Case BriefsSupreme Court

Supreme Court: The 3-judge bench of Dr. DY Chandrachud*, Indu Malhotra and Indira Banerjee, JJ has summarised the principles relating to conduct of a Test Identification Parade (TIP) and has held that

“… the identification in the course of a TIP is intended to lend assurance to the identity of the accused. The finding of guilt cannot be based purely on the refusal of the accused to undergo an identification parade.”

The Court was hearing a case where two men were convicted for killing a final year LLB student of Maharishi Dayanand University, Rohtak under Section 302 read with Section 34 of the India Penal Code and have been sentenced to imprisonment for life. The appellants had refused to undergo a TIP and it was contended that an adverse inference should be drawn against the appellants for refusing to submit themselves to a TIP.


Test Identification Parade: Principles summarised


  1. The purpose of conducting a TIP is that persons who claim to have seen the offender at the time of the occurrence identify them from amongst the other individuals without tutoring or aid from any source. An identification parade, in other words, tests the memory of the witnesses, in order for the prosecution to determine whether any or all of them can be cited as eyewitness to the crime;
  2. There is no specific provision either in the CrPC or the Indian Evidence Act, 1872 which lends statutory authority to an identification parade. Identification parades belong to the stage of the investigation of crime and there is no provision which compels the investigating agency to hold or confers a right on the accused to claim a TIP;
  3. Identification parades are governed in that context by the provision of Section 162 of the CrPC;
  4. A TIP should ordinarily be conducted soon after the arrest of the accused, so as to preclude a possibility of the accused being shown to the witnesses before it is held;
  5. The identification of the accused in court constitutes substantive evidence;
  6. Facts which establish the identity of the accused person are treated to be relevant under Section 9 of the Evidence Act;
  7. A TIP may lend corroboration to the identification of the witness in court, if so required;
  8. As a rule of prudence, the court would, generally speaking, look for corroboration of the witness’ identification of the accused in court, in the form of earlier identification proceedings. The rule of prudence is subject to the exception when the court considers it safe to rely upon the evidence of a particular witness without such, or other corroboration;
  9. Since a TIP does not constitute substantive evidence, the failure to hold it does not ipso facto make the evidence of identification inadmissible;
  10. The weight that is attached to such identification is a matter to be determined by the court in the circumstances of that particular case;
  11. Identification of the accused in a TIP or in court is not essential in every case where guilt is established on the basis of circumstances which lend assurance to the nature and the quality of the evidence; and
  12. The court of fact may, in the context and circumstances of each case, determine whether an adverse inference should be drawn against the accused for refusing to participate in a TIP. However, the court would look for corroborating material of a substantial nature before it enters a finding in regard to the guilt of the accused.

Examination of ballistics expert – When not necessary


The failure of the prosecution in a given case, to examine a ballistics expert has to be assessed bearing in mind the overall context of the nature of the evidence which is available. When direct evidence of an unimpeachable character is available and the nature of injuries is consistent with the direct evidence, the examination of a ballistics expert need not be insisted upon as a condition to the prosecution proving its case. On the other hand, where direct evidence is not available or there is doubt in regard to the nature of that evidence, the failure to examine the ballistic examiner would assume significance.


Discussion and ruling on facts


Scrutinising the evidence in the present case, the Court noticed the following aspects:

  • PW4, deceased’s father, in the course of his cross examination stated that the deceased had been facing trial in 2-3 cases and that he was a surety for his son. He claimed to be ignorant of the fact that the deceased was a coaccused with one of the appellants Rajesh, under Sections 454 and 380 of the, inspite of being the deceased’s surety in the same.
  • Similarly, PW5, deceased’s brother, during the course of his cross-examination, professed that he did not know whether the deceased was the co-accused with Rajesh. But he later deposed that, that he and his father PW4 used to go to court when Sandeep and Rajesh were being produced on various dates of hearing.

The Court, hence, noticed that the contention of the appellants that the refusal to undergo a TIP is borne out by the fact that Sandeep and Rajesh were known to each other prior to the occurrence and that PW4, who is a prime eye-witness, had seen Rajesh when he would attend the court during the course of the hearings, cannot be brushed aside.

Consequently, in a case, such as the present, the Court would be circumspect about drawing an adverse inference from the facts, as they have emerged. In any event, the identification in the course of a TIP is intended to lend assurance to the identity of the accused. The finding of guilt cannot be based purely on the refusal of the accused to undergo an identification parade. Hence,

“… in this backdrop, a refusal to undergo a TIP assumes secondary importance, if at all, and cannot survive independently in the absence of it being a substantive piece of evidence.”

Further noticing that the prosecution has failed to establish its case beyond reasonable doubt, the Court acquitted the appellants, giving them the benefit of doubt. The appellants have already undergone over 12 years of imprisonment. The Court, hence, directed that they shall be released and their bail bonds be cancelled unless they are wanted in connection with any other case.

[Rajesh v. State of Haryana,  2020 SCC OnLine SC 900, decided on 03.11.2020]


*Justice DY Chandrachud has penned the judgment 

Case BriefsSupreme Court

Supreme Court: The bench of Dr. DY Chandrachud and Indira Banerjee, JJ has held that the conclusion of the criminal trial does not conclude the disciplinary enquiry.

Background of the case


A police constable, who was tried and acquitted in a murder case, had challenged his dismissal from service after a disciplinary enquiry. The Division Bench of the Rajasthan High Court granted the respondent reinstatement in service with no back wages for the seventeen years that elapsed since his termination. The State had, hence, challenged the reinstatement before the Supreme Court.

  • On 13 August 2002, the respondent proceeded on leave and had to report back on duty on 16 August 2002. He failed to do so and eventually reported for work on 19 August 2020.
  • On 15 August 2002, one Daulat Singh lodged a written complaint in relation to the death of his brother Bhanwar Singh, caused by an accident with an unknown vehicle. However, it appeared during the course of the investigation that the death was homicidal. The respondent, along with 2 co-accused was arrested on 9 September 2002.
  • The respondent was tried for the offence of murder and was acquitted by the Sessions Court on 8 October 2003.
  • Departmental proceedings were also initiated against the respondent wherein the charges that were leveled against the respondent were:
    • Over-staying leave by a period of three days beyond the leave that was sanctioned;
    • Not seeking an extension of leave from the superior officer;
    • Involvement in the murder of Bhanwar Singh (the respondent was alleged to have run away from the scene of offence and tried to give it the colour of an accident);
    • Getting additional leave sanctioned by suppressing the correct reason on a misrepresentation to the superior officer; and
    • Conduct which has hurt the image of the police department.
  • In the finding of the Disciplinary enquiry it was noticed that the Court had not completely acquitted the said constable rather acquitted by giving him the benefit of doubt.

