleged news articles were defamatory or not and straight away move to the decision.

The Court opined that in order to constitute any offence two essential ingredients are — actus reus i.e., act or omission on the part of the Accused to constitute physical element of crime and mens rea i.e., guilty intention on the part of the accused. Particularly in regard to the offence of defamation, the primary ingredient, that is actus reus, is making of a statement or imputation by words or signs or visible representations by the Accused and all other ingredients, viz. publication and intention to defame, come thereafter. The case of the complainant becomes weak on the very first aspect itself. When the Complainant has been unable to prove that it was the Accused persons who gave the alleged defamatory press release/statements, no question arises as to whether those statements were defamatory or not. In other words, where the foundation of the complaint case itself fails, the superstructure built on the same is bound to fail.

The Court thus held that the complainant has failed to attach culpability to the accused persons despite several efforts. In these circumstances, all the accused persons namely Arvind Kejriwal, Manish Sisodia and Yogender Yadav are held not guilty and acquitted for the charge leveled against them under section 500 IPC.

[Surender Kumar Sharma v. Arvind Kejriwal, 2022 SCC OnLine Dis Crt (Del) 32, decided on 20-08-2022]


*Arunima Bose, Editorial Assistant has put this report together.

Calcutta High Court
Case BriefsHigh Courts

Calcutta High Court: Sugato Majumdar, J. allowed a criminal appeal which was assailed against the judgment and order of Additional Sessions Judge whereby the Appellants were convicted of offence under Section 304 of the IPC.

The de-facto complainant who was the mother of the deceased. The deceased was a private tutor of the son of Appellant 2 and 3 and appellant 2 was his close friend. A love-affair developed between Appellant 3 and the deceased. It was alleged that all the Appellants black-mailed the deceased and extorted lump-sum amount from him. On 12-01-2004, the deceased left his residence at 10:30 A.M. for the residence of the Appellants and later that afternoon appellant 1 told complainant that the deceased had consumed poison. On hearing this the de-facto complainant rushed to the doctor’s chamber where he was found lying on a bench. After few hours, victim expired and Hospital report showed that cause of death was poisoning. A complaint was registered.

On conclusion of the investigation, charge sheet was filed under Section 304/34 of the IPC. The Trial Court convicted the accused persons under Section 304/34 of the IPC and sentenced them to suffer rigorous imprisonments of seven years and fine of Rs. 2000/- in default rigorous imprisonment for another six months. Thus, the instant appeal.

During pendency of the appeal, the Appellant 1 expired. So, the appeal abated against him. The Counsel appearing for the appellants submitted that the instant case was a glaring example of aberration of justice. It was contended that the charge was framed for culpable homicide not amounting to murder alleging that the Appellants applied force upon the victim to consume unknown poison. In contrast, the impugned Judgment was delivered convicting the Appellants on the ground that the Appellants caused head and other injuries to the person of the deceased resulting in his death. The Appellants were never informed of or given opportunity to set up defense in respect of the different set of facts allegedly constituting the crime, for which the Appellants were convicted. Neither any question was put, nor any hints was given to the Appellants, in course of their examination under section 313 of the Criminal Procedure Code, 1973 about the different set of facts and circumstances to be considered against them. It was also stressed upon the fact that there is no evidence to the effect that the deceased ever visited the residence of the Appellants. He also contended that the post-mortem report was of some other person.

The Court noted that the Trial Judge based his findings on circumstantial evidence. The court further noted that the Postmortem Report concluded that cause of death was head injury caused by hard blunt instrument. This contradicts the medical papers associated with treatment of the deceased. Postmortem examination might have been conducted on a different dead body other than that of deceased in question. The Court was of the opinion that the Postmortem Examination Report cannot be relied upon for coming to any conclusion on cause of death of the deceased.

Once the postmortem examination report is disregarded, the very basis of conviction becomes nugatory. There remains no basis of the finding that the Appellants assaulted and caused injury to the deceased resulting in his death.

The Court also noted the aspect that except with the Appellant 2, the deceased was not seen with the other Appellants by any of the witnesses. There is no evidence to connect the deceased with the Appellant 1 and the Appellant 3 on the fateful day inviting inference that those Appellants were instrumented to cause his death in whatever manner that may be. The Court also agreed with the view of the Counsel of the appellant that the charges were framed referring to one set of facts which were read over and explained to the Appellants. The Appellants were convicted with reference to another set of facts, as noted above. The Judgment, delivered on the basis of a different set of facts of which the Appellants had hitherto been unaware of, undermines the principle of natural justice.

It is not understandable why the Trial Court, in oblivious of ocular testimonies as well as documentary and other oral evidence solely relied upon the Postmortem Report and developed a story as if to sanctify a wrong report. Inspite of absence of any evidence the Trial Court concluded that the Appellants assaulted and injured the deceased causing his death.

The appeal was allowed, and the impugned order was set aside finding that the impugned order by the Trial Court was based on surmise and conjecture, was opposed to any reason, rationality, principles of evidence and natural justice. The impugned judgment is anathema to all rationality and reasoning. Such perverse findings should be seriously looked into.

Appellant 2 and the Appellant 3 were set at liberty, and they were also released from their bail bonds.

[Anil Das v. State of West Bengal, 2022 SCC OnLine Cal 2347, decided on 18-08-2022]


Advocates who appeared in this case :

Subir Ganguly, Sumanta Ganguly, Advocates, for the Appellants;

Faria Hossain, Anand Keshri, Mamta Jana, Advocates, for the State.


*Suchita Shukla, Editorial Assistant has reported this brief.

Chhattisgarh High Court
Case BriefsHigh Courts

   

Chhattisgarh High Court: In a case where an election was declared null and void on the grounds of non-disclosure of criminal antecedents by the winning candidate, Deepak Kumari Tiwari J dismissed the revision petition being devoid of merit. The Court stated that non-disclosure of criminal antecedents amounts to undue influence and interferes with the free exercise of electoral right.

The present revision petition was preferred challenging the order passed by the District Judge, Baikunthpur, District Koria whereby petition of Rajkishan Mahto ‘respondent 1' challenging the election of Sapandeep Mahto ‘petitioner' as returned candidate as Ward Councillor of Manendragarh Municipality on the ground of non-disclosure of offences in his nomination paper has been allowed and the result declaring the petitioner herein as Councilor was held to be void.

It was alleged that the petitioner failed to disclose criminal antecedents, as required under Form-3A, according to Rule 25-A of Chhattisgarh Nagar Palika Election Rules, 1994, (‘the Rules, 1994') as amended on 8-11-2019, vide Notification No. F-1-5/2014/18.

Counsel for petitioner submitted that there are no such mandatory provisions requiring disclosure of acquittal cases. Thus, Rule 28 of Rules, 1994 does not refer to consequences of Rule 25-A, so nondisclosure of offences as required under Rule 25-A is not substantial in view of disqualification prescribed under Section 35 of the Chhattisgarh Municipality Act, 1961 and only for offences enumerated under Section 35-(h), (hh) and (hhh), no other offence has been mentioned and respondent 1 has no such case that the petitioner has been found in such category, therefore, the impugned order is not sustainable.

