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]

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]

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]

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]

Case BriefsHigh Courts

Tripura High Court: The Bench of S. Talapatra, J. reversed the order of the trial court convicting the appellant for offence punishable under Section 498-A IPC and sentencing him to suffer 3 years rigorous imprisonment.

Father of the deceased alleged that the appellant (husband of the deceased) tortured her and subjected her to cruelty for not fulfilling the unlawful demand of Rs 20,000 cash and gold ornaments. Finally, on 22-12-2012, the deceased committed suicide by hanging herself. An FIR was lodged and the appellant was put to trial after pleading not guilty. At the conclusion of the trial, the trial court convicted the appellant for offence punishable under Section 498-A IPC (cruelty to woman). Aggrieved thereby, the appellant preferred the present appeal.

The High Court perused the witness evidence and noted that from a conjoint reading of testimonies, it emerged that the witnesses were greatly influenced by the shocking death of a young woman. It was pointed out that in the first instance, the witnesses failed to reveal material facts to the Investigating Officer, but when such facts were revealed in trial, their testimonial value was substantially reduced as they appeared to be improvements and become prone to be doubted. Moreover, it was observed that such improvements were made by related witnesses which made it all the more doubtful because as per the normal rule the court scrutinizes evidence of related witness with greater caution. In such circumstances, it was held that the prosecution failed to establish the charge under Section 498-A beyond a reasonable doubt.  Therefore, the impugned order was set aside and the appellant was acquitted on benefit of doubt. [Sanjit Das v. State of Tripura, 2019 SCC OnLine Tri 27, dated 09-01-2019]

Case BriefsSupreme Court

Supreme Court: A Bench comprising of N.V. Ramana and M.M. Shantanagoudar, JJ. dismissed an appeal filed by the State of U.P. against the judgment of Allahabad High Court whereby it had reversed the decision the decision of trial court and acquitted the accused of charges under Sections 302 and 307 read with 149, Section 148 IPC and Section 7 of Criminal Law (Amendment) Act, 1932.

The accused persons were alleged to have participated in rioting and injuring the deceased (a senior official) with fire shots which resulted in his death. The accused were tried and convicted by the trial court for the offences mentioned above. However, on appeal by the accused persons, the High Court reversed the conviction and acquitted them. Aggrieved thereby, State of U.P. filed the instant appeal.

On perusal of the record, the Supreme Court was of the view that the judgment of the High Court needs no interference. The Court noted several laches in the investigation which went to root of the matter and resulted in acquittal:

  • Unexplained delay of 55 days in conducting Test Identification Parade.
  • Suspicion over post-mortem report and FSL report being incompatible with each other.
  • Doubtful recovery of pistol from accused.
  • Prosecution’s failure to ascertain with precision the place of incidence.
  • Non-examination of crucial witness (the other injured person in the incident) and failure of adducing independent witness.

Observing that suspicion however grave, cannot take place of proof, the Court gave benefit of doubt to the accused and upheld the High Court’s judgment of acquittal. The appeal filed by the State was dismissed. [State of U.P. v. Wasif Haider,2018 SCC OnLine SC 2740, decided on 10-12-2018]

Case BriefsHigh Courts

Delhi High Court: A Single Judge Bench comprising of Sanjeev Sachdeva, J. dismissed a revision petition filed against the judgment of the trial court whereby it had discharged the accused of offences under Sections 75 and 79 of the Juvenile Justice Act, 2015 and directed that she would face trial under Section 323 IPC.

The allegation against the respondent was that she had employed and maltreated the victim. Since there were no documents available of proof of age of the victim, it was ascertained through medical examination. The medical examination board opined the age of the victim to be between 18 to 20 years. The trial court considering the age determined as 18 to 20 years, opined that the victim was not a child as defined under the JJ Act and as such Sections 75 and 79 would not be attracted. Aggrieved thereby, the State preferred the instant appeal.

The High Court perused the record and was of the view that there was no infirmity in the view taken by the trial court. Keeping in view the fact benefit of doubt has to go the accused, the age would have been taken to be the higher of the range as determined by the medical examination while further keeping in view the margin of error 1 to 2 years. In Court’s opinion, the victim was not a minor when the alleged offence was stated to have happened. In such view of the matter, the judgment impugned was upheld and the appeal was dismissed. [State v. Rama Dhall,  2018 SCC OnLine Del 12540, decided on 22-11-2018]

Case BriefsHigh Courts

Tripura High Court: A Single Judge Bench comprising of Arindam Lodh, J. partly allowed a criminal appeal filed against the judgment of the trial court whereby the appellant was convicted under the provision of IPC and Protection of Children from Sexual Offences Act, 2012.