“From this it is clear that the Hon’ble Court has not acquitted charged constable in free form. Thus, I found said charge as completely proved due to which the image of police has blurred.”

What the Supreme Court said


On effect of acquittal in criminal trial on disciplinary proceedings

Though the acquittal brought finality to the question as to whether he had committed the offence of murder punishable under the Penal Code, however, the disciplinary enquiry stood on a broader footing. The disciplinary proceedings related not merely to the involvement of the respondent in the murder, but to the violation of service rules and the impact of his conduct on the image of the police force. Hence, the verdict of the criminal trial did not conclude the disciplinary enquiry.

Noticing that the disciplinary enquiry was not governed by proof beyond reasonable doubt or by the rules of evidence which governed the criminal trial, the Court said,

“True, even on the more relaxed standard which governs a disciplinary enquiry, evidence of the involvement of the respondent in a conspiracy involving the death of Bhanwar Singh would be difficult to prove. But there are circumstances emerging from the record of the disciplinary proceedings which bring legitimacy to the contention of the State that to reinstate such an employee back in service will erode the credibility of and public confidence in the image of the police force.”

On proof of misconduct in disciplinary proceedings

The standard of standard of proof in disciplinary proceedings is different from that in a criminal trial

In Suresh Pathrella v. Oriental Bank of Commerce, (2006) 10 SCC 572, a two judge Bench differentiated between the standard of proof in disciplinary proceedings and criminal trials in the following terms:

“ …the yardstick and standard of proof in a criminal case is different from the disciplinary proceeding. While the standard of proof in a criminal case is a proof beyond all reasonable doubt, the proof in a departmental proceeding is preponderance of probabilities.”

Further, the involvement of a member of the police service in a heinous crime, if established, has a direct bearing on the confidence of society in the police and in this case, on his ability to serve as a member of the force. Such an individual is engaged by the State as a part of the machinery designed to preserve law and order. The State can legitimately assert that it is entitled to proceed against an employee in the position of the respondent in the exercise of its disciplinary jurisdiction, for a breach of the standard of conduct which is expected of a member of the state police service.

“Confidence of the State in the conduct and behaviour of persons it has appointed to the police is integral to its duty to maintain law and order.”

On judicial review over disciplinary matters

In exercising judicial review in disciplinary matters, there are two ends of the spectrum. The first embodies a rule of restraint. The second defines when interference is permissible.

Rule of restraint:

“The determination of whether a misconduct has been committed lies primarily within the domain of the disciplinary authority. The judge does not assume the mantle of the disciplinary authority. Nor does the judge wear the hat of an employer.”

Deference to a finding of fact by the disciplinary authority is a recognition of the idea that it is the employer who is responsible for the efficient conduct of their service. Disciplinary enquiries have to abide by the rules of natural justice. But they are not governed by strict rules of evidence which apply to judicial proceedings. The standard of proof is hence not the strict standard which governs a criminal trial, of proof beyond reasonable doubt, but a civil standard governed by a preponderance of probabilities. Within the rule of preponderance, there are varying approaches based on context and subject. The first end of the spectrum is founded on deference and autonomy – deference to the position of the disciplinary authority as a fact finding authority and autonomy of the employer in maintaining discipline and efficiency of the service.

Interference when permissible

“The ultimate guide is the exercise of robust common sense without which the judges’ craft is in vain.”

At the other end of the spectrum is the principle that the court has the jurisdiction to interfere when the findings in the enquiry are based on no evidence or when they suffer from perversity. A failure to consider vital evidence is an incident of what the law regards as a perverse determination of fact. Proportionality is an entrenched feature of our jurisprudence. Service jurisprudence has recognized it for long years in allowing for the authority of the court to interfere when the finding or the penalty are disproportionate to the weight of the evidence or misconduct.

Judicial craft lies in maintaining a steady sail between the banks of these two shores which have been termed as the two ends of the spectrum. Judges do not rest with a mere recitation of the hands-off mantra when they exercise judicial review. To determine whether the finding in a disciplinary enquiry is based on some evidence an initial or threshold level of scrutiny is undertaken. That is to satisfy the conscience of the court that there is some evidence to support the charge of misconduct and to guard against perversity. But this does not allow the court to re-appreciate evidentiary findings in a disciplinary enquiry or to substitute a view which appears to the judge to be more appropriate. To do so would offend the first principle i.e. the rule of restraint.

[State of Rajasthan v. Heem Singh, 2020 SCC OnLine SC 886, decided on 29.10.2020]

Case BriefsSupreme Court

Supreme Court: Giving benefit of doubt to the accused convicted under Section 302 IPC r/w Section 34 IPC, the 3-judge bench of SK Kaul, Anirudhha Bose and Krishna Muraji, JJ reiterated that Court can and may act on the testimony of single eye-witness provided he is wholly reliable.

“… the prosecution has miserably failed to prove the guilt of the accused beyond doubt the appellants therefore must be given benefit of doubt.”

The Court was heading the matter where the appellants were convicted for killing the deceased by giving him hockey and knife blows. The Trial Court came to the conclusion that the prosecution had brought home the guilt of the accused persons and accordingly sentenced them to Life Imprisonment.

Before the Supreme Court, it was argued by the defence that

  • The knife which was recovered had a blunt tip, as such, the injuries as mentioned in the post mortem report were not possible to be caused by the said knife. Even, this knife was not shown to the doctor to seek his opinion whether injuries were possible by the said blunt knife or not.
  • Recovery of hockey at the instance of the appellant was not even believed by the Trial Court.
  • the conviction and sentence of the appellants based upon the sole testimony of one eye witness, whose conduct was unnatural and inconsistent with the ordinary course of human nature making his presence at the site of incident extremely doubtful, is highly unsafe without corroboration from other piece of evidence.
  • The other two eye witnesses have turned hostile and nothing could be elicited from their cross-examination by the prosecution.