The Court noted that Chhattisgarh Nagar Palika Nirvachan Niyam, 1994 was amended and Rule 25-A was inserted, according to which, it is mandated that under the provision of sub-rule (1) of Rule 25, every candidate who is submitting his nomination for election of Councillor or Chairperson of Nagar Panchayat before the Returning Officer shall necessarily enclose a self-declaration form provided in Form-3A and shall necessarily enclose an affidavit sworn in before the Magistrate 1st Class or Notary. In the said form, not only the conviction, but also the result of acquittal of every case is necessarily to be disclosed.

It was further noted that the petitioner has also filed a deposition sheet of himself, which reveals that in cross-examination, the petitioner has categorically admitted that he has not furnished information in the said form. He also admitted that from 1998 to 2016, 7 criminal cases have been registered at the Police Stations.

Placing reliance on Krishnamoorthy v. Sivakumar, (2015) 3 SCC 467 the Court noted that non-disclosure of offence while submitting nomination papers amounts to undue influence. The court further held that when the candidate has special knowledge of the pending case, cognizance of which has been taken or charges have been framed and there is non-disclosure on his part, it would amount to undue influence and, therefore, election is to be declared null and void.

Thus, the revision petition is devoid of merit. [Sapandeep Mahto v Rajkishan Mahto, CR No. 57 of 2022, decided on 29-07-2022]


Advocates who appeared in this case :

Rohit Sharma, Advocate, for the Petitioner;

Vinod Tekam, Advocate, for the Respondent 3.


*Arunima Bose, Editorial Assistant has reported this brief.

Patna High Court
Case BriefsHigh Courts

Patna High Court: While dealing with a case of rape, A M Badar, J. observed that mere non-offering of physical resistance by a rape survivor cannot amount to the consent given by a woman for sexual activity under Section 375 of the Indian Penal Code (‘IPC’).

An appeal was filed under section 374 of the Criminal Procedure Code (CrPC) challenging the conviction order given by the trial court for offences under Sections 376, 323, 452, and 506 of the Penal Code, 1860 (‘IPC’) and Sections 3(1)(xi) and (xii) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities), 1989.

The accused alleged that it was consensual sex between two adults and in the medical examination, no physical injuries were found on the body of the prosecutrix, therefore, indicating the absence of resistance.

As per the story of the prosecutrix, she used to work in the brick Klin of the accused as a laborer. On 09.04.2015, after completing her work, the prosecutrix demanded her wages. The accused refused to pay the wages stating that he would pay her subsequently. In the evening hours, when the prosecutrix was cooking food, the accused came to her house, dragged her to a room, and raped her. The villagers got gathered as the prosecutrix shouted and the accused was tied to a tree. Subsequently, an FIR was lodged against the accused.

As per the statement of the victim as well as submissions made, the Court opined that, the present case is a rape case and therefore in such cases the version of the prosecutrix is found more reliable and trustworthy. Further, the Court stated that the statements of the prosecutrix should not necessarily be corroborated by medical shreds of evidence.

The Court also observed that the prosecutrix is a married woman having a son aged about 4 years. She was pitted against an adult male in the late night at her own house. In such a situation, it might not be possible for her to offer resistance to the act of the accused. Moreover, mere non-offering of resistance cannot amount to consent.

At this juncture, the Court visited the provisions under Section 375 of IPC and stated that that consent must be in the form of an unequivocal voluntary agreement showing willingness to participate in sexual acts. Further, the Court stated that the Proviso clause of Section 375 of the IPC makes it clear that only because a woman does not physically resist the act of penetration, it cannot be regarded as consenting to the sexual activity.

Further, the Court noted that the acts of the prosecutrix during the incident, firstly by shouting and secondly, registering an FIR against the accused denotes that there was nothing on record to suggest the case of the consensual sex between two adult persons. Therefore, the Court was of the view that by entering the house of the prosecutrix, the accused had committed rape on her.

Hence, the Court upheld the conviction of accused under Sections 376 and 452 of the IPC. It was however noted that there was no substantive evidence in support of the commission of offences under Sections 323 and 506 of the Indian Penal Code as well as under Sections 3(1)(xi) and 3(1)(xii) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. Hence, acquitted the accused for those charges and partly allowed the application.

[Islam Mian @ Mohd. Islam v State of Bihar, 2022 SCC OnLine Pat 1579, decided on 22-06-2022]


Advocates who appeared in this case :

Mr. Diwakar Upadhyaya, Advocate, for the Petitioner;

Mr. Bipin Kumar, A.P.P., Advocate, for State.

Case BriefsSupreme Court

Supreme Court: Explaining the law on “last seen together”, the bench of Dr. DY Chandrachud and Bela M. Trivedi*, JJ has held that in order to convict an accused under Section 302 IPC the first and foremost aspect to be proved by prosecution is the factum of homicidal death. If the evidence of prosecution falls short of proof of homicidal death of the deceased, and if the possibility of suicidal death could not be ruled out, the accused cannot be convicted merely on the basis of the theory of “Last seen together”.

The suspicion howsoever strong cannot take place of proof.”

The Court was deciding the case where a young couple belonging to different castes were found hanging from a tree after having gone missing for days. The love affair of Brinda and Kanhaiya did not sit well with Brinda’s father and uncle. While Brinda and Kanhaiya went missing on 02.12.1994, no missing report was lodged. Their decomposed bodies were found hanging from a cashew tree in a cashew nursery on 11.12.1994. It was alleged that Brinda’s uncle had killed both of them and had kept the bodies in the house upto 04.12.1994, after which he had taken the bodies to the cashew nursery and had hung them on a cashew tree to give it the shape of them having committed suicide.

A witness had allegedly last seen Kanhaiya with the accused 10 days prior to the date on which the bodies were found. The witness had stated that the accused had called Kanhaiya and took him to his house where he, along with four co-accused, allegedly in furtherance of common intention pressed his neck and committed his murder. Thereafter, the two co-accused committed the murder of Brinda. One of the co-accused Videshi had also made an extra-judicial confession pointing towards the guilt of the accused.

It was argued by the counsel of the accused that the testimony of the witness who had allegedly last seen Kanhaiya, having been called by the accused, was recorded after 4 months of the incident. Even as per the case of the prosecution, the said incident of calling Kanhaiya by the appellant was 10 days prior to the date on which the dead bodies were found in the Cashew Nursery, and there being long time gap between the day the deceased was allegedly last seen with the appellant and the day when his dead body was found, it was very risky to convict the accused solely on such evidence. He further submitted that the doctor who had performed the postmortem had also opined that the cause of death was asphyxia as a result of hanging and the nature was suicidal. Thus, in absence of any clear or cogent evidence against the appellant, both the courts had committed gross error in convicting the appellant.

The Court took note of the following rulings on the ‘last seen together’ theory:

Bodhraj v. State of Jammu and Kashmir, (2002) 8 SCC 45: The last-seen theory comes into play where the time-gap between the point of time when the accused and the deceased were last seen alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible.

