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

 

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.

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.

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

Case BriefsSupreme Court

Supreme Court: In a case where an accused merely pointed to the house where the victim was hiding, thereby helping a fully armed “murderous mob” locate the victim, the bench of Sanjay Kishan Kaul* and MM Sundresh, JJ has held that the mere fact that the accused was not brave enough to conceal where the victim was hiding did not make him a part of the unlawful assembly under Section 149 of the IPC.

A house was being constructed on land stated to be of the victim named Abdul Wahab and others when the accused persons came in a mob towards the house of the victim armed with lathis, spears, daggers, etc. The victim tried to escape by taking shelter in the house of one Shorab Ali but did not succeed as the house was surrounded, walls of the house were broken and a mounted assault made on the victim. Different accused were assigned different roles to the extent of the weapon they wielded. The body of the victim was then carried and disposed of by throwing in the river Brahmaputra.

Charges were framed against the accused under Sections 147/148/324/302/201 read with Section 149 of the IPC and the Sessions Judge convicted all the 32 accused and sentenced them to life imprisonment vide judgment dated 8.5.2015.

The Supreme Court, in the case at hand, was only concerned with the appeal filed by Taijuddin, one of the accused, claiming that his role was only of having pointed out the house where the victim was hiding.

The Court considered the following key factors while deciding the case:

  • The victim’s son, in his testimony, stated “Taijuddin showed that my father Abdul Wahab was inside the house of Sorab.”
  • There were inconsistency in the testimonies of the witnesses – inasmuch as the family members of the deceased never even pointed a finger at the appellant as also some of the other witnesses, while the witnesses who did point a finger only assigned the role of pointing out the place where the victim was hiding.
  • The appellant was present at the place of the incident at the early hours in the morning (around 6:30 AM) because of his house being almost adjacent to where the deceased was hiding.
  • He did not come along with the mob, was not carrying any weapon and did not assault anybody.

The Court noticed that the only evidence of his involvement is that he pointed to the house where the victim was hiding.

“Given that a murderous mob fully armed was hunting for him, the appellant at best can be said not to be brave enough to conceal the deceased or even to have not pointed out where he was, but that by itself cannot rope in the appellant under Section 149 of the IPC.”

In Subal Ghorai v. State of West Bengal, (2013) 4 SCC 607, the Supreme Court had held that constructive liability cannot be stretched to lead to the false implication of innocent bystanders. The Court considered the possibility of often people gathering at the scene of offence out of curiosity but that did not make them share the common object of the assembly. The Court held that,

“The Court must guard against the possibility of convicting mere passive onlookers who did not share the common object of the unlawful assembly. There must be reasonable direct or indirect circumstances which lend assurance to the prosecution case that they shared common object of the unlawful assembly. Not only should the members be part of the unlawful assembly but should share the common object at all stages. This has to be based on the conduct of the members and the behaviour at or near the scene of the offence, the motive for the crime, the arms carried by them and such other relevant considerations.”

Considering the aforementioned law laid down by the Supreme Court and the facts and material before the Court, it was held that the case against the appellant was not proved beyond reasonable doubt. In fact, no case seemed to have been proved against the appellant given the role assigned to him in the testimony of the witnesses. The accused was, hence, entitled to a clean acquittal in the given facts.

[Taijuddin v. State of Assam, 2021 SCC OnLine SC 1154, decided on 01.12.2021]


*Judgment by: Justice Sanjay Kishan Kaul

Know Thy Judge| Justice Sanjay Kishan Kaul

Case BriefsHigh Courts

Sikkim High Court: The Division Bench of Meenakshi Madan Rai and Bhaskar Raj Pradhan, JJ., allowed an appeal which was filed in order for the Court to determine as to whether the Appellant was the perpetrator of the offence of rape.

A complaint was lodged before the Police Station informing therein that the Victim, his sister, aged about 12 years at the time of the incident had been impregnated by the Appellant. The case was registered under Section 6 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act). On completion of investigation, finding prima facie case under Section 376 of the Indian Penal Code, 1860 (for short, the “IPC”) read with Sections 4 and 6 of the POCSO Act, Charge-Sheet was accordingly submitted against the Appellant.

