Case BriefsSupreme Court

   

Supreme Court: In an appeal against the Karnataka High Court's reversal of acquittal of 2 out of the 22 accused acquitted by the Sessions Court in a murder case, the bench of V. Ramasubramanian*and Indira Banerjee, JJ has reversed the High Court's verdict observing that there were glaring contradictions between the testimony of the witnesses.

In this case all the 22 accused armed with deadly weapons formed themselves into an unlawful assembly and committed trespass by entering into the house of the deceased and committed his murder, in furtherance of a common object. The Sessions Court acquitted all 22 accused including the appellants, however, the High Court convicted the appellants, by observing that there was consistency in the evidence of eyewitnesses with regard to their participation in the commission of the offence and the Trial Court erroneously acquitted them, when there was sufficient material on record to hold them guilty.

The Court observed that the above findings of the High Court appear to be illogical as the primary charge of the prosecution was that all the 22 accused, formed themselves into an unlawful assembly with the common object of committing the murder of the deceased and that all of them being members of the unlawful assembly were armed with deadly weapons and that they committed the offence of rioting, trespass and murder.

The Court observed that:

“We do not know how, in the facts and circumstances of the case, the conviction of only 2 out of the 22 accused can be sustained and that too only for the offence under Section 302 when the allegation of unlawful assembly, common object, trespass, rioting etc. are held not proved against all of them”.

Moreover, the State has not come up with any appeal against the acquittal of all the other accused nor was there any explanation as to why there were two First Information Reports.

The Court took note of the ruling in Arvind Kumar v. State of Rajasthan, 2021 SCC Online SC 1099 wherein the court held that “the principle that when a witness deposes falsehood, the evidence in its entirety has to be eschewed may not have strict application to the criminal jurisprudence in our country”, and thus viewed that the High Court was right that the evidence of eyewitnesses cannot be rejected by invoking the theory of ‘falsus in uno falsus in omnibus', as this principle may not have unadulterated application to criminal jurisprudence. However, when there are glaring contradictions between the testimony of these two witnesses on the type of material object used and even on the role of one accused, the very foundation of the case of the prosecution stood shaken.

The Court observed that the High Court should have come up with stronger and cogent reasons than what has been recorded as the law on the scope of Section 378 of the Code of Criminal Procedure (CrPC), is too well settled.

Placing reliance on Ravi Sharma v. Government of NCT of Delhi, 2022 SCC Online SC 859 the Court viewed that the impugned judgment of the High Court is not in accordance with the law traced in this decision, hence, the conviction of the appellants cannot be sustained.

[Ramabora v. State of Karnataka, 2022 SCC OnLine SC 996 , decided on 10.08.2022]

*Judgment by: Justice V. Ramasubramanian

Case BriefsSupreme Court

Supreme Court: In a murder case, where the Madhya Pradesh High Court had reduced the sentence to sentence already undergone which was less than imprisonment for life, the bench of MR Shah* and Krishna Murari, JJ has held that such order is contrary to Section 302 IPC as there cannot be any sentence/punishment less than imprisonment for life, if an accused is convicted for the offence punishable under Section 302 IPC.

In the case at hand, though the High Court had maintained the conviction of the accused for the offence under Sections 147, 148, 323 and 302/34 of the IPC, it had reduced the sentence by giving benefit of right to private defence to the accused, to the sentence already undergone by him i.e. approximately seven years and ten months.

The Supreme Court held that such reduction of sentence is impermissible and unsustainable.

“The punishment for murder under Section 302 IPC shall be death or imprisonment for life and fine. Therefore, the minimum sentence provided for the offence punishable under Section 302 IPC would be imprisonment for life and fine. There cannot be any sentence/punishment less than imprisonment for life, if an accused is convicted for the offence punishable under Section 302 IPC. Any punishment less than the imprisonment for life for the offence punishable under Section 302 would be contrary to Section 302 IPC.”