Arjun Marik v. State of Bihar, 1994 Supp (2) SCC 372: The only circumstance of last seen will not complete the chain of circumstances to record the finding that it is consistent only with the hypothesis of the guilt of the accused, and therefore no conviction on that basis alone can be founded.

Hence, having regard to the totality of evidence on record, the Court held that the High Court had committed gross error in convicting the accused for the alleged charge of 302 read with 34 of IPC, relying upon a very weak kind of evidence of extra judicial confession allegedly made by the co-accused Videshi, and the theory of “Last seen together” propounded by the prime witness.

The Court observed that no evidence worth the name as to how and by whom the deceased Brinda was allegedly murdered was produced by the prosecution. Under the circumstances, it was held that the prosecution had miserably failed to bring home the charges levelled against the accused beyond reasonable doubt. The Court, hence, acquitted the accused of all the charges levelled against him.

[Chandrapal v. State of Chhattisgarh, 2022 SCC OnLine SC 705, decided on 27.05.2022]


*Judgment by: Justice Bela M. Trivedi


Counsels

For appellant-accused: AOR Akshat Shrivastava, Adv Pooja Shrivastava,

For Respondent(s): Dy AG Sourav Roy, Advocates Mahesh Kumar, Kaushal Sharma, Devika Khanna, V D Khanna, VMZ Chambers

Bombay High Court
Case BriefsHigh Courts

Bombay High Court: The Division Bench of Sadhana S. Jadhav and Milind N. Jadhav, JJ., allowed an appeal which was filed against the conviction of the appellant for the offence punishable under section 302 of Penal code, 1860 wherein he was sentenced to suffer R.I. for life and fine of Rs.5,000.

On 18-10-2010, a report was lodged by Laxman Daji Bhoye (witness 1)  alleging therein that one person from Sawarpada informed him that on 17-10-2010 Suresh Bhagat had killed his wife. He went to the spot to verify the same and saw Suresh Bhagat (‘the present appellant’) seated besides the dead body of his wife who was lying in a pool of blood. On enquiry he disclosed that when he returned home from the house of his relatives after watching television, he knocked on the door but there was no response so he entered the house through the window. He noticed that his wife was in deep sleep. He assaulted on her head and back and thereafter, paid no attention to her. In the morning, at about 6.00 am, he realized that his wife has passed away. According to the prosecution, there is an extra-judicial confession by the accused. The prosecution had examined five witnesses to bring home the guilt of the accused amongst which witnesses 1, 2 and 3 were declared hostile.

The question before the Court was as to what is the evidence as against the accused which would lead to a necessary inference that the accused is the author of the injuries sustained by the deceased.

An accused can be convicted only in the eventuality that the investigation places on record such material which could be converted into admissible evidence and can be read in evidence.

The Court believed that in the present case, in view of the nature of the evidence adduced by the prosecution, it would be difficult to act upon the supposition that the fact of homicidal death at the hands of the accused is proved.

Counsel for the appellant submitted that this was a case of no evidence in the eyes of law and hence, the accused deserved to be acquitted of the charge levelled against him.

APP submitted that it was incumbent upon the accused to offer an explanation as contemplated under section 106 of the Indian Evidence Act and the very fact that the dead body was found in the house of the accused and he had not put forth any plausible explanation was sufficient to convict the accused for an offence punishable under section 302 of IPC. It was further submitted that there was an extra-judicial confession before Witness 1 which goes to the root of the matter and pointed towards the culpability of the accused.

The Court explained that it is a settled principle of criminal jurisprudence that an accused has a right to maintain silence and it is for the prosecution to prove its case beyond reasonable doubt. As far as extra-judicial confession was concerned, the Court reiterated that the same was not reliable for the simple reason that the person to whom the purported extra-judicial confession was made had resiled from his earlier statement and had been declared hostile by the prosecution.

Placing reliance on State of Rajasthan v. Raja Ram, (2003) 8 SCC 180 where it was held that “an extra-judicial confession, if voluntary and true and made in a fit state of mind, can be relied upon by the Court. The confession will have to be proved like any other fact. The value of the evidence as to confession, like any other evidence, depends upon the veracity of the witness to whom it has made. The value of the evidence depends on the reliability of the witness who gives the evidence.” the Court stated that an extra-judicial confession is a weak piece of evidence and can be relied upon provided, it is voluntary and is made in a fit state of mind.

The Court while allowing the appeal held that this could be a case of no evidence and thus, falls in the category of disproved. Judgment and order of conviction was quashed and set aside and the appellant was acquitted of the offence punishable under section 302 of the IPC.

[Suresh Ladak Bhagat v. State of Maharashtra, Criminal Appeal No.9 of 2014, decided on 19-04-2022]


Mr Samir Arunkumar Vaidya, Mr Hare Krishna Mishra: Advocates for the Appellant.

Ms M.M. Deshmukh: APP for the Respondent – State.


*Suchita Shukla, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Calcutta High Court: The Division Bench of Joymalya Bagchi and Ananya Bandyopadhyay, JJ. allowed an appeal which was directed against the judgment and order convicting the appellant for commission of offence punishable under Sections 302 of the Indian Penal Code and sentencing him to suffer rigorous imprisonment for life and to pay fine.

A  10 year old boy, had gone out to fly kite with his friends and didn’t return that evening, next day body of the boy was found lying in the canal. Two days later, father of the boy returned to his native village from his place of work at Mumbai and filed written complaint alleging his son had been murdered by an unknown person. Couple of days later, he made statement implicating the appellant who was the Moulabi of a nearby mosque. It was alleged that the appellant had illicit relationship with mother of the boy. The child had disclosed the illicit relationship to his father and accordingly appellant nursed a grudge against him. In course of investigation, a gunny bag and rope were recovered from an open spot near the mosque. Appellant absconded and was later arrested. In conclusion of trial the above mentioned punishment was granted.

Counsel appearing for the appellant submitted there was no direct evidence implicating the appellant in the crime. FIR was registered against unknown accused and motive to commit the crime had not been proved. There was no evidence on record that the child was last seen with the appellant prior to his death. Gunny bag and rope were recovered from an open space and did not implicate the appellant in any manner whatsoever. Appellant had gone to his native place in Bihar and was subsequently arrested and it cannot be said that he had absconded. He pleaded that mere abscondence does not establish guilt of an accused.

Counsels for the State argued appellant had strong motive to commit the crime as the child had seen the appellant and his mother Rasida in a compromising position.

The Court noted that the prosecution case is based on circumstantial evidence and there was no direct evidence that the appellant had murdered the victim. The court reminded that when case is based on circumstantial evidence it is the duty of the prosecution: –

(a) to prove all the circumstances relied upon against the appellant, beyond doubt;

(b) the circumstances so proved must form a complete chain which irresistibly points to the guilt of the accused and rules out all other possible hypothesis of innocence.

