Case BriefsSupreme Court

Supreme Court: The 3-judge bench of UU Lalit, CJ and S. Ravindra Bhat and Bela M. Trivedi*, JJ has acquitted the three accused in the Chhawla kidnapping, rape and murder case by giving them a benefit of doubt as the prosecution was not able to prove the case against them beyond reasonable doubt.

Background

In the case at hand, a girl was allegedly kidnapped in Chhawla, gang raped, killed and dumped in the fields ahead of Jhajjar by the three accused. The girl was allegedly walking with her two friends when she was forcibly pulled inside an Indica car.

Three boys were arrested, who had later, admitted having kidnapped, gang raped and killed the victim.

The entire case of prosecution rested on the circumstantial evidence, and that the victim was raped and brutally murdered. The Trial Court relying upon the certain circumstances as “proved” convicted and sentenced the accused for the charged offences.

The Delhi High Court also believing the same set of circumstances as “proved” further noted that the two incriminating circumstances of the DNA of a strand of hair recovered from the girl’s dead body matching DNA of Ravi and DNA generated from semen spots found on seat cover of the Indica car matching DNA profile of Vinod were overlooked by the Trial Court.

Supreme Court’s Ruling

In the case at hand, the Supreme Court found it difficult to hold that the prosecution had proved the guilt of the accused by adducing cogent and clinching evidence. The evidence with regard to the arrest of the accused, their identification, discoveries and recoveries of the incriminating articles, identity of the Indica Car, the seizures and sealing of the articles and collection of samples, the medical and scientific evidence, the report of DNA profiling, the evidence with regard to the CDRs etc were not proved by the prosecution by leading, cogent, clinching and clear evidence much less unerringly pointing the guilt of the accused.

There were many glaring lapses having occurred during the course of the trial. Out of the 49 witnesses examined by the prosecution, 10 material witnesses were not cross-examined and many other important witnesses were not adequately cross-examined by the defence counsel. Hence, material witnesses examined by the prosecution having not been either cross-examined or adequately examined, and the trial court also having acted as a passive umpire, the Court held that the accused were deprived of their rights to have a fair trial, apart from the fact that the truth also could not be elicited by the trial court.

Stating that no conviction should be based merely on the apprehension of indictment or condemnation over the decision rendered, Court observed, it may be true that if the accused involved in the heinous crime go unpunished or are acquitted, a kind of agony and frustration may be caused to the society in general and to the family of the victim in particular, however the law does permit the Courts to punish the accused on the basis of moral conviction or on suspicion alone.

“The prosecution has to bring home the charges levelled against them beyond reasonable doubt, which the prosecution has failed to do in the instant case, resultantly, the Court is left with no alternative but to acquit the accused, though involved in a very heinous crime.”

The Court, hence, set aside the judgments and orders of conviction and sentence passed by the trial court and the High Court and acquitted the accused by giving them a benefit of doubt.

Effect of acquittal on compensation to victim’s family

The Court made clear that in view of Section 357(A) Cr.PC, the family members of the deceased- victim would be entitled to the compensation even though the accused have been acquitted and hence, the parents of the victim would be entitled to the compensation, if not awarded so far by the Delhi State Legal Services Authority, as may be permissible in accordance with law.

[Rahul v. State of Delhi, 2022 SCC OnLine SC 1532, decided on 07.11.2022]


*Judgment by: Justice Bela M. Trivedi


For Appellants: Ms. Sonia Mathur, Sr. Adv. (AC) Ms. Shivani Misra, Adv. Ms. Shreya Rastogi, Adv. Mr. Nikhil Chandra Jaiswal, Adv. Mr. Simranjeet S. Saluja, Adv. Ms. Pratiksha Mishra, Adv. Ms. Ronika Tater, Adv. Mr. Divik Mathur, Adv. Ms. Rupakshi Soni, Adv. A. Sirajudeen, Sr. Adv. Ms. Nidhi, AOR (SCLSC) Mr. Mohit Girdhar, Adv. Mr. Sarthak Arora, Adv. Mr. Harinder Mohan Singh, AOR Ms. Shabana, Adv.

For Respondent(s) Ms. Aishwarya Bhati, ASG Ms. Ruchi Kohli, Adv. Ms. Celeste Agarwal, Adv. Ms. BLN Shivani, Adv. Mr. Rustam Singh Chauhan, Adv. Mr. Aman Sharma, Adv. Mr. Manvendra Singh, Adv. Mr. Gurmeet Singh Makker, AOR Ms. Charu Wali Khanna, Adv. Dr. (Mrs.) Vipin Gupta, AOR

Punjab and Haryana High Court
Case BriefsHigh Courts

   

Punjab and Haryana High Court: While dismissing the instant appeal preferred by the appellant against the order dated 01-05-2019 of the trial court whereby the rape accused was acquitted on the ground that prosecution has failed to prove the guilt of accused beyond reasonable doubt, G.S. Sandhawalia and Jagmohan Bansal, JJ., said that if the statement of rape victim is held to be gospel truth and Courts are bound to hold someone guilty just because there is allegation by the victim , it would be travesty of justice and there would be no need to conduct trial.

The FIR against the accused was registered under Sections, 376, 354, 354-B, 506 and 509 of the Penal Code, 1860 (‘IPC’) on 19-09-2017.