The Court, hence, quashed and set aside the judgment of the High Court and restored the order of the Trial Court and directed the accused to be arrested and to undergo life imprisonment. The Court gave eight weeks’ time to the accused to surrender before the concerned Court/Jail Authority.

[State of Madhya Pradesh v. Nandu, CRIMINAL APPEAL NO. 1356 OF 2022, decided on 02.09.2022]


*Judgment by: Justice MR Shah


For State: Deputy Advocate General Ankita Chaudhary

Allahabad High Court
Case BriefsHigh Courts

   

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

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

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

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

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

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

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

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

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

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


Advocates who appeared in this case :

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

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


*Suchita Shukla, Editorial Assistant has reported this brief.

Bombay High Court
Case BriefsHigh Courts

Bombay High Court: While deliberating upon the instant appeal challenging the conviction and sentence under Section 376, IPC [rape], the Division Bench of A.S. Gadkari and Milind N. Jadhav, JJ., observed that, once the Trial Court has concluded that the prosecution has proved the offence of rape beyond reasonable doubt, then there is no reason to deviate from the statutory position and award a lesser sentence than what is prescribed by the statute.

Facts and Legal Trajectory of the case: Victim X (deaf and dumb), her husband (blind) and the accused with his family, lived jointly in her matrimonial home. The victim came to her paternal home, wherein she narrated her ordeal before her mother via sign language and gestures. She revealed that the appellant had ravished her on 16-11-2005 and threatened her with dire consequences if she divulged the details to anyone. The mother of the victim then lodged a report with Lasalgaon Police Station.

Investigation and medical examination were conducted, and witnesses were examined. The appellant was arrested and the chargesheet was filed. The matter came up before Additional Sessions Judge, Niphad, Nashik whereby the appellant was convicted for offences punishable under Sections 376 and 503, IPC. The Trial Court had observed that appellant/accused has been facing trial for 6-7 years and is 60 years old therefore leniency has been shown while sentencing him. Via Trial Court’s order dated 13-02-2013, the appellant/accused was sentenced to 5 years’ rigorous imprisonment with a fine of Rs. 1000.

Aggrieved with the afore-stated conviction and sentence, the appellant knocked on the doors of the High Court. Meanwhile the State of Maharashtra filed an appeal to enhance the sentence given by the Trial Court. The High Court too registered a suo-motu petition issuing a notice to the Additional Sessions Judge, Niphad, Nashik concerning the quantum of sentence.

Contentions: The counsel of the appellant contended that the prosecutrix had filed a false case and that the accused/appellant was not present in the house at the time of the alleged crime. The counsel also argued that the case was a means to an end i.e., to affect a partition of the family field and property. It was also argued that there was a substantial delay of 3 days in filing the FIR.

Per contra, the respondents contended that the appellant/ accused is the brother-in-law of the victim and on the day of the crime, all the family members had gone out, except the victim, her blind husband and the accused. It was submitted that the appellant’s crime has been proved beyond reasonable doubt. The respondents thus urged the High Court to enhance the 5-year sentence given to the appellant as per Section 376 as it stood prior to the amendment in 2018.

Observations: Perusing the facts and the contentions presented, the Court made the following observations-

  • It was noted that the Trial Court adopted a proper procedure while recording the victim’s evidence through an expert witness- in this case, an impartial translator/ interpreter. The Court also noted that the testimony of the victim through the interpreter did not shake during the cross-examination by the appellant’s counsel. It was observed that the elaborate cross-examination, however, did not disprove the incident in favour of the appellant.

