Case BriefsDistrict Court

Patiala House Courts: Stating that the crimes for which the convict had been convicted were intended to strike at the heart of the idea of India and to forcefully secede J&K from the Union of India, Parveen Singh, ASJ-03, expressed that terror funding should be recognized as one of the gravest offences and has to be punished more severely.

Prsent matter was listed for deciding the quantum of sentence to be awarded to the convict Mohd. Yasin Malik, was convicted for the offences punishable under Sections 120B, 121, 121 A of Penal Code, 1860, Sections, 17, 18. 20 38 and 39 of UAPA.

In view of the Delhi High Court’s decision in Vishal Yadav v. State Govt of UP., Crl A 910 of 2008, socio economic report of the convict was called for.

As per the said report, convict owned a three-storey residential house in Srinagar where his mother and divorced sister alongwith her 2 sons used to reside. With respect to the social status of the convict he was acting as JKLF Chairman and was an influential person.

As per the jail conduct report of the convict, he had been satisfactory in the jail and no jail punishment was recorded against him. Further, with regard to his inclination towards reformation, his behaviour towards everyone remained cordial and peaceful and he seemed to be inclined toward reformation.

Analysis and Decision


Court expressed that it is a well settled position of law that while awarding sentence the Court has to consider aggravating and mitigating circumstances in order to arrive at a just sentence to be awarded to the convict.

Further, it is also well settled that there is no straight jacket formula for awarding sentence based upon any individual theory of punishment and that each case must be decided on its own facts and circumstances.

Twin objective of sentencing is deterrence and correction.

“The crimes for which convict has been convicted are of very serious nature. These crimes were intended to strike at the heart of the idea of India and intended to forcefully secede J&K from UOI. The crime becomes more serious as it was committed with the assistance of foreign powers and designated terrorists. The seriousness of crime is further increased by the fact that it was committed behind the smoke screen of an alleged peaceful political movement.”

Bench elaborated stating that admittedly the convict had been engaged in violent terrorist activities prior to 1994.

In Court’s opinion, there was no reformation of the said convict and adding to this, Court stated that he never expressed any regret for the violence he had committed prior to the year 1994.

Further, it was notice that when he claimed to have given up the path of violence, Government of India took it upon its face value and gave him an opportunity to reform and in good faith tried to engage in a meaningful dialogue. However, the convict did not desist from violence. Rather, betraying the good intentions of the Government he took a different path to orchestrate violence in the guise of political struggle.

“Convict has claimed that he had followed Gandhian principle of non-violence and was spear heading a peaceful non violent struggle.”

Bench observed that, the convict cannot invoke the Mahatma and claim to be his follower because in Mahatma Gandhi’s principles, there was no place for violence, howsoever high the objective might be.

“It only took one small incident of violence at Chauri Chaura for the Mahatma to call off the entire non-cooperation movement but the convict despite large scale of violence engulfing the valley neither condemned the violence nor withdrew his calendar of protest which had led to the said violence.” 

In view of the above discussion, Convict was sentenced as under:

  • Under Section 120B IPC:

Convict sentenced to rigorous imprisonment 10 years, fine of Rs 10,000, in default of payment simple imprisonment for a period of 6 months.

  • Under Section 121 IPC:

Merely because the offence provides for capital punishment, the same cannot be handed over to the convict in a routine manner or as a matter of rule.

Death penalty should be awarded in exceptional cases where the crime by its nature shocks the collective consciousness of the society and has been committed with unmatched cruelty and in a gruesome manner.

In the instant case, the manner in which the crime was committed was in the form of conspiracy whereby there was an attempted insurrection by instigating, stone pelting and arson and a very large scale violence led to shut of the government machinery and ultimate secession of J&K from UOI.

However, the Court concluded that the crime in question would fail the test of rarest of rare cases as laid down by the Supreme Court.

  • Under Section 121A IPC:

Sentenced to rigorous imprisonment of 10 years and fine of Rs 10,000.

  • Under Section 13 UAPA read with Section 120B IPC:

Rigorous imprisonment of 5 years and a fine of Rs 5,000.

  • Under Section 15 UAPA as punishable under Section 16 UAPA read with Section 120B IPC:

Rigorous imprisonment of 10 years and a fine of Rs 10,000.

  • Under Section 17 UAPA:

“Financing is the backbone of any operation including terrorist activities.”

Stating that terror funding is one of the gravest offences, Court noted in the present case that, the order on charge specifies how funds were raised and how they were received from Pakistani establishment as well as designated terrorist Hafeez Saeed and through other hawala operations. The said funds were used to create unrest where under the guise of public protests, paid terror activities of stone pelting and arson at mass scale were committed. Had there been no such funding for the convict to conspire to commit the said acts and to pay the perpetrators, the violence and mayhem at this scale could not have been committed. Therefore, in Court’s opinion, terror funding should be recognized as one of the gravest offences and has to be punished more severely.

Hence, convict was sentenced to life imprisonment and a fine of Rs 10,00,000 was imposed and on default on payment, a simple imprisonment for a period of 2 and a half years.

  • Under Section 18 UAPA:

Sentenced to rigorous imprisonment 10 years. A fine of Rs. 10,000/.

  • Under Section 20 UAPA:

Sentenced to rigorous imprisonment 10 years and fine of Rs 10,000.

  • Under Section 38 UAPA:

Sentenced to imprisonment 5 years and fine of Rs 5,000.

  • Under Section 39 UAPA:

Sentenced to rigorous imprisonment of 5 years and fine pf Rs 5,000.

All the above-stated sentences shall run concurrently and benefit of Section 428 CrPC shall be given to the convict. [State v. Mohd Yasin Malik, RC-10/2017/NIA/DLI, decided on 25-5-2022]

Case BriefsHigh Courts

Calcutta High Court: The Division Bench of Joymalya Bagchi and Ananya Bandyopadhyay, JJ. allowed an appeal which was directed against the judgment and order convicting the appellant for commission of offence punishable under Sections 302 of the Indian Penal Code and sentencing him to suffer rigorous imprisonment for life and to pay fine.

A  10 year old boy, had gone out to fly kite with his friends and didn’t return that evening, next day body of the boy was found lying in the canal. Two days later, father of the boy returned to his native village from his place of work at Mumbai and filed written complaint alleging his son had been murdered by an unknown person. Couple of days later, he made statement implicating the appellant who was the Moulabi of a nearby mosque. It was alleged that the appellant had illicit relationship with mother of the boy. The child had disclosed the illicit relationship to his father and accordingly appellant nursed a grudge against him. In course of investigation, a gunny bag and rope were recovered from an open spot near the mosque. Appellant absconded and was later arrested. In conclusion of trial the above mentioned punishment was granted.

Counsel appearing for the appellant submitted there was no direct evidence implicating the appellant in the crime. FIR was registered against unknown accused and motive to commit the crime had not been proved. There was no evidence on record that the child was last seen with the appellant prior to his death. Gunny bag and rope were recovered from an open space and did not implicate the appellant in any manner whatsoever. Appellant had gone to his native place in Bihar and was subsequently arrested and it cannot be said that he had absconded. He pleaded that mere abscondence does not establish guilt of an accused.

Counsels for the State argued appellant had strong motive to commit the crime as the child had seen the appellant and his mother Rasida in a compromising position.

The Court noted that the prosecution case is based on circumstantial evidence and there was no direct evidence that the appellant had murdered the victim. The court reminded that when case is based on circumstantial evidence it is the duty of the prosecution: –

(a) to prove all the circumstances relied upon against the appellant, beyond doubt;

(b) the circumstances so proved must form a complete chain which irresistibly points to the guilt of the accused and rules out all other possible hypothesis of innocence.

This Court had to identify whether the above requirement of law have been satisfied in the facts of the present case. The Court after perusing the evidence found that it cannot be said that the intimacy between appellant and her mother Rashida was divulged only by Farhad as  uncle of Farhad, had also informed his brother about such relationship and thus it is difficult to understand why the appellant would nurse grudge against the minor son of his lover and not against other relations who had also informed the former about his illicit relationship. Hence, motive to commit the crime did not appear to be convincing.

