Case BriefsHigh Courts

Calcutta High Court: A  Division Bench comprising of Joymalya Bagchi and Ravi Krishan Kapur, JJ.  disposed of the criminal appeal filed by the appellant by ordering his further examination under Section 313 CrPC.

In the case at hand, most of the prosecution witnesses turned hostile. However, the trial judge relied on the dying declaration of the victim, who, according to PW 15- the doctor who treated the victim, had suffered burn injuries due to the pouring of hot mustard oil. Learned counsel for the appellant was before the High Court assailing the said dying declaration on various grounds including that such circumstance was not placed before the appellant during his examination under Section 313 CrPC.

The High Court perused the record and found that in fact such circumstance was not put to the appellant during his examination. The Court held it to be settled law that any circumstance which may be used against an accused must be placed to him during his examination under Section 313. Such an exercise is not an empty formality but a facet of natural justice. While deciding the appeal, the Court was not unmindful of the fact that every infraction of the aforesaid requirement would not vitiate the trial. However, if such infraction is of a grave nature, and prejudices the accused or occasions failure of justice, it shall result in a mistrial. In the instant case, the Court noted, most of the PWs turned hostile, and as such, the dying declaration if believed by the court, would be the most vital circumstance pointing towards guilt of the appellant. In such circumstances, the Court ordered the further examination of the appellant under Section 313 by putting questions before him in relation to the dying declaration. The Sessions Judge was directed to complete the exercise within four weeks. [Sk. Anowar v. Moinak Bakshi, 2018 SCC OnLine Cal 3896, dated 22-6-2018]

Case BriefsHigh Courts

Himachal Pradesh High Court: A Single Judge Bench comprising of Chander Bhushan Barowalia, J. allowed a criminal appeal filed under Section 378 CrPC against the order of the trial court whereby complaint filed by the appellant was dismissed for non-appearance of the complainant-appellant.

The appellant filed a complaint under Section 138 of Negotiable Instruments Act 1881, alleging that the respondent had to pay a legally liable debt to the appellant. The respondent issued a cheque in favour of the appellant for the same. The appellant presented the said cheque before the respondent’s bank for payment. However, the cheque was returned with the endorsement ‘Funds Insufficient’. The appellant issued a demand notice to the respondent in compliance with the provisions of NI Act, but even then the respondent did not discharge his debt. Consequently, the appellant filed a complaint under Section 138 of the Act. The trial court issued notice for the service on the accused-respondent on 23-12-2015. On that date, the appellant did not appear before the court as he was under the impression that it was a formal hearing and it would be attended to by his counsel. However, appellant’s counsel was busy in conducting a criminal trial before the first Appellate Court and even he could not appear before the trial court on the given date. Resultantly, the trial court, under Section 256 CrPC, dismissed the complaint and acquitted the respondent. Aggrieved by the same, the appellant was in appeal before the High Court.

The High Court perused the record and was of the view that the trial court was not right in dismissing appellant’s complaint. The Court noted that non-appearance of the appellant, as well as his counsel, was not due to inadvertence. The appellant was relying on his counsel to appear before the trial court as it was a formal hearing, and the counsel was busy in conducting the criminal trial as stated hereinabove. The Court was of the opinion that such non-appearance was due to unavoidable circumstances. The Court concluded that the non-appearance of the appellant as well his counsel was neither intentional nor willful, but was beyond their control. Therefore, the High Court allowed the appeal and set aside the impugned judgment of the trial court dismissing the complaint of the appellant herein. [Padam Singh Saini v. Megh Singh,2018 SCC OnLine HP 784, dated 18-6-2018]

Case BriefsForeign Courts

High Court of South Africa, Eastern Cape Division: In a judgment delivered by Brooks, J. of the High Court of South Africa, while dismissing the appeal, held against a rape convict that the prescribed sentence of life imprisonment is not disproportionate to the crime, the criminal and needs of the society.

The complainant was a 16 year old boy who was raped by the appellant more than once. For the said crime, appellant was charged with rape in contravention of Section 3 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007. Appellant continued doing so without the complainant’s consent and will. Appellant was therefore, convicted and sentenced to life imprisonment, for which appellant preferred this appeal.

Court on analysing the evidence placed before it, convicted the appellant. Court noted the report of a social worker in which it was stated that the child after that incident had been suffering from flashbacks and nightmares along with lack of concentration in school which all has lead to an adverse impact on the mental health of the child along with physical health. Therefore, it was held that unless weighty justification exists prescribed sentence must not be departed for flimsy reasons.

Therefore, the Hon’ble High Court, by recording the significant point of appellant showing no remorse and the fact that the complainant suffered significant injuries causing pain and trauma, established that the trial Judge was correct in concluding that “there is nothing in the personal circumstances of the appellant that qualifies as a substantial and compelling circumstance.” The appeal was thereby dismissed upholding the sentence imposed by the trial judge. [Sikhumbuzo Xhaka v. State; Case No. CA144/2017; decided on 08.05.2018]

[Picture credit: Facebook/Deon Furstenburg]