This Court had to identify whether the above requirement of law have been satisfied in the facts of the present case. The Court after perusing the evidence found that it cannot be said that the intimacy between appellant and her mother Rashida was divulged only by Farhad as  uncle of Farhad, had also informed his brother about such relationship and thus it is difficult to understand why the appellant would nurse grudge against the minor son of his lover and not against other relations who had also informed the former about his illicit relationship. Hence, motive to commit the crime did not appear to be convincing.

Coming to the other circumstance, namely, recovery of gunny bag and rope from the backside of the mosque of the appellant, the Court noted that the articles were recovered from an open space which was accessible to all. Moreover, there was nothing on record to show that the gunny bag or rope so recovered were used to murder the victim or dispose of the body in the canal. No evidence was forthcoming that on the fateful evening or immediately prior to the death of the victim, appellant was last seen with the child.

Regarding the abscondence of the appellant immediately after the incident which is strongly relied on,  the Court relied on the judgment of the Supreme court in Sk. Yusuf v. State of W.B., (2011) 11 SCC 754 where it was held that it settled law abscondence of an accused by itself does not establish his guilt.

“31. … It is a settled legal proposition that in case a person is absconding after commission of offence of which he may not even be the author, such a circumstance alone may not be enough to draw an adverse inference against him as it would go against the doctrine of innocence. It is quite possible that he may be running away merely on being suspected, out of fear of police arrest and harassment.”

Abscondence of the appellant when judged in the backdrop of the fact and circumstance of the case cannot by any stretch of imagination be treated to be conclusive evidence with regard to his guilt.

The Court was of the opinion that prosecution had failed to prove its case beyond reasonable doubt and the appellant was entitled to an order of acquittal. Appeal was allowed and conviction and sentence of the appellant was set aside.[Md. Firoz Ala v. State of West Bengal, C.R.A. 176 of 2019, decided on 18-05-2022]


For the Appellant : Mr Kallol Kumar Basu, Md. Jannat Ul Firdous, Ms Tithi Majumder

For the State : Mr Swapan Banerjee, Ms Purnima Ghosh


Suchita Shukla, Editorial Assistant has reported this brief.

Case BriefsSupreme Court

Supreme Court: In an interesting case, the Division Bench comprising of L. Nageswara Rao and B.R, Gavai, JJ., acquitted the appellant  who raped his own niece and later on married her.

The Court took note of the custom in Tamilnadu which permits the marriage of a girl with her maternal uncle; and the statement of the prosecutrix that she is leading a happy married life with the appellant to hold that,

“This Court cannot shut its eyes to the ground reality and disturb the happy family life of the appellant and the prosecutrix”.  

The appellant belonged to Valayar community, which is the most backward community in the State of Tamilnadu and was working as a woodcutter on daily wages in a private factory. An FIR was lodged against him for committing raping his niece under Sections 5(j)(ii) read with Section 6, 5(I) read with Section 6 and 5(n) read with Section 6 of Protection of Child from Sexual Offences (POCSO) Act, 2012.

The Trial Court convicted the appellant and sentenced him to ten years rigorous imprisonment, which was upheld by the High Court. Aggrieved thereby, the appellant had approached the Supreme Court.

The appellant submitted that the allegation against him was that he had physical relations with the prosecutrix on the promise of marrying her. The appellant  argued, since he has in fact married the prosecutrix and they have two children it would not be in the interest of justice to disturb the family life of the appellant and the prosecutrix.

On the contrary, the State opposed the grant of any relief to the appellant contending that the prosecutrix was aged 14 years on the date of the offence and gave birth to the first child when she was 15 years and, second child was born when she was 17 years. The State contested the legality of marriage between the appellant and the prosecutrix and argued that the marriage might only be for the purpose of escaping punishment.

The Court considered the statement of the prosecutrix about her present status where she had categorically stated, “she has two children and they are being taken care of by the appellant and she is leading a happy married life.”

Further, taking note of the custom in Tamilnadu of marriage of a girl with the maternal uncle, the Court held that,

“In the peculiar facts and circumstances of this case, we are of the considered view that the conviction and sentence of the appellant who is maternal uncle of the prosecutrix deserves to be set aside in view of the subsequent events that have been brought to the notice of this Court.” 

With the holding that the Court cannot shut its eyes to the ground reality and disturb the happy family life of the appellant and the prosecutrix, the Court set aside the conviction and sentence of the appellant while granting liberty to the prosecutrix and State to move the Supreme Court for modification of the order if the appellant does not take proper care of the prosecutrix.

As a note of caution, the Court added that in the peculiar facts of the case, it shall not be treated as a precedent.

[K Dhandapani v. State by the Inspector of Police, Cr. A. No.796 of 2022, decided on 09-05-2022]


Appearance by:

For the Appellant: M.P. Parthiban, Advocate

For the State: Dr. Joseph Aristotle S., Advocate


Kamini Sharma, Editorial Assistant has put this report together

 

Chhattisgarh High Court
Case BriefsHigh Courts

Chhattisgarh High Court: A Division Bench of Arvind Singh Chandel and Sanjay K. Agrawal, JJ. dismissed the acquittal appeal being devoid of merits.

The facts of the case are such that marriage between the deceased and the son of the Respondent/accused was solemnised in the month of April, 2018. In November the same year, Mahima Kaushik committed suicide by hanging herself. FIR was registered and charges were framed and the Trial Court acquitted the accused. Assailing this acquittal order, instant appeal was filed.

Counsel for the Appellant/State submits that the Sessions Judge has committed manifest illegality in acquitting the Respondent/accused of the charge under Section 304B IPC as all the ingredients constituting the offence have been duly established by the prosecution and, therefore, the judgment of acquittal deserves to be set aside.

The Court relied on judgment Anjanappa v. State of Karnataka, (2014) 2 SCC 776, it has been held by the Supreme Court as follows:

“9. It is well settled that an order of acquittal is not to be set aside lightly. If the view taken by the trial Court is a reasonably possible view, it is not to be disturbed. If two views are possible and if the view taken by the trial Court is a reasonably possible view, then the appellate Court should not disturb it just because it feels that another view of the matter is possible. However, an order of acquittal will have to be disturbed if it is perverse. We have examined the trial Court’s order of acquittal in light of above principles. We are of the considered opinion that the High Court was justified in setting it aside as it is perverse.

The Court after perusing evidence and facts observed that the finding of the Trial Court that the prosecution has failed to prove that soon before the death of the deceased she was subjected to cruelty on account of demand of dowry is totally based on the evidence available on record. Furthermore, from perusal of the evidence, it also appears that the fact regarding demand of dowry itself is suspicious.

The Court thus held “there is no manifest legal error in the judgment of acquittal recorded by the Learned Additional Sessions Judge and we do not consider it a fit case where this Court should re-appreciate the entire evidence on record or it is not a case where the view taken by the Additional Sessions Judge is so arbitrary or bears manifest error requiring interference.”

[State of Chhattisgarh v. Chameli Kaushik, 2022 SCC OnLine Chh 691, decided on 11-04-2022]


Appearances

For Appellant/State: Shri Kapil Maini


Arunima Bose, Editorial Assistant has reported this brief.