Coming to the other circumstance, namely, recovery of gunny bag and rope from the backside of the mosque of the appellant, the Court noted that the articles were recovered from an open space which was accessible to all. Moreover, there was nothing on record to show that the gunny bag or rope so recovered were used to murder the victim or dispose of the body in the canal. No evidence was forthcoming that on the fateful evening or immediately prior to the death of the victim, appellant was last seen with the child.

Regarding the abscondence of the appellant immediately after the incident which is strongly relied on,  the Court relied on the judgment of the Supreme court in Sk. Yusuf v. State of W.B., (2011) 11 SCC 754 where it was held that it settled law abscondence of an accused by itself does not establish his guilt.

“31. … It is a settled legal proposition that in case a person is absconding after commission of offence of which he may not even be the author, such a circumstance alone may not be enough to draw an adverse inference against him as it would go against the doctrine of innocence. It is quite possible that he may be running away merely on being suspected, out of fear of police arrest and harassment.”

Abscondence of the appellant when judged in the backdrop of the fact and circumstance of the case cannot by any stretch of imagination be treated to be conclusive evidence with regard to his guilt.

The Court was of the opinion that prosecution had failed to prove its case beyond reasonable doubt and the appellant was entitled to an order of acquittal. Appeal was allowed and conviction and sentence of the appellant was set aside.[Md. Firoz Ala v. State of West Bengal, C.R.A. 176 of 2019, decided on 18-05-2022]


For the Appellant : Mr Kallol Kumar Basu, Md. Jannat Ul Firdous, Ms Tithi Majumder

For the State : Mr Swapan Banerjee, Ms Purnima Ghosh


Suchita Shukla, Editorial Assistant has reported this brief.

Case BriefsSupreme Court

Supreme Court: In an interesting case, the Division Bench comprising of L. Nageswara Rao and B.R, Gavai, JJ., acquitted the appellant  who raped his own niece and later on married her.

The Court took note of the custom in Tamilnadu which permits the marriage of a girl with her maternal uncle; and the statement of the prosecutrix that she is leading a happy married life with the appellant to hold that,

“This Court cannot shut its eyes to the ground reality and disturb the happy family life of the appellant and the prosecutrix”.  

The appellant belonged to Valayar community, which is the most backward community in the State of Tamilnadu and was working as a woodcutter on daily wages in a private factory. An FIR was lodged against him for committing raping his niece under Sections 5(j)(ii) read with Section 6, 5(I) read with Section 6 and 5(n) read with Section 6 of Protection of Child from Sexual Offences (POCSO) Act, 2012.

The Trial Court convicted the appellant and sentenced him to ten years rigorous imprisonment, which was upheld by the High Court. Aggrieved thereby, the appellant had approached the Supreme Court.

The appellant submitted that the allegation against him was that he had physical relations with the prosecutrix on the promise of marrying her. The appellant  argued, since he has in fact married the prosecutrix and they have two children it would not be in the interest of justice to disturb the family life of the appellant and the prosecutrix.

On the contrary, the State opposed the grant of any relief to the appellant contending that the prosecutrix was aged 14 years on the date of the offence and gave birth to the first child when she was 15 years and, second child was born when she was 17 years. The State contested the legality of marriage between the appellant and the prosecutrix and argued that the marriage might only be for the purpose of escaping punishment.

The Court considered the statement of the prosecutrix about her present status where she had categorically stated, “she has two children and they are being taken care of by the appellant and she is leading a happy married life.”

Further, taking note of the custom in Tamilnadu of marriage of a girl with the maternal uncle, the Court held that,

“In the peculiar facts and circumstances of this case, we are of the considered view that the conviction and sentence of the appellant who is maternal uncle of the prosecutrix deserves to be set aside in view of the subsequent events that have been brought to the notice of this Court.” 

With the holding that the Court cannot shut its eyes to the ground reality and disturb the happy family life of the appellant and the prosecutrix, the Court set aside the conviction and sentence of the appellant while granting liberty to the prosecutrix and State to move the Supreme Court for modification of the order if the appellant does not take proper care of the prosecutrix.

As a note of caution, the Court added that in the peculiar facts of the case, it shall not be treated as a precedent.

[K Dhandapani v. State by the Inspector of Police, Cr. A. No.796 of 2022, decided on 09-05-2022]


Appearance by:

For the Appellant: M.P. Parthiban, Advocate

For the State: Dr. Joseph Aristotle S., Advocate


Kamini Sharma, Editorial Assistant has put this report together

 

Case BriefsHigh Courts

Uttaranchal High Court: Ramesh Chandra Khulbe, J. dismissed a criminal appeal which was filed from jail assailing the judgment and order whereby the Trial Court had convicted and sentenced the appellant on the counts of Sections 376, 377, 506 Penal Code and Section 6 of POCSO Act.

Victim, who was merely a child of 9 years of age, has been traumatized at the hands of appellant who raped and sodomized the victim, who was none other than his real niece. Amicus Curiae argued that there was no evidence against the appellant; there was no medical report regarding sexual offence; and the trial Court did not assess the evidence properly. Counsel for the State has argued that the prosecutrix was minor; she supported the prosecution story; there is no infirmity in the impugned finding; and accordingly, the appeal was liable to be dismissed.

From the evidence of witnesses it was borne out that the accused-appellant who was none other than the real maternal uncle of the victim, had sexually molested the victim 2-3 times earlier than the incident of 27-04-2014 when he was nabbed red handed by his own sister. The accused not only sexually assaulted the victim but also sodomized her. The entire tale of incidents had unequivocally been disclosed by the victim who appeared in the dock of the Court. Moreover, the medical evidence in this case further corroborated the prosecution story.

The Court relied on the judgment of the Supreme Court in Ganesan v. State, (2020) 10 SCC 573 and Phool Singh v. State of Madhya Pradesh, (2022) 2 SCC 74 where it was held that the testimony of a victim was found reliable and trustworthy, conviction on the basis of her sole testimony is permissible.

The Court stated that it is well settled that in cases involving sexual harassment, molestation etc., the Court is duty bound to deal with such cases with utmost sensitivity. Minor contradictions or insignificant discrepancies in the statement of a prosecutrix should not be a ground for throwing out an otherwise reliable prosecution case.

The Court finally dismissed the appeal holding that the testimony of the victim was absolutely trustworthy and unblemished and her evidence is of sterling quality. Therefore, without any further corroboration, the conviction of the accused relying upon the testimony of prosecutrix was sustained.[Ashok Singh Kandari v. State of Uttarakhand, 2022 SCC OnLine Utt 400, decided on 07-05-2022]


Counsel for the appellant : Mr Mukul Dangi

Counsel for the State : Mr V. S. Rathore


Suchita Shukla, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Tripura High Court: Arindam Lodh, J. partly allowed an appeal which was filed challenging the judgment of conviction and order of sentence passed by Special POCSO judge wherein the appellant had been convicted under Section 10 of the POCSO Act, 2012 and sentenced to suffer rigorous imprisonment for 5 years and to pay a fine of Rs 20,000/- with default stipulation and further convicted under Section 451 IPC and sentenced him to suffer simple imprisonment for 6 months and to pay fine of Rs. 5000 with default stipulation.

The mother of the victim girl in her complaint had stated that when she and her husband were outside their home, then, at around 2.00-2:30 p.m. the appellant had entered into the room where her girl was staying, locked the door and embraced her daughter and touched her private parts. Upon completion of investigation, the investigating officer submitted charge-sheet under Sections 448/342/354 IPC and section 8 of the POCSO Act against the accused. After completion of recording of evidences and having heard the counsel appearing for the parties, the Special Judge had convicted and sentenced the accused, as stated here-in-above.

Mr Deb, counsel appearing for the appellant (accused) submitted that there were substantial contradictions in the statement of the prosecution witnesses. He further tried to persuade the Court that the attendance register aptly proves that the accused was not present at the scene of occurrence on that date and time. He further drew attention of this court to the improved and exaggerations made by the victim girl and her mother in their statements.

The Court noted that accused was working as a Contingent worker in ONGC and the attendance register showed his attendance in the office on that date but, there was no such evidence that for any point of time he had any scope to go outside his office. Except production of attendance register there was no evidence to show that the accused was all along present in the office and did not go out. The house of the victim appeared to be close to the office where the accused discharged his duties. So, the plea of alibi as taken by the accused, according to this court, was found to be deficient.