The appellant was neighbor of the complainant – father of the victim. It was alleged that the appellant had taken the victim girl, aged six and half years, from her house by saying that she was being called by his mother. It was alleged that on their way, the appellant took the victim in a jungle and did ill act against her. She was found crying in the jungle and she narrated the incident to her parents after which the complaint was filed. The appellant was tried and convicted by the trial court under Section 376 (2) (i) and 511 IPC along with Section 10 POCSO Act. Aggrieved thereby, the instant appeal was filed.

The High Court perused the record and note that statements made by the victim that the appellant touched her private part were not substantiated by any scrape of evidence, rather in her cross she categorically denied the story which she narrated in her examination-in-chief. The doctor also found no injury on any part of her body. It was observed as a settled principle that to substantiate the allegation of rape, there has to be penetration even in the slightest form to the vagina of the female which was absent in the present case. The doctor in his evidence never stated that there was any penetration to the vagina of the victim. Further, to substantiate the charge under Section 511 IPC and Section 10 POCSO Act, the attempt of rape as well as the story of aggravated sexual assault is necessary to be proved beyond reasonable doubt. It was the view of the Court that the witnesses had tried to improvise the story which was not stated before the Magistrate. This raised serious doubts about the genuinity of the prosecution case in respect of rape or sexual assault. Thus, the accused was entitled to get the benefit of doubt. In the circumstances of the case, according to the Court, the appellant at best could be convicted under Section 354 of IPC. On consideration of the facts that the appellant was 21 years of age and was first time offender at the time of commission of the offence, the sentence of the appellant was reduced to the period already undergone by him. The appeal was disposed of in the terms of above. [Dipankar Sarkar v. State of Tripura,2018 SCC OnLine Tri 233, decided on 11-10-2018]

Case BriefsHigh Courts

Calcutta High Court: A Single Judge Bench comprising of Rajarshi Bharadwaj, J. allowed an appeal filed against the judgment of the trial court whereby the appellants were convicted for the offence punishable under Section 392 IPC.

As per the prosecution story, on the day of the incident, the complainant went to his oil mill, collected Rs 2,03,000, and proceeded towards the Post Office on his scooter. The appellants were alleged for following the complainant on a motorcycle, obstructing him on his way, threatening him with a gun, and taking away the money from the dickey of his scooter. Pursuant the complaint made by the complainant, an FIR was registered which ultimately resulted in conviction of the appellants by the trial court as mentioned above. Aggrieved thereby, the appellants preferred the instant appeal.

The High Court perused the entire evidence available on record as well as testimony of all the prosecution witness. It was found that the alleged money collected by the complainant was not proved. In such circumstances, there could not be any robbery. Although it was stated that Rs 13000 lat scattered at the place of occurrence, not even a single note was recovered. Mere presence of motorcycle could not aby robbery. It wasn’t clear as to how the police came to the spot. Person carrying the revolver was not identified, genuineness of documents to confirm the ownership of the scooter was not verified, the constable who read the cash-book to the Investigation Officer was not made a prosecution witness. The Court was of the view that in the absence of any direct evidence that the appellants were involved in commission of the offence, benefit of doubt may be extended to them. Accordingly, the appeal was allowed. The appellants were acquitted of all the charges, the order of the trial court was reversed. [Abdul Rashid v. State of W.B.,2018 SCC OnLine Cal 6326, dated 13-09-2018]

Case BriefsHigh Courts

Delhi High Court: A Division Bench comprising of Vipin Sanghi and I.S. Mehta, JJ. allowed an appeal filed against the judgment and order of the trial court whereby the appellant was convicted for the offence punishable under Section 302 IPC.

The appellant was convicted for murder of his co-brother (sadoo). It was alleged that firstly, the deceased was last seen with the appellant. Secondly, the knife used in the commission of crime was recovered on disclosure made by the appellant. Thirdly, the appellant went missing after the death of the deceased and his mobile phone was also switched off. Fourthly, police claimed to recover clothes of the accused with involvement of an independent witness. Lastly, the motive behind the commission of murder was said to be that the appellant was suspicious of an illicit relationship between his wife and the deceased. The trial court convicted the appellant under Section 302, against which the appellant had filed the instant appeal.