Case BriefsSupreme Court

Supreme Court: In a case where the Karnataka High Court had reversed the judgment of Karnataka Administrative Tribunal directing compulsory retirement of a Government Servant after being found guilty of bribery, the bench of Dr. DY Chandrachud* and Surya Kant, JJ has held that acquittal of a person in the course of the criminal trial does not impinge upon the authority of the disciplinary authority or the finding of misconduct in the disciplinary proceeding.

Factual Background

  • The respondent, working as a Village Accountant at Revathagao in Indi Taluka of Bijapur District in Karnataka, was charged for demanding a bribe for deleting the name of a person from Column No. 11 of the RTC with regard to land bearing Survey No. 54, situated at Shirdona Village.
  • A criminal complaint was registered with the Lokayukta police against the respondent for the commission of an offence punishable under Sections 7 and 13(1) (d) read with Section 13 (2) of the Prevention of Corruption Act 1988.
  • After the investigation, a charge sheet was submitted against the respondent by the Lokayukta police in Special Case No. 20 of 2011 in the Court of Special Judge at Bijapur, who gave the benefit of doubt to the respondent and acquitted him of all charges.
  • A disciplinary enquiry was initiated under Section 7(2) of the Karnataka Lokayukta Act 1984 and the Lokayukta held that the charge against the respondent was proved and recommended the penalty of compulsory retirement from service.
  • The disciplinary authority held that the misconduct was proved and imposed a penalty of compulsory retirement.
  • Aggrieved by the penalty, the respondent moved the Karnataka Administrative Tribunal. The Tribunal upheld the order of compulsory retirement.
  • The Karnataka High Court set aside the judgment of the Tribunal.

Disciplinary enquiry vis-à-vis Criminal Trial

The principles which govern a disciplinary enquiry are distinct from those which apply to a criminal trial. In a prosecution for an offence punishable under the criminal law, the burden lies on the prosecution to establish the ingredients of the offence beyond reasonable doubt. The accused is entitled to a presumption of innocence. The purpose of a disciplinary proceeding by an employer is to enquire into an allegation of misconduct by an employee which results in a violation of the service rules governing the relationship of employment. Unlike a criminal prosecution where the charge has to be established beyond reasonable doubt, in a disciplinary proceeding, a charge of misconduct has to be established on a preponderance of probabilities. The rules of evidence which apply to a criminal trial are distinct from those which govern a disciplinary enquiry. The acquittal of the accused in a criminal case does not debar the employer from proceeding in the exercise of disciplinary jurisdiction.

Scope of Judicial Review

In the exercise of judicial review, the Court does not act as an appellate forum over the findings of the disciplinary authority. The court does not re-appreciate the evidence on the basis of which the finding of misconduct has been arrived at in the course of a disciplinary enquiry. The Court in the exercise of judicial review must restrict its review to determine whether:

  • the rules of natural justice have been complied with;
  • the finding of misconduct is based on some evidence;
  • the statutory rules governing the conduct of the disciplinary enquiry have been observed; and
  • whether the findings of the disciplinary authority suffer from perversity; and (vi) the penalty is disproportionate to the proven misconduct.

Ruling

The Court observed that none of the above tests for attracting the interference of the High Court were attracted in the present case. The Karnataka Administrative Tribunal having exercised the power of judicial review found no reason to interfere with the award of punishment of compulsory retirement. The Division Bench of the High Court exceeded its jurisdiction under Article 226 and trenched upon a domain which falls within the disciplinary jurisdiction of the employer. The enquiry was conducted in accordance with the principles of natural justice. The findings of the inquiry officer and the disciplinary authority were held to be sustainable with reference to the evidence which was adduced during the enquiry. Hence, the acquittal of the respondent in the course of the criminal trial did not impinge upon the authority of the disciplinary authority or the finding of misconduct in the disciplinary proceeding.

[State of Karnataka v. Umesh, 2022 SCC OnLine SC 345, decided on 22.03.2022]


*Judgment by: Justice Dr. DY Chandrachud


Counsels

For appellant: Advocate V N Raghupathy

For Respondent: Advocate Ashwin V Kotemath

Case BriefsHigh Courts

Gujarat High Court: The Division Bench of S.H. Vora and Sandeep N. Bhatt, JJ., dismissed an application for special leave to appeal which was filed feeling aggrieved and dissatisfied with the judgment and order in NDPS Case whereby the trial Court acquitted the respondent 2 herein-original accused 2 of the offences punishable under Sections 8(c), 20(b) and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (“NDPS Act”).

Case of the complainant was that all the original three accused committed the offence punishable under Sections 8(c), 20(b) and 29 of the NDPS Act; in as much as; when accused 3 was searched; found with contraband Charas weighing 7.79 Kg from the bag held by him. On a trial, accused 3 and 1 were found guilty for the offences punishable under the NDPS Act; whereas the respondent 2-original accused 2 was given benefit of doubt.

Advocate Mr Pandya for the applicant-original complainant, submitted that the acquittal recorded qua respondent 2-original accused 2 was bad in law and against the evidence on record; inasmuch as; the trial Judge has overlooked the provisions of Section 67 of NDPS Act though the learned trial Judge found and observed that the provisions of Sections 42 and 50 of the NDPS Act which were mandatory provisions of the Act is complied with. It was further urged by him that respondent 2; being wife of accused 1, she had knowledge of the contents of the bag where-from the contraband Charas was found and therefore she was said to have culpable intention.

The Court noted that on scrutiny the Trial Judge had found that respondent 2 was merely a companion of her husband accused 1 and she was not an accomplice in the crime. The court was of the opinion that no doubt, the moment the person had intention or knowledge of the fact, he or she is said to have culpable intention but in the case at hand accused 3 was holding the bag with key and he did not part with the key and therefore the Officer broke open the lock and thus respondent 2 being companion of her husband and except for her presence as her husband’s companion right from the receipt of information, her conscious possession as understood under the law does not surface even reasonable doubt.

Court further held that the submissions based on confessional statement of respondent 2 so as to implicate her in offence need not be taken any further relying on the judgment  of Tofan Singh v. State of Tamil Nadu, (2013) 16 SCC 31 because the confessional statement was recorded when respondent 2 was in custody and therefore, it was a weak piece of evidence.

The Court reiterated the relevant part in the Supreme Court judgment of Ramesh Babulal Doshi v. State of Gujarat, (1996) 9 SCC 225 and held that in the present case the counsel had not been able to point out as to how the findings recorded by the trial Court were perverse, contrary to material on record, palpably wrong, manifestly erroneous or demonstrably unsustainable.

“It is a cardinal principle of criminal jurisprudence that in an acquittal appeal if other view is possible, then also, the appellate Court cannot substitute its own view by reversing the acquittal into conviction, unless the findings of the trial Court are perverse, contrary to the material on record, palpably wrong, manifestly erroneous or demonstrably unsustainable.”