  • Pointing out that the defense case relied mostly on a property dispute going within the family, the Court observed that no woman would take the risk of leveling a charge such as of rape, only on the pretext of property. “No woman would put at stake her life by making such a serious allegation against her family member unless and until such a heinous act has taken place”. The Court further stated that the answers given by the victim during her cross-examination vis-a-vis the property dispute, cannot be the ground or reason to discard her evidence. Upon examining the proceedings before the Trial Court, the Division Bench was satisfied that the prosecution had proved the guilt of the accused (appellant) beyond reasonable doubt. “The victim is a helpless, deaf and dumb married woman, whose privacy has been shattered by the appellant”. It was observed that rape is not merely a physical assault but it destructs the whole personality of a helpless woman.

  • It was observed that the appellant’s misuse of his position of trust to commit such a horrific crime has shocked the conscience of the Court

  • Moving onto the issue of sentence, the Court observed that the Trial Court erred in its reasoning behind awarding 5 years’ rigorous imprisonment to the appellant. The Court pointed out that given the facts of the case and the horrific manner in which the appellant had abused the victim, the rationale applied by the Trial Court is flawed as it is against the statute.

  • Pointing out that prior to amendment of Section 376 in 2018, the provision had stated that “whoever commits rape shall be punished with Rigorous Imprisonment of either description for a term not less than 7 years, but which may extend to imprisonment for life, and shall also be liable to fine”. The Court observed that the instant matter falls under Section 376(1).

Decision: With the afore-stated observations, the Court convicted the appellant in view of Section 235, CrPC for the offence punishable under Section 376. IPC. The appellant’s sentence was enhanced to 7 years’ rigorous imprisonment and fine of Rs. 25,000.

[Madhukar Makaji Mudgul v. State of Maharashtra, 2022 SCC OnLine Bom 1674, decided on 19-08-2022]


Advocates who appeared in this case :

Ashish Satpute, Advocate, for the Appellant;

H.J. Dedhia, APP, Advocate, for the Respondent.


*Sucheta Sarkar, Editorial Assistant has prepared this brief.

Orissa High Court
Case BriefsHigh Courts

   

Orissa High Court: In an appeal filed challenging the Trial court ruling, convicting the accused under Section 302 of Penal Code, 1860 (‘IPC') a Division Bench of S Muralidhar CJ., and R K Pattanaik J. upheld conviction under Section 302 IPC by examining circumstantial evidence in detail and directed cancellation of his bail bonds and surrender forthwith, as the appellant was enlarged on bail during the pendency of the proceedings.

The present Appellant alongwith Bidyadhar Pradhan, were charged with the offence under Section 109 read with Section 302 IPC on the grounds of abetting the murder of Bhagabati Pradhan. After analyzing the evidence, the Trial Court convicted the present Appellant while acquitting the co-accused. Assailing this order, the present appeal was filed.

The Court noted that this is a case of circumstantial evidence. Placing reliance on Sharad Birdhichand Sarda v. State of Maharashtra, (1984) 4 SCC 116 Krishnan v. State, (2008) 15 SCC 430 and G. Parshwanath v. State of Karnataka, (2010) 8 SCC 593, the Court reiterated the conditions to be fulfilled before conviction could be based on circumstantial evidence.

The first circumstance is regarding the quarrel that took place the previous night between the Appellant, the co-accused, on one hand and the deceased and her family on the other. The Court thus noted that no doubt the witnesses are related to the deceased but such relation, by itself, would not result in their testimonies being discarded if they are otherwise truthful and consistent with each other.

It was further noted that based on the evidence of witnesses, it not only supplies the motive for the offence, but also proves the fact that immediately prior to the occurrence on that very evening, the accused had threatened to finish off the deceased. As regards the recovery of evidence, the Court was of the view that it has been more than adequately proved by the IO himself by producing the relevant record. Even, the opinion of the doctor is more than sufficient for the Court to conclude that the death was homicidal in nature.

The Court remarked “the fact that the weapon of offence did not have bloodstains will not matter if all other circumstances form a continuous chain and clearly point to the guilt of the Appellant and no one else.”

