Case BriefsHigh Courts

Madhya Pradesh High Court: Vivek Rusia, J. allowed an appeal which was filed seeking permission/ direction for termination of pregnancy.

The petitioner born in 2005 lodged an FIR alleging her kidnapping and sexual assault and because of the unfortunate incident, she had become pregnant and at present, she is carrying a pregnancy of 12 weeks. Since, she is victim of rape, therefore, she was not willing to continue the pregnancy and hence, she was before this court seeking direction to the respondents to terminate her pregnancy.

The District Hospital conducted an examination on the directions of the Court order as on 19-05-2022. They submitted a report in this regard and as per the report, the period of pregnancy was 13 weeks + 1 day, and therefore, in their opinion the same can be terminated.

The Court further reiterated the relevant portion of the Supreme Court judgment in X v. Union of India, (2016) 14 SCC 382 where it was held that Section 5 of the Act lay down the exception to Section 3 if as per the opinion of less than 2 registered Medical Practitioner gives the opinion of in good faith in respect of termination of pregnancy to save the life of pregnant women. By placing reliance over the aforesaid section the Supreme Court had granted liberty to the petitioner to terminate her pregnancy.

Considering the age of the petitioner, and the agony which she is going through at present and also keeping in view the report of Medical Board, the Court allowed the petition. It was stated that the case of the petitioner is covered under explanation of sub-section (2) of Section 3 of the Act of 1971.

The respondents were directed to carry out termination of pregnancy immediately if health condition of the girl permitted to do so. The Superintendent of District Hospital, was directed to admit the petitioner and examine her health condition before termination of pregnancy within 3 days positively as per the consent given by her as required under sub Section (4) of Section 3 of the Medical Termination of Pregnancy Act, 1971 & health condition.[X v. State of Madhya Pradesh, 2022 SCC OnLine MP 1070, decided on 23-05-2022]


For petitioner: Mr Ashish Choubey

For respondent: Mr Valmik Sakargayen


Suchita Shukla, Editorial Assistant has reported this brief.

Case BriefsSupreme Court

Supreme Court: Allowing the review petition in the 34-year-old road-rage case involving cricketer-turned-politician Navjot Singh Sidhu that resulted into the death of one 65-yer-old Gurnam Singh, the bench of AM Khanwilkar and Sanjay Kishan Kaul, JJ has imposed a sentence of one-year rigorous imprisonment on Sidhu in addition to the fine of Rs.1,000/- imposed in the order dated 15.05.2018.

In 1988, Sidhu got into a fight with the deceased over his right to way at a traffic light in Patiala. Sidhu had pulled the deceased out of his vehicle and inflicted fist blows. The incident eventually culminated in the death of Gurnam Singh. The Court, however, held that Sidhu had voluntarily caused hurt to Gurnam Singh punishable under Section 323 IPC.

While dealing with the review petition, the Court noticed that some material aspects which were required to be taken note of appear to have been somehow missed out at the stage of sentencing, such as the physical fitness of Sidhu as he was an international cricketer, who was tall and well built and aware of the force of a blow that even his hand would carry. The blow was not inflicted on a person identically physically placed but a 65-year-old person, more than double his age.

The Court observed that Sidhu cannot say that he did not know the effect of the blow or plead ignorance on this aspect.

“It is not as if someone has to remind him of the extent of the injury which could be caused by a blow inflicted by him. In the given circumstances, tempers may have been lost but then the consequences of the loss of temper must be borne.”

The Court went on to state that to some extent it had been indulgent in ultimately holding Sidhu guilty of an offence of simple hurt under Section 323 of the IPC.

Observing that the hand can also be a weapon by itself where say a boxer, a wrestler or a cricketer or an extremely physically fit person inflicts the same, the Court said that,

“When a 25-year-old man, who was an international cricketer, assaults a man more than twice his age and inflicts, even with his bare hands, a severe blow on victim’s head, the unintended consequence of harm would still be properly attributable to him as it was reasonably foreseeable. That it would cause the death of a person is another matter since the conviction is only under Section 323 of the IPC. Even though any harm might not be directly intended, some aggravated culpability must be attached if the person suffers a grievous hurt or dies as a result thereof.”

On the aspect of sentencing, the Court said that a disproportionately light punishment humiliates and frustrates a victim of crime when the offender goes unpunished or is let off with a relatively minor punishment as the system pays no attention to the injured’s feelings.

Noticing that indifference to the rights of the victim of crime is fast eroding the faith of the society in general and the victim of crime in particular in the criminal justice system, the Court observed,

“The society cannot long endure under serious threats and if the courts do not protect the injured, the injured would then resort to private vengeance and, therefore, it is the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed.”

[Jaswinder Singh v. Navjot Singh Sidhu, 2022 SCC OnLine SC 652, decided on 19.05.2022]

Counsels

For Complainant: Senior Advocate Siddharth Luthra

For Sidhu: Senior Advocate Dr. Abhishek Manu Singhvi

Canada SC
Case BriefsForeign Courts

Supreme Court of Canada: The instant matter revolved around a challenge to the constitutionality of Section 33.1 of the Criminal Code which dealt with the unavailability of self-induced intoxication as a defence for criminal acts like assault etc. The bench of the Court comprising of Wagner C.J. and Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin, Kasirer and Jamal JJ., in an unanimous decision, held that, Sec. 33.1 violates S. 7 of the Canadian Charter of Rights and Freedoms by allowing a conviction without proof of mens rea or proof of voluntariness. It was observed that, “Section 33.1(1) of the Criminal Code eliminates the defence of self-induced intoxication akin to automatism applied to violent offences… Section 33.1 does not create a new predicate act offence of self-induced extreme intoxication or a new criminal negligence offence. The accused faces the full stigma of conviction and the full brunt of punishment for the general intent offence.”

Facts of the Case: The appellant [hereinafter ‘B’], at a house party, had consumed ‘magic mushrooms’ which is a hallucinogen. The consumption of the drug led to ‘B’ losing his grip over reality. As per ‘B’, he was not simply drunk or high: while capable of physical movement, he was in a psychotic state and had no willed control over his actions.

He broke into the nearby house of a stranger and attacked the occupant, causing permanent injuries. He further broke into another residence and the occupants called the police. Consequently, ‘B’ was charged with break and enter and aggravated assault, and mischief to property.

Contentions: The appellant contended that he is not guilty of the offences by reason of automatism. The appellant’s contentions were corroborated by the expert witnesses who confirmed that ‘B’ had no voluntary control over his conduct at the time.

The respondent (the Crown) invoked S. 33.1 of the Criminal Code preventing ‘B’ from relying on self-induced intoxication akin to automatism as a defence to the charge of aggravated assault. The respondents stated that the Canadian Parliament added S. 33.1 in response this Court’s ruling in Henri Daviault v. Her Majesty the Queen, 1994 SCC OnLine Can SC 83, wherein the majority had confirmed a common law rule that intoxication is not a defence to crimes of general intent.