Facts:

The appellant was engaged to an officer of Indian Army. According to the victim, on 09-08-2017, after getting permission from her family, she met her fiancé. They both went on a bike ride to Kosli road near a school where the accused performed obscene acts with her. According to the victim, she refused to establish any physical relationship with the accused until marriage, to which the respondent threatened to kill her and refused to marry her.

The appellant stated that on 12-08-2017 and on 14-08-2017 she received threat calls from the respondent’s mobile phone and she informed her family about the whole incident few days later.

The trial court framed different issues for its consideration and held that it would be neither safe nor in the interest of justice to hold the respondent guilty as there is no cogent and convincing evidence on record to link the respondent with the crime in question. Accordingly, the trial Court acquitted the accused of all the charges. The trial court said that as per appellant, incident took place on 09-08-2017, whereas FIR was lodged on 19-09-2017. Thus, there was a delay in registration of FIR and the reasons for the delay advanced by appellant is not satisfactory and believable.

Rule of Law:

It is generally difficult to find any corroborative witnesses in such cases, except the victim herself and therefore, the evidence of the victim is sufficient for conviction unless there exist compelling reasons for seeking corroboration.

Observation and Analysis:

The Trial Court has specifically noticed that statement of prosecutrix must be given pre-dominant consideration. The Trial Court, after noticing this fact, has examined the veracity and truthfulness of the allegations of the prosecutrix. Hence, there is no manifest error, illegality or non-application of mind.

The Court said “the statement of prosecutrix cannot be treated as gospel truth and the Court has to see that she is a witness of sterling quality. If the statement of prosecutrix is held to be gospel truth and Courts are bound to hold someone guilty just because there is allegation by prosecutrix, it would be travesty of justice and there would be no need to conduct trial. The statement recorded by Magistrate under Section 164 or police authorities under Section 161 of CrPC would be sufficient to put a person behind the bars and hold him guilty.

The Court cited Dhanapal v. State, (2009) 10 SCC 401 wherein the Court held that if two views are possible, the benefit of doubt must be granted to accused. It has been further held that if two views are possible, the order of acquittal should not be set aside by the High Court because there is double presumption of innocence.

Keeping in view of the above, the Court upheld the judgment of the trial court saying that the findings recorded by trial court are well reasoned, fair, reasonable and cannot be termed as perverse in any manner, thus, it does not warrant interference.

The Court said that the appellant just to cover up delay has alleged that she was threatened by respondent and due to fear she did not disclose about alleged incident to her parents. The Trial Court has rightly concluded that there is unexplained delay in registration of FIR and it appears that FIR was registered to spite the boy side at a later point of time just because respondent refused to marry appellant.

[Reena Devi v. State of Haryana, 2022 SCC OnLine P&H 2591, decided on 30-09-2022]


Advocate who appeared in this case:

Mr. Anil Kumar, Advocate, for the Appellant.


*Kriti Kumar, Editorial Assistant has reported this brief.

Punjab and Haryana High Court
Case BriefsHigh Courts

   

Punjab and Haryana High Court: While deciding the instant appeal preferred by the appellant against the judgment of conviction and order of sentence passed by the Sessions Court whereby the appellant was held guilty of murder of her own daughter, the division bench of Sureshwar Thakur and N.S. Shekhawat, JJ., acquitted the appellant on benefit of doubt saying that the view taken by the Sessions Court is certainly not a possible and plausible view.

On 29/30-10-2009, the appellant was held guilty under Sections 302 and 201 of the Penal Code, 1860 and was sentenced to undergo rigorous imprisonment for life plus 3 months and to pay a fine. The present appeal is filed with a prayer to set aside the impugned judgment of conviction and order of sentence dated 29/30.10.2009 and to acquit him of the charges.

Facts:

The appellant, after consuming alcohol, hit her wife during a quarrel. The eldest daughter tried to intervene and hit her father with a stick (Danda). The appellant, outraged by this action, throttled the girl to death. The appellant told everyone that his daughter died due to heart attack and made a hurry to cremate her.

While bathing the girl before cremating her, as per the rituals, injuries and the mark of throttling was found on the neck of the girl. The appellant was told not to perform the cremation and to wait for investigation and postmortem, but he carried the girl to the cremation ground and cremated her anyways.

FIR was registered on 09-09-2008 and the ashes and bones of the girl was collected by the Police on 11-09-2008 from the cremation ground. The Stick (Danda) was also recovered which was kept concealed in bushes near a canal. On these grounds, the Sessions Court held the appellant guilty under Sections 302 and 201 of the Penal Code, 1860. While deciding the matter, the Sessions Court relied on the testimonies of the witnesses.

Issues:

Whether the material witnesses produced by the prosecution are reliable and trustworthy? Whether the death of Gurpreet Kaur was homicidal?

Observation and Analysis:

After perusal of the entire evidence and the documents on record, the Court said that it does not agree with the view taken by the Sessions Court as there were many serious infirmities in the case of the prosecution and consequently, no reliance can be placed on the prosecution witnesses to hold the appellant guilty of the charges under Sections 302 and 201 of IPC.

The Court said that to prove the charge under Section 302 of IPC, the prosecution is obliged to prove that the death was homicidal, and the prosecution failed in discharging the said burden.