Prosecution argued

  • Two Courts have recorded concurrent finding of guilt of the accused appellants based on the testimony of an eye witness which they found to be reliable and there exists no legal impediment for conviction on the basis of the same.
  • Evidence of a hostile witness is not to be discarded as a whole and relevant parts thereof which are admissible in law can be relied upon by the prosecution.
  • The conviction cannot be assailed merely because of some lacuna in investigation and any failure or omission of the investigating officer cannot render the prosecution case doubtful or unworthy of belief, in a case where the prosecution case is fully established by direct testimony of eye witness duly corroborated by medical evidence.

Considering the submissions and material on record, the Court noticed,

“There is no legal impediment in convicting a person on the sole testimony of a single witness. That is the logic of Section 134 of the Evidence Act, 1872. But if there are doubts about the testimony, Courts will insist on corroboration. It is not the number, the quantity but quality that is material. The time honoured principle is that evidence has to be weighed and not counted. On this principle stands the edifice of 8 Section 134 of the Evidence Act. The test is whether the evidence has a ring of truth, is cogent, credible and trustworthy or otherwise.”

The Court said that in the facts and circumstances of the case this was serious lapse on the part of the investigating officer. Though normally minor lapses on the part of the investigating officer should not come in the way of accepting eye witness account, if otherwise reliable. But in the circumstances of the case at hands where the conduct of sole eye witness is unnatural and there are various other surrounding circumstances which make his presence at the site of incident doubtful, such a lapse on the part of the investigating officer assumed significance and is not liable to ignored.

It was, hence, held,

“… ordinarily this Court could be reluctant to disturb the concurrent view but since there are inherent improbabilities in the prosecution story and the conduct of eye witness is inconsistent with ordinary course of human nature we do not think it would be safe to convict the appellants upon the incorroborated testimony of the sole eye witness.”

[Amar Singh v. State (NCT of Delhi),  2020 SCC OnLine SC 826, decided on 12.10.2020]

Case BriefsForeign Courts

Supreme Court of the Democratic Socialist Republic of Sri Lanka: A Bench of Buwaneka Aluwihare, LTB Dehideniya and P Padman Surasena, JJ., dismissed an appeal filed aggrieved by the decision of the Provincial High Court of Western Province holden at Panadura which had set aside the judgment of the learned Magistrate and ordered a retrial to be conducted against the Appellant. Thus, the instant appeal was filed.

The Accused-Appellant was charged in the Magistrate’s Court under Section 314, Section 314 read with 102, Section 333, Section 343, Section 380 read with Section 102 and Section 409 read with Section 102 of the Penal Code. Magistrate at the conclusion of the trial acquitted the Appellant from all of the above charges. Being aggrieved the Respondent had appealed to the Provincial High Court which had set aside the judgment of the Magistrate and ordered a retrial to be conducted against the Appellant.

The Court while dismissing the appeal affirmed the judgment of the High Court stating that after considering the facts and having perused all the evidence it was clear that the Magistrate had not taken into consideration the evidence adduced by the defence before he came to the conclusion that the prosecution has not proved its case. Moreover, it also appeared that the Magistrate had failed to assess, evaluate and appreciate the evidence adduced in the trial as a whole. They based their conclusion on the following quotation from the Indian case of State of U.P. v. M.K. Anthony, (1985) 1 SCC 505 where the Supreme Court of India had held that

“while appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the court to scrutinize the evidence more particularly keeping in view of the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief. Minor discrepancies of trivial matters not touching the core of the case, hyper-technical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole.”

[Dehigaspe Patabandige Nishantha Nanayakkara v. Kyoko Kyuma, SC Appeal No. 123 of 2012, decided on 07-08-2020]


Suchita Shukla, Editorial Assistant has put this story together

Case BriefsHigh Courts

Chhattisgarh High Court: Sanjay K. Agrawal, J. refused the application for grant of leave to appeal against acquittal and dismissed the petition in limine.

The factual matrix of the case is that the respondents on 4-5-2013 at 7.15 p.m. entered into the prohibited area without permission and violated the promulgated order of the Government and thereby committed the offence under Section 188 IPC.

The counsel Vikram Sharma appearing for the petitioner submitted that the Judicial Magistrate First Class was absolutely unjustified in acquitting the respondents of the offence under Section 188 IPC on the ground that despite sufficient opportunity, no witnesses were examined to support the case of the prosecution as no reasonable opportunity was granted to adduce evidence.

The Court relied on the judgment titled C. Muniappan v. State of T.N., (2010) 9 SCC 567 and Babita Lila v. Union of India, (2016) 9 SCC 647 held that the offence under Section 188 IPC can be taken cognizance of by the Magistrate under Section 190 CrPC except in accordance with Section 195(1)(a)(i) CrPC and unless complaint in writing is filed by the public officer concerned, on the basis of police report, offence under Section 188 IPC cannot be taken cognizance of by the jurisdictional Magistrate. He further held that this principle has to be given a strict interpretation and not a liberal one and hence trial of the respondents for the offence under Section 188 IPC on the basis of police report and charge-sheet filed subsequent thereto by the State police was absolute without jurisdiction and without authority of law.

In view of the above, application for grant of leave to appeal against acquittal stands refused and the petition dismissed.[State of Chhattisgarh v. Rikki Sahu, 2020 SCC OnLine Chh 110, decided on 14-07-2020]

Case BriefsHigh Courts

Sikkim High Court: A Division Bench of Bhaskar Raj Pradhan and Arup Kumar Goswami, JJ. while upholding the Judgment of acquittal passed by Special Judge (POCSO), held that,

A delicate balance is required to be maintained between the judicial perception of the anguish of the victim and the presumption of innocence of the accused and an inequitable tilt either way may not render sound justice.

Sole testimony of minor prosecutrix was that she was sexually assaulted by respondent that was disbelieved by Special Judge (POCSO).

Assistant Public Prosecutor submitted that the sole testimony as stated above had not been demolished during the cross-examination and as such the Special Judge erred in discarding it.

