Case BriefsHigh Courts

Allahabad High Court: Saurabh Shyam Shamshery, J., while addressing a criminal appeal observed that “Conviction for “Dacoity” of less than five persons is not sustainable in the absence of finding that five or more persons were involved in the crime”. 

Three appellants filed the criminal appeal under Section 374 of the Criminal Procedure Code against the judgment and order dated 11-03-1983, wherein appellants Balbir and Lalaram were convicted under Section 395 of Penal Code, 1860 and Mohar Pal under Sections 395 read with 397 IPC.

Trial Court held that the appellants committed dacoity in the house of Raj Kumar.

Analysis, Law and Decision

Section 395 IPC | Punishment for Dacoity:

Whoever commits dacoity shall be punished with imprisonment for life, or with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine.”

Section 397 | Robbery, or dacoity, with attempt to cause death or grievous hurt:

If, at the time of committing robbery or dacoity, the offender uses any deadly weapon, or causes grievous hurt to any person, or attempts to cause death or grievous hurt to any person, the imprisonment with which such offender shall be punished shall not be less than seven years.

“Dacoity” is defined in Section 391 IPC, which is reproduced as under:

“391. Dacoity.–When five or more persons conjointly commit or attempt to commit a robbery, or where the whole number of persons conjointly committing or attempting to commit a robbery, and persons present and aiding such commission or attempt, amount to five or more, every person so committing, attempting or aiding, is said to commit “dacoity”.

Supreme Court in the decision of Raj Kumar  v. State of Uttaranchal (Now Uttarakhand): (2008) 11 SCC 709, held that 

“…conviction of an offence of robbery, there must be five or more persons. In absence of such finding, an accused cannot be convicted for an offence of dacoity.”

“In a given case, however, it may happen that there may be five or more persons and the factum of five or more persons is either not disputed or is clearly established, but the court may not be able to record a finding as to the identity of all the persons said to have committed dacoity and may not be able to convict them and order their acquittal observing that their identity is not established. In such case, conviction of less than five persons–or even one–can stand. But in absence of such finding, less than five persons cannot be convicted for an offence of dacoity.”

Hence, in view of the above decisions, Court stated it clear that in case there is a conviction of less than five persons under Sections 395/397 IPC, trial court must arrive at a finding that there was the involvement of five or more persons.

In absence of the above-stated finding, no conviction could be made out under the aforestated Sections.

Prosecution completely failed in the present case, either to prove the participation of five or more persons in the commission of the offence or establish their identity.

Hence, Court held that the appellant’s conviction and the sentence are repugnant to the letter and spirit of Sections 391 and 396 IPC, therefore it cannot be sustained and trial court’s decision was set aside in the view of the said reasoning.[Balbir v. State of U.P., Criminal Appeal No. 648 of 1983, decided on 09-07-2020]

Case BriefsHigh Courts

Himachal Pradesh High Court: Anoop Chitkara, J., setting aside the conviction against the petitioner, discussed the effect of compromise between the parties in cases attracting Section 138 of Negotiable Instruments Act, 1881 and the cases of compounding of offence under the same.

Background

The petitioner stands convicted under Section 138 of the Negotiable Instruments Act, 1881, vide order dated 26-07-2018 by the Additional Chief Judicial Magistrate, Shimla. Application under Section 389 Code of Criminal Procedure, 1973, was made by the petitioner before the Sessions Judge, which stands dismissed in default by order dated 07-01-2019. The petition hereby was moved invoking Inherent powers of the High Court under Section 482 Code of Criminal Procedure, 1973, against the said conviction. 

Observations

The Court reiterating the objective of the Negotiable Instruments Act, 1881, said, “The jurisprudence behind the N.I. Act is that the business transactions are honoured. The legislative intention is not to send the people to suffer incarceration because their cheque was bounced. These proceedings are simply to execute the recovery of cheque amount by showing teeth of penalty loss.”  Considering the peculiar facts of the present case and the power of Court to interfere in matters like such, the Court observed, “This Court has inherent powers under Section 482 of the Code of Criminal Procedure which are further supported by Section 147 of the N.I. Act to interfere in this kind of matter where parties have paid the entire money and where the complainant does not object to clear all the proceedings.” Reliance was placed on Shakuntala Sawhney v. Kaushalya Sawhney, (1980) 1 SCC 63, wherein the Supreme Court held, “The finest hour of Justice arise propitiously when parties, despite falling apart, bury the hatchet and weave a sense of fellowship or reunion.”  With respect to the compromise made and its effect over the FIR, the Court said, “(…) It is a fit case where the inherent jurisdiction of the High Court under Section 482 of the Code of Criminal Procedure read with 147 of Negotiable Instruments Act, is invoked to compound the offence and consequently to quash the above-mentioned FIR and consequent proceedings” The Court further reproduced the guidelines as laid down by Damodar S. Prabhu v. Sayed Babalal H., (2010) 5 SCC 663, with respect to the compounding of offences under the Negotiable Instruments Act, 1881.

Decision

While setting aside the impugned order of conviction by the Additional Chief Judicial Magistrate, the Court directed the petitioner to be released from the prison with immediate effect.[Gaurav Sharma v. Ishwari Nand, 2020 SCC OnLine HP 2464, decided on 13-11-2020]


Sakshi Shukla, Editorial Assistant has up this story together

Case BriefsHigh Courts

Bombay High Court: Vinay Joshi, J., altered the conviction for rape and penetrative sexual assault to an act of aggravated form of sexual assault punishable under Section 10 of the POCSO Act in light of touching the breast of the child.