The Court was at a loss to understand as to why the victim will be disbelieved when there was no interest to implicate the accused with a false case. Prosecution witnesses had categorically stated that they had seen the accused person on that fateful date and time and they found the victim crying, and narrated the incident to them. The Court herein had to decide the degree of offence.

The Court noticed that victim had not stated in her statement recorded under Section 164(5) Cr.P.C. that the accused had touched her private parts. She only had stated that the accused had embraced her and her deposition before the court that accused had touched her breasts and other private parts were found to be improved versions.

The Court in this situation opined that offence committed by the accused should not fall under the Section 10 of the Protection of Children from Sexual Offences (for short, POCSO) Act but may come within the purview of section 12 of the POCSO Act.

Thus, the conviction as returned by Special Judge was not interfered with however the sentence was reduced to a period of 6 (six) months with a fine of Rs. 50,000/- considering the prayer of the counsel of the appellant that he was aged about 70 (seventy) years and considering the nature of offence and the age of the accused-appellant, the appropriate sentence should be punishment for 6 (six) months.[Pramode Nama v. State of Tripura, 2022 SCC OnLine Tri 165, decided on 28-03-2022]


For the Appellant(s) : Mr B. Deb

For the Respondent(s) : Mr S. Ghosh


Suchita Shukla, Editorial Assistant has reported this brief.

Case BriefsDistrict Court

Central District, Tis Hazari Court, Delhi: Kratika Chaturvedi, DJS, while addressing a matter revolving around Section 138 of the Negotiable Instruments Act, 1881 expressed that,

“The presumptions raised under Sections 118(b) and 139 NI Act are rebuttable presumptions.

A reverse onus is cast on the accused, who has to establish a probable defence on the standard of preponderance of probabilities to prove that either there was no legally enforceable debt or other liability.”

Complainant filed a complaint through SPA holder, Mohinder Singh Jadhav against the accused persons Narinder Kaur and Lucky Bajaj under Section 138 of the Negotiable Instruments Act, 1881.

Accused 1 had taken a loan of Rs 3,50,000 from the complainant and the mortgage agreement was executed between the complainant and Narinder Kaur, thereafter accused 2 Lucky Bajaj issued a cheque with the assurance that the said cheque would be duly honoured after its presentation, however, the said cheque was returned with unpaid remarks “effect not cleared, present again”.

Thereafter, the cheque was again dishonoured with the remarks “funds insufficient”. After which, the complainant issued a legal demand notice for the cheque in question which was duly served upon the accused as the registered post was received back with the report of refusal.

Despite the service as stated above, the accused failed to pay the cheque amount, hence the present complaint was filed under Section 138 of the NI Act.

Analysis, Law and Decision

The Bench noted that the accused raised a probable defence that the cheque in question was given as a security cheque and the same was to be presented when the physical possession of the premises would be handed over.

In Court’s opinion, the accused raised a probable defence by bringing a record of facts and circumstances in order to rebut the presumption raised under Section 139 NI Act and that the non-existence of the consideration and debt is so probable that a prudent man would under the circumstances of the case, act upon the plea as it did not exist.

The Bench held that no legal liability existed in favour of the complainant as the second ingredient of Section 138 NI Act did not stand proved as the accused had been successful in establishing a probable defence on a standard of preponderance of probabilities to rebut the presumption under Sections 118 and 139 of the NI Act by punching the holes in the case of the complainant.

Cogent evidence is required to be proved beyond reasonable doubt to secure conviction in a criminal trial.

In view of the above discussion, accused 2 was acquitted. [Prabhjot Kaur v. Narinder Kaur, 2022 SCC OnLine Dis Crt (Del) 10, decided on 11-3-2022]


Advocates before the Court:

Bhagat Singh, Counsel for the Complainant

Mukesh Sharma, Counsel for the accused

Case BriefsHigh Courts

Meghalaya High Court: The Division Bench of  Sanjib Banerjee and W. Diengdoh, JJ., while hearing an appeal which challenged the judgment of conviction of December 21, 2018, which convicted the appellant under Section 3(a) R/W Section 4 of the Protection of Children from Sexual Offences Act, 2012, upheld the same and stated that there was no good reason to interfere with the judgement of the trial court.

The main issue before the court was whether the view taken by the trial court in the present appeal which was regarding the commission of rape by the appellant over a 14 year old minor girl was appropriate or not?

The main contention from the side of the appellant was that the sole basis of Conviction was the statement of the alleged victim considering the fact that there was no eye witness and moreover the corroboration was made regarding the entire incident based on the statement of the close relatives of the victim. Another important submission from the side of the appellant was that there was considerable enmity between the father of the alleged victim and the appellant since the appellant had tried to dissuade the father of the alleged victim from continuing an extra-marital affair with an aunt of the appellant.

Another submission from the side of the appellant was that there had been an unusual delay from the side of the victim in lodging the FIR, to which the court was of the opinion that the delay was usual as the victim was threatened by the appellant to be killed and thus the family waited for her father to return in order to proceed with the FIR and hence the delay was justified.

The appellant also argued over the fact that, in course of the medical examination conducted on the alleged victim, an irregular tear of the hymen was noticed and the medical examiner opined that there were signs of penetrative sex, the fact that the alleged victim did not reveal any sign of external injury would take much of the sheen off her allegations against the appellant.

The Court opined that in the present case, the victim’s initial statement and the subsequent testimony bear a close resemblance and she did not flinch during her cross-examination and was perceived by the trial court to have truthfully made the statement. It is difficult to imagine that a conspiracy of such a large-scale could be hatched by the father of the victim along with his three daughters to make a false allegation against the appellant and go through the process in such a perfect manner.

On the basis of the above stated observation and the material and evidences that were placed on record, in the view of the Court it was beyond reasonable doubt that the incident had taken place as the medical examination confirmed penetration and that the appellant had committed the offence. The appeal was dismissed holding that the trial court took relevant considerations into account to arrive at an appropriate conclusion.[Trimborilin Kharbani v. State of Meghalaya, 2022 SCC OnLine Megh 32, decided on 01-03-2022]


For the Petitioner/Appellant(s) : Mr P Yobin, Legal Aid Counsel

For the Respondent(s) : Mr S Sengupta, Addl.P.SP


Suchita Shukla, Editorial Assistant has reported this brief.

Case BriefsSupreme Court

Supreme Court: In a case where it was argued before the bench of Dr. DY Chandrachud* and Surya Kant, JJ that in case the trial is conducted by the ordinary criminal court and not a court-martial under the Army Act, the accused would not be able to avail the benefit of being awarded a lower punishment under the Army Act, 1950, the Court has held,

“If that was the intent of the legislature – that is to protect persons subject to the Army Act by awarding them lesser punishment even for serious offences – then the Act would not have provided for concurrent jurisdiction of court-martial and ordinary criminal courts at all. Although the Army Act is special law compared to the IPC, if the statute in its text does not make any qualifications or exceptions to the general law, it would be impermissible for the court to read such qualifications in the Act.”

Section 69 of the Army Act

Subject to the provisions of section 70, any person subject to this Act who at any place in or beyond India, commits any civil offence, shall be deemed to be guilty of an offence against this Act and, if charged therewith under this section, shall be 39 liable to be tried by a court-martial and, on conviction, be punishable as follows, that is to say,

(a) if the offence is one which would be punishable under any law in force in India with death or with transportation, he shall be liable to suffer any punishment, other than whipping, assigned for the offence, by the aforesaid law and such less punishment as is in this Act mentioned; and

(b) in any other case, he shall be liable to suffer any punishment, other than whipping, assigned for the offence by the law in force in India, or imprisonment for a term which may extend to seven years, or such less punishment as is in this Act mentioned.

Jurisdiction of Criminal Court versus Court Martial

Section 69 does not ipso jure oust the jurisdiction of the ordinary criminal court. Where there exists concurrent jurisdiction in the court-martial and in the ordinary criminal court, primarily the discretion of conducting the court-martial in preference to a trial by the ordinary criminal court is entrusted to the designated officer under Section 125. The designated officer has been conferred with the discretion “to decide before which court the proceedings shall be instituted”. Moreover, Section 125 has a conjunctive requirement which is amplified by the expression “and, if that officer decides that they should be instituted before a court-martial”. Thus, the conjunctive requirement under Section 125 is that the competent officer has the discretion to decide before which court the proceedings shall be instituted and if the officer exercises that discretion to institute proceedings before a court-martial, then the officer will direct that the accused be detained in military custody. Section 125, in other words, not only recognizes that an element of discretion has been vested in the designated officer, but it also postulates that the designated officer should have decided that the proceedings be instituted by the court-martial in which event the court-martial would take place.