Trial Court having duly considered the evidence including that of seventeen Prosecution Witnesses concluded that the Prosecution was unable to prove the Charge against the Appellant under Section 511 of the IPC, Sections 5(j)(ii) and (l) of the POCSO Act, but succeeded in bringing home the Charge under Section 375 punishable under Section 376 of the IPC.

Counsel for the Appellant put forth a two-pronged argument, the first being that, as per the Victim, she was raped by the Appellant in the month of December, 2019 and January, 2020, but gave birth to the girl child in the month of May, 2020 on which count alone the Prosecution case is demolished. Secondly, although the Prosecution claims that the DNA Profiling of the Appellant and the child born to the Victim matches, the evidence on record clearly indicates that the Prosecution has failed by way of cogent proof to establish that any blood was drawn from the Appellant for the purposes of DNA Profiling.

Additional Public Prosecutor raised the contention that the evidence of the Victim is proof of the fact that the Appellant had committed penetrative sexual assault on the Victim without her consent. That, the DNA Profiling of the child born from the Victim matched that of the Appellant and the Victim duly buttressed by the evidence of P.W.16, the DNA Examiner who deposed that on examination of the DNA Profiles of the new born baby with that of the Victim and the Appellant, it emerged that the Appellant is the biological father of the child whereas the Victim is the biological mother of the baby.

The Court after arguments noted the following:

  • In the first instance it was noticed as per her 164 Cr.P.C. Statement that the Appellant came to her room one night told her he likes her, forcefully opened her clothes, touched her on her chest and left. Two days later he came to her room at night forcefully opened her undergarment and had sex with her. Three days later while she was working in the kitchen during the night, he came and pulled her and took her to the nearby School where he again had sex with her and she was pregnant.
  • Her evidence during trial reveals that the Appellant had visited her home in the month of December, 2019 on which date, he spoke with her father and returned to his home. And then the following days he again visited and committed penetrative sexual assault without her consent. Later, in the Urine Pregnancy Test it was found that she was pregnant. She was then called to the Mangan Police Station and later forwarded to District Hospital, Mangan for medical examination where she was found to be eight months’ pregnant and was therefore taken to the Mamtalaya Shelter Home where she remained for about a month. On the 19th day of some month in the year 2020, which she did not remember, she delivered a baby girl at the STNM Hospital.
  • It emerged that she did not disclose the incident including that of her pregnancy to any of her family members. from her evidence and her Section 164 Cr.P.C. Statement, it is apparent that she has not stated anywhere that the Appellant forced her to commit the offence or that she was put in fear by the Appellant that he would hurt her or any of her family members or for that matter any of her kith and kin.
  • Medical Officer posted at Mangan District Hospital physically examined the Victim on 10-05-2020 and found that Victim had been brought with an alleged history of sexual assault by the Appellant in the month of December, 2019 and thereafter again on 6th and 7th May, 2020. She found that the Victim was about thirty-two weeks pregnant and she had bruises on her inner thigh which were assessed to be around three days old.
  • Doctor also stated that although the Victim told her that the offence was committed in the month of December, 2019, however, on physical examination it transpired that the alleged offence would have occurred in the month of September or October, 2019, to complement the length of the pregnancy.

The Court was of the opinion that in the light of these anomalies in the Prosecution case, the Court cannot conclusively hold that the blood of the Appellant was drawn for DNA Profiling to establish the paternity of the child born to the Victim. It thus emerges that the victim appears to be closeting the actual circumstance of her pregnancy, the fact that she gave birth in May, 2020 after making claims of being raped in December, 2019/January, 2020 is proof of this circumstance. Her evidence in no manner can be classified as that of a sterling witness and is unreliable.

The Court while allowing the appeal concluded that Prosecution has not been able to establish beyond a reasonable doubt that the Appellant was the perpetrator of the offence of rape as charged. Consequently, the conviction and sentence imposed on the Appellant vide the impugned Judgment and Order on Sentence of the Trial Court was set aside. Appellant was acquitted of the Charge under Section 375 punishable under Section 376 of the IPC.[Cho Mingur Lepcha v. State of Sikkim, 2021 SCC OnLine Sikk 174, order dated: 19-11-2021]


Suchita Shukla, Editorial Assistant has reported this brief.


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

Mr S. K. Chettri, Additional Public Prosecutor with Ms Pema Bhutia, Assistant Public Prosecutor, for the State-Respondent.