The Court said that “Still further, no post-mortem examination of the dead body was conducted, and it is unsafe to hold only on the basis of oral testimonies of the witnesses that the death was homicidal in the instant case.”

The Court further said that in absence of any medical reports, forensic report or any other related evidence, it cannot be held that the death in the instant case was homicidal.

The Court observed the ruling in Paramjeet Singh v. State of Uttarakhand, (2010) 10 SCC 439 wherein it was held “the burden of proof in a criminal trial never shifts and it is always the burden of the prosecution to prove its case beyond reasonable doubt on the basis of acceptable evidence. In fact, it is a settled principle of criminal jurisprudence that the more serious the offence, the stricter the degree of proof required, since a higher degree of assurance is required to convict the accused. The fact that the offence was committed in a very cruel and revolting manner may in itself be a reason for scrutinizing the evidence more closely, lest the shocking nature of the crime induce an instinctive reaction against dispassionate judicial scrutiny of the facts and law.”

The Court thus, held that the conclusions drawn by the Sessions Court are wholly unsustainable and contrary to the settled principles of law and extended benefit of doubt to the appellant. Accordingly, the judgment of conviction and order of sentence dated 29/30-10-2009, passed by the Sessions Court was set aside and the appellant stands acquitted.

[Surinder Pal v. State of Punjab, 2022 SCC OnLine P&H 2354, decided on 6-09-2022]


Advocates who appeared in this case:

Ms. Meena Bansal, Advocate, for the Appellant;

Ms. Ishma Randhawa, Additional Advocate General, for the Respondent.

Allahabad High Court
Case BriefsHigh Courts

   

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

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

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

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

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

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

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

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

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

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


Advocates who appeared in this case :

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

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


*Suchita Shukla, Editorial Assistant has reported this brief.

laboratory report
Case BriefsSupreme Court

Supreme Court: The Division Bench of Hemant Gupta and Vikram Nath*, JJ., reversed the impugned judgments of the Punjab and Haryana High Court and the Trial Court of convicting the appellant for murder on the basis of circumstantial evidence.

Noting that there were many broken links in the chain of evidence and the prosecution could not prove the case beyond a reasonable doubt. Casting a doubt on the prosecution version, the Court remarked,

“The milk which is said to be adulterated with the poison was taken out from the refrigerator, transferred into a pan for boiling, and thereafter given to the deceased. If it actually had organophosphorus in it the smell would have filled up the room. The deceased being a healthy woman aged 45 years would not have consumed it if the pungent smell was coming from the milk. Even the informant did not sense any foul smell from the milk while boiling it.”

Factual Matrix

The prosecution case was that one Kuldeep Kaur, wife of the informant died after consuming the milk bought from the appellant, Rajbir Singh. The informant submitted that the appellant had borrowed Rs. 1 lakh from him and he and his wife were demanding that money from him. Therefore, on account of a grudge, he poisoned the milk in order to eliminate his family.

The Trial Court held that the prosecution had proved the death was caused by poisoning and that there was a motive to commit the said offence in order to save the appellant from returning the loan of Rs. 1 lakh taken from the informant. The Trial Court noted that the chemical analysis of the boiled milk consumed by the deceased, the unboiled milk, the container 18 in which the milk was kept, and the glass in which the milk was tendered, all contained organophosphorus, the poisonous substance. The second chemical report also reflected that there was the same substance organophosphorus in the parts of the organs (viscera) of the deceased sent for analysis.

Hence, the Trial Court convicted the appellant under Section 302 of Penal Code 1860 and sentenced him to undergo rigorous imprisonment for life and pay a fine of Rs.1,000. In appeal, the Punjab & Haryana High Court upheld the conviction.

Broken Chain of Evidence

The Court noted that the Trial Court proceeded on the premise that the appellant had not denied the execution of the pronote while discussing the motive which was not correct as the appellant in his statement under section 313 CrPC had specifically denied not only borrowing of the money but also that he never executed the pronote.

Further, the Trial Court did not take into consideration the time gap from the alleged time of collecting the milk from the appellant to the time it was administered and further the time the samples were collected. It also did not give any importance to the post-mortem report and the statement of Dr. Avtar Singh who had conducted the autopsy.

Considering the aforementioned, the Court culled out the following factors to rule that both the courts below committed an error in recording conviction:

  • According to the appellant, the amount was due to him from the informant and that he had been falsely implicated to deprive him of recovering the same from the informant. Hence, a case of false implication cannot be ruled out.

  • Reliance placed upon the pronote and the receipt was also not proved as neither the original pronote was produced nor any attesting witness was examined.

  • The time between the collection of milk from the appellant and the time when it was consumed by the deceased was about five hours. Similarly, the time after consumption of milk and when the Investigating Officer recovered and took into possession of the sample of milk and the utensils had a gap of about 24 hours. Hence, the chances of mixing poison during this period cannot be ruled out.

  • The use of compound organophosphorus has a homicidal purpose because of its extremely strong pungent smell which aspect had not received due attention by the Trial Court. Interestingly, this smell could not be sensed by the informant, his son, and also the deceased.

  • Further, Dr. Avtar Singh who had conducted the autopsy had clearly stated that he did not find any smell of organophosphorus coming out of the body; neither did he see any change in the colour of nails as also in the body, which would have been a common symptom in the case of poisoning. This may lead to an inference that death could have been caused by some other reason but not poisoning.