Is a person tried and convicted by a Court Martial at an advantageous position than a person tried and convicted by a Criminal Court owing to the lower punishment under the Army Act?

Sub-section (a) of Section 69 states if a person is convicted of a ‘civil offence’ which is punishable with death or transportation under the law in force, then he shall be liable to suffer any punishment, other than whipping, assigned for the offence by the aforesaid law and such less punishment as is in this Act mentioned. In contrast with sub-Section (a), sub-Section (b) provides that in all other offences, the person convicted shall be liable to suffer the punishment assigned under the laws in force or imprisonment for a term which may extend to seven years, or such less punishment as provided in the Act.

The words of the statute clearly indicate that the legislature provided different punishments for serious offences which under law are punishable with death or life imprisonment, and for all other offences. In case of the former, sub-Section (a) of Section 69 provides that the court-martial may convict him and punish him with death or life imprisonment. In addition to this, the court-martial may also give a lesser punishment under the Army Act (such as cashiering, dismissal from service, etc., provided under Section 71). The use of the word “and” in sub-Section (a) clarifies the intent of the legislature, which is to ensure that the Army authorities have sufficient discretion to grant a punishment for serious offences, over and beyond what is permissible under Penal Code. This however, does not imply that a person who is otherwise liable for death or life imprisonment can be granted a lesser punishment under the Army Act.

In contrast, sub-Section (b) of Section 69 uses the term “or” to indicate that for offences that under the Penal Code or any other law are of less severity, the Army authorities may order a lesser punishment.

If the argument that in case the trial is conducted by the ordinary criminal court and not a court-martial under the Army Act, the accused would not be able to avail the benefit of being awarded a lower punishment under the Army Act, is accepted, it would imply that a person who is convicted and punished by a Court-martial under the Army Act will be in an advantageous position than a person who, though subject to the Army Act, has been convicted by an ordinary criminal court.

[State of Sikkim v. Jasbir Singh, 2022 SCC OnLine SC 128, decided on 01.02.2022[


*Judgment by: Justice Dr. DY Chandrachud


Counsels

For State: Vivek Kohli, Advocate General and Aman Lekhi, Additional Solicitor General

For Accused: Senior Advocate Pradeep Kumar Dey

Case BriefsHigh Courts

Karnataka High Court: Sreenivas Harish Kumar, J., disposed of the petition and modified the judgment of the appellate court.

The facts of the case are such the petitioner was driving KSRTC bus and thereby caused an accident by dashing against a private bus due to rash and negligent driving. The petitioner was tried in the Court of JMFC, Belthangady, for the offences punishable under Sections 279 and 337 of IPC, held guilty and sentenced to two months simple imprisonment and fine of Rs1, 000/- with default sentence period of 15 days imprisonment in relation to offence under Section 279 IPC i.e. Penal Code, 1860, and two months simple imprisonment with fine of Rs 500/- and a default sentence period of 15 days for the offence under Section 337 IPC. The appeal preferred before IV Additional District and Sessions Judge, Dakshina Kannada, Mangaluru, was also dismissed, and hence the instant revision petition was filed.

Counsel for petitioner Mr Keshava Bhat submitted that the photograph of the accident scene clearly shows that probably two buses collided with each other because of the width of the road being very narrow. In this view, a lenient view may be taken and the petitioner may be just subjected to fine with an observation that the conviction is not a stigma to his employment.

Counsel for respondent Mr K S Abhijith submitted that when there is no scope for appreciation of evidence, another view cannot be taken with regard to accident and there is no scope for reducing the quantum of sentence also.

The Court observed that the evidence shows that the accident occurred when two buses were taking turn in a curve, however because of consistent findings of both the courts below, I do not find it necessary to re-appreciate the evidence because there is no perversity in them.

The Court stated that the petitioner is a driver in the KSRTC. Examined whether there is scope for imposing fine only, section 279 IPC provides for sentencing the accused with imprisonment which may extend to six months, or with fine which may extend to Rs.1,000/-, or with both. Similarly, section 337 IPC provides for sentencing an accused for imprisonment of either description for a term which may extend to six months, or with fine which may extend to Rs.500/-, or with both.

The Court thus held Therefore having regard to the sentencing structure provided in both the sections, I am of the opinion that the sentence may be confined to fine only instead of subjecting the petitioner to imprisonment. [Devendrappa H. v. State, Criminal Revision petition no. 1145 of 2021, decided on 17-01-2022]


Arunima Bose, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Bombay High Court: The Division Bench of S.S. Shinde and Milind N. Jadhav, JJ. allowed an appeal against conviction of the Appellant by the Trial Court. The appellant was convicted of the offence punishable under Section 302 of the Penal Code, 1860, (“IPC”) read with Section 34 IPC. He was sentenced to suffer life imprisonment and to pay a fine of Rs. 15,000.

Background:

The case of the Prosecution was that P.W. 2 received a phone call from a lady called Smt. Chitrangi Chandrakant Shirpurkar a resident of Ranvali Village informing that an unknown person had killed Savitri Sagar Pawar (deceased) by strangulation and her dead body was lying in the jungle area. The offence was registered initially against unknown persons and the body was sent for post-mortem. According to the Prosecution’s case, the accused sought sexual favours from the deceased which she refused. Hence, the Appellant strangulated the deceased with the towel while the Accused  2 held her legs.

Advocate for the appellant submitted that the investigation by the police authorities to unearth the evidence pertaining to the incident was improper and inadequate and that the impugned judgment and order was not only based on faulty investigation conducted by the police authorities but has been passed without appreciating the facts and circumstantial evidence on record, and has been passed based on mere conjectures and surmises.

Findings and Conclusion:

The Court was of the view that the Prosecution had examined six witnesses. The defence had not examined any witness thus the Court outlined the evidence given by each of the prosecution witnesses as the Trial Court judgment was based entirely on the evidence of these witnesses so as to indict and convict the Appellant.

The Court reiterated the observations of Supreme Court in Rama v. State of Rajasthan, (2002) 4 SCC 571 which read,

“4. … It is well settled that in a criminal appeal, a duty is enjoined upon the appellate court to reappraise the evidence itself and it cannot proceed to dispose of the appeal upon appraisal of evidence by the trial court alone especially when the appeal has been already admitted and placed for final hearing. Upholding such a procedure would amount to negation of valuable right of appeal of an accused, which cannot be permitted under law.”

The Court based on the above principle weighed the probative value and sufficiency of the evidence on record. The Court was resultantly of the view that there were serious shortcomings in the Prosecution’s case to prove that the Appellant and the Accused No. 2 killed the deceased. The child witness Laxman Pawar (P.W. 3), who is said to be the sole eyewitness to the incident and upon whose evidence the Prosecution relies highly, is vague, fraught with inconsistencies, has been contradicted by statements of other witnesses, and lacks adequate corroboration. Furthermore, the Inquest Photographs of the deceased throw open a lot of questions in relation to the manner in which the investigation was conducted by the Investigating Officer. As observed by us, the Investigating Officer has not recorded the statements and/or brought forth the relevant parties as prosecution witnesses. Such investigation smacks of complete incompetence and therefore deserves to be reprimanded with strictures.

The Court was not convinced that the evidence on record was sufficient to prove the guilt of the Appellant beyond reasonable doubt under the provisions of Section 302 IPC read with Section 34 IPC as concluded by the Trial Court thus it set aside the impugned judgment and order, reversing the sentence of the Trial Court convicting the Appellant of the offence under Section 302 IPC read with Section 34 IPC.[Ganesh Bhagya Mandavkar v. State of Maharashtra, 2022 SCC OnLine Bom 185, decided on 27-01-2022]


Suchita Shukla, Editorial Assistant has reported this brief.


Mr Aashish Satpute, Advocate for the Appellant (Appointed).

Mr S.S. Hulke, APP for the Respondent – State.

Case BriefsSupreme Court

Supreme Court: The bench of MR Shah* and Sanjiv Khanna, JJ has answered the following three important questions on the revisional jurisdiction of the High Court:

Whether the High Court in exercise of the revisional jurisdiction under Section 401 Cr.P.C. can set aside the order of acquittal and convicting the accused by converting the finding of acquittal into one of conviction?