Case BriefsSupreme Court

Supreme Court: In a case where a man, after being acquitted in a kidnapping case, had applied for the post of Constable in Central Industrial Security Force, the bench of Indira Banerjee and JK Maheshwari, JJ has held that the employer cannot be compelled to give appointment to such a candidate when the acquittal has been made on the basis of benefit of doubt.

“If a person is acquitted giving him the benefit of doubt, from the charge of an offence involving moral turpitude or because the witnesses turned hostile, it would not automatically entitle him for the employment, that too in disciplined force. The employer is having a right to consider his candidature in terms of the circulars issued by the Screening Committee. The mere disclosure of the offences alleged and the result of the trial is not sufficient. In the said situation, the employer cannot be compelled to give appointment to the candidate.”

Brief facts

  • The respondent was found involved in an offence of kidnapping for demand of ransom.
  • The Sessions Court acquitted him for the said charge because the complainant, who was abducted, turned hostile in the Court.
  • The respondent applied for the post of Constable in CISF and got selected through the Staff Selection Commission.
  • An offer of appointment for provisional selection to the post of Constable/GD was issued and the respondent was required to furnish the documents including attestation forms, certificate of character, character and antecedent certificate from local Station House Officer.
  • The respondent, while submitting the attestation form, specified the registration of the criminal case and acquittal from the charges in a trial by the competent court.
  • He was, however, not allowed to join training.
  • The Standing Screening Committee passed an order that respondent was not eligible for appointment.
  • The Madhya Pradesh High Court directed that the respondent be allowed to commence training with effect from 21.10.2013 and that he would be entitled for all consequential benefits including seniority, notional fixation of salary etc. but back wages were denied.

Analysis

The Court took the opportunity to explain the term ‘honourable acquittal’ and said that

if the acquittal is directed by the court on consideration of facts and material evidence on record with the finding of false implication or the finding that the guilt had not been proved, accepting the explanation of accused as just, it be treated as honourable acquittal.

“… if prosecution could not prove the guilt for other reasons and not ‘honourably’ acquitted by the Court, it be treated other than ‘honourable’, and  proceedings may follow.”

Th Court explained that the standard of proof required for holding a person guilty by a criminal court and enquiry conducted by way of disciplinary proceeding is entirely different. In a criminal case, the onus of establishing guilt of the accused is on the prosecution, until proved beyond reasonable doubt.   In case, the prosecution failed to take steps to examine crucial witnesses or the witnesses turned hostile, such acquittal would fall within the purview of giving benefit of doubt and the accused cannot be treated as honourably acquitted by the criminal court. While, in a case of departmental proceedings, the guilt may be proved on the basis of preponderance and probabilities, Hence, acquittal giving benefit of doubt would not automatically lead to reinstatement of candidate unless the rules provide so.

Applying these principles to the case at hand, the Court held that the respondent who wishes to join the police force must be a person of utmost rectitude and have impeccable character and integrity. A person having a criminal antecedents would not be fit in this category.

“The employer is having right to consider the nature of acquittal or decide until he is completely exonerated because even a possibility of his taking to the life of crimes poses a threat to the discipline of the police force.”

[Union of India v. Methu Meda, 2021 SCC OnLine SC 880, decided on 06.10.2021]


*Judgment by: Justice JK Maheshwari

 

Case BriefsHigh Courts

Jharkhand High Court: Sanjay Kumar Dwivedi, J. while holding the reason assigned by the Director-General of Police (DGP) while rejecting the claim of the petitioner to review the order of his suspension bad in law, directed the DGP to reconsider the matter.

The petitioner had preferred this writ petition for quashing the order of the Director-General of Police, Government of Jharkhand, whereby, the revision application preferred against the order passed by the Inspector General of Police had been affirmed.

The petitioner, a Sub-Inspector was alleged to have shot his wife dead and was charged with offences under Section 302 of the Penal Code, 1860 and Section 27 of the Arms Act, 1959. Pursuant to which the petitioner was suspended from service and a show cause notice was issued. Meanwhile, the Trial Court convicted and sentenced the petitioner to undergo life imprisonment in the said case and accordingly, the inquiry report was submitted in the departmental proceeding.