Relying on Sharad Birdhichand Sarda v. State of Maharashtra, (1984) 4 SCC 116, the Court observed that in a case of circumstantial evidence, it is also well settled that suspicion, howsoever strong it may be, cannot replace proof beyond a reasonable doubt.

Manipulation of Forensic Reports

The Court noted a grave discrepancy in the laboratory reports. The prosecution submitted that the sample was received in the laboratory on 22-09-2000, whereas as per the two reports, it was received by the Assistant Chemical Examiner, Dr. Sandeep Kakkar, on 22-11-2000 from one Dr. O.P. Goel after his suspension, not in a sealed form, but as an open case. The Court observed,

“This note ‘This opened case, received by me from Dr. O.P. Goel on 22.11.2000 after his suspension.’ is typed out in both the reports after an overwriting /cutting is made by using alphabet “X” continuously.”

The laboratory report dated 31-01-2001 mentioned that there were three sealed jars in the sealed parcel which contained parts of organs. Whereas as per the post-mortem report and the statement of Dr. Avtar Singh, four sealed packets were sent, three containing parts of organs, and one containing the saline solution. The result referred to presence of the organophosphorus compound in the three sealed jars and it also refers to no poison found in the contents of fourth jar.

Similarly, the other laboratory report dated 05-02-2001 of the Assistant Chemical Examiner, Dr. Sandeep Kakkar, with respect to milk, boiled and unboiled and the utensils also had a similar cutting, and a note attached to that it was received as an open case from Dr. O.P. Goel on 22-11-2000 after his suspension. Hence, the Court pointed out the following:

  • That samples were not handed over to the Assistant Chemical Examiner who had to conduct the analysis in a sealed form.

  • The cutting, and a fresh note regarding parcels being open also creates a doubt.

  • Chances of tampering with the samples could not be ruled out.

Conclusion

In the above backdrop, the Court concluded that the chain of evidence has many missing and weak links, and none of the essential ingredients to record conviction in a case of circumstantial evidence; especially in the poisoning case were made out. The Court remarked,

“The Investigation Officer admits of having made no effort to find out as to whether or not the appellant was in possession of the poisonous substance said to be mixed in the milk. The Courts below have proceeded on the assumption that organophosphorous is available in every household.”

Hence, holding that the prosecution had not established the charge beyond reasonable doubt so as to record conviction under Section 302 of the Penal Code, 1860, the Court extended benefit of doubt to the appellant. The appeal was allowed, the judgments of the High Court and the Trial Court were set aside, and the appellant was acquitted.

[Rajbir Singh v. State of Punjab, 2022 SCC OnLine SC 1090, decided on 24-08-2022]

*Judgment by: Justice Vikram Nath


*Kamini Sharma, Editorial Assistant has put this report together.

Case BriefsSupreme Court

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

The suspicion howsoever strong cannot take place of proof.”

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

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

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

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

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

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

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

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

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


*Judgment by: Justice Bela M. Trivedi


Counsels

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

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

Case BriefsHigh Courts

Calcutta High Court: Bibek Chaudhury, J. allowed an appeal which was filed assailing the judgment and order of conviction passed by the Trial Court for committing offence under Section 324 of the Penal Code, 1860 and consequence sentence of imprisonment for a term of one year with fine.

A written complaint from one Mosiluddin Ahmed was received that his younger brother Serajuddin Ahmed was returning from mosque after observing Namaz. At that time the appellant along with 4 others wrongly restrained him in front of the house of one Jainul and assaulted him on his head with iron rod and Hasua with the intention to kill him. As a result of assault, the brother of the de-facto complainant was seriously injured. It is also stated that the accused persons are habitual offenders. They also assaulted some other people of the village and they were facing trial in G.R. Case No.1069/1991.

On completion of investigation, police submitted charge-sheet against the accused persons. The Trial Court framed charge against five accused persons including the appellant under Sections 341/325/307/34 of the IPC. On the conclusion of trial, the appellant was convicted and sentenced in the manner disclosed above while other accused persons were acquitted from the charge.

Amicus curiae submitted that in a criminal trial the prosecution is duty bound to prove at the foremost the date, time and place of occurrence and the manner of the incident constituting the offence before the Trial Court. If there is any deviation in proving the aforesaid facts, the entire prosecution case becomes suspect. He contended that evidence on record was not sufficient enough against the appellant and he is entitled to be acquitted of the charge.

The Court was of the opinion that in case of discrepancy between ocular and medical evidence, ocular testimony shall prevail because the medical evidence is in the nature of an expert’s opinion. The Court was of the view that appellant was entitled to benefit of doubt and the learned Trial Judge ought to have recorded an order of acquittal in favour of the appellant. The appeal was allowed setting aside the judgment and order of conviction.[Aminul Islam v. State of West Bengal, 2022 SCC OnLine Cal 1272, decided on 06-05-2022]


Amicus Curiae : Mr Dipanjan Dutt

For the State : Mr Ranabir Roy Chowdhury, Ms Sujata Saha


Suchita Shukla, Editorial Assistant has reported this brief.

Tripura High Court
Case BriefsHigh Courts

Tripura High Court: Arindam Lodh J. quashed the judgement and order which was originally passed by the special judge (POCSO) West Tripura Agartala on July 08, 2020 in , in Case No. Special (POCSO) 21 of 2018.