Complainant (PW-1) with whom the minor prosecutrix was staying for the last 4 months had filed the FIR against the respondent. In the FIR it was stated that when complainant enquired from the minor prosecutrix, she was informed that respondent had been assaulting and raping her for a very long time.

Gynaecologist opined that clinical and cytopathological report was not suggestive of recent forceful sexual intercourse. She admitted that hymen can tear and rupture from so many other things besides sexual intercourse.

Minor Prosecutrix further stated that although PW-1 and her husband slept together in the same house but nobody noticed the respondent sexually assaulting her and whenever she tried to raise an alarm he used to put his hand on her mouth.

Daughter of the respondent told minor witness (PW-3) that the minor prosecutrix was a girl of immoral character. The minor prosecutrix deposed that she was deeply hurt and mentally affected after hearing this and started crying when the complainant (PW-1) saw her. At this moment, the minor prosecutrix told the complainant (PW-1) about the sexual assault.

Decision of the Court

Bench — keeping in mind the ambit and scope of the judicial examination in the present appeal against acquittal, stated that judgment of acquittal passed by the Special Judge is neither perverse nor against the weight of the evidence on record.

Special Judge had disbelieved the deposition of penetrative sexual assault made by the minor prosecutrix. Disbelief was fortified by the medical as well as forensic evidence.

Reasoning for the above decision

Defence had brought out the animosity between the complainant (PW-1) and the sole prosecutrix on the one side and the respondent and his daughter on the other. The negative result of both the medical and forensic evidence collected immediately after the alleged assault does not help the prosecution case further, more so, when she alleged forceful penetrative sexual assault.

Defence has also been able to bring out certain facts about the altercations and fight between them immediately preceding the lodging of the FIR.

All of the above leans towards the claim of innocence of the respondent.

Thus, in the above view, judgment of acquittal is upheld. [State of Sikkim v. Karna Bahadur Rai, 2020 SCC OnLine Sikk 33, decided on 14-03-2020]

Case BriefsHigh Courts

Bombay High Court: K.R. Shriram, J., while upholding the decision of the trial court with regard to the acquittal of the accused, held that,

“There is an acquittal and therefore, there is double presumption in favour of accused.”

The present appeal was filed impugning an order and Judgment by Vth Adhoc Sessions Judge, Pune, acquitting 6 accused of offences punishable under Sections 498A, 306, 201 read with Section 34 of Penal Code, 1860.

Accused were charged with offences punishable under Sections 498A (husband or relative of husband of a woman subjecting her to cruelty), 302 (punishment for murder), 201 (causing disappearance of evidence of offence, or giving false information to screen offender ) read with Section 34 (Acts done by several persons in furtherance of common intention) of IPC.

Jayshree (Deceased) on visiting her parental home on several occasions had informed of the ill-treatment and harassment she was being received from her matrimonial home on account of demand of money for buying a Motorcycle.

On hearing the same, Complainant (Jayshree’s father) made the in-laws of Jayshree realise that they should not ill-treat or harass Jayshree.  After a few days, on one morning Complainant received the message of Jayshree being dead.

Thereafter, Complainant alleged the accused of having ill-treated Jayshree on account of demand of money for the purchase of Motor Cycle and made her life miserable and thereafter murdered her. Base on the same, offence was lodged under Sections 498A, 302, 201 and 34 of Penal Code.

Trial Court altered the charge from Section 302 to 306 IPC on receiving an application for the same as the medical report stated that the cause of death was by hanging, i.e., suicide not murder.

After hearing the parties and on receiving the evidence pertaining to the case, Court passed the order of acquittal, which is impugned in the present appeal.

APP submitted that the accused were harassing and ill-treating the deceased by unlawfully demanding Hero Honda Motor Cycle. Jayshree on not being able to bear with the harassment on the part of the accused, therefore, abetted the commission of suicide by Jayshree. Hence all the accused have to be convicted.

Senior Advocate, Rajiv Patil while defending the impugned Judgment submitted that none of the witnesses can be taken to have proved the offence under Sections 498A or 201 or 306 of IPC.

Decision

High Court agreed with the respondent’s counsel on considering the evidence placed on record.

With regard to the evidence in regard to the allegation of demand of money for motor cycle, documents showing that the accused had bought the same before his marriage on taking a loan from the bank which was also repaid before the marriage have been placed on record.

Regarding Section 306 IPC, Court noted that no evidence had been placed on record to speak off. There was no evidence to suggest or indicate that the accused knew or had reason to believe that the deceased would commit suicide.

“Even if any acts or words uttered by the accused or their conduct are sufficient to demean or humiliate the deceased and even to drive the deceased to suicide, such acts will not amount to instigation or abetment of commission of suicide, unless it is established that the accused intended by their acts that the deceased must commit suicide. It is not enough if the acts of the accused cause persuasion in the mind of the deceased to commit suicide.”

In reference to the above, decision of Kerala High Court was cited, Cyriac v. Sub-Inspector of Police, Kaduthuruthy, 2005 SCC OnLine Ker 346, wherein it was held that,

“…it is not what the deceased ‘felt’, but what the accused ‘intended’ by her act which is more important.”

Thus, in Court’s opinion and on considering the evidence on record, prosecution failed to drive home the charge under Section 498A or Section 306 IPC.

Bench held that there is double presumption in favour of the accused,  firstly, the presumption of innocence available to the accused under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless they are proved guilty by a competent court of law. Secondly, accused having secured their acquittal, the presumption of their innocence is further reinforced, reaffirmed and strengthened by the trial court.

Hence, trial court’s decision cannot be held illegal or improper or contrary to law. [State of Maharashtra v. Vijay Maruti Bombale, 2019 SCC OnLine Bom 5985, decided on 19-12-2019]

Case BriefsHigh Courts

Himachal Pradesh High Court: Anoop Chitkara, J., dismissed an appeal filed to challenge the acquittal of respondents-accused for carrying 600 bottles of country-made liquor without a license, where the Chief Judicial Magistrate had acquitted him giving reasons.