The respondents, however, prayed to the Court to interpret S. 33.1 as validly imposing liability for violent crimes based on a standard of criminal negligence

Observations: Perusing the facts and contentions of the case, Justice Kasirer (who delivered the unanimous decision) observed that the impugned provision does not establish a proper measure of criminal fault by reason of intoxication; instead, it imposes liability for the violent offence if an accused interferes with the bodily integrity of another “while” in a state of self-induced intoxication rendering them incapable of consciously controlling their behaviour.

Given the gravity of the issue, the Court some salient observations –

  • It was held that the provision is violative Canadian Charter of Rights and Freedoms because an accused person under the impugned provision is not being held to account for their conduct undertaken as free agents, instead, the accused is called to answer for the general intent crime that they cannot voluntarily or wilfully commit. “To deprive a person of their liberty for that involuntary conduct committed in a state akin to automatism — conduct that cannot be criminal — violates the principles of fundamental justice in a system of criminal justice based on personal responsibility for one’s actions. On its face, not only does the text of S. 33.1 fail to provide a constitutionally compliant fault for the underlying offence set out in its third paragraph, it creates what amounts to a crime of absolute liability.”
  • The Court observed that the impugned provision also transgresses the right to be presumed innocent until proven guilty guaranteed by S. 11(d) of the Charter. To convict the accused, the Crown must prove all the essential elements of an offence beyond reasonable doubt.
  • The Court noted that the rights of victims of intoxicated violence, in particular the rights of women and children, should be considered at the justification stage under S. 1 of the Charter rather than informing the analysis of a possible breach of the accused’s rights under S. 7. “Balancing competing Charter rights under the breach analysis should occur where the rights of the accused and another party conflict and are directly implicated by state action. The equality, dignity and security interests of vulnerable groups informed the overarching public policy goals of Parliament but they are best considered under S. 1”.

Along with the aforementioned observations, the Court pointed out that the Parliament has before itself a strong record that highlights the strong correlation between alcohol and drug use and violent offences, in particular against women. The issues regarding ensuring the equality, dignity, and security rights of all victims of intoxicated violence must be looked upon thoroughly by the Parliament, therefore it is all the more necessary that the Crown must show on a balance of probabilities that the limits of Ss. 7 and 11(d) of the Charter brought by S. 33.1 are reasonable and demonstrably justified under S. 1 of the Charter. “Given the patent risk that S. 33.1 may result in the conviction of an accused person who had no reason to believe that their voluntary intoxication would lead to a violent consequence, S. 33.1 fails at the proportionality step and thus cannot be saved under S. 1”.

[R. v. Brown, 2022 SCC 18, decided on 13.05.2022]


Sucheta Sarkar, Editorial Assistant has reported this brief.

Kerala High Court
Case BriefsHigh Courts

Kerala High Court: While explaining that inflicting corporal punishment on a Child by a parent or teacher is forbidden, Dr Kauser Edappagath, J., observed that,

“Hurt of a less serious crime is not forbidden when inflicted in the reasonable chastisement of a child by a parent or by a school teacher.”

A criminal revision petition had been filed by the sole accused on the file of Lower Court under Sections 397 read with 401 of the Code of Criminal Procedure challenging the charge framed against her.

Background

Accused/Revision Petitioner was the class teacher of Standard VI and de facto complainant was a student in the same class. The 4th respondent was his father.

It was stated that due to enmity towards 3rd respondent for the delay in taking out a textbook, the revision petitioner attempted to beat him with the intention to cause hurt, with a cane, but 3rd respondent suddenly turned his face up, the butt of the same touched his right eye corneal and thus the revision petitioner committed the offences punishable under Section 324 of the Penal Code, 1860 and Section 23 of the Juvenile Justice (Care and Protection of Children) Act, 2000.

Lower Court opined that there was ground for presuming that the revision petitioner had committed the offence and framed charge against her under Section 324 of the Penal Code, 1860 and Section 23 of the JJ Act.

The instant revision petition was preferred challenging the above.

Analysis, Law and Decision

Expressing that, A prima facie case against the accused is said to be made out when the probative value of the evidence on all the essential elements in the charge taken as a whole is such that it is sufficient to induce the Court to believe in the existence of the facts pertaining to such essential elements or to consider its existence so probable that a prudent man ought to act upon the supposition that those facts existed or did happen, High Court stated that at the stage of consideration of an application for discharge, the Court is required to consider whether there are sufficient grounds to proceed against the accused.

The broad test to be applied in the present matter is whether the materials on record, if unrebutted, makes a conviction reasonably possible. [State of Bihar v. Ramesh Singh, (1977) 4 SCC 39; Union of India v. Prafulla Kumar Samal (1979) 3 SCC 4; Dilawar Babu v. State of Maharashtra, (2002) SCC 135; Sajjan Kumar v. CBI, (2010) 9 SCC 368; State v. A. Arun Kumar, (2015) 2 SCC 417; Mauvin Godinho v. State of Goa, (2018) 3 SCC 358; and State v. S. Selvi, (2018) 3 SCC 455].

From the catena of decisions, the principle that can be culled out is that, “if evidence, which the prosecution proposed to adduce to prove the guilt of the accused, even if fully accepted before it is challenged in cross-examination or rebutted by defence evidence, if any, cannot show that the accused has omitted the offence, then there will be no sufficient ground for proceeding with the trial.”

What led to the present case?

In the case at hand, the revision petitioner being the class teacher tried to bring the noisy class into silence and discipline by making a cane sound, beating it on the table.

Further, she stated that, when all the students sat silently and properly, the 3rd respondent alone was sitting under the bench looking for something. Seeing this, she with bonafide intention to call the attention of the 3rd respondent to the class, without the intention to beat him or cause hurt to him, tried to touch his right-hand elbow portion with the cane. Simultaneously the cane butt touched his right eye corneal portion gently. 

“Parents at home and teachers at school are most important influences in one’s life.”

High Court expressed that, “Paddling children or inflicting disproportionate corporal punishment on them either by a parent or a teacher is, no doubt, forbidden.” 

As per Section 17 of the Right of Children to Free and Compulsory Education Act, 2009 no child shall be subjected to physical punishment or mental harassment.

“Hurt of a less serious crime is not forbidden when inflicted in the reasonable chastisement of a child by a parent or by a school teacher to whom the parent has delegated or is deemed to have delegated his authority.”

In Court’s opinion, a teacher who without malicious intention administers a moderate and reasonable force to a pupil to enforce discipline in classroom/school cannot be exposed to criminal prosecution or fastened with penal liability.

The cane used by the teacher was used in the ordinary course to control noisy class so as to maintain discipline. Hence the same cannot be considered a dangerous weapon. In order to attract Section 234 of OPC, hurt by means of dangerous weapons should be caused voluntarily.

The case record revealed that the teacher had no intention at all to cause hurt to the 3rd respondent.

With regard to ‘assault’ under Section 351 IPC, it was nothing more than a threat of violence exhibiting an intention to use criminal force and the ability and intention to carry out the threat into execution. The prosecution records did not disclose that the revision petitioner did make or express any words or gesture to threaten the 3rd respondent. 