The petitioner assailed the impugned order on the ground that in the departmental proceeding, inquiry report was submitted only on the ground that the petitioner had been convicted by the Trial Court and without adducing any evidence in the departmental proceeding, the inquiry report was submitted without giving him any opportunity, hence, the same was against the principle of natural justice. Moreover, the petitioner was acquitted by the High Court in an appeal against the judgment of the Trial Court.

On the contrary, the State argued that the departmental proceeding and criminal proceeding are two different subjects and parameters of both the proceedings are different. Merely on the ground that the petitioner had been acquitted in the criminal case by the High Court, the case of the petitioner could not be considered for reinstatement.

Noticeably, when the inquiry report was submitted in the departmental proceeding, the petitioner was being treated in Ranchi Institute of Neuro-Psychiatry & Allied Sciences (RINPAS), for mental illness (Schizophrenia), which was why reply to the show-cause had not been received. Considering the stand taken by the State that the Director General of Police had rejected the revision application of the petitioner after acquittal by the High Court, on the ground that the High Court had not directed for reinstatement of the petitioner in service while acquitting the petitioner, the Bench stated that,

“It is well known that the High Court while acquitting the petitioner has decided the criminal case only and the authority concerned has to consider the reinstatement of the petitioner in service while passing a reasoned order.”

From the inquiry report, it transpired that the petitioner was being treated in RINPAS and the inquiry report had been submitted only taking into consideration that the petitioner had been convicted by the Trial Court. Hence, the Bench held that the reason assigned by the Director General of Police while rejecting the claim of the petitioner did not sound good.

In the light of above, the impugned order was quashed and the matter was remitted to the Director General of Police to consider the case of the petitioner afresh and pass a reasoned order.  [Anil Kumar Singh v. State of Jharkhand, W.P. (S) No. 6342 of 2017, decided on 10-09-2020]


Kamini Sharma, Editorial Assistant has reported this brief.

Appearance by:

For the Petitioner: Mr. Diwakar Upadhyay, Advocate

For the Respondent-State: Mr. Rahul Kamlesh, A.C. to SC.-VI

Case BriefsSupreme Court

Supreme Court: A Division Bench of Sanjay Kishan Kaul and Hrishikesh Roy, JJ. took the liberty of disagreeing with one of the most famous lines penned down by the Bard of Avon (William Shakespeare), to suggest that “Much indeed is in a name“. The Supreme Court reiterated the necessity of referring to guidelines regarding inadequacies and deficiencies in criminal trials. The Court also took note of the Draft Rules of Criminal Practice, 2021 which dictate the manner in which depositions must be translated. The Court observed that:

“The practice of translating any relevant document must not differ so significantly across forums and submissions by parties to cast severe aspersions on evidence, which may otherwise be not warranted. Idiosyncrasies of colloquial terms, used for naming an accused, could well be the difference between conviction and acquittal of an accused. “

The Court felt constrained to note few errors (typographical or otherwise) with regard to the FIR, witness statements and supplementary statements, presented at different stages in the instant case. These documents had variations either in translation or transcription, when supplied to the Court. The confusion created by multiple versions of statements and depositions in the projection of either side compelled the Court to reiterate the necessity of referring to the guidelines. The Court quoted relevant portion from its earlier order in To Issue Certain Guidelines Regarding Inadequacies & Deficiencies in Criminal Trials, In re, 2021 SCC OnLine SC 329, which reflected the precise concerns which the Court faced in appreciating the evidence presented:

“The Court noticed common deficiencies which occur in course of criminal trials. … These related, amongst others, to the manner in which documents (i.e. list of witnesses, list of exhibits, list of material objects) referred to are presented and exhibited in the judgment, and the lack of uniform practices in regard to preparation of injury reports, deposition of witnesses, translation of statements, numbering and nomenclature of witnesses, labeling of material objects, etc. These very often lead to asymmetries and hamper appreciation of evidence, which in turn has a tendency of prolonging proceedings, especially at the appellate stages.”  

Facts

The Court was deciding an appeal filed against the judgment of the Bombay High Court whereby the appellant’s conviction in a murder case was upheld. The crime was committed in January 2009, when a group of ten-twelve persons murdered one Balu by attacking him with dangerous weapons. The FIR was filed by one Arun who tried to save Balu but was himself injured in the assault. Notably, the appellant was not named in the FIR but was described by his build and appearance. He faced trial with other co-accused and was convicted for several offences under the Penal Code, 1860. The High Court upheld his conviction. Aggrieved, the appellant approached the Supreme Court.