The daily diary report of the Police line in Hamirpur stated that on the morning of November 29, 2006, when the police party was present at a place known as Karer, then from the side of Salauni, one vehicle number bearing No. HP22A 8412 had arrived and it was stopped on suspicion. The vehicle had two people, the driver and one other person who ran away taking advantage of darkness. On checking the police had found 50 cartons, each carton contained 12 bottles of 750 ml each, in all 600 bottles of country-made liquor of Brand Una No. 1, out of which 5 bottles were taken out by the officials for sample and others were sealed, after which FIR was filed for the commission of offence punishable under Section 61 of the Punjab Excise Act as applicable to the State of H.P., also during investigation, the police arrested the absconding accused. After the completion of the investigation, police had filed a report under Section 173 (2) CrPC in the Court of Chief Judicial Magistrate. After the recording of the prosecution evidence, the trial Court had put the incriminating circumstances to the accused in compliance with the provisions of Section 313 of CrPC; the accused denied all the circumstances but had not led any evidence in defence. The Court had dismissed the prosecution case and acquitted the accused of all charges thus the instant appeal was filed by the State.

The High Court while dismissing the appeal found the impugned Judgment well reasoned and explained that the point that the police had introduced an independent witness at a later stage as there was no mention of him in the daily diary report and in cross-examination also the prosecution witness admitted to the fact that he had seen 350 bottles in a gunny bag which were unsealed, and the prosecution had failed to prove in evidence that the quantity of bottles of liquor in question was 600.  [State of Himachal Pradesh v. Vipan Kumar, 2020 SCC OnLine HP 34, decided on 03-01-2020]

Case BriefsHigh Courts

Himachal Pradesh High Court: Anoop Chitkara, J., dismissed an appeal filed challenging the acquittal of the accused of the commission of offences of criminal defamation, insult, threat and causing simple injuries.

A criminal complaint had been filed by one brother-in-law against the other stating that both their houses were adjacent to each other and in between, there was government land which was being used as a compound and a common path by both the parties. The complainant alleged that the accused kept on trying to encroach upon this government land and the complainant prevented him of doing the same but finally, the accused was successful in encroaching upon the land upon which complainant filed an application before the Tehsildar and they scheduled a demarcation. Before the demarcation could take place the accused started building pillars on the government land adjacent to the wall of the house of the complainant to which he objected but instead of stopping the work the accused got furious and hurled abuses on him followed by catching hold of his neck and pushing him and he fell off the stairs suffering injuries. The complainant further alleged that the accused proclaimed that the complainant’s mother had brought her daughter-in-law (his wife), in dowry to which the complainant warned him of using defamatory words. The Court had framed charges against the accused under Sections 323, 500, 504 and 506(1) of the Penal Code. The Court after examining all the witnesses from both the parties dismissed the complaint thus the instant appeal.

The Court while dismissing the appeal based it partly on the cross-examination of the witnesses where it was admitted that the accused had demolished the pillars when the scuffle came up which showed that the quarrel had come to an end and it could not be ruled out that the accused had also filed numerous complaints against the complainant and he had brought this matter after a month when the matter was settled earlier itself. The complaint and the evidence brought on record proved that the case suffered from major contradictions and the accused could be given the benefit of doubt and the court found that the judgment of the trial Court was well reasoned and was based on complete, correct and proper appreciation of evidence. [Kanshi Ram Panchhi v. Amar Chand, 2020 SCC OnLine HP 33, decided on 03-01-2020]

Case BriefsHigh Courts

Himachal Pradesh High Court: Anoop Chitkara, J., dismissed an appeal filed to challenge the acquittal of the respondents-accused, for causing simple hurt and wrongful restraint. The appellant-State had come up before this Court seeking the conviction of accused, by filing the Criminal Appeal under Section 378 of the CrPC.

An FIR was filed by the complainant alleging that she was a farmer and while she was lopping leaves from her compound, Accused 1 and Accused 2, who was carrying a bamboo stick obstructed her from lopping the leaves and claimed that the land belonged to her. On the suspicion that the accused was going to beat her, she ran to her house and requested them that she did not want to quarrel and if the compound fell on their land then they could go for demarcation and if the land was found belonging to them then she would vacate her possession but the accused entered the house and started beating her with sticks. Her mother in law tried to stop the accused on which they started beating her also due to which she suffered several injuries. The medical examination of the complainant and the mother in law was conducted and the sticks were recovered from the accused and the trial court had framed charges under Sections 451 and 323 both read with 34 of Penal Code. The accused had denied all the offences but had not produced any evidence in their defense. The complainant during the cross-examination had admitted to the fact that a civil case was going on between them since 3 years, she also admitted later that at the time of the quarrel Balwant Singh, her daughter, two sons, her mother-in-law and members of the family of accused were also present The JMIC had acquitted both the accused of all the charges thus the instant appeal.

The Court while dismissing the appeal explained that the judgment of the trial court was a well-reasoned Judgment and was based on correct, complete and proper appreciation of evidence provided by the sole independent witness of the case who was the neighbor of the parties and he had stated that the accused Nirmala Devi was in his house and Seema Devi was in her own house. [State of H.P. v. Nirmala Devi, 2020 SCC OnLine HP 31, decided on 03-01-2020]

Case BriefsHigh Courts

Bombay High Court: K.R. Shriram, J., dismissed an appeal filed against the order of the trial court whereby it had acquitted of the offences punishable under Sections 498-A, 306, 201 read with Section 34 Penal Code, 1860.

The accused were the in-laws of the deceased. The complainant (father of the deceased)and harassed her due to the non-fulfilment of their demand. Further, it was alleged that subsequent to the harassment, the accused persons murder the deceased. However, during the trial, the charge of murder against the accused persons was altered to that of the abetment of suicide. At the conclusion of the trial, the trial court acquitted all the accused. Aggrieved thereby, the State approached the High Court in the instant appeal.

The High Court considered the findings of the trial court and held that the offence under Section 498-A (husband or relative of husband of a woman subjecting her to cruelty) was not established as the demand of money, such as alleged by the complainant, could not be proved by the prosecution.

Coming to the charge under Section 306 (abetment of suicide), the High Court, relying on Sanju v. State of M.P., (2002) 5 SCC 371, explained: “Here is the case of abetment by instigation. The word ‘instigate’ means to goad or urge or forward or to provoke, incite, or encourage to do an untoward act which that person would have otherwise not done. It is also well settled that in order to amount to abetment, there must be mens rea. Without knowledge or intention, there can be no abetment and the knowledge and intention must relate to the act said to be abetted, i.e., suicide, in this case. In order to constitute ‘abetment by instigation’, there must be a direct incitement to do the culpable act. The word ‘instigate’ denotes incitement or urging to do some drastic or unadvisable action or to stimulate or incite. Presence of mens rea, therefore, is the necessary concomitant of instigation.”