Nothing on record depicted that the teacher caused any mental strain to the 3rd respondent.

High Court held that, revision petitioner’s act could not be said to be with malicious intention to cause hurt to the 3rd respondent. The facts revealed that she exercised her authority reasonably and in good faith and the prosecution allegations, even if admitted as true in their entirety, would not make out offence either under Section 324 of IPC or under Section 23 of the JJ Act.

Therefore, the revision petitioner was discharged, and the criminal revision petition stood allowed. [Jaya v. State of Kerala, 2022 SCC OnLine Ker 544, decided on 24-1-2022]


Advocates before the Court:

For the Petitioner:

BY ADVS.

          SRI.T.K. SASINDRAN

          SRI.T.S. SHYAM PRASANTH

For the Respondent:

BY ADV SRI.K.I.SAGEER

Case BriefsHigh Courts

Bombay High Court: The Division Bench of Sadhana S. Jadhav and Prithviraj K. Chavan, JJ., modified the conviction of a husband who in provocation by wife on being subjected to abuses assaulted wife.

On being convicted for the offence punishable under Section 302 of the Penal Code, 1860 the appellant was sentenced and imprisoned for life to pay a fine of Rs 5,000. Aggrieved with the same, the present appeal was filed.

Facts leading to the case

In 2009, Narayan Salunkhe lodged a report alleging that his daughter (deceased) was married to the appellant and due to discordant note, she started residing with her parents. On one occasion she went to visit her sister to another village. On the bus stop the husband of the deceased abused and assaulted her and it was noticed that the deceased had sustained incised wound on her neck due to which she succumbed injuries.

In view of the above, crime was registered for the offence punishable under Section 302 of Penal Code, 1860.

Analysis and Discussion

In the present matter, husband and wife were married for almost more than 15 years and the appellant was the father of three grown-up children.

Almost 4 years prior to the said incident, the couple had parted ways and started living independently. On an unfateful day, upon seeing the accused by chance, the deceased had not just obstructed his way by holding his neck, by pulling his shirt but had started hurling abuses and had levelled scathing remarks by which self-esteem of the accused was not only lowered in his own eyes but in public.

High Court expressed that,

The loud allegations made by the deceased were heard by one and all. It was quite natural for the man to feel ashamed upon being referred as impotent.

Stating that the act was not pre-mediated, Bench added that it was true that the incident of the assault was the outcome of a grave and sudden provocation and the accused was deprived of his self-control and hence, he could not have any restraint upon himself while mounting assault.

Since the accused was on his way to work, he was carrying a sickle in his bag. The offence committed by the accused fell under Exception 4 to Section 300 which reads thus:

“Exception 4 – Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner.”

High Court held that the accused was in custody since 2009 and had almost undergone 12 years imprisonment.

In view of the above discussion, the appellant deserved to be convicted for the offence punishable under Section 304(II) of IPC which would serve the ends of justice.[Nandu Dada Survase v. State of Maharashtra, 2022 SCC OnLine Bom 275, decided on 3-2-2022]


Advocates before the Court:

Ms Shraddha Sawant, Appointed Advocate for the Appellant.

Ms Veera Shinde, APP for the Respondent – State

Case BriefsHigh Courts

Karnataka High Court: H.P Sandesh, J. rejected bail as at this stage no offence can be attracted and the same is left to trial.

The factual matrix of the case is that on 20.09.2021, this petitioner assaulted his wife, when she victim was washing clothes. On account of injuries, she succumbed to the injuries. The police have investigated the matter and filed the chargesheet invoking the offences punishable under Sections 302 and 201 read with Section 34 of IPC. This petition is filed under Section 439 of CrPC seeking regular bail of the petitioner/accused No.1 in Crime No.86/2021 of Tavarekere Police Station, Sira Rural Circle, Tumakuru, for the offences punishable under Sections 302 and 201 read with Section 34 of IPC.

Counsel for petitioner submitted that petitioner has not used any weapon and it is the case of the petitioner that she fell down on the stone while washing clothes and sustained injuries. At the most, the incident attracts the offence under Section 302 of IPC and not 304 Part-II of IPC.

Counsel for respondent submitted that PM report is clear that on account of injury sustained to head, she succumbed to the injury and opinion of the doctor is clear that due to hemorrhage and shock on account of severe head injury, she passed away and at this stage, this Court cannot come to a conclusion whether it attracts the offence under Section 302 of IPC or 304 Part-II of IPC.

The Court observed that the Court has granted bail in Crl.P.No.8138 of 2021 in favour of accused 2, wherein observation is made that accused No.2 only facilitated in concealing the offence of murder committed by accused No.1 and hence, granted bail in favour of accused No.2 and the said order will not come to the aid of this petitioner.

The court observed that based on the factual aspect the Court cannot decide whether it attracts the offence under Section 302 of IPC or 304 Part-II of IPC and the same is a matter of trial.

The Court thus rejected bail. [Dinesh T v. State of Karnataka, Criminal Petition No. 611 of 2022, decided on 01-02-2022]


Appearances:

For petitioners: Mr. Manjunath B R

For respondents: Mr. Vinayaka VS


Arunima Bose, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Bombay High Court: Convicting a person under Section 304 Part I of Penal Code, 1860 Division Bench of Sadhana S. Jadhav and Sarang V. Kotwal, JJ., held that,

On finding that there was no hope that his beloved wife would return to matrimonial abode, accused got enraged an lost self-control and assaulted his wife with whatever available just nearby.

Appellant was convicted for the offence under Section 302 of the Penal Code, 1860.

Factual Matrix

Appellant was married to the deceased Kamal in 2002, in 2015 PW 4 sister of Kamal lodged a report alleging that her sister had disclosed to her that her husband suspected her chastity and was harassing and ill-treating her.

Later, accused had called upon PW4 and enquired about the whereabout of his wife, however, PW4 had feigned ignorance about the whereabouts of Kamal and then a missing complaint was filed by him.

It was also stated that Kamal had refused to return her matrimonial abode and thereafter, she was assaulted by the accused with pestle.

Analysis, Law and Decision

Bench noted that the present case of the prosecution was that the accused was insisting upon his wife to return to her rightful matrimonial abode with a hope that the crises would be ironed. Though the deceased denied the offer. 

It was as if, there was no hope for the accused that his beloved wife would return with him and being enraged and deprived of self-control, had assaulted his wife with whatever available just nearby.

In view of the above, Court stated that it would be necessary to read the mind of the offender and not consider the offence devoid of emotions.

Therefore, the accused would fall under Section 304 Part I of the Penal Code, 1860 and accused deserved to be acquitted of offence punishable under Section 302 IPC.

Appeal was disposed of accordingly. [Ankush Krishna Chavan v. State of Maharashtra, 2021 SCC OnLine Bom 3022, decided on 22-09-2021]


Advocates before the Court:

Mr Lokesh Zade, Court Appointed advocate for appellant.

Ms G.P. Mulekar, APP for State.