The Court held that the evidence is not only consistent with the guilt of the appellant but is also inconsistent with his innocence. Thus, no error can be found in the impugned judgment of the trial Court holding the appellant guilty of the offence punishable under Section 302 IPC.

[Tapan Kumar Pradhan v. State of Orissa, 2022 SCC OnLine Ori 2447, decided on 11-08-2022]


Advocates who appeared in this case :

Mr. Basudev Pujari, Advocate, for the Appellant;

Mr. Pravat Kumar Muduli, Additional Government Advocate, Advocate, for the Respondent.


*Arunima Bose, Editorial Assistant has put this report together.

Chhattisgarh High Court
Case BriefsHigh Courts

   

Chhattisgarh High Court: In a case where an election was declared null and void on the grounds of non-disclosure of criminal antecedents by the winning candidate, Deepak Kumari Tiwari J dismissed the revision petition being devoid of merit. The Court stated that non-disclosure of criminal antecedents amounts to undue influence and interferes with the free exercise of electoral right.

The present revision petition was preferred challenging the order passed by the District Judge, Baikunthpur, District Koria whereby petition of Rajkishan Mahto ‘respondent 1' challenging the election of Sapandeep Mahto ‘petitioner' as returned candidate as Ward Councillor of Manendragarh Municipality on the ground of non-disclosure of offences in his nomination paper has been allowed and the result declaring the petitioner herein as Councilor was held to be void.

It was alleged that the petitioner failed to disclose criminal antecedents, as required under Form-3A, according to Rule 25-A of Chhattisgarh Nagar Palika Election Rules, 1994, (‘the Rules, 1994') as amended on 8-11-2019, vide Notification No. F-1-5/2014/18.

Counsel for petitioner submitted that there are no such mandatory provisions requiring disclosure of acquittal cases. Thus, Rule 28 of Rules, 1994 does not refer to consequences of Rule 25-A, so nondisclosure of offences as required under Rule 25-A is not substantial in view of disqualification prescribed under Section 35 of the Chhattisgarh Municipality Act, 1961 and only for offences enumerated under Section 35-(h), (hh) and (hhh), no other offence has been mentioned and respondent 1 has no such case that the petitioner has been found in such category, therefore, the impugned order is not sustainable.

The Court noted that Chhattisgarh Nagar Palika Nirvachan Niyam, 1994 was amended and Rule 25-A was inserted, according to which, it is mandated that under the provision of sub-rule (1) of Rule 25, every candidate who is submitting his nomination for election of Councillor or Chairperson of Nagar Panchayat before the Returning Officer shall necessarily enclose a self-declaration form provided in Form-3A and shall necessarily enclose an affidavit sworn in before the Magistrate 1st Class or Notary. In the said form, not only the conviction, but also the result of acquittal of every case is necessarily to be disclosed.

It was further noted that the petitioner has also filed a deposition sheet of himself, which reveals that in cross-examination, the petitioner has categorically admitted that he has not furnished information in the said form. He also admitted that from 1998 to 2016, 7 criminal cases have been registered at the Police Stations.

Placing reliance on Krishnamoorthy v. Sivakumar, (2015) 3 SCC 467 the Court noted that non-disclosure of offence while submitting nomination papers amounts to undue influence. The court further held that when the candidate has special knowledge of the pending case, cognizance of which has been taken or charges have been framed and there is non-disclosure on his part, it would amount to undue influence and, therefore, election is to be declared null and void.

Thus, the revision petition is devoid of merit. [Sapandeep Mahto v Rajkishan Mahto, CR No. 57 of 2022, decided on 29-07-2022]


Advocates who appeared in this case :

Rohit Sharma, Advocate, for the Petitioner;

Vinod Tekam, Advocate, for the Respondent 3.


*Arunima Bose, Editorial Assistant has reported this brief.