Discussion and Observations

Main argument of the appellant was that he was not amongst the accused named in the FIR, and as the prosecution did not arrange for Test Identification Parade, his identity as an accused could not have been clearly established.

Considering the record, the Court found that while the FIR did not disclose name of the appellant as one of the accused, however, the eye-witnesses identified the appellant in supplementary statements. They named the appellant and ascribed specific role in the attack. The appellant was identified as Lalu who assaulted with a sword. He first injured Arun who tried to save Balu, and after that assaulted Balu with the sword.

Notably, the eye-witnesses referred the appellant ‘Lala’ as ‘Lalya’ at several places. On this, the Court opined that the colloquial variation was no so far removed so as to render the identification unreliable, particularly when no other person by such name was amongst the accused group. The Court, however, made a very interesting remark:

“Much indeed is in a name as in this case if we may take the liberty of disagreeing with one of the most famous lines penned down by the Bard of Avon, ‘What’s in a name’. “

The Court was of the view that though the FIR was silent on the name of the appellant, it could not throw out the prosecution case on such a basis as other reliable evidence was available in the case. It was observed:

“The FIR is certainly the starting point of the investigation, but it is well within the rights of the prosecution to produce witness statements as they progress further into the investigation and unearth the specific roles of accused persons. The FIR as is known, only sets the investigative machinery, into motion.”

The eye-witnesses ascribed the same specific role to the appellant and narrated the events in same chronology, without material discrepancies. In view of such positive identification by the eye-witnesses, the Court was of the view that Test Identification Parade was not necessary, as the identity of the appellant was known to the witnesses. The Court said that appellant’s conviction was not vitiate on this ground. Reliance was placed on Munshi Singh Gautam v. State of M.P., (2005) 9 SCC 631.

Conclusion and Decision

The Court concluded that identity of the appellant as one of the members of the attacking group and his specific role in the assault was established beyond doubt. There was cogent evidence that the appellant was part of the conspiracy in assault which led to death of Balu and injuries to Arun. As such, the conviction of the appellant could not be faulted.

In the result, the Court found no grounds to interfere with the judgment of the High Court, and consequently dismissed the appeal. [Lala v. State of Maharashtra, 2021 SCC OnLine SC 631, decided on 24-8-2021]


Tejaswi Pandit, Senior Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Madras High Court: P. Velmurugan, J., addressed a matter revolving around the offence under Section 138 of the Negotiable Instruments Act.

A complaint was filed for an alleged offence under Section 138 of the Negotiable Instruments Act, 1881. Judicial Magistrate found the respondent guilty of offence under Section 138 NI Act.

The appellate Judge while allowing the respondent’s appeal set aside the conviction and acquitted the respondent for the offence punishable under Section 138 NI Act, for which he was prosecuted before the trial court.

Appellant’s case was that the respondent had borrowed a sum of Rs 90,000 from the appellant and in order to discharge the debt issued a cheque which returned when presented to the bank with endorsement “drawers signatures differs”.

Analysis, Law and Decision

Bench noted that on statutory notice sent by appellant, respondent responded stating that he had denied the execution of the cheque.

Another significant fact was that the appellant did not prove that there was a transaction between the appellant and the respondent.

High Court remarked that,

When the cheque was returned for the reason that the signature differs, and the respondent/accused has taken a stand that the complainant is a stranger to the accused, it is for the appellant/complainant to establish the case and the appellant has not proved the same, and if once, execution of cheque is proved, the presumption under Sections 118 and 139 of the Negotiable Instruments Act can be drawn and the accused has to rebut the presumption that there is no legally enforceable debt and cheque has not been issued for legally enforceable debt.

 Hence, in the present matter, complainant could not establish the execution of the cheque and borrowal of money by the respondent.

Therefore, in Court’s opinion the appellate Court’s decision had no perversity and Bench found no compelled circumstances or reason to interfere with the Judgment of acquittal.