The High Court perused the record and considered the submissions made by the parties. The Court was of the view that there were serious gaping holes in the prosecution story. The matter was dealt in a point-wise manner. Firstly, the last seen theory was unacceptable because the there was a time gap of over five hours between last seen and the death of the deceased. Moreover, undigested food was found in the intestines of the deceased in the post-mortem report; there was no record as to when, where and with whom the deceased had his last meal. Secondly, the blood on the knife which was recovered from the bushes did not match with the blood group of the deceased. Thirdly, the fact that the appellant went missing and switching off his mobile phone was the only fact that raised suspicion of his involvement in the crime. Fourthly, the independent witness involved in recovery of the clothes allegedly of the appellant did not support the recovery during his examination and turned hostile. Lastly, as to the motive for murder, the Court observed that in Indian culture, the relationship between a sister-in-law and brother-in-law is known to evoke playful and fun-filled conversations. Even the appellant would have been aware of the fact. Even if he did not appreciate such interactions between his wife and the deceased, there was no immediate provocation prior to the murder to trigger such an act. In light of the above, the Court held that the appellant deserved the benefit of doubt. Accordingly, the appeal was allowed, the judgment impugned was set aside and the appellant was acquitted of the charges against him. [Dinesh Dass v. State (NCT of Delhi),2018 SCC OnLine Del 10970, dated 29-08-2018]

Case BriefsHigh Courts

Delhi High Court: A Single Judge Bench comprising of Mukta Gupta, J. allowed an appeal filed against the order of the trial court whereby the appellant was convicted for an offence punishable under Section 21(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985.

The prosecution case was that one Romy (co-accused) was apprehended by the police while supplying contraband substance. Case property (46 grams of the contraband substance) was recovered from him. On Romy’s revealing that he is supplied the said contraband from the appellant, he was also apprehended. Case property (105 grams of the contraband substance) was also recovered from the appellant. The appellant was tried and convicted by the trial court as mentioned above. Aggrieved by the same, the appellant filed the instant appeal.

The High Court perused the record and found that as per the malkhana register, the alleged recovery of case properties from the two accused was deposited at the same time on 23 August 2012. However, the recovery from Romy had already been made on the previous day, i.e. 22 August 2012. In view of the Court, the contradiction with respect to deposit the case properties in malkhana pursuant to the two recoveries goes to the root of the matter. The same creates serious doubt in the link evidence that the case properties were kept in safe custody and were not tampered with. In such circumstances, the Court held that the appellant was entitled to benefit of doubt. The appeal was allowed and the convict was acquitted of the offence. [Earnest v. State (NCT of Delhi), Crl. A. 1112 of 2016, dated 27-8-2018]

Case BriefsSupreme Court

Supreme Court: The Bench comprising of Ranjan Gogoi, Navin Sinha, and K.M. Joseph, JJ., allowed an appeal and acquitted the accused-appellant for the offences under Sections 363, 366 and 376 IPC, on the basis of  “benefit of doubt”.

The accused-appellant was charged under Sections 363, 366 and 376 of the Penal Code by the trial court and further the High Court had recorded the order of conviction under the Sections mentioned above.

The matter favoured the accused-appellant as the evidence placed stated that the stand of the prosecutrix in regard to abduction and rape was different from her statement which was recorded earlier under Section 161 CrPC, 1973. It was also recorded by one of the prosecution witnesses that the prosecutrix stayed with the accused for about 2 days in Kullu and further until she was recovered she was in the company of the accused for 12 days and yet she did not complain of any criminal act against the accused-appellant.

On the analysis of the evidence the main question arose was that of the age of the prosecutrix, whether she was a major at the time of occurrence of the incident? For that, the prosecutrix failed to prove that she was a minor.

Therefore, the Supreme Court by stating that the “benefit of doubt” should naturally go to the accused in the present case on the basis of the above-recorded pieces of evidence and facts, held that the possibility of the prosecutrix to be a consenting party cannot be ruled out altogether. Hence, setting aside the High Court’s order, the accused-appellant was acquitted from all the charges. [Rajak Mohammad v. State of Himachal Pradesh,2018 SCC OnLine SC 1222, Order dated 23-08-2018]

Case BriefsHigh Courts

Delhi High Court: A Single Judge Bench comprising of Sanjeev Sachdeva, J., allowed a criminal revision petition filed against the order of the Child Welfare Committee (CWC) as affirmed by the appellate court whereby the victim girl, in this case, was held to be a minor.