In the instant case the victim had been staying in the house of one Rakhal Saha located at Granduse Para,Agartala since her childhood. .During such stay the victim came to be acquainted with the accused and love affairs developed between them. It is a noteworthy fact that during her stay, he tried to force himself upon her against her will. On 08-03-2017 matter was settled amicably in the house of said Rakhal Saha. However, the victim stated to have approached East Agartala Women P.S. from where she was taken to a Home at Jogendra nagar. During stay in the said Home the

victim being fallen ill, she was taken to a Doctor and on the advice of the Doctor her pregnancy was tested positive. Situating thus, mother of the informant approached the parents of the accused with request to get the victim married but they refused to do so. The victim being at the stage of 6(six) months of her pregnancy lodged written complaint with West Agartala Women P.S. on 26-10-2017.”

The central argument by the respected advocate for the appellant Mr Lodh, was that in the instant case, the prosecution had failed to prove the presence of the elements of Section 90 of IPC. The learned advocate for the appellant further strongly contended that both the parties thus involved in the case were consenting parties for the establishment of a physical relationship between them and that no promise was made by the convict in furtherance of having a bad faith or intentions, rather, both the accused and the victim had developed physical relation out of love and passion as both the parties were consenting adults.

Mr S. Ghosh, Addl. P.P. mainly argued and questioned the intention of the appellant and submitted that if there wasn’t any bad intention or malice behalf of the appellant, then, why the appellant did not marry the girl. In such a scenario according to Addl. P.P, the core requirements of section 90 were fulfilled.

The Court placed a strong reliance over the case of Pramod Suryabhan Pawar v. State of Maharashtra, (2019) 9 SCC 608 based on the facts of the instant matter and eventually acquitted the appellant Priyangan Saha on the basis of benefit of doubt and eventually quashed the judgement and order passed in Case No. Special (POCSO) 21 of 2018.[Priyangan Saha v. State of Tripura, CRL A (J) 36 of 2020, decided on 09-09-2021]


Suchita Shukla, Editorial Assistant has reported this brief.

Case BriefsForeign Courts

Court of Appeal of the Democratic Socialist Republic of Sri Lanka: The Division Bench of Devika Abeyratne and P.  Kumararatnam, JJ., allowed an appeal and set aside the conviction and the sentence acquitting the appellant from charges of bribery on account of inconsistent evidence produced.

In this case, the Director General of the Commission to Investigate Allegations of Bribery or Corruption, on the directions of the Commission had indicted the accused-appellant who was the school Principal of Mahanama Navodya School in Panadura in the High Court of Colombo under section 19(b) and section 19(c) of the bribery act.The Counsel for the Appellant argued that the prosecution had failed to prove the case beyond reasonable doubt since the date, place or time of solicitation had not been proved and that the trial judge had failed to consider these important points.

The Court observed that it was a trite law that it was not necessary to call a certain number of witnesses to prove a fact. However, if Court was not impressed with the cogency and the convincing character of the evidence of the sole testimony of the witness, it was incumbent on the prosecution to corroborate the evidence as stated in Sunil v. AG, 1999 (3) SLR page 191.

The Court also referred to the case of Liyanage v. Attorney, (1978-79) 2 SLR 111 CA ), to reiterate that in a trial under the Bribery Act on a charge of solicitation it is unsafe to allow a conviction to stand solely on the uncorroborated testimony of the complainant.

The Court noted that there were contradictions in the testimony of PW 1 and PW 3 which cannot be considered as minor discrepancies. On that note, the Court held that when considering the serious charge against the appellant, especially when there is no acceptable reason given why Hansani was not called as a prosecution witness, it was dangerous to rely on the sole evidence of PW 1.

The Court referred to the case of K Padmathillake v.  Director General, Commission to Investigate Allegations of Bribery or Corruption, 2009 2 SLR 151 SC, where it was held that,

 “No hard and fast rule can be laid down about appreciation of evidence. It is after all a question of fact and each case has to be decided on the facts as they stand in that particular case. Where a witness makes two inconsistent statements in his evidence with regard to a material fact and circumstance, the testimony of such a witness becomes unreliable and unworthy of credence”

 It was further concluded that it was not safe to allow the conviction solely on the uncorroborated testimony of PW 1. It was observed that when considering the totality of the evidence it is apparent that the prosecution has failed to prove beyond reasonable doubt that there was solicitation by the appellant on the date specified in the indictment the benefit of that doubt must ensue to the appellant.[Thelge Nadeeka Kaumadi Peiris v.  Bribery Commissioner, 2021 SCC OnLine SL CA 1, decided on 17-12-2021]


Suchita Shukla, Editorial Assistant has reported this brief.


Counsel:

Eraj De Silva with Hafeel Fariz, Janagam Sundaramoorthy and Daminda Wijesuriya for the Accused-Appellant.

Subashini Siriwardena with Anusha Sammandapperuma for the Complainant-Respondent

Armed Forces Tribunal
Case BriefsTribunals/Commissions/Regulatory Bodies

Armed Forces Tribunal: Division Bench of Justice Umesh Chandra Srivastava (Chairperson) and Vice Admiral Abhay Raghunath Karve (Member) A, allowed the application seeking directions to quash orders rejecting disability pension to the applicant.