In view of the above-stated facts and circumstances, criminal appeal was dismissed. [S. Ashok Kumar v. S. Boopal,  2021 SCC OnLine Mad 2325, decided on 22-04-2021]


Advocates before the Court:

For Appellant : Mr. M. Marudhachalam

For Respondent: Mr. L.Mouli

Case BriefsHigh Courts

Patna High Court: The Division Bench of Ashwani Kumar and Arvind Srivatava, JJ., acquitted the death convicts in Senari Massacre incident that took place on 18-03-1999. The Bench stated,

“There remains no doubt that the time of occurrence was dark, the site of unfortunate massacre was beset with mayhem with villagers making desperate attempts to seek refuge in a place and position in which they would remain unseen by the miscreants lest they fell prey to their barbarism. In such a state of complete chaos, witnesses hiding in different corners of the village have claimed to identify one or more accused persons without any indication as to the source of light save the torches being carried by the miscreants.”

Senari Massacre

The undisputed facts of the case were that on 18-03-1999 at 7:30 PM hundreds of armed miscreants entered the village Senari. They searched out persons allegedly belonging to Ranveer Sena, took them to Thakurbadi at the outskirts of the village and murdered 34 of them. A large number of accused persons were charge-sheeted and out of them 38 persons faced the present trial. The Trial Court made a reference for confirmation of death sentence of main accused.

Contentions raised by the Appellants

Assailing the impugned judgment of conviction and order of sentence, counsel for the appellants, Mr. Surendra Prasad Singh submitted that there was no Test Identification Parade (TIP) to pinpoint the assailants during investigation. Further the witnesses had claimed to identify the miscreants in the flashing of torch lights carried by the miscreants and such dock identification could not be made basis of a conviction. Relying on the decision of the Supreme Court in Chhannu Lal Verma v. State of Chhattisgarh, (2019) 12 SSC 438, wherein it had been held that “death sentence should not be imposed unless there is not a single mitigating factor and that evidence has been led by the prosecution to prove that there is no chance of rehabilitation”; the counsel contended that the appellants belong to a depressed class and in view of the surrounding circumstances, it was not a fit case for imposition of death sentence.

Analysis and Observations by the Court

Whether failure to Conduct TIP would make subsequent identification of accused in the Court inadmissible?

True it is that identification of an accused in the court of law is substantive evidence whereas the evidence of identification in TIP though a primary evidence, it can be used only to corroborate the identification of the accused in the court of law. In Sheo Shankar Singh v. State of Jharkhand, (2011) 3 SCC 654, the Supreme Court observed that the CrPC does not oblige the investigating agency to necessarily hold a TIP.  In State of Maharashtra v. Sukhdeo Singh, (1992) 3 SCC 700, it had been held by the Supreme Court that the “…identification at a test identification parade in the case of total strangers, it is not safe to place implicit reliance on the evidence of witnesses who had just a fleeting glimpse of the person identified or who had no particular reason to remember the person concerned, if the identification is made for the first time in Court.” On a perusal of the ratio laid down by the Supreme Court, the Bench held that ordinarily an accused should not be convicted on the testimony of witnesses identifying for the first time in court without any corroboration. However, in appropriate cases, in exception to the general rule, if a witness has any particular reason to remember about the identity of an accused or the accused is known to a witness from before, the Court may rely on such identification without other corroboration.

Whether Conviction can be based on the testimony of Single Witness in Carnage cases?

So far as conviction of an accused on the testimony of a single witness was concerned, the Bench opined that the general principle of law is that conviction may be based on the testimony of single witness without any corroboration, if the evidence of the solitary witness is fully reliable, trustworthy and inspires confidence. However, with reference to carnage cases, in view of the peculiarity of the circumstances, as they generally involve large number of victims, witnesses and the accused persons, the Supreme Court had held in Binay Kumar Singh v. State of Bihar, (1997) 1 SSC 283, that, “When the size of the unlawful assembly is quite large (as in this case) and many persons would have witnessed the incident, it would be a prudent exercise to insist on at least two reliable witnesses to vouchsafe the identification of an accused as a participant in the rioting.”

Hence, the Bench held that there is no rule of law for universal application that conviction cannot be sustained on the evidence of solitary witness and that the corroboration, unless required by the statute, is a rule of prudence and not rule of law. However, the Bench added,

“Even though the quality of evidence is paramount, when the size of the assembly is quite large and many persons have witnessed the incident, it would be useful to adopt the test of consistency of more than one witness so as to remove any doubt about the identity of the accused persons as a member of the assembly in question.”