Allahabad High Court
Case BriefsHigh Courts

   

Allahabad High Court: The Division Bench of Kaushal Jayendra Thaker and Ajai Tyagi, JJ. while deciding an appeal which was filed challenging the judgment and order of convicting accused-appellant under Sections 326 of Penal Code, 1860 (‘IPC') and Section 3 (2) (v) of Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (‘SC/ST Act') observed that to prosecute a person for an offence committed under Section 3(2)(v) of the SC/ST Act, there must be evidence to show that the accused committed the crime knowing that such person/victim is a member of a Scheduled Caste or a Scheduled Tribe.

The FIR came to be lodged against the accused on 29-01-2011 by the father of the injured as the injured was hospitalized.

Counsel for the appellant had submitted that Section 326 of IPC is not made out as injuries are not such which would fall within the purview of Section 326 of IPC. As far as commission of offence under Section 3 (2) (v) of SC/ST Act was concerned, it was submitted that the F.I.R. nowhere states that the injured belonged to a particular community. No documentary evidence to prove the same was there.

The Court considering this a special case discussed the importance of FIR and its content. The Court noted that this FIR was silent on the aspect that the injured belong to a particular community falling in the term ‘Scheduled Castes’ or ‘Scheduled Tribes’ so as to attract the provision of Section 3 (2) (v) of SC/ST Act.

For attracting the provisions of Section 3 (2) (v) of SC/ST Act, there should be corroboration by way of documentary evidence to prove that the injured, on whom the act is committed, belongs to ‘Scheduled Castes’ or ‘Scheduled Tribes’.

The Court relied on the judgment of the Supreme Court in Ram Das v. State of U.P., (2007) 2 SCC 170 where there was rape on woman belonging to Scheduled Caste, it was held that these could be no ground to convict the accused under Section 3 (2) (v) when there was no evidence to support the charge under Section 3 (2) (v) of SC/ST Act. Mere fact that victim happened to be a girl belonging to Scheduled Caste did not attract provisions of SC/ST Act.

The Court observed that in the case at hand no independent witness have been examined who would depose that the accused committed the offence on the ground that injured belonged to a community covered under SC/ST Act. The Court thus believed that this omission proves fatal for the prosecution in such a vital matter where punishment is for life imprisonment.

Judge has not even discussed the evidence and only on the basis of caste, he held that the offence was deemed to be committed. There is no deeming provision under SC/ST Act. The Court consequently set aside the Conviction and sentence under Section 3 (2) (v) of the accused-appellant.

Coming to Section 326 of IPC which deals with voluntary causing grievous hurts by dangerous weapons or means the Court noted that the fact that the injured had sustained burn injuries on the face, show that the injures had sustained grievous injuries therefore, ingredients of Section 326 of IPC are made out.

The Counsel for the petitioner had submitted that the punishment was too harsh in relation to which the Court analysed the theory of punishment prevalent in India. The Court relying on Mohd. Giasuddin v. State of A.P., (1977) 3 SCC 287; Deo Narain Mandal v. State of UP, (2004) 7 SCC 257; Ravada Sasikala v. State of A.P., (2017) 4 SCC 546 held that keeping in view criminal jurisprudence in our country which is reformative and corrective and not retributive no accused person is incapable of being reformed and therefore, all measures should be applied to give them an opportunity of reformation in order to bring them in the social stream.

The Court keeping in mind the facts and circumstances of the case stated that it is necessary to impose punishment keeping in view the ‘doctrine of proportionality’. The Court believed that punishment of 10 years imprisonment is too harsh and the fine of Rs.25000/- is also too harsh reducing it to 9 years’ incarceration and fine to Rs.2000/-, reason being, the complainant and the injured would have been adequately compensated by the Government as they have invoked provisions of Section 3 (2) (v) of SC/ST Act.

[Pintu Gupta v. State of U.P., Criminal Appeal No. – 4083 of 2017, decided on 28-07-2022]


Advocates who appeared in this case :

Dharmendra Kumar Singh, Rajesh Yadav, Advocates, Counsel for the Appellant;

Nagendra Srivastava, A.G.A. assisted by Akhilesh Kumar Tripathi, Advocate, Counsel for the State.