Case BriefsForeign Courts

Supreme Court of the United Kingdom (UKSC): Bench of Lord Hodge, Lord Llyod-Jones, Lady Arden and Lord Kitchin, while unanimously allowing the appeal held that,

Tours and Travel Company undertook to provide a package holiday at a four-star hotel. The Court stated the same to be an integral part of a holiday of such a standard that hotel staff provide guests with assistance with ordinary matters affecting them at the hotel as part of their holiday experience. It includes guiding guests from one part of the hotel to another. The rape and assault of the appellant amounted to a failure to provide that service with proper care.

Appellant and her husband (“Mr and Mrs X”) entered into a contract with the respondent tour operator (“Kuoni”) under which Kuoni agreed to provide a package holiday in Sri Lanka which included return flights from the United Kingdom and 15 nights all-inclusive accommodation.

Appellant while making her way through the grounds of the hotel reception, came upon a hotel employee, N, who offered to show the appellant a shortcut to reception.

N lured her into the engineering room where he raped and assaulted her.

Mrs X claimed damages by reason of rape and assault and the said claim was brought for breach of contract and/or under the Package Travel, Package Holidays and Package Tours Regulations 1992 which implement in the United Kingdom Council Directive on package travel, package holidays and package tours.

The issues before the Supreme Court:

On further appeal to the Supreme Court, there were two main issues.

Issue 1: Did the rape and assault of Mrs X constitute improper performance of the obligations of Kuoni under the package travel contract?

Issue 2: If so, is any liability of Kuoni in respect of N’s conduct excluded by clause 5.10(b) of the contract and/or regulation 15(2)(c) of the 1992 Regulations?

Issue 1

It is an integral part of the services to be provided on a holiday of such a standard that hotel staff provide guests with assistance with ordinary matters affecting them at the hotel as part of their holiday experience. In Court’s view, guidance by a member of the hotel’s staff of Mrs X from one part of the hotel to another was clearly a service within the “holiday arrangements” which Kuoni had contracted to provide.

Hence, being accompanied to reception by a member of the hotel staff was a service falling within the scope of the holiday arrangements which Kuoni contracted to provide and the rape and assault committed by N on Mrs X was improper performance of that contract.

Bench expressed that,

“…in view of the objective of ensuring a high level of consumer protection, the obligations arising from a package travel contract could not be interpreted restrictively.”

Further, elaborating more on the analysis, Court stated that Kuoni cannot invoke the exemption from liability established by the third indent of article 5(2) of the Directive or the corresponding provision in regulation 15(2)(c)(ii) of the 1992 Regulations, which implement the Directive, as a defence to a claim for improper performance of obligations under the package travel contract because that improper performance was caused by the acts of N, an employee of the hotel which was a supplier of services performing those obligations. Kuoni is liable to Mrs X under regulation 15 of the 1992 Regulations.

Kuoni is liable to Mrs X for breach of the package travel contract.

 Conclusion

Supreme Court took a broader view of the scope of obligations undertaken by an operator under a package travel contract.

The obligations not only include provision of transport, accommodation and meals but also other services ancillary thereto which are necessary for the provision of a holiday of a reasonable standard.

Court held that N’s guiding Mrs X from one part of the hotel to another clearly fell within the scope of the obligations undertaken by Kuoni under its package travel contract with Mr and Mrs X.

Hence, Kuoni was liable to Mrs X both under the 1992 Regulations and for breach of contract, as the services it undertook to provide were not provided with care and skill by an employee of the hotel which was a supplier of the services.

“…a tour operator is liable for the non-performance or improper performance of the obligations it has undertaken where those failures are the result of acts or omissions of employees of suppliers of services performing those obligations.”

In view of the above discussion, the appeal was allowed. [X v. Kuoni Travel Ltd., [20211 WLR 3910, decided on 30-07-2021]

Case BriefsSupreme Court

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

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

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

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

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

Analysis, Law and Decision

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

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

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

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

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

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

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

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

High Court grossly erred in appreciation of evidence.

Conclusion

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

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

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

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

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

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

Case BriefsHigh Courts

Madras High Court: The Division Bench of P.N. Prakash and R. Pongiappan, JJ., addressed a contempt petition filed under Section 10 of the Contempt of Courts Act.

Petitioner aged 87 years old was blessed with 5 children. He was in service when his children were young and was allotted a plot by the Tamil Nadu Housing Board, wherein he built a two-storeyed house. After his retirement, he started living peacefully with his wife and 4th son viz. Laxmi Rajah on the first floor. Apart from this he also owned a few more properties in and around Chennai.

After the death of his wife, petitioners’ children started demanding their shares in the properties and two of his sons Vijay and Suraj took possession of the ground floor and after a year started giving him trouble.

Due to the fear of being dispossessed from the house, a settlement deed in favour of the 4th son was executed.

On being infuriated with the above stated, the 4th son’s wife assaulted the petitioner and the other three daughter-in-law lodged a police complaint against the petitioner based on which an enquiry was conducted and the case as closeld as the same was a ‘civil dispute’.

The disgruntled sons gave a complaint of cheating and fraudulent transaction against their father. Again, the same was closed as “family quarrel”.

Vijay and Suraj filed a suit before the VII Additional City Civil Court for partition alleging that their father the petitioner did not have any means to purchase the Anna Nagar house property and it was bought with the funds of their grandfather and hence, they have a share in it.

The above mentioned two sons also assaulted their father, after which the petitioner sought protection under the Tamil Nadu Maintenance and Welfare of Parents and Senior Citizens Act, 2007.

Police filed an FIR against the two sons for the offences under Sections 294(b), 352 and 506(I) Penal Code, 1860 and Section 24 of the Tamil Nadu Maintenance and Welfare of Parents and Senior Citizens Act, 2007.

Two sons pleaded to Murthi at Metropolitan Magistrate’s house to withdraw the complaint and they will vacate the premises and show the bonafide they filed a written memo of undertaking before the Metropolitan Magistrate.

Reason for filing the present petition

After earning freedom, the two sons turned turtle, reneged from their undertaking and refused to vacate the premises and therefore, Murthi/ Petitioner was before this Court with the instant contempt petition.

Analysis, Law and Decision

Whether the undertaking given by Vijay and Suraj before the Metropolitan Magistrate was under coercion when they were in police custody or they gave it voluntarily?

Bench noted that when Vijay and Suraj’s counsel submitted before the Court that if some more time would be granted, they would vacate the house, the duo refused to toe their counsel’s line as well. Mainly they stuck on to the issue that their father did not give any share to them in his property.

Order passed by the V MM stated that the advocate for the accused pleaded to the V MM not to remand the accused and only thereafter, Murthi came into the picture, resulting in the duo filing a memo of undertaking to vacate the house, followed by Murthi filing a memo accepting the undertaking given by his sons.

Court expressed that the accused were represented by an advocate at the time of remand, and he would not have been so guile to make his clients file a memo of undertaking had the V MM been disinclined to remand them in judicial custody.