It was noted that in the instant case, “There is no evidence to suggest or indicate that the accused knew or had reason to believe that deceased would commit suicide. Even if any acts or words uttered by the accused or their conduct are sufficient to demean or humiliate the deceased and even to drive the deceased to suicide, such acts will not amount to instigation or abetment of commission of suicide, unless it is established that the accused intended by their acts that the deceased must commit suicide. It is not enough if the acts of the accused cause persuasion in the mind of the deceased to commit suicide.”

The offence under Section 201 (causing disappearance of evidence of offence, or giving false information to screen offender) was also held to be not proved. Therefore, the order of the trial court was upheld and the instant appeal was dismissed. [State of Maharashtra v. Vijay Maruti Bombale, 2019 SCC OnLine Bom 5985, decided on 19-12-2019]

Case BriefsHigh Courts

Kerala High Court: R. Narayana Pisharadi, J. rejected this petition in which the petitioner prayed to file an appeal against the judgment passed by the trial court, for an offence punishable under Section 138 of the Negotiable Instruments Act, 1881.

This petition was filed by the petitioner to seek relief against the order of the trial court where the trial court acquitted the accused under Section 255(1) of the Code of Criminal Procedure, 1973. Section 255(1) of CrPC states that if the Magistrate, after recording the evidence, finds that the accused is not guilty, he shall record an order of acquittal.

This petition was filed by the complainant in the trial court by the case S.T. No. 114 of  2017 on the file of the Court of the Chief Judicial Magistrate, Thodupuzha. The case was filed under the offence punishable under Section 138 of the NI Act. It consists of dishonour of cheque for insufficiency, etc., of funds in the account, punishable with imprisonment for a term which may extend to 2 years or with fine which may extend to twice the amount of the cheque.

During the trial, the prosecution as well as the accused, both were examined and documents were also marked, complying with the needs of Section 255 CrPC.

The facts of the present petition is that the petitioner wants to file an appeal because the trial court acquitted the accused under Section 255(1) CrPC on the ground that the cheque drawn by him was not on an account maintained by the accused himself, in the bank. Rather it was drawn on an account maintained by one Kavitha Chandrasekharan. The Manager of the Bank of the said account gave evidence that the said account did belonged to Kavitha Chandrasekharan. The counsel for the petitioner contended that the trial court should have charged the accused for an offence punishable under Section 420 of the Penal Code.

It was upheld in a Supreme Court judgment, Jugesh Sehgal v. Shamsher Singh, (2009) 14 SCC 683, that one of the basic ingredients of offence punishable under Section 138 of the Act is that the cheque shall be drawn on an account maintained in the bank in the name of the drawer himself. Hence, the Court here upheld the decision of the trial court.

After noting the contentions of the counsel for the petitioner, Latheesh Sebastian, and the counsel for the respondent, C.N. Prabhakaran, Senior Public Prosecutor, High Court held that the decision given by the Chief Judicial Magistrate was correct as the case did not satisfy all the ingredients that are needed to punish someone under Section 138 of the NI Act. Secondly, this Court also said that it was not necessary for the trial court to convert this case into a warrant case and start a de novo trial. Hence, the prayer for granting leave to file an appeal was rejected and the petition was dismissed. [Areeplavan Finance v. Chandrasekharan, 2019 SCC OnLine Ker 5330, decided on 11-12-2019]

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

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

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

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

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

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

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Patna High Court: Ahsanuddin Amanullah, J. dismissed the petition filed against the order passed in Sessions Trial by which the opposite parties 2 to 4 had been acquitted under Sections 447, 307, 504/34 of the Penal Code, 1860 and convicted only under Sections 323 and 341 of Penal Code, 1860.

The petitioner had filed a case under Sections 447, 341, 323, 327 and 504/34 of the Penal Code in which cognizance was taken under all the Sections. After trial, the judgment resulted in the acquittal of the opposite parties under Sections 447, 307, 504/34 of the Penal Code and conviction under Sections 323 and 341 of the IPC. The learned counsel for the petitioner submitted that the accused had assaulted him and two others with lathi and iron rod which resulted in a blow to his head and acquittal under Section 307 of the Indian Penal Code was not justified. They relied upon the judgment of the Hon’ble Supreme Court in the case of Hari Mohan Mandal v. State of Jharkhand, 2004(3) PLJR (SC) 7, for the proposition that to justify a conviction under Section 307, it is not essential that bodily injury capable of causing death should have been inflicted and it was sufficient if there was present an intent coupled with some overt act in execution thereof and further that merely because the injury inflicted on the victim were simple in nature it would not be correct to acquit under Section 307 of the Indian Penal Code.

The APP submitted that the assault resulted in only simple injury and even on the head, there was only one lacerated would which clearly does not satisfy the requirement of conviction under Section 307 of the Indian Penal Code as it did not disclose premeditated intention to kill, as there was no repetition of blow and even the weapons used could not be said to be weapons which may indicate intention to kill the person assaulted.

The Court found no merit in the present application. The order impugned had discussed the evidence and had rightly convicted the opposite parties 2 to 4 only under Sections 323 and 341 of IPC. In the present case, a single blow which had been found to be simple in nature, on the back of the head, can in no way be construed to be indicative of a premeditated mind to inflict such blow knowing that the same would result in the death of the person. [Md. Nazir v. State of Bihar, 2019 SCC OnLine Pat 2010, decided on 19-11-2019]

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Bombay High Court: K.R. Shriram, J., while dismissing the criminal appeal filed by the State against the order of the trial court acquitting the accused of charge under Section 392 of Penal Code, 1860, reiterated that there is a double presumption of innocence in favour of the accused who has been acquitted from the offence as charged by the trial court.

In the instant case, the accused was charged with committing an offence of robbery punishable under Section 392 IPC. On the conclusion of the trial, he was, however, acquitted by the trial court. Aggrieved by the said order of acquittal, the State preferred the instant appeal.