*Suchita Shukla, Editorial Assistant has reported this brief.

Case BriefsSupreme Court

Supreme Court: In furtherance of Criminal Justice, the bench of Abhay S. Oka* and MM Sundresh, JJ has held that an appeal against conviction filed by an accused under Sub-Section (2) of Section 374 of the Code of Criminal Procedure, 1973 cannot be dismissed on the ground that the accused is absconding.

In the case at hand, the accused was, on 04.09.2009, convicted by the Sessions Court under Sections 302 and 120B of the Penal Code (IPC) and Section 27(1) of the Arms Act, 1959. An appeal was preferred by the accused before the High Court of Patna. He was later declared absconding. On 25th August 2015, a Division Bench of the Patna High Court dismissed the appeal against conviction without adverting to the merits of the appeal on the ground that the accused was absconding.

The High Court held that though the remedy of an appeal is a valuable right, the appellant forfeited his right to prefer an appeal the moment he escaped from the custody and flagrantly abused the process of law. Such deliberate act on the part of the appellant amounts to defiance of the criminal administration of justice. The High Court went on to observe that,

“… the circumstances of the case before it were exceptional and, therefore, the Court was required to deviate from the settled principle of law that once the appellate court has refused to dismiss the appeal summarily, the same must be heard on merits.”

The Supreme Court, however, did not appreciate such approach of the High Court where it had itself recorded that it was deviating from the settled position of law.

The Court observed that the anguish expressed by the High Court about the brazen action of the appellant of absconding and defeating the administration of justice can be well understood. However, that is no ground to dismiss an appeal against conviction, which was already admitted for final hearing, for non-prosecution without adverting to merits.

The Court, hence, set aside the impugned judgment and remanded the matter to the High Court for consideration on merits.

Considering the fact that the appeal against conviction under Section 302 of IPC is of the year 2009, the Court said that necessary priority deserves to be given to the disposal of the appeal. Requesting the High Court to ensure that appeal is disposed of as expeditiously as possible, preferably within a period of six months, the Court held that

“If the appeal could not be heard within a reasonable time, in that event, the appellant will have to be granted a liberty to apply for suspension of sentence.”

[Dhananjay Rai v. State of Bihar, CRIMINAL APPEAL NO.803 of 2017, decided on 14.07.2022]


*Judgment by: Justice Abhay S. Oka

Meghalaya High Court
Case BriefsHigh Courts

Meghalaya High Court: While disposing off the petition, the division bench comprising of Sanjib Banerjee, CJ. and W. Diengdoh, J. set aside the conviction order which was directed against a judgment of conviction under Section 302 of the Penal Code, 1860 dated 04-10-2017 and the order of punishment of 11-12-2017 where he was sentenced to imprisonment for life.

State submitted that the perfunctory manner in which the matter was conducted by the trial court at the stage of Section 313 of the Criminal Procedure Code, 1973 (‘CrPC’) the appellate court may need to look into such aspect of the matter. The appellant also submitted that a fair opportunity was not afforded to the appellant to deal with the evidence apparently against him.

The Court explained that Section 313 of CrPC conceives of an opportunity being extended to the appellant in every trial for the purpose of enabling the appellant personally to explain any circumstances appearing in the evidence against him. Though no oath can be administered to the appellant in course of his examination by the trial court under Section 313 of the Code and the appellant, as a consequence, does not render himself liable to punishment by refusing to answer the questions or giving false answers thereto, the replies to the specific questions may be taken into consideration by the trial court while considering whether the appellant had committed the offence and the circumstances pertaining thereto.

The Court further reminded that it is the duty of the trial court to bring to the specific attention of the appellant the material that may be considered relevant in finding the appellant guilty. It would not do for the trial court to inform the appellant that the evidence had been adduced in full and call upon the appellant to offer his comments on the evidence.