 Further, from the ratio laid down by the Supreme Court in the aforementioned cases, it would also be evident

Findings of the Court

Observing that, the appellants had not challenged the homicidal death of 34 persons and injuries sustained by five persons, the Bench said, it had rightly been submitted on behalf of the appellants that the FIR, though contained name of 16 persons, the appellants were not amongst them. Having analyzed the testimony of the witnesses in respect of each of the convicts and after considering the case of each convict separately, the Bench opined that the time of occurrence was dark, the site of unfortunate massacre was beset with mayhem with villagers making desperate attempts to seek refuge in a place and position in which they would remain unseen by the miscreants. In such a state of complete chaos, witnesses have claimed to identify one or more accused persons without any indication as to the source of light save the torches being carried by the miscreants. Moreover, the witnesses have claimed that the miscreants were more or less identically clad, some in police uniforms, some others in the local outfits. Also, almost all the P.Ws, who claimed identification, had done so at the time of occurrence from a distance i.e., they claimed to identify the miscreants from their respective hiding places. Other witnesses who claimed to identify inspire confidence, Their evidence on other counts have been found doubtful. Furthermore, the miscreants have been identified in the dock for the first time more than seven years and extended up to about 16 years after the occurrence. The circumstances in which the identifications were made, make such identification rather weak without any corroboration.

Another important factor was the manner in which the appellants were deprived of their statutory right to be heard, as provided under Section 313 of the CrPC. Section 313 (1)(b) casts a duty on the Court to give an opportunity to the accused to explain the incriminating material against him. In State of U.P. v. Md. Iqram, (2011) 8 SSC 80, the Supreme Court had held: “…The attention of the accused must specifically be brought to inculpatory pieces of evidence to give him an opportunity to offer an explanation if he chooses to do so. Therefore, the court is under a legal obligation to put the incriminating circumstances before the accused and solicit his response.” Hence, the Bench opined that,

“The accused persons have been subjected to seven standard and identical questions even though the witnesses against them were disparate; this sort of examination goes against the essence of Section 313. Thus, the material not put to the accused cannot be taken into consideration for convicting them.”

In the backdrop of above mentioned, after appreciating evidence adduced during trial, the Bench reached to the findings that there was a real and reasonable doubt as to the guilt of the appellants. Accordingly, the impugned judgment and order of sentence passed in Sessions Trial so far as the appellants in these appeals were concerned were set aside. The appellants Bachesh Kumar Singh, Budhan Yadav and Gopal Sa, Butai Yadav, Satendra Das, Lalan Pasi, Dwarik Paswan, Kariman Paswan, Gorai Paswan and Uma Paswan, Mungeshwar Yadav, Vinay Paswan and Arvind Paswan were directed to be released and the reference made by the Trial Court under Section 366 of the CrPC was rejected.

[State of Bihar v. Bachesh Kumar Singh, 2021 SCC OnLine Pat 1011, decided on 21-05-2021]


Kamini Sharma, Editorial Assistant has put this report together 

Appearance before the Court by:

For the Appellants: APP Mayanand Jha, APP
For the Respondents: Amicus Curiae Surya Nilambari

Case BriefsSupreme Court

Supreme Court: Setting aside the conviction of a man under Sections 7 and 13(2) read with 13(1)(d) of the Prevention of Corruption Act, 1988, the 3-judge bench of Ashok Bhushan, R. Subhash Reddy and MR Shah has reminded the Courts to take utmost care in scanning the evidence before recording conviction under the provisions of Prevention of Corruption Act.

“Once conviction is recorded under provisions of Prevention of Corruption Act, it casts a social stigma on the person in the society apart from serious consequences on the service rendered.  At the same time it is also to be noted that whether the view taken by the trial court is a possible view or not, there cannot be any definite proposition and each case has to be judged on its own merits, having regard to evidence on record.”

In the present case, the accused, working as Sanitary Inspector in Madurai Municipal Corporation, was charge-sheeted for the offence under Sections 7, 13(2) read with 13(1)(d) of the Act for an amount of Rs.500/¬ and a cell phone as illegal gratification from one Thiru. D. Gopal, who was working as Supervisor in a Voluntary Service Organisation called Neat And Clean Service Squad (NACSS), which was given sanitation work on contract basis in Madurai Corporation.