The High Court, on perusal of the evidence, found that the prosecution was not able to prove its case against the accused beyond reasonable doubt and, therefore, no interference was warranted with the order of the trial court. Pertinently, the Court reiterated the law relating to presumption of innocence that runs in favour of the accused. It was observed:

“There is an acquittal and therefore, there is double presumption in favour of the accused. Firstly, the presumption of innocence available to the accused under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured acquittal, the presumption of their innocence is further reinforced, reaffirmed and strengthened by the trial court. For acquitting the accused, the Trial Court observed that the prosecution had failed to prove its case.”

Also, in relation to the nature of proof to be adduced in a criminal case, the Court restated:

“When the evidence adduced did not conclusively lead to the guilt of the accused and only pointed needle of suspicion towards the accused and nothing more, he cannot be committed because suspicion is no substitute for proof in criminal trial.”

Accordingly, finding no fault with the order passed by the Trial Judge, the High Court held that the instant appeal deserves dismissal. [State of Maharashtra v. Shivaji Haribhau Jirase, 2019 SCC OnLine Bom 4130, decided on 11-11-2019]

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Delhi High Court: A Division Bench of Manmohan and Sangita Dhingra Sehgal, JJ. dismissed of an appeal filed against the judgment of the trial court whereby the respondent, accused of raping the appellant-prosecutrix, was acquitted.

The case of the prosecutrix was that the accused established physical relations with her under the false pretext of marriage and that they were living together for about five years before the complaint was lodged by the prosecutrix under Section 376(2)(n) and 313 read with 506 Penal Code, 1860.

The High Court, at the outset, reiterated the settled legal position that the onus is on the prosecution to prove its case beyond a reasonable doubt. Relying on Pramod Suryabhan Pawar v. State of Maharashtra, 2019 SCC OnLine SC 1073, it was noted that the false promise should have had a direct nexus to the prosecutrix decision to engage in the sexual act. It was noted that the prosecutrix was already married to someone else and had six children from the wedlock. The Court was of the view that it was imperative for the prosecution to prove that prosecutrix was divorced from her first husband and was eligible for re-marriage. It was asserted by the prosecutrix she was given triple talaq orally in the presence of her parents and in-laws. However, the factum of the divorce was not substantiated by any proof, not even the evidence of prosecutrix parents and in-laws for proving the divorce was adduced. The Court was of the opinion that the prosecutrix failed to prove that she was eligible for re-marriage.

Further, the prosecutrix’s allegation that the accused neither married her nor allowed anybody else to marry her, did not inspire confidence since neither the 2015 marriage proposal had been proved nor the alleged obscene photos and videos shown by the accused to the prospective groom had been placed on record.

The High Court is in agreement with the finding of the trial court that the prosecutrix’ conduct of voluntary meeting the accused in Rohini Jail three times after filing of the present complaint lend credence to the accused’ defence that the real intent behind the present proceeding was to force him to marry the prosecutrix.

It was held that the testimony of the prosecutrix, read in its entirety, was neither credible nor believable or trustworthy. Therefore the appeal was found without merit and was dismissed. [“X” v. State, 2019 SCC OnLine Del 10822, decided on 22-10-2019]

Case BriefsHigh Courts

Patna High Court: The Division Bench comprising of Hemant Kumar Srivastava Prabhat Kumar Singh, JJ. dismissed an appeal on the admission stage itself since they did not find any faults in the findings of the trial court.

A criminal appeal was preferred under the proviso of Section 372 of the Criminal Procedure Code, 1973 against the Judgment of acquittal by which the respondents were acquitted from charges framed under Section 304-B of the Penal Code, 1860.

The appellant claimed that his daughter, namely, Najma Khatoon who was married to the respondent 3, six years ago but, the respondent’s 2, 3 and 4 started misbehaving with his daughter and, she was killed by respondent’s 2, 3 and 4. The appellant further claimed that as soon as he was informed about the death of his daughter went to her in-laws’ house and found that the body of his daughter was lying in a room and had marks of assault on it. It was also submitted that the respondent’s 2, 3 and 4 forcibly buried the body.

The respondents were charged for the offence punishable under Section 304-B of the IPC. In the course of the trial, ten prosecution witnesses were examined and some documents were also exhibited. The trial court having evaluated the evidences available on the record came to the conclusion that prosecution did not succeed to prove all the ingredients of Section 304-B of the IPC and accordingly, the learned trial court acquitted the respondent’s 2, 3 and 4.

The learned counsel for the appellant submitted that during the course of trial, appellant, as well as some other prosecution witnesses, had supported the prosecution’s story stating that deceased the was subjected to cruelty and harassment by respondents’s 2, 3 and 4 due to non-fulfillment of the illegal dowry demand, she was killed by the respondents. The witnesses also claimed that they had seen injury marks on the person of the deceased when they had visited the house of respondents 2, 3 and 4 after receiving information regarding the death.

On perusal of the impugned Judgment, the Court held that the learned trial court noticed that the appellant had filed a complaint case after one month of the alleged occurrence and although the prosecution witnesses claimed to have seen the injuries on the person of the deceased just after her death, none of them made any attempt to report the matter to concerned police station immediately after noticing the injuries. The trial court had no grounds to believe the witnesses as there was not a single shred of paper to prove that the deceased had sustained injuries. The appellant had not disclosed the factum of dowry in his complaint petition and the aforesaid story was introduced during the course of the trial.

In view of the above-noted facts, the instant appeal was dismissed since the Court did not find any perversity in the findings of the trial court.[Mohammad Hanif v. State of Bihar, 2019 SCC OnLine Pat 1683, decided on 24-09-2019]

Case BriefsHigh Courts

Bombay High Court: Sandeep K. Shinde, J. dismissed an appeal filed by the State against the order of acquittal by the trial court in respect to the matter pertaining to Sections 498-A and 306 of Penal Code, 1860.

State preferred the present appeal under Section 378(1) of CrPC, 1973 against the order of acquittal passed by Additional Sessions Judge.

In accordance with the prosecution case, the deceased suffered suicidal death due to acute cardiorespiratory arrest caused due to 100% burns at her matrimonial house. Deceased’s brother filed the complaint against deceased’s brother-in-law (accused 1) and wife of accused 1 (accused 2) along with sister-in-law of deceased (accused 3), for ill-treating the deceased and for abetting to commit suicide.