Court while dismissing the application observed that High Court’s interference in such appeal in somewhat circumscribed and if the view taken by the trial Court was possible on the evidence, the High Court should stay its hands and not interfere in the matter in the belief that if it had been the trial Court, it might have taken a different view.[Union of India v. State of Gujarat, R/Criminal Misc. Application No. 1478 of 2022, decided on 23-03-2022]


Suchita Shukla, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Madhya Pradesh High Court: The Division Bench of Anand Pathak and Satish Kumar Sharma, JJ., dismissed a writ appeal under Section 2(1) of the Madhya Pradesh Uchcha Nyayalaya (Khand Nyay Peeth Ko Appeal) Adhiniyam, 2005.

Appellant was tried for offence under Sections 294, 336, 341, 506-B of IPC. On the basis of witnesses turned hostile, acquittal has been recorded in favour of appellant so far as offence under Sections 294 and 336 of IPC are concerned. In respect of offence under Sections 341 and 506-B of IPC, complainant and accused entered into settlement and matter has been compromised in respect of those set of allegations pertaining to those offence under Sections 341 and 506-B of IPC.

Counsel for the appellant/petitioner submitted that Single Bench of the Court did not consider the correct import of judgment rendered by the Supreme Court in the case of Avtar Singh v. Union of India, (2016) 8 SCC 471 and caused illegality while affirming the impugned order whereby appellant had been found unfit for appointment on the post of police constable.

Advocate General for the respondents/State submitted that the authorities exercising discretion came to the conclusion that under the present facts and circumstances of the case, appellant did not deserve to be retained in the department as police constable. It was further observed by the Superintendent of Police, District Shivpuri that his acquittal does not come under clean acquittal, therefore, he was not befitting to be retained in police department.

The Court opined that in Avtar Singh (supra) case the Supreme Court had delineated the principles in detail and sufficient discretion had been given to the departmental authorities to look into the matter of different exigencies and thereafter, take a call regarding suitability of candidate if he suffers any criminal trial or registration of offence. The Court was of the view that the Single Judge had considered all the necessary contours of the controversy in detail and thereafter, came to the conclusion about role of appellant vis-a-vis allegations and thereafter, dismissed the petition.

The Court dismissed the appeal holding that when authorities take a view in a particular manner then scope of discretion is limited and thus there is no case of interference.[Bhagwat Singh v. State of M.P., 2022 SCC OnLine MP 457, decided on 11-03-2022]


For the appellant/petitioner: Mr Nirmal Sharma

For the respondents/State: Mr MPS Raghuwanshi


Suchita Shukla, Editorial Assistant has reported this brief.

Uttarakhand High Court
Case BriefsHigh Courts

Uttaranchal High Court: The Division Bench of S.K. Mishra and A.K. Verma, JJ., dismissed the appeal for acquittal considering it to be devoid of substantial and compelling reasons.

An application for grant of leave to appeal against the order of acquittal was rendered by the Court of Sessions Judge, Pithoragarh, Camp Didihat in Session Trial 11 of 2015 dated 21-08-2021.

The view of Ghurey Lal v. State of U.P., (2008) 10 SCC 450 was also considered. There have to be very substantial and compelling reasons for setting aside a judgment of acquittal, as the presumption of innocence becomes stronger by acquittal of the respondent, i.e. the accused, by the Trial Court. It was also decided that, while appreciating evidence, merely because the Appellate Court has a different opinion, the

Appeal cannot be allowed.

Court also took note of the judgment in State of Orissa v. Urmila Nayak, CRLLP 103 of 2015, in which S.K. Mishra, A.C.J. had opined that Court must be satisfied about the existence of, prima facie, compelling and substantial reasons.

The Court held that in the present case, there were no, prima facie, ‘substantial and compelling reasons’, to come to the conclusion that the matter should be heard, the impugned judgment should be re-examined or examined by the Appellate Court in an Appeal against acquittal.[State of Uttarakhand v. Ganesh Ram, 2022 SCC OnLine Utt 160, decided on 08-03-2022]


Counsel for the appellant: Mr. J.S. Virk, Deputy Advocate General assisted by Mr Rakesh Joshi, Brief Holder for the State of Uttarakhand.

Counsel for the respondent: None


Suchita Shukla, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Sikkim High Court: Meenakshi Madan Rai J., while acquitting the accused charged under section 302, 392 and 427 of IPC held that “Despite there being strong suspicion against the appellant with regard to him having a hand in the death of the appellant, suspicion however strong cannot replace certainty. Moral conviction cannot be resorted to in a criminal case as the golden rule is proof of case beyond a reasonable doubt.”

The appellant in the present case was charged of murdering a man in a vicinity of half kilometre from his home. The prosecution case dwells upon the “Last seen together theory” by testimony of a police officer whose evidence by itself is debatable as he was himself travelling in the direction opposite to that allegedly taken by the victim and the appellant. Moreover, the motive was not able to be established by appellant’s strong financial condition and no personal connection. The appellant’s counsel relied upon the case of Tarseem Kumar v. The Delhi Administration, AIR 1994 SC 2585 and State of Rajasthan v. Hakam Singh, (2011) 15 SCC 171 where the court acquitted the accused in absence of clear conclusive evidences to establish chain of events with specific motive, intention and action. In response to the appellant’s contentions, the public prosecutor put forth that motive was for the purpose of supplying a link in the chain of circumstantial evidence, but its absence cannot be a ground to reject the Prosecution case as held by court in the case of Paramjeet Singh v. State of Uttarakhand, (2010) 10 SCC 439.

The Court while rejecting Prosecutor’s argument stated that “In cases relying upon circumstantial evidence, the circumstances must be so convincing that no other conclusion can be arrived at than the guilt of the accused which must adequate to convict the accused. The Court set aside the judgment of trial court after examining the facts with evidences which did not cleared the reasonable doubt by relying upon the judgments of Supreme Court in the cases of State of Rajasthan v. Naresh, (2009) 9 SCC 368 and State of Haryana v. Ram Singh, (2002) 2 SCC 426.

Consequently, the conviction and sentence imposed on the appellant vide the impugned Judgment and Order on Sentence of the Trial Court were set aside and appellant was ordered to be released from custody along with reimbursement of fine paid by him, if any.[Subhash Thapa v. State of Sikkim, 2021 SCC OnLine Sikk 193, decided on 14-12-2021].


Suchita Shukla, Editorial Assistant has reported this brief.


Appearances by-

Mr Tashi Rapten Barfungpa, Advocate (Legal Aid Counsel) for the appellant.

Dr. Doma T. Bhutia, Public Prosecutor with Mr S. K. Chettri, Additional Public Prosecutor for the respondent.

Kerala High Court
Case BriefsHigh Courts

Kerala High Court: Kauser Edappagath, J., reversed the concurrent findings of Lower Courts, whereby the accused was convicted for the offence of rape. The Bench while acquitting the accused, stated,

“Mere statement by the victim in her evidence “the accused hugged and impregnated me” without indication about penetration aspect is not sufficient to attract the offence of rape. Such a vague statement would not be a substitute for the statutory mandate as contained in the Explanation to Section 375.”