In view of the above, it is limpid that the alleged contemnors had filed an undertaking into the Court, which they had no intention of honouring, and had successfully extricated themselves from remand proceedings and their contention that the undertaking was given by them under coercion defies credulity.

Power of High Court to punish for Contempt of Courts subordinate to it, is recognized in Section 10 of the Contempt of Courts Act and it is well settled that a wilful breach of an undertaking given to the Court would constitute civil contempt.

Therefore, the subsequent act of deliberately reneging from the terms of the undertaking by the alleged contemnors constitutes a serious interference in the administration of justice, and the respondents were held to be guilty of Section 2(b) of the Contempt of Courts Act, 1971.

The contempt petition was allowed.[P.S. Murthi v. P.S. Vijay, 2021 SCC OnLine Mad 2052, decided on 04-06-2021]


Advocates before the Court:

For petitioner:  Mr. T. Arun Kumar for M/s. Tamizh Law Firm

For respondents: Mr. V. Krishnamoorthy

Case BriefsHigh Courts

Bombay High Court: Revati Mohite Dere, J., while addressing a very significant issue of assault, expressed that:

“There is imbalance of gender roles, where wife as a homemaker is expected to do all the household chores.”

Factual Matrix

Appellant was married to Manisha (deceased) and they both used to reside with the appellant’s mother.

According to the prosecution, the appellant was suspecting Manisha’s character as a result of which, there used to be frequent quarrels between them.

On 19-12-2013, Manisha was leaving the house without preparing tea on account of which, there was an exchange of words between the appellant and the deceased. Since the appellant was suspecting Manisha’s character and as she refused to make tea for the appellant, it was alleged that the appellant had given a blow on Manisha’s head from behind, with a hammer.

Further, it was alleged that the said incident was witnessed by Rohini, the appellant and Manisha’s daughter.

Prosecution submitted that after Manisha was assaulted, the appellant gave her a bath, wiped the bloodstains from the spot and thereafter took Manisha to Vitthal Hospital.

At the time when Manisha was admitted, her uncle visited, during that time appellant informed Manisha’s uncle that he had assaulted Manisha. Hence a complaint was lodged and a charge sheet was filed against the appellant for the offence punishable under Sections 302 and 201 of the Penal Code, 1860.

Sessions Judge convicted the appellant for the above-stated offences.

Analysis, Law and Decision 

High Court observed that on the day of the incident on being refused tea, the appellant assaulted Manisha with a hammer, but in Court’s opinion:

“…deceased-Manisha, by refusing to make tea for the appellant, by no stretch of imagination, can be said to have offered grave and sudden provocation for the appellant to assault her, much less, such a brutal assault.”

Bench also observed that:

“…a wife is not a chattel or an object.”

Cases as the present one, reflect the imbalance of gender – skewed patriarchy, the socio-cultural milieu one has grown up in, which often seeps into a marital relationship.

While making very essential observations, Bench quoted from a study, ‘The Man Who Mistook His Wife For Chattel’ by Margo Wilson and Martin Daly:

“by `proprietary’, we mean first that men lay claim to particular women as songbirds lay claim to territories, as lions lay claim to a kill, or as people of both sexes lay claim to valuables. Having located an individually recognizable and potentially defensible resource packet, the proprietary creature proceeds to advertise and exercise the intention of defending it from rivals. Proprietariness has further implication, possibly peculiar to the human case, of a sense of right or entitlement”. 

Medieval notion of the wife being the property of the husband to do as he wishes, unfortunately, still persists in the majority mindset. Nothing but notions of patriarchy.

Bench refused the appellant counsel’s argument the deceased by refusing to make tea for the appellant offered grave and sudden provocation.

In view of the present set of circumstances and arguments, Court stated that appellant not only assaulted his wife, but also after assaulting her, he wasted precious and crucial time by wiping the blood from the spot and bathing Manisha before taking her to hospital, if the deceased would have been rushed to the hospital, her life could have been saved.

Therefore, Court found no infirmity in the impugned judgment and dismissed the present appeal.[Santosh Mahadev Atkar v. State of Maharashtra, 2021 SCC OnLine Bom 248, decided on 02-02-2021]


Advocates who appeared before the Court:

Sarang Aradhye for the Appellant

V. Gavand, A.P.P for the Respondent–State

Case BriefsSupreme Court

Supreme Court: The 3-judge bench of RF Nariman, Navin Sinha and Indira Banerjee, JJ has held that it is not necessary that before a person is convicted on the ground of common intention, he must be actively involved in the physical activity of assault.  If the nature of evidence displays a pre-arranged plan and acting in concert pursuant to the plan, common intention can be inferred.

BACKGROUND OF THE CASE


The Court was hearing the matter where the appellants, convicted under Section 302/34 and sentenced to life imprisonment, had sought acquittal in a case where 2 men died as a result of assault by the appellants. Out of 5, 2 accused were acquitted by the Sessions Court giving them benefit of doubt. While the eye witnesses had deposed of assault upon the two deceased by appellants nos.2 and 3 only. There was no allegation that appellant no.1 was armed in any manner or that he also assaulted any one of the two deceased. It was, hence, contended that there is no material to infer common intention with regard to appellant no.1.

COMMON INTENTION


The Court explained that common intention consists of several persons acting in unison to achieve a common purpose, though their roles may be different. The role may be active or passive is irrelevant, once common intention is established.

“There can hardly be any direct evidence of common intention.  It is more a matter of inference to be drawn from the facts and circumstances of a case based on the cumulative assessment of the nature of evidence available against the participants.”

The foundation for conviction on the basis of common intention is based on the principle of vicarious responsibility by which a person is held to be answerable for the acts of others with whom he shared the common intention. The presence of the mental element or the intention to commit the act if cogently established is sufficient for conviction, without actual participation in the assault. It is therefore not necessary that before a person is convicted on the ground of common intention, he must be actively involved in the physical activity of assault. If the nature of evidence displays a pre-arranged plan and acting in concert pursuant to the plan, common intention can be inferred. A common intention to bring about a particular result may also develop on the spot as between a number of persons deducible from the facts and circumstances of a particular case.

“The coming together of the accused to the place of occurrence, some or all of whom may be armed, the manner of assault, the active or passive role played by the accused, are but only some of the materials for drawing inferences.”

CONCLUSION ON FACTS


The Court took note of the facts that

  • appellant no.1 lay in wait along with the other two appellants who were armed.
  • appellant no.1 stopped the two deceased who were returning from the market. The assault commenced after the deceased had halted.
  • While one deceased died on the spot as a result of the brutal assault, the other was injured in the first assault upon him by appellant no.3, after which he tried to flee.
  • Appellant no 1 along with the other accused chased him, caught hold of him after which he was brutally assaulted. He was then dragged by the accused persons to the place where the first deceased lay motionless.

The Court, hence, said,

“To our mind no further evidence is required with regard to existence of common intention in appellant no.1 to commit the offence in question.”

It, hence, refused to grant any benefit to appellant no.1 on the plea that there is no role or act of assault attributed to him, denying the existence of any common intention for that reason.