The applicant was enrolled in Indian Army on 17-06-2013 and was invalided out from service on 16-12-2013 in Low Medical Category under Rule 13 (3) Item IV of the Army Rules, 1954. The Invaliding Medical Board (IMB) held assessed his disability ‘Catatonic Schizophrenia’ at 40% for life and opined the disability to be neither attributable to nor aggravated (NANA) by service.

Counsel for the applicant, K.K. Singh Bisht pleaded that the applicant was enrolled in  Army in medically and physically fit condition and there was no note or record to the contrary at the time of entry. Therefore, any deterioration in his health should be presumed to be due to service conditions.

The respondent contended that claim for disability pension had rightly been rejected by the competent authority in view of para 198 of Pension Regulations for Army, 1961 (Part-I), which categorically stated that the minimum period of qualifying service actually rendered and required for grant of invalid pension is ten years, but in the instant case, the applicant had put in only 07 months of service. The disease applicant was found to be suffering with in medical test was first started on 13-09-2013, i.e. within three months of joining the service.

Noticing the disease had started in less than three months of enrolment, the Tribunal stated that it could not be concluded that it had been caused by stress and strains of military service. The Tribunal relied on Narsingh Yadav v. Union of India, (2019) 9 SCC 667, wherein the Supreme Court had held,” Mental disorders cannot be detected at the time of recruitment and their subsequent manifestation does not entitle a person for disability pension unless there are very valid reasons and strong medical evidence to dispute the opinion of Medical Board.” The Tribunal while disposing of the application explained, A recruit is akin to a probationer and hence, prima facie the respondents as an employer have every right to discharge a recruit who is not meeting the medical requirement of military service and is not likely to become a good soldier.”

 Since there was no causal connection between the disease and military service, the Original Application was dismissed for being devoid of merit. [Durgesh Kumar Singh v. Union of India, 2020 SCC OnLine AFT 4635, decided on 11-12-2020]

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 

Case BriefsSupreme Court

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

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

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

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

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

Prosecution argued

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

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

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

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

It was, hence, held,

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

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

Himachal Pradesh High Court
Case BriefsHigh Courts

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

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

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

Case BriefsHigh Courts

Calcutta High Court: A Division Bench of Sanjib Banerjee and Suvra Ghosh, JJ. allowed the appeal filed by two persons who were convicted by the trial court for offence of waging war against the Government of India and set aside the judgment on the grounds of absence of a link between accused and alleged charges.

In the present case, the police received information about a meeting being held at a village where seditious lectures were being delivered. A few members of the said assembly of 30 to 40 people had firearms with them. When police arrived at the spot, the people started fleeing and accused-appellants herein were arrested. Certain seditious pamphlets and leaflets were recovered from their possession. A complaint was registered against them and chargesheet was filed against the appellants and charges were framed against them under Sections 121 A, 122, 124 A of Penal Code, 1860, Sections 25(a) and 35 of Arms Act, 1959 and Sections 4 and 5 of Explosive Substances Act, 1908. The appellants pleaded not guilty to the charges and the trial court convicted the appellants of the charges levied against them and sentenced them accordingly. Being aggrieved by the said judgment, the appellants preferred this appeal.

Counsels for appellants Amarta Ghose, Anirban Tarafder, Somdhuti Parekh, Rimpa Rajpal submitted that the witnesses were forcibly brought by the police which was not required, since under Section 87 of the Code of Criminal Procedure, 1973 the Court had ample power to ensure attendance of witnesses and prosecution had no power with regard to same. It was submitted that neither any explosive substance was recovered from the place of occurrence nor was any firefight was detected. Further, no incriminating article was found either in the possession of the appellant or in his house.

According to prosecution, in order to avoid delay in the trial of the case due to the absence of witnesses, the police took it upon themselves to bring the witnesses to Court and arrange for their stay. There was no suggestion to the fact that the police influenced or coerced the witnesses to adduce evidence or tutored them. It was submitted that since guilt of the appellants had been proved to the hilt and that conviction must be affirmed.

The Court noted that in their statements recorded under Section 313 of the Code, the appellants/accused gave a detailed account regarding their arrest, detention, search and seizure which sharply contradicted the case made out by the prosecution. It observed that the arresting officers had not followed the procedure laid down in D.K Basu v. State of West Bengal, (1997) 1 SCC 416. It was further opined that no firearm or ammunition was seized from the possession of the accused-appellants and such arms or ammunition were also not found in any premises occupied by them. Therefore, no responsibility could be thrust upon them for a commission of any offence under the Arms Act, 1959. Lastly, no explosive substance was recovered from the alleged place of occurrence, and thus offence under Explosives Act also could not be made out.

In view of the above, the Court held that prosecution had miserably failed to establish the charges levied against the appellants and there was no evidence on record that linked accused-appellant to the alleged charges. It was observed that the prosecution case suffered from severe contradictions and thus benefit of doubt could be granted to the appellants.