Background

The victim and her mother, both illiterate, were working as a coolie. The accused was working at a furniture shop situated near to the house of the victim. Admittedly the victim and the accused got acquainted; they fell in love and eventually, decided to marry. The prosecution case was that one day the accused went to the house of the victim, had sex with her and made her pregnant on false promise of marriage.

Concurrent Findings of Lower Courts

The Trial Court found the accused guilty under Section 376 of IPC, convicted and sentenced him to undergo rigorous imprisonment for 7 years and to pay a fine of `10,000/. In appeal, the appellate Court confirmed the conviction and sentence.

The conviction was based mainly on the oral testimonies of the victim and her mother. The only incriminating part in the testimony of victim was that “the accused hugged and impregnated me”. There was no other evidence to suggest penetrative sexual intercourse or that the victim gave birth to a child as alleged. Admittedly no DNA test was conducted to find out the paternity of the child.

Offence of Rape

A reading of S.375 IPC shows that to commit ‘rape’, a man must have ‘sexual intercourse’ with a woman. Though, the evidence of a victim of a sexual offence is entitled to great weight, absence of corroboration notwithstanding, however, even in a case of rape, the onus is always on the prosecution to prove affirmatively each ingredient of the offence it seeks to establish and such onus never shifts. Penetration being an essential ingredient of the offence of rape, there must be proof of actual penetration or at least penile accessing. The only witness who can prove that is the victim. But, even on a plain reading of the evidence of the victim in the instant case, such fact was not revealed. She only stated that the entered the room, hugged and impregnated her.

False Promise to Marry

The appellate court, after adverting to the evidence of the victim and her mother, observed that the consent was obtained by the accused by making a false promise to marry and such consent is non-est in law.

In Pramod Suryabhan Pawar v. State of Maharashtra, (2019) 9 SCC 608, it was observed that for establishing false promise to marry, two propositions must be established:

  • the promise of marriage must have been a false promise, given in bad faith and with no intention of being adhered to at the time it was given.
  • the false promise itself must be of immediate relevance, or bear a direct nexus to the woman’s decision to engage in the sexual act.

“If a man retracts his promise to marry a woman, consensual sex they had would not constitute an offence of rape under Section 376 of the IPC unless it is established that the consent for such sexual act was obtained by him by giving false promise of marriage with no intention of being adhered to and that promise made was false to his knowledge.”

Therefore, prosecution must lead positive evidence to give rise to inference beyond reasonable doubt that accused had no intention to marry prosecutrix at all from the very inception. The victim had no case at all during evidence that she subjected herself to sex, persuaded or believed by the promise of marriage given by the accused. On the other hand, what was stated in the FI statement was that the accused seduced her though she protested his advances and after the intercourse, he told her not to reveal the incident to anyone and left the house with a promise to marry her. Thus, even according to the prosecution case, the promise of marriage was given after the alleged sexual act and not at the initial stage.

Factual Analysis

Noticeably, on the alleged date of the incident at odd hour, when the accused knocked at the door of victim’s house, she opened it and let the accused in. According to her, thereafter he hugged and made her pregnant. She had no case that she raised alarm when he hugged her. It had also come out in evidence that she did not make any complaint regarding the said incident against the accused to anybody and there was unexplained delay of more than three months in lodging FIS.

The victim had deposed that she and her mother used to sleep together in the same room, she further stated that her mother knew when she switched on the light on the arrival of accused, therefore, the Bench opined,

“The attended circumstances clearly indicated that if at all there was sexual intercourse between the victim and the accused, it was a consensual one, that too with the knowledge of victim’s mother.”

Verdict

In the backdrop of above, the Bench was of the view that the Courts below had committed illegality in holding that the victim gave consent relying upon the false promise of the accused that he would marry her. Accordingly, the conviction and sentence passed by the courts below was set aside and the accused was acquitted. [Ranjith v. State of Kerala, 2021 SCC OnLine Ker 5116, decided on 15-12-2021]


Kamini Sharma, Editorial Assistant has reported this brief.


Appearance by:

For the Accused: Sherly S.A, Legal Aid Counsel

For the State: Sanal P.Raj, Public Prosecutor

Case BriefsSupreme Court

Supreme Court: In a big relief for three death row convicts, the 3-judge bench of L. Nageswara Rao, BR Gavai* and BV Nagarathna, JJ has acquitted all of them of charges of killing 6 members of their family after it was found that the prosecution had failed to prove the case beyond reasonable doubt.

The Prosecution story

It was Prosecution’s case that, on 23rd January, 2014, at around 8.30 p.m., Momin Khan, with his wife Nazra, along with Jaikam Khan (first cousin) and Sajid (Jaikam Khan’s son) came armed with knives and assaulted Mausam Khan   (father – 85 years), Asgari (mother – 80 years), Shaukeen Khan (brother), Shanno (sister-in¬law- 30 years), Samad (nephew – 8 years) and Muskan (niece-15 years) and killed them brutally.

The verdicts by the Trial Court and the Allahabad High Court

Vide judgment and order dated 2nd January, 2016, the Trial Court convicted all the four accused for the offence punishable under Section 302/34 of the IPC and sentenced them to death vide order dated 11th January, 2016. Momin, Jaikam and Sajid were also convicted for the offence punishable under Section 25/4 of the Arms Act and awarded rigorous imprisonment for a term of three years with a fine of Rupees Five Thousand and in case of default, they were to undergo additional imprisonment for a term of three months.

While the conviction and sentence imposed on Momin, Jaikam and Sajid was affirmed, Nazra was acquitted by the High Court.

The inconsistencies and lacunae in the prosecution case

  • The two witnesses were found to be interested witnesses and their testimony was found ‘neither wholly reliable nor wholly unreliable’ as though they could have witnessed the assault two victims, it was difficult to believe that they could have witnessed the assault on the other four deceased persons as allegedly the accused had murdered six deceased at different places of the house.
  • As per the prosecution version, the main motive behind the crime was the dispute over the management of the brick¬kiln between the accused Momin Khan on one hand and deceased Mausam Khan, deceased Shaukeen Khan and P.W.1-Ali Sher Khan on the other hand. However, as per the
  • P.W.1 ­Ali Sher Khan(Shaukeen Khan’s brother) and P.W.2 ­Jaan Mohammad (Ali Sher Khan’s brother-in-law) had admitted that Jaikam Khan and Sajid had nothing to do with the brick kiln business of deceased Mausam Khan nor was there any dispute between them. Hence, with regard to Jaikam Khan and Sajid, the prosecution has utterly failed to prove any motive and has also failed to prove any strong motive insofar as Momin Khan is concerned.
  • According to P.W.1¬Ali Sher Khan and P.W.2¬ Jaan Mohammad, a large number of villagers had gathered at the spot after the incident. However, none of the independent witnesses have been examined by the prosecution. Since the witnesses examined on behalf of the prosecution were interested witnesses, non¬examination of independent witnesses, though available, made the prosecution version doubtful.
  • Though fingerprints were taken at the spot, the fingerprint expert’s report was not placed on record.
  • Though the IO had come to the spot with the dog squad, report of the dog squad was also not placed on record.
  • The assertion of P.W.1¬Ali Sher Khan and P.W.2-Jaan Mohammad that they together had gone to the police station to lodge the report, was also contradicted by the evidence of the Constable Clerk at the police station. Further, not informing the Police on phone, despite having mobile phones, also casts a serious doubt with regard to the genuineness of the prosecution case.