[Subed Ali v. State of Assam, 2020 SCC OnLine SC 794, decided on 30.09.2020]

Case BriefsHigh Courts

Allahabad High Court: Suresh Kumar Gupta, J., while addressing the present jail appeal held that,

“…in cases involving sexual assault/rape, it is generally difficult to find any corroborative witnesses, except the victim herself and therefore, the evidence of the victim is sufficient for conviction unless there exist compelling reasons for seeking corroboration.”

Appellant has been convicted and sentenced under Section 376 of Penal Code, 1860 for 10 years rigorous imprisonment alongwith a fine of Rs 20,000 and in default of payment of fine, two years additional imprisonment, under Section 342 IPC for six months imprisonment alongwith fine of Rs 500 and in default of payment of fine fifteen days additional imprisonment and under Section 506 IPC for 2 years rigorous imprisonment alongwith fine of Rs 1000 and in default of payment of fine, one-month additional imprisonment. All the sentences shall run concurrently.

Trial Court held the accused guilty and convicted him for the charged offences as aforesaid.

Counsel for the appellant Deepak Rana and AGA for the State is Sri Jai Prakash Tripathi.

Bench observed that it is a settled principle of law that in cases involving sexual assault/rape, it is generally difficult to find any corroborative witnesses, except the victim herself and therefore, the evidence of the victim is sufficient for conviction unless there exist compelling reasons for seeking corroboration. Thus, a conviction can be sustained on the sole testimony of the prosecutrix, if it inspires confidence.

In Gagan Bihari Samal v. State of Orissa, (1991) 3 SCC 562 Supreme Court of India whilst observing that corroboration is not the sine qua non for conviction in a rape case, held as follows :

In cases of rape, generally, it is difficult to find any corroborative witnesses except the victim of the rape. It has been observed by this Court in Bharwada Bhoginbhai Hirjibhai v. State of Gujarat,(1983) 3 SCC 217.

Further, it is also a well-settled principle of law that the testimony of child witness can be relied upon along with other circumstances and corroborative evidence to convict the accused. Undoubtedly, the settled proposition of law that the evidence of child witness is required to be scrutinised and appreciated with great caution.

Court in view of the well-settled law examined whether the evidence adduced by the prosecution, particularly the testimony of the victim is trustworthy, credible and can be relied upon.

Victim clearly stated that she was misled by the accused/appellant Jonny and he took away her to his house and committed rape upon her by extending threat. The statement of PW-2 has also been corroborated by the mother of the victim PW-1.

Further, there are catena of Judgments of the Supreme Court of India that it is necessary for the Court to have a sensitive approach when dealing with the cases of rape.

In the Supreme Court decision of State of Punjab v. Ramdev Singh, (2004) 1 SCC 421  it was held that,

Sexual violence apart from being a dehumanizing act is an unlawful intrusion on the right of privacy and sanctity of a female. It is a serious blow to her supreme honour and offends her self-esteem and dignity.

It degrades and humiliates the victim and where the victim is a helpless innocent child or a minor. It leaves behind a traumatic experience. A rapist not only causes physical injuries but more indelibly leaves a scar on the most cherished possession of a woman i.e. her dignity, honour, reputation and not the least her chastity. Rape is not only a crime against the person of a woman, it is a crime against the entire society.

Bench stated that it has been established that in the absence of a family member of victim, the accused/appellant fraudulently called the victim to his house. On being called the victim reached the house where appellant forcefully committed rape. In these facts and circumstances in an ordinary procedure it cannot be said to be a case of false implication.

Prosecution by cogent and credible evidence is able to prove the charge under Section 376 IPC against the appellant.

In the present matter, victim is a minor and an adult committed rape on a girl of tender age, deterrent punishment is called for, taking a lenient view is out of the question.

Presently the appellant is incarcerated for more than 7 years. Conviction of the appellant is confirmed under Sections 376, 342 & 506 IPC. So on the point of conviction, the appeal is dismissed.

On the quantum of the sentence, this Court thinks that the end of justice would be met if the appellant is sentenced to imprisonment which he has already undergone.

In view of the above, the appeal is finally disposed of. [Jonny v. State of U.P., Jail Appeal No. 343 of 2018, decided on 03-09-2020]

Case BriefsHigh Courts

Bombay High Court: A Division Bench of S.S. Shinde and M.S. Karnik, JJ., partly allowed an appeal by reducing the sentence of the accused in light of the sentencing policy.

In the present matter, the lower Court’s decision was challenged.

Appellant faced trial for alleged commission of the offences punishable under Sections 307 along with 341 of the Penal Code, 1860.

Prosecution Version

Victim used to reside with her brothers at her maternal uncle’s house and worked as a babysitter. Appellant-Accused and the victim were residing in the same area and eventually from acquaintance they turned into lovers.

Victim’s uncle objected the affair, after which the victim stopped meeting the appellant-accused. Later, she expressed her clear refusal to continue the relationship.

On victim’s refusal, appellant-accused kept threatening her and on one occasion he had beaten her up too as he wanted her to marry him.

Day of the incident

Appellant- accused suddenly entered the rickshaw in which the victim was seated. The victim was pulled out of the rickshaw. The appellant-accused threatened the rickshaw driver and forced him to leave. The appellant-accused assaulted the victim with his fists and pulled her to the footpath.

On her refusal, the appellant-accused took out a knife from the right side pocket of his pant and inflicted injuries on her neck.

At that time, one police vehicle arrived. The appellant-accused ran away from the spot. The victim was taken to the hospital and on the basis of her statement, the offences under Section 307 and 341 of the IPC came to be registered.

Submissions

Appellant-accused’s counsel submitted that the cardinal principle of sentencing policy is that the sentence imposed on the offender should reflect the crime he has committed and it should be proportionate to the gravity of the offence.

APP on behalf of the respondent-State submitted that the sentence imposed by the trial Court in the facts and circumstances of this case cannot be said to be unjustified. In support of his submission that the appellant-accused deserves no leniency, he relied on the Supreme Court’s decision in State of M.P. v. Kashiram, (2009) 4 SCC 26.

Decision

In view of the facts and circumstances of the case, bench stated that it would be profitable to refer to the decision of the Supreme Court in State of Punjab v. Bawa Singh, (2015) 3 SCC 441, in the context of duty of the Court to award proper sentence, wherein the following was stated:

“16. ………… undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law. It is the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed.”

In the present case, Court opined that the sentence imposed by the trial court required to be reduced.

The aggravating and mitigating factors and circumstances in which a crime has been committed are to be delicately balanced on the basis of really relevant circumstances in a dispassionate manner by the Court.

Court stated that in view of the dicta of the Supreme Court, “we are conscious of the social impact of the crime against women cannot be lost sight of and per se require exemplary treatment.”

Hence, considering the totality of circumstances, the imposition of sentence of imprisonment for life by the trial court appears to be harsh and hence the same needs to be reduced by maintaining the conviction.