The Court held that sub-section (3) of Section 401 Cr.P.C. prohibits/bars the High Court to convert a finding of acquittal into one of conviction. Though the High Court has revisional power to examine whether there is manifest error of law or procedure etc., however, after giving its own findings on the findings recorded by the court acquitting the accused and after setting aside the order of acquittal, the High Court has to remit the matter to the trial Court and/or the first appellate Court, as the case may be.

Referring to the ruling in K. Chinnaswamy Reddy v. State of Andhra Pradesh, AIR 1962 SC 1788, the Court noticed that if the order of acquittal has been passed by the trial Court, the High Court may remit the matter to the trial Court and even direct retrial. However, if the order of acquittal is passed by the first appellate court, in that case, the High Court has two options available, (i) to remit the matter to the first appellate Court to rehear the appeal; or (ii) in an appropriate case remit the matter to the trial Court for retrial and in such a situation the procedure in decision in K. Chinnaswamy Reddy can be followed.

In K. Chinnaswamy, it was held that,

“It will depend upon the facts of each case whether the High Court would order the appeal court to rehear the appeal or would order a retrial by the trial court. Where, as in this case, the entire evidence is there and it was the appeal court which ruled out the evidence that had been admitted by the trial court, the proper course in our opinion is to send back the appeal for rehearing to the appeal court. In such a case the order of the trial court would stand subject to the decision of the appeal court on rehearing. In the present case it is not disputed that the entire evidence has been led and the only defect is that the appeal court wrongly ruled out evidence which was admitted by the trial court. In the circumstances we are of opinion that the proper course is to direct the appeal court to rehear the appeal and either maintain the conviction after taking into consideration the evidence which was ruled out by it previously or to acquit the accused if that is the just course to take. We should like to add that the appeal court when it rehears the appeal should not be influenced by any observations of the High Court on the appreciation of the evidence and should bring to bear its own mind on the evidence after taking into consideration that part of the evidence which was considered inadmissible previously by it.”

In a case where the victim has a right of appeal against the order of acquittal, now as provided under Section 372 Cr.P.C and the victim has not availed such a remedy and has not preferred the appeal, whether the revision application is required to be entertained at the instance of a party/victim instead of preferring an appeal?

After the amendment in Section 372 Cr.P.C. after 2009 and insertion of proviso to Section 372 Cr.P.C., a victim has a statutory right of appeal against the order of acquittal. Therefore, no revision shall be entertained at the instance of the victim against the order of acquittal in a case where no appeal is preferred and the victim is to be relegated to file an appeal. Even the same would be in the interest of the victim himself/herself as while exercising the revisional jurisdiction, the scope would be very limited, however, while exercising the appellate jurisdiction, the appellate Court would have a wider jurisdiction than the revisional jurisdiction. Similarly, in a case where an order of acquittal is passed in any case instituted upon complaint, the complainant (other than victim) can prefer an appeal against the order of acquittal as provided under sub-section (4) of Section 378 Cr.P.C., subject to the grant of special leave to appeal by the High Court.

As observed in Mallikarjun Kodagali v. State of Karnataka, (2019) 2 SCC 752, so far as the victim is concerned, the victim has not to pray for grant of special leave to appeal, as the victim has a statutory right of appeal under Section 372 proviso and the proviso to Section 372 does not stipulate any condition of obtaining special leave to appeal like subsection (4) of Section 378 Cr.P.C. in the case of a complainant and in a case where an order of acquittal is passed in any case instituted upon complaint. The right provided to the victim to prefer an appeal against the order of acquittal is an absolute right.

Hence, in a case where the victim and/or the complainant, as the case may be, has not preferred and/or availed the remedy of appeal against the order of acquittal as provided under Section 372 Cr.P.C. or Section 378(4), as the case may be, the revision application against the order of acquittal at the instance of the victim or the complainant, as the case may be, shall not be entertained and the victim or the complainant, as the case may be, shall be relegated to prefer the appeal as provided under Section 372 or Section 378(4), as the case may be.

While exercising the powers under sub-section (5) of Section 401 Cr.P.C. treating the revision application as petition of appeal and deal with the same accordingly, the High Court is required to pass a judicial order?

The High Court may treat the application for revision as petition of appeal and deal with the same accordingly is concerned, firstly the High Court has to pass a judicial order to treat the application for revision as petition of appeal. The High Court has to pass a judicial order because sub-section (5) of Section 401 Cr.P.C. provides that if the High Court is satisfied that such revision application was made under the erroneous belief that no appeal lies thereto and that it is necessary in the interests of justice so to do. While treating with the application for revision as petition of appeal and deal with the same accordingly, the High Court has to record the satisfaction as provided under sub-section (5) of Section 401 Cr.P.C.

Therefore, where under the Cr.P.C. an appeal lies, but an application for revision has been made to the High Court by any person, the High Court has jurisdiction to treat the application for revision as a petition of appeal and deal with the same accordingly as per sub-section (5) of Section 401 Cr.P.C., however, subject to the High Court being satisfied that such an application was made under the erroneous belief that no appeal lies thereto and that it is necessary in the interests of justice so to do and for that purpose the High Court has to pass a judicial order, may be a formal order, to treat the application for revision as a petition of appeal and deal with the same accordingly.

[Joseph Stephen v. Santhanasamy, 2022 SCC OnLine SC 90, decided on 25.01.2022]


*Judgment by: Justice MR Shah


Counsels

For Accused: Senior Advocate S. Nagamuthu

For State: Advocate Dr. Joseph Aristotle

Case BriefsDistrict Court

Dwarka Courts, New Delhi: Sushil Anuj Tyagi, ASJ while addressing a case of drink and drive, expressed that,

“There has to be a zero-tolerance for drunken driving and such cases should be dealt with stern hands for flashing proper message in the society.”

The instant appeal was filed under Section 374 of Code Criminal Procedure against the decision of M.M. Dwarka Courts whereby the appellant was convicted and sentenced to undergo simple imprisonment for 4 days and fine under Sections 185 and 194B of the M.V. Act in default of payment of fine the appellant was further sentenced to imprisonment for 7 days.

Factual Background

Challan for the offence under Sections 185 and 194B MV Act was filed against the accused/appellant on the allegations that he was found driving a vehicle in drunken condition and he was not using his seat belt.

MM had taken cognizance of the above-stated. Appellant pleaded guilty.

The accused assailed the impugned order of the trial court on the grounds that the principles of natural justice were not followed, and that the appellant was not medically examined properly and that the report filed by the traffic police before the trial court was forged.

Further, the appellant was the victim of improper investigation and that the order passed by the trial court was hasty. Adding to this he stated that he was not a previous convict and had clean past antecedents.

It was also submitted that the appellant was running his business of Tours & Travels and he was the sole bread earner of his family which consists of his wife, minor daughter and old aged parents.

Analysis, Law and Decision

The Court stated that since the appellant had voluntarily pleaded guilty to the offences challaned against him, as per Section 375 CrPC, the appellant had no right to appeal as he has been convicted on his voluntary plea of guilt. Hence this Court found no illegality, infirmity or error in the impugned order, regarding the conviction.

Quantum of Sentence

Bench stated that it is true that drunkard driver is a menace on the overcrowded roads of Delhi.

The driver of motor vehicles is expected to be alert to the emergent contingencies which may arise on the road and he cannot be expected to lower his guard of reflexes. The consumption of alcohol impacts the senses of a person which results in delayed responses and reflexes which results in serious and fatal accident.

 “…drunken driver is injurious to his own life as well as to the life of innocent road users.’’

Analyzing further, Court stated that this Court cannot be oblivious to the fact that the appellant was the first-time offender and was not a previous convict, infact he had a clean past and was the sole earner of his family, he even expressed remorse for his conduct and undertook that he won’t repeat such act in future.

While considering the aggravating and mitigating circumstances, Court opined that the appellant deserved one chance for improving himself and hence took a lenient view by modifying the sentence of imprisonment Till the Rising of the Court.