The petitioners were the employer of the victim and were accused in the FIR registered under Sections 325 and 376 IPC along with Section 6 of the Protection of Children from Sexual Offences Act, 2012 read with Section 75 of the Juvenile Justice Act, 2015. The matter arose out of an issue before the CWC pertaining to wages to the victim. Since there was no document available to determine the age of the victim, a bone ossification test was conducted wherein her age was estimated to be in the range of 17-19 years. By the order impugned, the CWC determined victim’s age as 17 years; which order was affirmed by the appellate court. Aggrieved thus, the petitioners filed the instant revision.

Referring to Ram Suresh Singh v. Prabhat Singh, (2009) 6 SCC 681 and Jyoti Prakash Rai v. State of Bihar, (2008) 15 SCC 223, the High Court observed that the ossification test is not conclusive for age determination. The margin of error in age ascertained by radiological examination is two years on either side. The question that arose for consideration before the Court was ‘whether, while determining the age of the victim, the benefit of doubt in the age estimated by bone ossification test, is to go to the accused or the victim?’ Further referring to Triveniben v. State of Gujarat, (1989) 1 SCC 678 and Maru Ram v. Union of India, (1981) 1 SCC 107, the Court observed that any benefit of doubt, other things being equal, at all stages goes in favour of the accused. In the facts of the present case where age was estimated to be in between 17-19 years, the High Court held that even without considering the margin of error, the age is to be determined at 19 years. And as such, the order of the CWC holding the victim to be a minor was unsustainable. Accordingly, the order impugned, as far as it related to the determination of victim’s age, was set aside. However, the order of payment of wages and childhood loss compensation was not interfered with. The petition was disposed of in the terms above. [Shweta Gulati v. State (NCT of Delhi),2018 SCC OnLine Del 10448, dated 08-08-2018]

Case BriefsHigh Courts

Bombay High Court: A Division Bench comprising of B.R. Gavai and Sarang V. Kotwal JJ., addressed a Criminal Appeal by setting aside the order of conviction and sentence in view of considering the matter in the purview of ‘benefit of doubt’.

In the present matter, the Appellant was convicted under Sections 376 (f) and 302 IPC for committing the rape of a 6-year-old child and murder thereafter. In accordance to the FIR lodged by the victim’s father. The appellant was found to be sleeping beside the deceased. The deceased was found with blood and injuries to her private parts.

While noting the facts of the case, the High Court found that the post-mortem report states the final cause of death as ‘death due to shock due to vaginal and anal tear with multiple injuries over body’. Also, the fact to be noted that was found on during the medical examination of the Appellant was that he had no injuries on his person with no blood or semen on any of the clothing of the appellant. There was no evidence of semen or vaginal fluid been taken off by washing from the private parts of the appellant.

Therefore, the case of prosecution lied only in the arena of ‘suspicion’ and the chain of circumstances against the appellant seemed to be incomplete, which awarded the appellant ‘benefit of doubt’ by acquitting the appellant in the present matter. [Sandip Ramesh Gaikwad v. State of Maharashtra,2018 SCC OnLine Bom 2067, dated 06-07-2018]

Case BriefsHigh Courts

Gujarat High Court: The present appeal was decided by the Bench of Akhil Kureshi and A.Y. Kogje, JJ., filed by the accused against the order of the lower court in which the accused was awarded 6 months rigorous imprisonment and fine of Rs 1 lakh for offences under Sections 302, 114 and Section 504 of the Penal Code, 1860.

The lower court had given its judgment based on the FIR filed by the mother of the deceased with the alleged facts that on 21-9-2012, both the accused at 8.45 a.m. had come to the deceased’s house and started abusing her son (deceased) saying that he was not giving their land, thereafter dragging him towards the field, and then inflicted a blow with a plough on his thigh and further assaulted him with multiple grievous injuries, as a result of which he died. The accused, i.e. the father and the son, in this matter, appealed before the High Court that the prosecution had failed to prove the charges of murder beyond reasonable doubt. The learned advocate from the respondent in the present case contended that the witnesses who were examined being ‘interested witnesses’ cannot be relied upon and their versions cannot be taken into consideration to convict the appellants, since there were discrepancies in the statements by the eyewitnesses. Also, the prosecution had failed to prove that the murder weapons belonged to the respondent.

The Court relied on the judgment of the Hon’ble Supreme Court in Chandrappa v. State of Karnataka,  (2007) 4 SCC 415 and held that since the prosecution has failed to establish the motive behind the offence beyond reasonable doubt, this would lead to dismissal of the appeal and quashed and set aside the judgment of the lower court. The Court acquitted the appellants of all the charges by granting them the benefit of doubt. [Navinbhai Kaliyo Vithalbhai Baria v. State of Gujarat, Criminal Appeal No. 815 of 2014, decided on 30-11-2017]