Thus, a crime under Section 498-A and 306 read with Section 24 of the Penal Code, 1860 was registered,

Deceased suffered unnatural death within a period of 7 years from the date of her marriage. Trial Court acquitted the accused, having found the prosecution could not establish that the accused ill-treated and caused cruelty to deceased within the meaning of Explanation Clause-a to Section 498-A of the Penal Code, 1860.

Settled Law:

“Cruelty for the purpose of Section 498-A Penal Code, 1860 means any “willful conduct” which is of such a nature as is likely to drive a women to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman or harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security is on account of failure by her or any person related to her to meet such demand.”

The question involved in the present case is,

“Whether prosecution has established that the “willful conduct” of the accused was of such a nature which drove Shaheeda (deceased) to commit suicide?”

On the date of the incident, a quarrel ensued between the deceased and accused 2, during the course of the same, deceased inflicted injury on the forehead of accused 2 by a stick. It is disclosed that when accused 1 had gone to the police station to report about the assault by deceased on his wife (accused 2), he was informed that the deceased had set herself on fire.

It was reported to the police that there were recurring disputes between the deceased and her in-laws on account of supply and electricity and water.

Thus upon assessing the evidence of deceased’s brother, it cannot be said that “willful conduct” of the accused amounts to cruelty and such alleged conduct drove her to commit suicide. There is no specification laid out as to what kind of ill-treatment or harassment was meted out to the deceased.

High Court on noting the facts and circumstances of the case, held that there is no evidence or rather, it is not the case of the prosecution that the deceased was physically harassed or tortured by the accused. Equally, there is no dependable evidence to hold that, accused were mentally torturing the deceased.

Therefore, by relying on the Supreme Court’s decision in Pawan Kalyan v. State of Haryana, (1998) 3 SCC 309, Ramesh Kumar v. State of Chhattisgarh, (2001) 9 SCC 618 and  Mohd. Hoshan v. State of A.P., (2002) 7 SCC 414, Court held that the trial court is consistent with the evidence which cannot be faulted with and hence no interference is called for. The appeal, therefore, fails and is dismissed. [State of Maharashtra v. Ibrahim Ruknuddin Bagkari, Criminal Appeal No. 1267 of 2003, decided on 11-09-2019]

Case BriefsHigh Courts

Delhi High Court: A Division Bench of Manmohan and Sangita Dhingra Sehgal, JJ. dismissed a criminal leave petition filed by the State challenging the order of the Additional Sessions Judge whereby the respondent-accused was acquitted of offences punishable under Sections 376, 366 and 363 IPC along with Section 6 of the Protection of Children from Sexual Offences Act, 2012.

The father of the victim had lodged a complaint that his minor daughter (aged about 17 years) had not returned home from school. During the course of the investigation, the victim was recovered from the possession of the accused. After completion of investigation, charge sheet wassailed against the accused of the offences as aforementioned. The accused was, however, acquitted by the trial court.

Aashaa Tiwari, APP appearing for the State, submitted that as the victim was a minor at the relevant time, her consent to accompany the accused and to have physical relations with him was of no consequence.

Perusing the statements of the victim, the High Court noted that she has misrepresented her age to be 18 years to the accused. She had also categorically stated that had she not done so, the accused would not have allowed her to accompany him.

It was observed: “The element of mens rea, which is an essential ingredient of Sections 363, 376 IPC is missing. In the present case, it is only because of a misrepresentation by the prosecutrix with regard to her age, which the respondent-accused bonafidely believed to be true that he allowed her to accompany him.”

The Court noted further: “In fact, statement of the prosecutrix clearly negates any charge including Section 6 of POCSO. Consequently, as the respondent-accused had not knowingly committed any offence, none of the charges can be said to have been proven.”

Considering the well-settled law that an acquittal order cannot be lightly interfered with by the Appellate Court, the High Court declined to interfere with the order of the acquittal passed by the trial court. The leave petition was thus dismissed.[State (NCT of Delhi) v. Kaishar Ali, 2019 SCC OnLine Del 9875, decided on 30-08-2019]

Case BriefsHigh Courts

Bombay High Court: Prithviraj K. Chavan, J. allowed an application whereby the State of Goa sought condonation of 156 days’ delay in filing the appeal against the acquittal of the accused-respondent.

S.R. Rivankar, Public Prosecutor, appearing for the State, submitted that as per the opinion was given by the Director of Prosecution, the impugned order passed by the Magistrate was challenged before the Sessions Judge along with an application for condonation of delay. It was objected to by the respondent as regards its maintainability before the said Court. Consequently, the prosecution moved an application for withdrawal of the appeal on with liberty to file the said appeal before the High Court. The Sessions Judge on the same day permitted the prosecution to withdraw the appeal. Thereafter, the file was circulated in the Department and the matter was finally allotted to the Public Prosecutor. As such, it was contended that the State was prosecuting its remedy with due diligence before a wrong forum, inadvertently, and therefore, the delay need be condoned.

Per contra, H. Gopi, Advocate for the respondent stated,  that there was no sufficient cause for condonation of delay, as the prosecution was required to explain delay before each and every officer which had gone unexplained. It was submitted that the respondent had accrued valuable rights in his favour on account of the acquittal granted by the Magistrate and, therefore, that right cannot be taken away lightly.

The High Court was of the opinion that the State had shown sufficient cause to condone the delay. Perusing Section 470 CrPC that provides for exclusion of time in certain cases, it was observed: “It appears that due to an incorrect opinion given by the Director of Prosecution, the State was prosecuting the remedy before a wrong forum. It was indeed with due diligence and bonafide as per Section 470 CrPC, and hence, such a period needs to be excluded while computing the period of limitation. Sufficient cause has been shown by the prosecution for condonation of delay, however, it cannot be lost sight of the fact that the respondent is put to some hardship due to the said delay which needs to be adequately compensated.”

Resultantly, the delay of 156 days in filing the appeal was condoned subject to costs of Rs 3000 to be paid to the respondent.[State of Goa v. Natividade Nazario Fernandes, 2019 SCC OnLine Bom 1703, decided on 27-08-2019]