In view of the above discussion, the appeal was disposed of. [Ishan Gaur v. State, CA No. 136 of 2021, decoded on 13-12-2021]

Case BriefsSupreme Court

Supreme Court:  Reminding the Courts of the importance of hierarchy of Courts, the bench of Sanjay Kishan Kaul and MM Sundresh*, JJ has held that the Appellate Court shall not expect the trial court to act in a particular way depending upon the sensitivity of the case. Rather it should be appreciated if a trial court decides a case on its own merit despite its sensitivity.

“Every case has its own journey towards the truth and it is the Court’s role undertake. Truth has to be found on the basis of evidence available before it. There is no room for subjectivity nor the nature of offence affects its performance.”

Factual Background

In the present case, it was alleged that both the accused carried three weapons, waylaid the deceased at a signal in a main road at about 5 p.m. and after the initial attack, dragged him to the pavement, and thereafter inflicted multiple injuries.

PW-1, who saw the occurrence from a fair distance, was known to the deceased and the deceased, who had his intestine coming out, told him the story implicating the accused.

The Deceased was taken to a hospital run by PW-25, a doctor very well known to PW-1. This hospital which was about two kilometres from the place of occurrence, while another nursing home was in existence at about 50 meters.

PW-25 gave treatment to the deceased at about 5.05 p.m. He died of multiple injuries caused by haemorrhage at about 5.45 p.m. About 40 days thereafter, at the request of the police, PW-25 gave another certificate introducing adequate material to indicate that there was a dying declaration.

Before the trial court, the prosecution examined as many as 28 witnesses. Most of the witnesses pertaining to conspiracy, occurrence, recovery and extraordinary judicial confession turned hostile.

On behalf of the defence, a doctor was examined to show that considering the nature of the injuries suffered, the death must have been instantaneous.

The Court of Sessions without exception, threadbare considered all the materials including the witnesses who turned hostile. After due scrutiny, benefit of doubt was extended in favour of the appellants.

The Karnataka High Court, however, did not consider the entire evidence as discussed by the trial court and the judgment of the trial court was reversed and conviction was rendered sentencing the appellants for life.

Duty of appellate Courts

It is pertinent to note that Section 378 CrPC enables the State to prefer an appeal against an order of acquittal. Section 384 CrPC speaks of the powers that can be exercised by the Appellate Court. When the trial court renders its decision by acquitting the accused, presumption of innocence gathers strength before the Appellate Court. As a consequence, the onus on the prosecution becomes more burdensome as there is a double presumption of innocence.

However, at times, courts do have their constraints. Sometimes different decisions are being made by different courts, namely, trial court on the one hand and the Appellate Courts on the other.

Certainly, the court of first instance has its own advantages in delivering its verdict, which is to see the witnesses in person while they depose. However, the Appellate Court is expected to involve itself in a deeper, studied scrutiny of not only the evidence before it, but is duty bound to satisfy itself whether the decision of the trial court is both possible and plausible view. When two views are possible, the one taken by the trial court in a case of acquittal is to be followed on the touchstone of liberty along with the advantage of having seen the witnesses. The Appellate Court shall remind itself of the role required to play, while dealing with a case of an acquittal.

“The district judiciary is expected to be the foundational court, and therefore, should have the freedom of mind to decide a case on its own merit or else it might become a stereotyped one rendering conviction on a moral platform.”

Hence, indictment and condemnation over a decision rendered, on considering all the materials placed before it, should be avoided. The Appellate Court is expected to maintain a degree of caution before making any remark.

Ruling

The Supreme Court found it unnecessary on the part of the High Court to make strong comments on the judgment written by the trial court.

It noticed that,

  • The trial court took enormous pains in considering the evidence of all the witnesses one by one and gave exhaustive reasoning for its ultimate conclusion.
  • The dying declaration was put forth by the prosecution through the mouth of PWs 1, 2 and 25. When the evidence let in by them was found to not be trustworthy, there cannot be any dying declaration either in fact or in law.

The evidence of PW-25 had no existence of dying declaration in it. He had deposed that he did not remember whether the deceased told him that the accused attacked him and caused injuries. He later testified that he had given put forth the dying declaration due to the persistence of the police.

“It rendered a conviction on mere surmise, even though an inference can never be the basis of a conviction when the testimony of a witness is not believed on cogent reasoning.”

  • The alleged occurrence was said to have happened at about 5 p.m. on a busy road with heavy traffic and even the evidence of PW-1 and PW2 suggests that there were about 1000 persons.
  • The defence also examined a Government doctor, an expert in the field of surgery, who had clearly deposed that it would be impossible for the deceased to be conscious after suffering injuries such as intestines coming out.

The Court wondered how the various reasons given by the trial court were found unacceptable by the High Court especially when it did not consider the evidence of the other witnesses.

It was, hence, held that the High Court did not undertake the exercise as mandated under Section 378 read with Section 384 CrPC in reversing the reasoned decision rendered by the trial court. Consequently, the orders of conviction passed by the High Court was set aside.

[Mohan v. State of Karnataka, 2021 SCC OnLine SC 1233, decided on 13.12.2021]


*Judgment by: Justice MM Sundresh

Case BriefsSupreme Court

Supreme Court: The bench of R. Subhash Reddy* and Hrishikesh Roy, JJ has held that the confessional statements of the co-accused, in absence of other acceptable corroborative evidence, are not enough to convict an accused for conspiracy.

Background

On 14.03.2009, the police party was escorting four accused from Central Jail, Jaipur to the Court of CJM, Bhiwani by train. When the train reached at Railway Station Nangal Pathani, four young boys entered their compartment and attacked the police party in order to rescue the said accused. The accused, who were in custody, also tried to escape. They even tried to snatch the official carbine. One of the accused fired upon Head Constable, who later succumbed to his injuries.

In the complaint, it was stated that the police overpowered one person, who had thrown chilly powder in their eyes and the remaining three accused succeeded in fleeing. The apprehended accused disclosed his name and identity of other assailants.

To prove the guilt of the accused, prosecution examined as many as 23 witnesses in support of its case. The statements of the accused were also recorded under Section 313 of the Cr.P.C. They had pleaded that they were innocent and had been falsely implicated.

The Additional Sessions Judge by judgment dated 14.01.2010, held all the accused guilty for commission of offences punishable under Sections 224, 225, 332, 353, 302 r/w Section 120-B of the Penal Code. The Punjab and Haryana High Court affirmed the conviction.

Analysis

To prove the charge of conspiracy, within the ambit of Section 120-B, it is necessary to establish that there was an agreement between the parties for doing an unlawful act. At the same time, it is to be noted that it is difficult to establish conspiracy by direct evidence at all, but at the same time, in absence of any evidence to show meeting of minds between the conspirators for the intended object of committing an illegal act, it is not safe to hold a person guilty for offences under Section 120-B of IPC.

“A few bits here and a few bits there on which prosecution relies, cannot be held to be adequate for connecting the accused with the commission of crime of criminal conspiracy.”

On the question of relying on the confessional statement of the co-accused, the Court took note of the ruling in Indra Dalal v. State of Haryana, (2015) 11 SCC 31, wherein it was explained that,

“16. The philosophy behind the aforesaid provision is acceptance of a harsh reality that confessions are extorted by the police officers by practising oppression and torture or even inducement and, therefore, they are unworthy of any credence. The provision absolutely excludes from evidence against the accused a confession made by him to a police officer. This provision applies even to those confessions which are made to a police officer who may not otherwise be acting as such. If he is a police officer and confession was made in his presence, in whatever capacity, the same becomes inadmissible in evidence. This is the substantive rule of law enshrined under this provision and this strict rule has been reiterated countlessly by this Court as well as the High Courts.

17. The word “confession” has nowhere been defined. However, the courts have resorted to the dictionary meaning and explained that incriminating statements by the accused to the police suggesting the inference of the commission of the crime would amount to confession and, therefore, inadmissible under this provision. It is also defined to mean a direct acknowledgment of guilt and not the admission of any incriminating fact, however grave or conclusive. Section 26 of the Evidence Act makes all those confessions inadmissible when they are made by any person, whilst he is in the custody of a police officer, unless such a confession is made in the immediate presence of a Magistrate. Therefore, when a person is in police custody, the confession made by him even to a third person, that is, other than a police officer, shall also become inadmissible.”