The Court was of the opinion that in the present case, the records did not reveal that the exercise was appropriately conducted by the trial court. The recording of the statement of the appellant under Section 313 of the Code was without any questions being put to the appellant and without the material evidence that would weigh against the appellant being specifically pointed out to the appellant.

The Court considered the case of Nar Singh v. State of Haryana, (2015) 1 SCC 496 relied on by the State where it was held that it the duty and obligation of both the trial court and the appellate court under Section 313 of the Code and when the same is not appropriately conducted by the trial court, respectively. The Court accordingly set aside the judgment of conviction along with the order of punishment and remanded the matter back to the Trial Court for fresh conduct of the trial. Since the appellant had already undergone detention for over ten years, it was hoped that the District Council Court would make it convenient to conclude the trial within a month.

[Tengsal D. Sangma v. State of Meghalaya, 2022 SCC OnLine Megh 267, decided on 20-06-2022]


Advocates who appeared in this case :

Mr H.R. Nath with Ms B. Sun, Mr J.H. Mawphniang, Advocates, for the Appellant;

Mr K. Khan, Sr. GA with Mr S. Sengupta, Advocate, for the Respondents.


*Suchita Shukla, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Gauhati High Court: A bail application under Section 438 of the Criminal Procedure Code, 1973, (CrPC) was denied by Sanjay Kumar Medhi, J. to a petitioner for a case registered under Sections 21(c) and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) and it was held that recovery or seizure of contraband is not a sine qua non for arrest, detention or conviction under the NDPS Act if there are other convincing and corroborating materials.

Background of the case

A Truck was intercepted near Jorabat and consequently in the search, 44,160 bottles of Eskuf cough syrup in 276 cartons were recovered without any documents. The psychotropic substance seized was sold by the agency run by the petitioner to a distributor of Karimganj district. An FIR against the petitioner was registered.

The petitioners contended that though the articles are psychotropic substance it would come under the exception of Section 8 (c) of the NDPS Act and transportation of the same with necessary documents is available under proviso to Rule 67(4) of the NDPS Rules and subsequent generation of bills can at best be violation of the GST Act and cannot be violation of the NDPS Act

The State contended that the very initiation of movement of the consignment involving a huge number of bottles in cartons which admittedly is a psychotropic substance under the NDPS Act, as the cough syrup contains a substance called ‘codeine’, amounted to an offence under the NDPS Act. There were anomalies / illegalities at different stages, including GST invoices. It was further submitted that offences under the NDPS Act, are part of organized crime wherein different roles are played by different accused.

Analysis and decision

The Court affirming the contention raised by the State, noted that, “offences under the NDPS Act are part of an organized crime wherein different roles are played by different accused persons.” Further, while determining the offence under the Act various factors are to be taken into consideration like the quantity of the contraband, nature of the substance, nature of involvement etc.

While mere recovery and seizure of psychotropic substance cannot be a ground of arrest or detention of the accused, until and unless, there is substantive evidence to prove the conviction, in the case at hand, the offence involved in this case is one under the NDPS Act and the quantity involved was a commercial quantity of chemical manufacture drugs.

Considering the law, coupled with the facts of the case, the Court observed that for purposes of bail under Section 37 of the NDPS Act, the petitioner should have satisfied the Court that he is not guilty of the offence, and he is not likely to commit this offence further. The same was not established by the petitioner. The Court noted that, since the very object of the NDPS Act is to curb the menace of drugs and its ill effects on the society which has the propensity to destroy the generation as a whole; therefore, the court, in view of the facts and contentions presented before it, rejected the petitioner’s plea for anticipatory bail.

[Amal Das v. State of Assam, 2022 SCC OnLine Gau 764, decided on 06-05-2022]


Advocates who appeared in this case :

AM Bora, Advocate, for the Petitioner;

PP, Assam.