The Court also opined that it was trite law that the burden of proving a charge against an accused lied solely upon the prosecution and the prosecution was required to bring evidence which should be cogent, compact, believable and trustworthy as to become incompatible with the innocence of the accused. It was opined that the trial court had failed to appreciate the evidence in the proper perspective and missed the salient point that the link between the appellants and the incriminating material produced by the prosecution was non-existent. Thus, the appeal was allowed and the impugned judgment was set aside.[Patit Paban Halder v. State of West Bengal, CRA No. 337 of 2006, decided on 21-06-2019]

Case BriefsForeign Courts

Pakistan Supreme Court:  A Full Bench of Asif Saeed Khan Khosa, CJ, Mushir Alam and Syed Mansoor Ali Shah, JJ. extended benefit of doubt to the appellant herein and set aside his conviction and sentence under Section 9(c) of Control of Narcotic Substances Act, 1997.

In the present case, 1500 grams of heroin was found under the car seat of Suzuki van of the appellant. After a regular trial, the appellant was convicted. The appeal filed in the High Court was dismissed. Afterwards, the appeal with the leave of the Supreme Court was granted.

It was noted by the Court that the report of Punjab Forensic Agency was deficient in material facts. While it mentioned the names of the three tests performed, it did not provide results of these tests. Also, there was no mention of the protocol taken while conducting the test.

Referring to State v. Imam Bakhsh, 2018 SCMR 2039 while discussing Rule 6 of the Act, it was noted that the Report of Government Analyst, prepared in consequence of Rule 6, must provide for (i) tests and analysis of the alleged drug (ii) the results of the test(s) carried out and (iii) the test protocols applied to carry out these tests. Not abiding by the said rules reduced the reliability and evidentiary value of the report.

It was opined that credible testing and analysis of the alleged drug was fundamental to actualizing the provisions of the Act as it determined the true nature of the seized drug, and thus it was mandatory. The report of the Forensic Agency, if admitted in evidence without formal proof, could be rebutted and questioned by the accused on the ground of non-compliance of the above information required under Rule 6. Also, the report did not specify the protocols applied. Hence the mandatory requirements were not fulfilled and it would have been unsafe to rely on the report of Forensic Agency. Retesting of the drugs would amount to giving a premium to the prosecution for its mistakes and lapses.

Thus, the Court extended benefit of doubt to the appellant in the absence of a proper report and set aside his conviction order with the direction that he be released from custody.[Khair-ul-Bashar v. State, 2019 SCC OnLine Pak SC 8, decided on 08-04-2019]

Tripura High Court
Case BriefsHigh Courts

Tripura High Court: A Bench of S. Talapatra and Arindam Lodh, JJ. allowed an appeal filed against the Judgment of the trial court whereby the appellant was convicted for an offence of murder punishable under Section 302 IPC.

The appellant was alleged to have committed the murder of his wife. The trial court had observed that the appellant was found on the previous day of the incident as well as on a fateful evening in his rented house by the witnesses, and he alone committed his wife’s murder and none else. The plea of alibi taken as defence by the appellant was not accepted.

Explaining the law regarding the plea of alibi and burden of proof thereof, the High Court stated:

  “Latin word ‘alibi’ means ‘elsewhere’ and that word is used for convenience when an accused takes recourse to a defence line that when the occurrence took place he was so far away from the place of occurrence that it is extremely improbable that he would have participated in the crime. It is basic law that in a criminal case, in which the accused is alleged to have inflicted physical injury to another person, the burden is on the prosecution to prove that the accused was present at the scene and has participated in the crime. The burden would not be lessened by the mere fact that the accused has adopted the defence of alibi. The plea of the accused in such cases need be considered only when the burden has been discharged by the prosecution satisfactorily.”

Explaining further:

  “When the presence of the accused at the scene of occurrence is established satisfactorily by the prosecution through reliable evidence, normally the court would be slow to believe any counter-narrative to the effect that he was elsewhere when the occurrence happened. But if the evidence adduced by the accused is of such a quality and of such a standard that the court may entertain some reasonable doubt regarding his presence at the scene when the occurrence took place, the accused would, no doubt, be entitled to the benefit of reasonable doubt. For that purpose, it would be a sound proposition that in such circumstances, the burden on the accused is rather heavy. It follows, therefore, that strict proof is required for establishing the plea of alibi.”

In the present case, the prosecution had failed to prove appellant’s presence at the scene of the crime. Thus, there was no occasion to consider whether his plea of alibi could be considered or not. Accordingly, the impugned order was set aside and the appellant was set at liberty on the benefit of doubt. [Suman Nama v. State of Tripura, Crl. A. (J) No. 33 of 2015, decided on 03-05-2019]

Armed Forces Tribunal
Case BriefsTribunals/Commissions/Regulatory Bodies

Armed Forces Tribunal: The Coram of Justice SVS Rathore (Judicial Member) and Air Marshal BBP Sinha (Administrative Member) set aside the order of Principal Controller of Defence Accounts, Allahabad (PCDA-P) rejecting disability pension to an ex-sepoy.

Applicant herein, who joined the Indian Army as a sepoy in 1999, was admitted to Medical Hospital during his service period. The Invalidating Medical Board (IMB) categorized his disease as ‘Generalised Seizures –V-72 (Permanent)’ and assessed it as 20 percent for two years; holding it to be ‘neither attributable to nor aggravated by military service’ (NANA). The applicant was discharged from service in 2002, but his case for disability pension was rejected by the PCDA (P) in 2003. Hence, the instant application.