Considering that in Uppa alias Manjunatha v. State of Karnataka, (2013) 14 SCC 729, it was held that when an accused is held guilty and sentenced to imprisonment, confirmation of sentence by the High Court is justifiable only in the event of giving sound reasons upon analysis of material evidence, the Court noticed that in the case on hand, a perusal of the judgment of the High Court revealed that except referring to depositions, High Court has not considered the evidence at all and confirmed the conviction and sentence as ordered by the Trial Court.

Ruling on facts

On close scrutiny of evidence on record, the Supreme Court held that prosecution failed to prove its case, that the appellant in the present case, had conspired with other accused for the offences for which he was charged.

“Except the alleged confessional statements of the coaccused and in absence of any other corroborative evidence, it is not safe to maintain the conviction and sentence imposed upon the Appellant.”

The Court held that the findings recorded by the Trial Court in convicting the appellant mainly on the ground that he was one of the conspirators for the crime in question, is erroneous and illegal. The High Court also, did not considered the evidence on record in proper perspective and erroneously confirmed the conviction and sentence imposed on the appellant.

The Court, hence, set aside the conviction and ordered the release of the appellant.

[Parveen v. State of Haryana, 2021 SCC OnLine SC 1184, decided on 07.12.2021]


Counsels

For appellant: Advocate Rishi Malhotra

For State: Addl. AG Bansuri Swaraj


*Judgment by: Justice R. Subhash Reddy

Case BriefsSupreme Court

Supreme Court: In a case where the Trial Court and Punjab and Haryana High Court had shifted the burden of proof on the accused merely for the reason that there has been a rise in the incidents of dacoity, the 3-judge bench of NV Ramana, CJ and Surya Kant* and Hima Kohli, JJ has held that the Trial Court and the High Court have erroneously drawn adverse inference against the accused, in spite of the Prosecution having lamentably failed to adequately dispense with its burden of proof to depict culpability of the accused.

“It may not be wise or prudent to convict a person only because there is rampant increase in heinous crimes and victims are oftenly reluctant to speak truth due to fear or other extraneous reasons.”

Law on recovery of inculpatory material vis-à-vis burden of proof

It may be true that at times the Court can convict an accused exclusively on the basis of his disclosure statement and the resultant recovery of inculpatory material. However, in order to sustain the guilt of such accused, the recovery should be unimpeachable and not be shrouded with elements of doubt.

Circumstances such as,

  • the period of interval between the malfeasance and the disclosure;
  • commonality of the recovered object and its availability in the market;
  • nature of the object and its relevance to the crime;
  • ease of transferability of the object;
  • the testimony and trustworthiness of the attesting witness before the Court and/or other like factors,

are weighty considerations that aid in gauging the intrinsic evidentiary value and credibility of the recovery.

Where the prosecution fails to inspire confidence in the manner and/or contents of the recovery with regard to its nexus to the alleged offence, the Court ought to stretch the benefit of doubt to the accused.

“Its nearly three centuries old cardinal principle of criminal jurisprudence that “it is better that ten guilty persons escape, than that one innocent suffer”. The doctrine of extending benefit of doubt to an accused, notwithstanding the proof of a strong suspicion, holds its fort on the premise that “the acquittal of a guilty person constitutes a miscarriage of justice just as much as the conviction of the innocent”.

Further, the burden to prove the guilt beyond doubt does not shift on the suspect save where the law casts duty on the accused to prove his/her innocence. It is the bounden duty of the prosecution in cases where material witnesses are likely to be slippery, either to get their statements recorded at the earliest under Section 164 Cr.P.C. or collect such other cogent evidence that its case does not entirely depend upon oral testimonies.

Factual Background

  • In the year 2009, four accused persons, including the Appellant were arrested on the basis of secret information received by the police and they were charged under Sections 392, 397 and 120¬B IPC and Section 25 of the Arms Act. The 5th co-accused could not be arrested and was declared a proclaimed offender under Section 82 Cr.P.C.
  • In the eventual trial, 14 witnesses were examined by the Prosecution. No evidence was led by the Defence. The Prosecution argued that the accused conspired together to loot the Complainant, who, they were aware was carrying money for the purchase of a plot in Delhi.
  • The Trial Court noticed that the Accused had failed to provide any explanation as to how they came into possession of the articles, especially the ‘red cloth’ that belonged to the wife of the Complainant and the passbook, which were recovered from the custody of the Appellant.
  • Upon re-appraisal of evidence, the High Court concurred with the findings of the Trial Court and further noted that due to enormous rise in instances of dacoity, the non-identification of the accused in the Court could not be construed as a material consideration where other evidence points towards the commission of the crime to withstand his conviction under Sections 392 and 397 IPC.

Ruling on facts

The Court noticed that,

  • the High Court and the Trial Court failed to take into consideration that the testimony of ASI exhibited no substantial effort made by the police for conducting the search of the residence of the Appellant in the presence of local witnesses. The only independent witness to the recovery was Raldu who was admittedly a companion of the Complainant.
  • the Complainant as well as Raldu, have unambiguously refuted that neither the passbook, nor the ‘red cloth’ was recovered from the possession of the Appellant, as claimed in his disclosure statement.
  • while the Complainant negated his signatures on the recovery memo, on the other hand, Raldu also neither enumerated the recovery memo in the catalogue of exhibited documents, nor did that he affirm to having his endorsement.
  • the recovered articles are common place objects such as money which can be easily transferred from one hand to another and the ‘red cloth’ with ‘Kamla’ embossed on it which can also be easily available in market.
  • the recovery took place nearly a month after the commission of the alleged offence. We find it incredulous, that the Appellant during the entire time period kept both the red cloth and the passbook in his custody, along with the money he allegedly robbed off the Complainant.
  • there is no other evidence on record which even remotely points towards the iniquity of the Appellant.

It was, hence, found that the Prosecution had miserably failed to bring home the guilt of the Appellant and Courts below have been unwittingly swayed by irrelevant considerations, such as the rise in the incidents of dacoity.

“In its desire to hold a heavy hand over such derelictions, the Trial Court and the High Court have hastened to shift the burden on the Appellant to elucidate how he bechanced to be in possession of the incriminating articles, without primarily scrutinizing the credibility and admissibility of the recovery as well as its linkage to the misconduct.”

Noticing that the Courts below have arrived at recording the guilt of the Appellant in absence of any cogent rationale, justifying his conviction, the Court acquitted the appellant of all charges.

[Bijendar v. State of Haryana, 2021 SCC OnLine SC 1028, decided on 08.11.2021]


*Judgment by: Justice Surya Kant

Case BriefsHigh Courts

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

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

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

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

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

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

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

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

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


Kamini Sharma, Editorial Assistant has reported this brief.

Appearance by:

For the Petitioner: Mr. Diwakar Upadhyay, Advocate

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

Case BriefsSupreme Court

Supreme Court: The Division Bench of M.R. Shah and Aniruddha Bose, JJ., while addressing a matter noted that,

Abetment by a person is when a person instigates another to do something. Instigation can be inferred where the accused had, by his acts or omission created such circumstances that the deceased was left with no other option except to commit suicide.

Aggrieved with the Madras High Court’s decision by which the Court had dismissed the appeal preferred by the appellant and confirmed the trial court’s decision convicting the accused of the offence under Section 306 Penal Code, 1860, appellant approached the Supreme Court.

Background

Appellant was married to the deceased 25 years prior to the occurrence. On the day of occurrence, there was some quarrel between the deceased–wife of the appellant. Thereafter both the appellant and the deceased consumed pesticide.

However, the appellant survived but his wife died.

A complaint was filed against the appellant stating that he was having intimacy with the other woman and therefore the couple used to quarrel.

It was alleged against the accused that he had committed the offence under Section 306 IPC and on the conclusion of the investigation, a charge sheet was filed against the appellant accused of the offence under Section 306 IPC.

High Court had confirmed the conviction for the offence under Section 306 IPC.

Analysis, Law and Decision

Appellant was convicted for the offence under Section 306 IPC.

Allegation that the appellant-accused was having an illicit relationship with another woman was not established and proved by the prosecution.

In light of the facts and circumstances of the case, Bench considered whether can it be said that the appellant accused had committed an offence under Section 306 IPC for which he had been convicted?

Abetment of Suicide

 “…in a case where if any person instigates other person to commit suicide and as a result of such instigation the other person commits suicide, the person causing the instigation is liable to be punished for the offence under Section 306 IPC for abetting the commission of suicide.”