Bombay High Court
Case BriefsHigh Courts

Bombay High Court: The Division Bench of Sadhana S. Jadhav and Milind N. Jadhav, JJ., allowed an appeal which was filed against the conviction of the appellant for the offence punishable under section 302 of Penal code, 1860 wherein he was sentenced to suffer R.I. for life and fine of Rs.5,000.

On 18-10-2010, a report was lodged by Laxman Daji Bhoye (witness 1)  alleging therein that one person from Sawarpada informed him that on 17-10-2010 Suresh Bhagat had killed his wife. He went to the spot to verify the same and saw Suresh Bhagat (‘the present appellant’) seated besides the dead body of his wife who was lying in a pool of blood. On enquiry he disclosed that when he returned home from the house of his relatives after watching television, he knocked on the door but there was no response so he entered the house through the window. He noticed that his wife was in deep sleep. He assaulted on her head and back and thereafter, paid no attention to her. In the morning, at about 6.00 am, he realized that his wife has passed away. According to the prosecution, there is an extra-judicial confession by the accused. The prosecution had examined five witnesses to bring home the guilt of the accused amongst which witnesses 1, 2 and 3 were declared hostile.

The question before the Court was as to what is the evidence as against the accused which would lead to a necessary inference that the accused is the author of the injuries sustained by the deceased.

An accused can be convicted only in the eventuality that the investigation places on record such material which could be converted into admissible evidence and can be read in evidence.

The Court believed that in the present case, in view of the nature of the evidence adduced by the prosecution, it would be difficult to act upon the supposition that the fact of homicidal death at the hands of the accused is proved.

Counsel for the appellant submitted that this was a case of no evidence in the eyes of law and hence, the accused deserved to be acquitted of the charge levelled against him.

APP submitted that it was incumbent upon the accused to offer an explanation as contemplated under section 106 of the Indian Evidence Act and the very fact that the dead body was found in the house of the accused and he had not put forth any plausible explanation was sufficient to convict the accused for an offence punishable under section 302 of IPC. It was further submitted that there was an extra-judicial confession before Witness 1 which goes to the root of the matter and pointed towards the culpability of the accused.

The Court explained that it is a settled principle of criminal jurisprudence that an accused has a right to maintain silence and it is for the prosecution to prove its case beyond reasonable doubt. As far as extra-judicial confession was concerned, the Court reiterated that the same was not reliable for the simple reason that the person to whom the purported extra-judicial confession was made had resiled from his earlier statement and had been declared hostile by the prosecution.

Placing reliance on State of Rajasthan v. Raja Ram, (2003) 8 SCC 180 where it was held that “an extra-judicial confession, if voluntary and true and made in a fit state of mind, can be relied upon by the Court. The confession will have to be proved like any other fact. The value of the evidence as to confession, like any other evidence, depends upon the veracity of the witness to whom it has made. The value of the evidence depends on the reliability of the witness who gives the evidence.” the Court stated that an extra-judicial confession is a weak piece of evidence and can be relied upon provided, it is voluntary and is made in a fit state of mind.

The Court while allowing the appeal held that this could be a case of no evidence and thus, falls in the category of disproved. Judgment and order of conviction was quashed and set aside and the appellant was acquitted of the offence punishable under section 302 of the IPC.

[Suresh Ladak Bhagat v. State of Maharashtra, Criminal Appeal No.9 of 2014, decided on 19-04-2022]


Mr Samir Arunkumar Vaidya, Mr Hare Krishna Mishra: Advocates for the Appellant.

Ms M.M. Deshmukh: APP for the Respondent – State.


*Suchita Shukla, Editorial Assistant has reported this brief.

Patiala House Courts, Delhi
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, the 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 of 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, 2022 SCC OnLine Dis Crt (Del) 21, 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

 

Uttarakhand High Court
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.

Tripura High Court
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.

Tis-hazari
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.