Therefore, sentence of 10 years would meet the ends of justice. [Arumugum Arundatiyar v. State of Maharashtra, 2020 SCC OnLine Bom 844, decided on 05-08-2020]

Case BriefsCOVID 19High Courts

Delhi High Court: Rajnish Bhatnagar, J. while conducting a hearing through Video Conferencing, addressed a very pertinent matter with regard to bail of petitioner alleged for assaulting two women resident doctors of Safdarjung Hospital after accusing them of spreading COVID 19.

In the present matter, FIR was registered under Sections 354, 341, 323, 506 and 509 of Penal Code, 1860 against the petitioner for the above-stated reasons. Incident that took place as stated in the FIR was that complainant was working as Junior Resident (Casualty) at Safdarjung Hospital, she along with her sister went to a fruit shop to bu fruits wherein a person standing started speaking about social distancing and remarked that doctors like them were spreading infection in residential areas.

Further complainant told the petitioner that she knew importance of social distancing but the petitioner got abusive and threatened to get a case registered against them. It is alleged that when petitioner was about to leave complainant assaulted them and touched in an inappropriate manner.

It was contended by the petitioner that he was only concerned about the social distancing being maintained between the people looking into threats of coronavirus, he added he was being falsely implicated . Further it was argued that all the sections except Section 354 IPC were bailable.

APP while opposing the bail application submitted that the allegations were grave and serious in nature and petitioner rather than being thankful to the doctors attacked and molested them.

Bench stated that as the country is passing through a very difficult phase and the doctors are rendering women service to the nation, petitioner being an educated man should have been respectful to the doctors rather than abusing and threatening them.

In Court’s opinion, no useful purpose would have been served by keeping the petitioner in J.C and overcrowding Tihar Jail, thus he is admitted to bail on furnishing a bail bond.

In view of the above, bail application stands disposed of. [Sanjeev Sharma v. State of NCT of Delhi, Bail Appl. No. 774 of 2020, decided on 15-04-2020]

Case BriefsHigh Courts

Calcutta High Court: A Division Bench of Abhijit Gangopadhyay and Joymalya Bagchi, JJ. allowed an appeal and set aside the conviction and sentence of a stepfather (hereinafter “appellant”) accused of sexually assaulting his minor daughter.

The appellant had been charged with raping his stepdaughter aged around 13 years twice in duration of 4 weeks. The chargesheet was filed and charges were framed under Section 354 (assault or criminal intent to a woman with intent to outrage her modesty) of the Penal Code, 1860 and under Section 5 and 6 of the Prevention of Children from Sexual Offences Act, 2012. The trial Court convicted the appellant for the offence punishable under Section 5(n) of the POCSO Act and sentenced him to rigorous imprisonment for life and pay a fine of Rs 50,000. Appellant-accused filed an appeal against this order.

The counsels for the appellant  Deep Chaim Kabir and R. Arul Peter argued that the alleged incidents were false as the statements of the victim were highly unreliable and contradictory in nature. The incident of outraging the modesty of the victim was not confirmed by her uncle (prosecution witness) in whose house she allegedly took refuge after the incident. There were a lot of inconsistencies in the statements mentioned by the victim. It was also submitted that seizure of incriminating articles like a used condom and sanitary napkins were from a public place which was accessible to all. No forensic evidence to connect incriminating articles with appellant. 

The learned counsel appearing for the State A.S. Zinu argued that evidence of a minor victim of sexual assault must be treated with due sensitivity and care as the appellant is accused of the heinous crime of rape. Also, he contended that the appellant had fiduciary control over victim and this lead to delay in lodging the FIR. The medical report showed that the victim’s hymen was ruptured which indicated rape. The victim herself pointed out the place where the incident had occurred and incriminating articles were found. Her statements were supported by the testimonies of the witnesses and in view of the statutory presumption under Section 29 of the POCSO Act prosecution’s case was well established.

The Court was of the opinion that the evidence led by the prosecution to establish the primary facts was inconsistent. One part of the prosecution case improbabilities the other part to such an extent that no man of reasonable prudence would accept the version as coming from the witnesses. Hence, the factual matrix of the case did not call for invocation of statutory presumption under POCSO Act to convict the appellant on charges levelled against him. 

In light of the aforesaid discussion, the Court held that conviction and sentence of appellant under Section 5(n) read with Section 6 of Act was liable to be set aside. The appeal was allowed and appellant was directed to be released from custody upon furnishing a bond to the satisfaction of the learned trial court which shall remain in force for a period of six months in terms of Section 437A of the Code of Criminal Procedure, 1973. [Subrata Biswas v. State, 2019 SCC OnLine Cal 1815, decided on 11-06-2019]

Case BriefsForeign Courts

South Africa High Court, Free State Division, Bloemfontein: A Division Bench of S. Chesiwe and P.E. Molitsoane, JJ. set aside the order of the Magistrate as the proceedings were not in accordance with justice.

This pertinent matter was sent on review by the Acting Senior Magistrate under Section 304(4) of the Criminal Procedure Act, 1977 (CPA) because it was submitted that the Presiding Officer applied the provisions of Section 77(6)(a) of the CPA incorrectly.

Under Section 77(6)(a) if the court which has jurisdiction in terms of Section 75 to try the case, finds that the accused is not capable of understanding the proceedings so as to make a proper defence, the court may, if it is of the opinion that it is in the interests of the accused, taking into account the nature of the accused’s incapacity contemplated in sub-section (1), and unless it can be proved on a balance of probabilities that, on the limited evidence available the accused committed the act in question, order that such information or evidence be placed before the court as it deems fit so as to determine whether the accused has committed the act in question.

The facts of the case are that the accused was charged with the offence of assault with intent to cause grievous bodily harm. After he appeared before the Court, he was sent to a 30-day mental evaluation. A panel of Psychiatrists made the following observations: Due to mental illness the accused neither has the ability to understand court proceedings nor to give proper instructions to his defence; the accused was not able to distinguish between right or wrong at the time of the alleged crime; the accused is at risk of repeating a similar offence if left untreated; It is recommended that he receives further care and treatment as a State patient.

In dealing with an enquiry in terms of Section 77(6)(a) the court must first make a finding that the accused is not capable of understanding the proceedings so as to make a proper defence. In this regard, the court may take into account the nature of the incapacity of the accused as contemplated in Section 77(1). If the report compiled under Section 79 is unanimous and uncontested by any of the parties as in this case, the court may determine the matter on the basis of the report without hearing further evidence.

Once the court finds that the accused is not capable of understanding the proceedings so as to mount his defence, the court should then proceed with the second leg of the enquiry, namely, whether on the balance of probabilities the accused committed the act in question. The expression “committed the act in question” was explained in the case of State v. Booi Pedro, 2014 SCC OnLine ZAWCHC 110.

“It has reference to the actus reus element of the offence with which the accused is charged. If the lawmaker had intended the court to enquire into the question whether the accused would probably be convicted of the charged offence if and when he became capable of understanding the proceedings, this would have been said. The use of the words ‘committed the act in question’ points to a more limited enquiry.”