 In view of the above, to bring a case within the provision of Section 306 IPC, there must be a case of suicide and in the commission of the said offence, the person who is said to have abetted the commission of suicide must have played an active role by an act of instigating or by doing a certain act to facilitate the commission of suicide.

In the Supreme Court decision of Amalendu Pal v. State of West Bengal, (2010) 1 SCC 707, it was observed that mere harassment without any positive action on the part of the accused proximate to the time of occurrence which led to the suicide would not amount to an offence under Section 306 IPC.

In the present matter, no material was recorded that indicated abetment or appellant’s active role to instigate the deceased to facilitate the commission of suicide. On the contrary, in the instant case, the appellant himself tried to commit suicide and consumed pesticide.

Hence, in Court’s opinion, both the High Court and Trial Court committed an error in convicting the accused for the offence under Section 306 IPC.

Therefore, in view of the above discussion, the present appeal succeeded and the appellant was released on bail. [Velladurai v. State, 2021 SCC OnLine SC 715, decided on 14-09-2021]

Case BriefsSupreme Court

Supreme Court: A Division Bench of S. Abdul Nazeer and Krishna Murari, JJ. refused to interfere in the judgment passed by the Gujarat High Court whereby the appellants (husband and mother-in-law of the deceased) were found guilty of committing cruelty to the deceased and abetting suicide committed by the deceased. Noting that although the prosecution failed to adduce any direct evidence to establish that accused abetted deceased into committing suicide, the Supreme Court observed:

“Admittedly, in the case at hands, the evidence clearly establishes the offence of cruelty or harassment caused to the deceased and thus the foundation for the presumption [under Section 113-A of the Evidence Act] exists. Admittedly the appellants have led no evidence to rebut the presumption.”

It was prosecution’s case that the accused husband constantly asked the deceased to bring Rs 25,000 from her father. On her failure to do so, the accused husband started frequently beating the deceased, and the accused mother-in-law used to pick up quarrel with her on the pretext that she neither knew how to cook nor did any household work properly. The deceased committed suicide by consuming poison at her matrimonial home for the sole reason that she was unable to bear continuous mental and physical cruelty meted out to her by the appellants in a short span of 8 months of her marriage.

The trial court convicted the appellants for offences punishable under Section 498-A (cruelty to women) and Section 306 (abetment of suicide) of the Penal Code, 1860. On appeal, the High Court confirmed the judgment of the trial court. Aggrieved, the appellants approached the Supreme Court.

At the outset, the Supreme Court noted that Section 113-A of the Evidence Act, provides for presumption as to abetment of suicide by a married woman within seven years of marriage, by her husband or any of his relative. Section 113-A reads thus: “When the question is whether the commission of suicide by a woman had been abetted by her husband or any relative of her husband and it is shown that she had committed suicide within a period of seven years from the date of her marriage and that her husband or such relative of her husband had subjected her to cruelty, the Court may presume, having regard to all the other circumstances of the case, that such suicide had been abetted by her husband or by such relative of her husband”. Further, the Explanation added to Section 113-A of the Evidence Act clearly provides that ‘cruelty’ shall have the same meaning as in Section 498-A IPC.

Considering first the offence under Section 498-A IPC, the Court noted the consistent evidence of witnesses who were related to the deceased. The Court opined that most often the offence of subjecting the married woman to cruelty is committed within the boundaries of the house which in itself diminishes the chances of availability of any independent witness. It was observed:

“The evidentiary value of the close relatives/interested witness is not liable to be rejected on the ground of being a relative of the deceased. Law does not disqualify the relatives to be produced as a witness though they may be interested witness.”

The Court found that the witnesses (family members) though related to the deceased, were natural witnesses. Their evidence was consistent without any material contradiction and inspired confidence. Thus, from the evidence of prosecution witnesses, the Court concluded it was proved that the deceased was harassed with a view to meet unlawful demand of Rs 25,000. The Court held that the prosecution was successful in proving the charge of cruelty under Explanation (b) of Section 498-A IPC.

Next, the question that fell for consideration was that the prosecution having successfully established the charge of cruelty as laid down in Explanation (b) of Section 498-A IPC and also the fact that the deceased committed suicide by consuming pesticide within seven years of marriage, whether the accused could also be held guilty for the offence punishable under Section 306 IPC with the aid of Section 113-A of the Evidence Act.

The Court noted that the prosecution failed to adduce any direct evidence to establish that the accused abetted deceased into committing suicide. The prosecution placed reliance on Section 113-A of the Evidence Act to establish the charge of abetment against the accused. Relying on its earlier order in Ramesh Kumar v. State of Chhattisgarh, (2001) 9 SCC 618, the Court concluded that to attract the applicability of Section 113-A of the Evidence Act, three conditions are required to be fulfilled: (i) the woman has committed suicide; (ii) such suicide has been committed within a period of seven years from the date of her marriage; (iii) the accused had subjected her to cruelty.

In the instant case, all the three conditions stood fulfilled. The deceased committed suicide within a period of seven years from the date of her marriage and accused had subjected her to cruelty, as it was confirmed that prosecution was successful in proving the charge of cruelty under Section 498-A IPC.

The Court said that it is no doubt correct that the existence and availability of the above said three circumstances are not to be invoked like a formula to enable the presumption being drawn and the presumption is not an irrebuttable one. However, in the instant case, the evidence clearly established the offence of cruelty or harassment caused to the deceased and, thus, the foundation for the presumption existed. Admittedly, the appellants led no evidence to rebut the presumption.

In such view of the matter, the Supreme Court held that the trial court, as well as the High Court, committed no illegality in holding that the appellants abetted suicide of the deceased. The appeals were therefore dismissed. [Gumansinh v. State of Gujarat, 2021 SCC OnLine SC 660, decided on 3-9-2021]


Tejaswi Pandit, Senior Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Orissa High Court: S. K. Sahoo, J., dismissed the petition being devoid of merits and upheld the conviction passed in the impugned order.

The facts of the case are such that victim, a student of Class-VII was returning home from the school in her bicycle along with her younger sister aged about ten years when the appellant obstructed their path and wrongfully restrained the victim near a tank of village Renupada and dragged her to a nearby field and committed rape on her. FIR was registered before the Inspector in-charge of Basta police station, Basta P.S. under Sections 341/376(2) (i) of the Penal Code, 1860 and section 4 of the POCSO Act.  The investigation was thereby conducted and chargesheet was submitted. The learned trial Court on analyzing the oral as well as documentary evidence on record, hold that the the appellant was guilty under Section 341 IPC and section 4 of the POCSO Act whereas the prosecution has failed to establish the charge under section 376(2) (i) of the Indian Penal Code. It is this order which is under challenge in the present petition.

During course of investigation, the school admission register was seized which reveals the date of birth of the victim as thirteen years of age at the time of occurence and hence the victim was a “child” as per section 2(d) of the POCSO Act.

The Court observed that the ingredients of the offence under section 4 of the POCSO Act which prescribes punishment for penetrative sexual assault, it appears that the “penetrative sexual assault” has been defined under section 3 of the POCSO Act. Section 3(b) is relevant for the purpose of this case wherein it is stated that a person is said to commit penetrative sexual assault, if he inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of the child or makes the child to do so with him or any other person. Thus, inserting a finger into any of the three parts of the child victim i.e., vagina, urethra and anus makes out the offence of “penetrative sexual assault” as defined under section 3(b) of the POCSO Act.

The Court observed that the act of the appellant in coming in front of the victim and her sister and catching hold of the handle of the bi-cycle to stop their movement which led them to fall on the ground, in my humble view, clearly makes out the ingredients of the offence “and therefore, I find no infirmity in the conviction of the appellant under section 341 of the Indian Penal Code.”

The court thus held “there is no illegality in the impugned judgment and order of conviction passed by the learned trial Court and the appellant has been rightly found guilty under section 341 of the Indian Penal Code and section 4 of the POCSO Act.”

 [Lilu v. State of Odisha, JCRLA No. 37 of 2018, decided on 12-08-2021]


Arunima Bose, Editorial Assistant has reported this brief.

Case BriefsSupreme Court

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

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

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

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

Facts

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

Discussion and Observations

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

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

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

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

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

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

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

Conclusion and Decision

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

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


Tejaswi Pandit, Senior Editorial Assistant has reported this brief.