“Shocked” and “amazed” at the findings of the Trial Court and the High Court

Referring to a paragraph of the Trial Court’s judgment, the Court said it was “shocked” at the finding and that,

“The narration makes for an interesting reading as a story. However, all the observations are nothing but conjectures and surmises, without there being any evidentiary support to them. It is really surprising, as to how the Additional Sessions Judge could have dealt with the present case in such a casual manner when he was considering the question of life and death of four accused.”

The Court was also “amazed” by the manner in which the High court has dealt with the present matter as it had attempted to put a burden on the accused, which, as per the well settled law, does not shift unless prosecution has proved the case beyond reasonable doubt.

The Court observed,

“While coming to the conclusion that the prosecution has failed to bring home the guilt of the accused beyond reasonable doubt, we are at pains to observe the manner in which the present case has been dealt with by the trial court as well as by the High Court, particularly, when the trial court awarded death penalty to the accused and the High Court confirmed it. The trial court and the High Court were expected to exercise a greater degree of scrutiny, care and circumspection while directing the accused to be hanged till death.”

All death row convicts walk free

Finding that the prosecution had utterly failed to prove the case beyond reasonable doubt, the Court held that the conviction and death sentence imposed on the accused was totally unsustainable in law. The Court, hence, acquitted all three convicts of the charges and ordered their release.

[Jaikam Khan v. State of Uttar Pradesh, 2021 SCC OnLine SC 1256, decided on 15.12.2021]


Counsels

For appellants: Senior Advocate Nitya Ramakrishnan, Advocate Dama Seshadri Naidu,

For P.W.1­: Advocate Anant Agarwal

For State: Additional Advocate General Vinod Diwakar


*Judgment by: Justice BR Gavai 

Case BriefsSupreme Court

Supreme Court:  Reminding the Courts of the importance of hierarchy of Courts, the bench of Sanjay Kishan Kaul and MM Sundresh*, JJ has held that the Appellate Court shall not expect the trial court to act in a particular way depending upon the sensitivity of the case. Rather it should be appreciated if a trial court decides a case on its own merit despite its sensitivity.

“Every case has its own journey towards the truth and it is the Court’s role undertake. Truth has to be found on the basis of evidence available before it. There is no room for subjectivity nor the nature of offence affects its performance.”

Factual Background

In the present case, it was alleged that both the accused carried three weapons, waylaid the deceased at a signal in a main road at about 5 p.m. and after the initial attack, dragged him to the pavement, and thereafter inflicted multiple injuries.

PW-1, who saw the occurrence from a fair distance, was known to the deceased and the deceased, who had his intestine coming out, told him the story implicating the accused.

The Deceased was taken to a hospital run by PW-25, a doctor very well known to PW-1. This hospital which was about two kilometres from the place of occurrence, while another nursing home was in existence at about 50 meters.

PW-25 gave treatment to the deceased at about 5.05 p.m. He died of multiple injuries caused by haemorrhage at about 5.45 p.m. About 40 days thereafter, at the request of the police, PW-25 gave another certificate introducing adequate material to indicate that there was a dying declaration.

Before the trial court, the prosecution examined as many as 28 witnesses. Most of the witnesses pertaining to conspiracy, occurrence, recovery and extraordinary judicial confession turned hostile.

On behalf of the defence, a doctor was examined to show that considering the nature of the injuries suffered, the death must have been instantaneous.

The Court of Sessions without exception, threadbare considered all the materials including the witnesses who turned hostile. After due scrutiny, benefit of doubt was extended in favour of the appellants.

The Karnataka High Court, however, did not consider the entire evidence as discussed by the trial court and the judgment of the trial court was reversed and conviction was rendered sentencing the appellants for life.

Duty of appellate Courts

It is pertinent to note that Section 378 CrPC enables the State to prefer an appeal against an order of acquittal. Section 384 CrPC speaks of the powers that can be exercised by the Appellate Court. When the trial court renders its decision by acquitting the accused, presumption of innocence gathers strength before the Appellate Court. As a consequence, the onus on the prosecution becomes more burdensome as there is a double presumption of innocence.

However, at times, courts do have their constraints. Sometimes different decisions are being made by different courts, namely, trial court on the one hand and the Appellate Courts on the other.

Certainly, the court of first instance has its own advantages in delivering its verdict, which is to see the witnesses in person while they depose. However, the Appellate Court is expected to involve itself in a deeper, studied scrutiny of not only the evidence before it, but is duty bound to satisfy itself whether the decision of the trial court is both possible and plausible view. When two views are possible, the one taken by the trial court in a case of acquittal is to be followed on the touchstone of liberty along with the advantage of having seen the witnesses. The Appellate Court shall remind itself of the role required to play, while dealing with a case of an acquittal.

“The district judiciary is expected to be the foundational court, and therefore, should have the freedom of mind to decide a case on its own merit or else it might become a stereotyped one rendering conviction on a moral platform.”

Hence, indictment and condemnation over a decision rendered, on considering all the materials placed before it, should be avoided. The Appellate Court is expected to maintain a degree of caution before making any remark.

Ruling

The Supreme Court found it unnecessary on the part of the High Court to make strong comments on the judgment written by the trial court.

It noticed that,

  • The trial court took enormous pains in considering the evidence of all the witnesses one by one and gave exhaustive reasoning for its ultimate conclusion.
  • The dying declaration was put forth by the prosecution through the mouth of PWs 1, 2 and 25. When the evidence let in by them was found to not be trustworthy, there cannot be any dying declaration either in fact or in law.

The evidence of PW-25 had no existence of dying declaration in it. He had deposed that he did not remember whether the deceased told him that the accused attacked him and caused injuries. He later testified that he had given put forth the dying declaration due to the persistence of the police.

“It rendered a conviction on mere surmise, even though an inference can never be the basis of a conviction when the testimony of a witness is not believed on cogent reasoning.”

  • The alleged occurrence was said to have happened at about 5 p.m. on a busy road with heavy traffic and even the evidence of PW-1 and PW2 suggests that there were about 1000 persons.
  • The defence also examined a Government doctor, an expert in the field of surgery, who had clearly deposed that it would be impossible for the deceased to be conscious after suffering injuries such as intestines coming out.

The Court wondered how the various reasons given by the trial court were found unacceptable by the High Court especially when it did not consider the evidence of the other witnesses.

It was, hence, held that the High Court did not undertake the exercise as mandated under Section 378 read with Section 384 CrPC in reversing the reasoned decision rendered by the trial court. Consequently, the orders of conviction passed by the High Court was set aside.

[Mohan v. State of Karnataka, 2021 SCC OnLine SC 1233, decided on 13.12.2021]


*Judgment by: Justice MM Sundresh