While the Trial Court acquitted the accused, the Madras High Court convicted him. It was argued by the accused that the well reasoned judgment of the trial court, which was rendered by appreciating oral and documentary evidence on record, was reversed by the High Court without recording valid and cogent reasons.

Having regard to material contradictions that were put forth before the Court, the Supreme Court noticed that acquittal is a “possible view”. Even assuming another view is possible, same is no ground to interfere with the judgment of acquittal and to convict the appellant for the offence alleged.

The trial court has disbelieved witnesses by recording several valid and cogent reasons, but the High Court, without appreciating evidence in proper perspective, has reversed the view taken by the trial court.  Further, the High Court also has not recorded any finding whether the view taken by the trial court is a “possible view” or not, having regard to the evidence on record.

“Though the High Court was of the view that PW-2, 3 and 5 can be believed, unless it is held that the view taken by the trial court disbelieving the witnesses is not a possible view, the High Court ought not have interfered with the acquittal recorded by the trial court.”

In view of the material contradictions, the prosecution has not proved the case beyond reasonable doubt to convict the appellant. It is equally well settled that mere recovery by itself cannot prove the charge of the prosecution against the accused.

“Mere recovery of tainted money, divorced from the circumstances under which such money and article is found is not sufficient to convict the accused when the substantive evidence in the case is not reliable.”

The Court was, hence, of the view that the demand for and acceptance of bribe amount and cell phone by the appellant, is not proved beyond reasonable doubt. Having regard to such evidence on record the acquittal recorded by the trial court is a “possible view” as such the judgment of the High Court is fit to be set aside.

[N. Vijayakumar v. State of Tamil Nadu, 2021 SCC OnLine SC 53, decided on 03.02.2021]


*Justice R. Subhash Reddy has penned this judgment

Appearances before the Court by

For accused: Senior Advocate S. Nagamuthu

For State: Advocate M. Yogesh Kanna

Case BriefsHigh Courts

Madhya Pradesh High Court: Bechu Kurian Thomas, J., allowed the instant appeal against the impugned order of Additional Sessions Court, whereby the Sessions Court had held the appellant guilty for the offence under Sections 8(2) and 55(a) of the Abkari Act.

On 17-07-2001, the accused was found in possession of 700 ml of arrack for sale in a hotel name “Santhosh” ran by him. The contraband was seized and the crime was registered under Sections 8(2) and 55(a) of the Abkari Act against the accused. Thereafter, the Sessions Court convicted the accused and sentenced him with imprisonment for one year and a fine of Rs 1,00,000, in default of which rigorous imprisonment for three months was awarded.

Counsel for the appellant, T. Madhu submitted that the prosecution case suffered from a fatal flaw as no forwarding note had been produced in evidence. Also, there was unexplained delay in producing the contraband alleged to be seized from the accused which suggested a further flaw, thereby, entitling the accused for acquittal.

The respondent stoutly opposed abovementioned contentions and submitted that in the instant case, the contentions raised had no bearing.

The Court observed that though the date of arrest of the accused and the date of seizure of the contraband was 17-07-2001, the contraband was produced before the Court only on 23-07-2001 after the delay of six days. The prosecution had not explained the delay in production of the contraband before the Court nor had they explained as to who was in custody of the contraband during the said period. It had been deposed by the prosecution that there was no hurdle in producing the contraband before the court. Therefore, the abovementioned irregularities had created doubt on the veracity of prosecution case. The Court cited Gopalan v. State of Kerala, 2016 (3) KLT SN 24, wherein it was held that in the absence of the forwarding note, the prosecution had failed to establish the link connecting the accused with the contraband seized and the sample analysed. The absence of the forwarding note is undoubtedly fatal to the prosecution case. Since in the instant case, the prosecution had not produced the forwarding note, the prosecution had failed to prove the guilt of the accused and accordingly the accused was held entitled to be acquitted.

In the view of above, the Court set aside the impugned judgment. [Sivadasan Pillai v. State of Kerala, CRL.A.No.642 of 2007, decided on 21-12-2020]

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