Learned counsel for the applicant, Mr Vinay Kumar Pandey, submitted that since the applicant was enrolled in medically fit condition and was thereafter discharged in ‘low medical category’, therefore his disability should be considered as attributable to and aggravated by military service and he should be granted disability pension. Further, IMB had not cited any reason for nonconnection of applicant’s disability with service in the Army.

Dr Shailendra Sharma Atal, learned counsel for the respondent submitted that as per Para 173 of the Pension Regulations (Part-I) 1961, the applicant was not entitled to any disability pension since the same is admissible only to an individual who is invalided out from service on account of disability attributable to military service.

The Tribunal noted that the applicant was enrolled in Army in a medically fit condition and discharged after 03 years and 233 days of service in low medical category. Respondent had not produced any document to prove that the disability/disease existed at the time of enrolment. The disease has started after more than two years of service, and the reason for declaring the disease as NANA was very cryptic i.e. ‘not connected with military service’. The said statement did not convey clearly as to why the disease had been declared as NANA.

Relying on the judgment of Dharamvir Singh v. Union of India, (2013) 7 SCC 316 it was held that benefit of doubt must be in favour of the applicant and his disease be considered as attributable to military service.

Since IMB had assessed applicant’s disability as 20 percent for two years, therefore, in view the judgment of Veer Pal Singh v. Ministry of Defence, (2013) 8 SCC 83, applicant’s case was recommended for the reassessment of further element of disability pension by Re-survey Medical Board, if any. The application was partly allowed holding the applicant entitled to disability pension at 20 percent for two years from the date of his discharge.[Satyendra Kumar Singh v. Union of India, 2019 SCC OnLine AFT 1029, Order dated 27-03-2019]

Case BriefsHigh Courts

Delhi High Court: R.K. Gauba, J., gave benefit of doubt to the appellant in the present appeal who was convicted by the trial court for the offences punishable under Sections 363 (punishment for kidnapping) and 368 (wrongfully concealing or keeping in confinement, kidnapped or abducted person) read with Section 34 IPC.

It was alleged that the appellant gave intoxicated sweets to the prosecutrix (victim) after which she started to feel giddy and thereby helped the co-convict in kidnapping the prosecutrix. She was tried and convicted by the trial court as aforestated. Represented by G.P. Thareja and Mani Mishra, Advocates, the appellant filed the present appeal.

The High Court noted that the prosecutrix changed her statement regarding the involvement of the appellant at least twice. It was stated: “The prosecutrix had changed her stand from one version to the other, the narration of sequence of evidence in the first statement under Section 161 CrPC being materially distinct from what was deposed by her before the Magistrate at the time of her statement under Section 164 CrPC, the Court deposition being even further at variance from the previous two.”

Observing that “The Court deposition of the prosecutrix against the appellant several days after she had been recovered cannot be believed on its face value”, the Court gave benefit of doubt to the appellant and acquitted her. The appeal was thus allowed. [Arti v. State (NCT of Delhi), 2019 SCC OnLine Del 7823, decided on 12-03-2019]

Jharkhand High Court
Case BriefsHigh Courts

Jharkhand High Court: The Bench of H.C. Mishra and Sanjay Kumar Dwivedi, JJ. allowed the appeals while setting aside the judgment of conviction and order of sentence convicting and sentencing the appellants.

In the pertinent case, the dispute was over land and its illegal possession wherein the accused were held guilty of murder under Section 302 of the Penal Code and the Trial Court even sentenced the accused accordingly. The Court was approached because there were discrepancies in the FIR and the statements provided by the prosecution witnesses, where they first stated that the occurrence had taken place in the hut and they could not see which accused was armed with what weapon. Subsequently, in evidence, the place was changed to the land in question and improvements were made on the details as to which accused was armed with what weapon and the person who assaulted. Also, the Investigation Officer (IO) was not examined because of which the necessary implications could not be taken from the IO. Even the Doctor conducting the post-mortem examination was not examined in the case.

The Court in the interest of justice looked into the case diary with the help of the learned senior counsel, Mr V.P. Singh, where it became apparent that the non-examination of the IO has vitally prejudiced the defence in the case and even the place of occurrence has not been properly proved in the case. The Court further believed that, the benefit of doubt should be extended to the appellants in the absence of the evidence of the IO and the Doctor. Therefore, the Court set aside the conviction and sentence ordered by the 1st Additional Sessions Judge and discharged the appellants from their respective liabilities.[Manik Singh v. State of Jharkhand, 2019 SCC OnLine Jhar 244, Order dated 11-03-2019]

Case BriefsHigh Courts

Gujarat High Court: A Bench of S.G. Shah, J. partly allowed an appeal which confirmed the conviction of the appellants but reduced the sentence.

In the present case the Sessions Court had convicted the appellants for abetment of suicide and subjecting the victim to cruelty respectively, in different appeals. The deceased had succumbed to the pressure from her in-laws and husband, as alleged in the petition, which was later challenged by the appellants.

The Court while not agreeing fully with the impugned judgment in appreciation of evidence, partly allowed the appeal where the conviction of the appellants was confirmed but the sentence was reduced to the period for which they have already undergone judicial custody, pending trial and appeal. Moreover, the Court also held that when it is possible to take a different view from the same set of evidence and offense, the benefit of doubt can be extended.[Bharatbhai Jamnadas Ramavat v. State of Gujarat, 2018 SCC OnLine Guj 3059, Order dated 05-07-2018]