The Acting Senior Magistrate failed to conduct an enquiry and make a finding whether the accused ‘committed the act in question’.

The Act obliges the court upon finding that the accused committed any of the following offences, namely, murder, culpable homicide, rape or compelled rape as contemplated in Sections 3 or 4 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007, or charge involving serious violence or if the court finds it to be in the public interest to order that the accused be detained in a psychiatrist hospital pending the decision of a judge in chambers under Section 47 of the Mental Health Care Act 17 of 2002.

The Court observed that assault with intent to cause grievous bodily harm is not always accompanied by violence. One of the elements of the offence of assault with intent to do grievous bodily harm is proof of ‘intent.’ On the other hand, Section 77(6)(a)(i) envisages a situation where the charge involves, as a matter of fact, serious violence.

Further, the order of the Magistrate detaining the accused at the Grootvlei Correctional Facility or Free State Psychiatrist Hospital in terms of Section 77(6) of the Criminal Procedure Act 51 of 1977 was reviewed and set aside.[State v. Simon Monamotsane, Case No. R264 of 2018, decided on 30-05-2019]

Kerala High Court
Case BriefsHigh Courts

Kerala High Court: B Sudheendra Kumar J., allowed a bail application and relieved the accused person from the custody. 

In the instant case, the accused persons were charged under Section 143 (Punishment for being member in unlawful assembly), Section 147 (Punishment for rioting), Section 148 (Rioting, armed with deadly weapon), Section 341 (Punishment for wrongful restraint), Section 120-B (Punishment for criminal conspiracy) for involving inflicting injuries on the injured person. One of the accused was involved in using a torch as a weapon to assault the injured. 

The High Court upon considering the facts and circumstances of the case stated that the incident was not pre-meditated. The court also considered the period of detention of the accused persons while granting the bail. The Court noted the fact that the other accused persons in the matter had already been granted bail and the remaining accused were in detention for an extended period of time. It granted bail on condition of executing bonds and also stated that the petitioners shall be observed if they involve themselves in a similar act during the pendency of the trial.[Karthik v. State of Kerala, 2019 SCC OnLine Ker 1990, decided on 26-06-2019]

Uttarakhand High Court
Case BriefsHigh Courts

Uttaranchal High Court: A Division Bench of Sudhanshu Dhulia and R.C. Khube, JJ. entertained an appeal filed against the impugned judgment and order passed by Family Court, which rejected the petition under Section 13 of Hindu Marriage Act, 1955 filed by the appellant.

Facts which gave rise to appeal were that marriage was solemnized in 2010 as per the Hindu rites and rituals. The appellant and respondent were living together after the marriage in appellant’s parental house along with appellant’s mother and child. The appellant contended that soon after, the respondent started to intimidate him for selling the house and shift to Delhi and live separately. It is also alleged by the appellant that the respondent stared to threaten him to commit suicide if her demands were not fulfilled. The appellant-accused respondent of attempting to commit suicide and assaulting his mother because of her unfulfilled demands. The appellant tried to convince the respondent but she refused to fulfill her marital duties, and in 2012, in the absence of the appellant, she left her matrimonial home. After which the appellant filed an application under Section 9, during the hearing the respondent appeared before the Court and made a statement regarding going back to her husband. It was also contended by the appellant, that parties stayed together for some time at Haridwar as per the compromised reached between the parties but even then, the respondent refused to consummate marital relations. And since two years both were living separately.

The learned counsel for the appellant Tapan Singh, submitted that despite of the order of Court the respondent was not fulfilling the marital duties. She treated appellant’s mother with utmost disrespect which amounted to cruelty. He also submitted that the behaviour of the alleged respondent towards appellant is humiliating and disrespectful before other relatives, which also caused mental stress to the respondent. Under the drastic circumstance appellant filed for divorce under Section 13(1)(ia) and (ib) of HMA, 1955, as the respondent deserted him for a period of 2 years.

The learned counsel for the respondent Syed Jafri, submitted that an FIR was lodged against the appellant under Sections 406 and 498-A IPC. Further, a mutual divorce application was rejected by the Family Court since both the parties were unable to arrive at consent. The learned Family Court dismissed the divorce petition filed by the appellant as well the petition filed by the respondent under Section 26 of the Hindu Marriage Act.

The Court rejected the contentions of the appellant for relief under Section 13 (1)(ib) as the period of desertion was not proved beyond the statutory limit for divorce. But the ground of cruelty was considered by the Court and it relied upon the judgment of Delhi High Court in, Rajinder Bhardwaj v. Anita Sharma, AIR 1993 Delhi 135, where it was held that if the wife physically assaults the mother-in-law and abuses her, it will amount to cruelty. It also addressed the issue related to behavior of the respondent towards appellant which was alleged disrespectful, and held, “Disrespectful and disparaging remarks by the respondent wife against the appellant-husband would amount to cruelty under Section 13(1) (i-a) of the Act as laid down in Santana Banerjee v. Sachindra Nath Banerjee, 1989 SCC OnLine Cal 257’’.

The Court considered the facts and circumstances of the case and stated that living separately of the parties for a long time, public insult, an embarrassment to the appellant, agony, and humiliation suffered by the appellant, charging the appellant with false allegations amount to cruelty by the respondent towards her husband. The respondent wife is living separately for the last five years and presently staying at Delhi with a son born from the wedlock of the parties. Held, “relationship between the parties had deteriorated to the extent that there was no possibility of any reconciliation. Their relationship had reached to the point from where there appears no possibility of harmonious conjugal relationships or their being living together as husband and wife and discharging the matrimonial duties. This itself amounts to a cruelty, if allowed to continue.” The appeal was allowed and the marriage was dissolved.[Sheenu Mahendru v. Sangeeta, 2019 SCC OnLine Utt 376, decided on 23-05-2019]

Case BriefsHigh Courts

Gujarat High Court: A Single Judge Bench comprising of S.H. Vora, J., allowed a petition against the detention orders passed under Gujarat Prevention of Anti Social Activities Act, 1985.

The petition was directed against order of detention passed by the respondent in exercise of powers conferred under Section 3(2) of the said Act by detaining the petitioner under Section 2 (c) of the same due to registration of offences under Sections 454, 457, 380 and 114 IPC that led to breach of public order.

The petitioner agreed that though it may be a breach of law and order but it failed to have any nexus with maintenance of public order as except statement of witnesses, registration of FIR/s and panchnama, there existed no other corroborating material on record which have had affected even the tempo of the society causing threat to the very existence of normal and routine life of people at large.

Referring to Pushker Mukherjee v. State of W.B., 1969 1 SCC 10, the Court concluded that every act of assault or injury to specific persons does not lead to public disorder and hence subjective satisfaction arrived at by the detaining authority cannot be said to be legal, valid and in accordance with law plus no other relevant penal provisions existed for invoking power under Section 3(2) of the Act. Accordingly, the Court passed release orders for the petitioner. [Vijay Rasikbhai Karsanbhai Thakor v. State of Gujarat,2017 SCC OnLine Guj 2229, order dated 06-09-2017]