Appellant aged 67 years was convicted under Sections 376 and 450 of the Penal Code, 1860 and Sections 4 and 6 of the Protection of Children from Sexual Offences Act, 2012 (POCSO).

Accused was acquitted from the charge of committing offence punishable under Section 377 IPC.  Accused challenged the conviction in the instant appeal.

Informant was residing along with his family members, including his daughter/victim girl aged 8 years. Two sons of the informant had been to their school and the minor victim was alone at the house as she was ill. In the afternoon the informant returned to his house for lunch and found that the house was locked from within, therefore, he peeped from the window and saw that appellant by lifting frock of the victim was moving his hand on her neck, cheek and chest.

Later, the informant shouted to open the door and hurriedly left the place. Victim disclosed that the accused moved his hand on her body, kissed her as well as put his finger in his anal part.

In regard to the above reference, informant lodged a report against the said incident.

Special Judge framed charge under relevant provisions of IPC and POCSO Act further on the appreciation of evidence held that the prosecution succeeded in proving the offence punishable under Sections 376 and 450 IPC, Sections 4 and 6 of the POCSO Act.

The prosecution case, in short, is about rape and aggravated penetrative sexual assault by the accused on a minor victim aged 8 years.

Analysis and Decision

Bench stated that the act of accused of touching the breast of the victim with sexual intent amounts to an aggravated form of sexual assault, which is punishable under Section 10 of the POCSO Act.

Since the medical evidence nowhere supported that there was insertion or penetration of finger into the anal region, it is doubtful whether the accused penetrated his finger into the anal region of the victim.

If two view emerges from the situation, the view favourable to the accused would take precedence. On mere assumption or possibility, the accused cannot be convicted.

 All the sexual assaults on children below 12 years amount to an aggravated form of sexual assault.

With regard to the age of the accused, which is near about 70 years, the imprisonment of 5 years would meet the ends of justice. From the set of circumstances laid down, it is clear that the house-trespass was merely in order to commit an offence punishable with imprisonment, which is punishable under Section 451 of the Penal Code, 1860.

In view of the above, criminal appeal as partly allowed.

Conviction under Section 376 of IPC and Sections 4 and 6 of the POCSO Act, is hereby quashed and set aside, instead the accused was convicted for the offence punishable under Section 10 of the POCSO Act and.

Further, instead of conviction under Section 450 IPC, the appellant is convicted for the offence punishable under Section 451 of the IPC.

Hence appellant will be entitled to set off under Section 428 of the CrPC. [Tukaram Ashruji Khandare v. State of Maharashtra, Criminal Appeal No. 111 of 2020, decided on 22-10-2020]


Advocate for the appellant, R.V. Gahilot and H.R. Dhumale, A.P.P. for the respondent.

Case BriefsSupreme Court

Supreme Court: In the case dating back to 1989, relating to the adulteration of Dalda Vanaspati Khajoor Brand Ghee, wherein the company was absolved of all charges but prosecution against it’s nominated office Nirmal Sen continued, the 3-judge bench of L. Nageswara Rao, Hemant Gupta* and Ajay Rastogi, JJ has held that in the absence of the Company, the Nominated Person cannot be convicted or vice versa.

In the present case, the Trial Court did not pass any order to convict the Company but convicted the appellant Nirmal Sen. The Madhya Pradesh High Court, however, set aside the order of conviction and remitted back the matter to the trial court for passing fresh orders against the appellant Nirmal Sen and the Company. The reasoning given for the same was that if the Company is acquitted of the charges, the said benefit will also directly go to the appellant/Nominated Officer. It also noticed that there was a glaring and patent defect in the judgment of the trial court as well as in the judgment of the appellate court.

Senior Advocate Dr. Abhishek Manu Singhvi, appearing on behalf of the appellant/Nominated Officer argued that the appellant was charged for the violation of Section 2(ia)(m) read with Section 7(i) of the Prevention of Food Adulteration Act, 1954 (the 1954 Act). Such violation attracted a sentence of not less than six months and up to 3 years and a fine of Rs.1,000/- under Section 16(1)(a)(i), whereas under the Food Safety and Standards Act, 2006 (the 2006 Act), the punishment of such adulteration which is related to only higher melting point is fine of Rs.5 lakhs and Rs.1 lakh under Sections 3(1)(zx) and 3(1)(i) respectively.

The Court, however, did not find any merit in the aforementioned argument and said that though the 1954 Act has been repealed by Section 97 of the 2006 Act, however, the punishments imposed under the 1954 Act have been protected. It noticed that in terms of Section 6 of the General Clauses Act, 1897, unless different intention appears, the repeal of a statute does not affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed as if the Repealing Act or Regulation had not been passed.

“But in the 2006 Act, the repeal and saving clause contained in Section 97 (1)(iii) and (iv) specifically provides that repeal of the 1954 Act shall not affect any investigation or remedy in respect of any such penalty, forfeiture or punishment and the punishment may be imposed, “as if the 2006 Act had not been passed”.”

It was, hence, held that in view of Section 97 of the 2006 Act, as also under Section 6 of the General Clauses Act, 1897, the proceedings would continue under the Act.

“No benefit can be taken under the 2006 Act as the prosecution and punishment under the 1954 Act is protected.”

Senior Advocate Siddhartha Luthra, appearing for the Company, argued that the order of remand by the High Court to the trial court against the Company cannot be sustained for the reason that such an order was passed without giving an opportunity of hearing, as contemplated under Section 401(2) of the Code. The Court found strength in this argument and held the course adopted by the High Court to remand the matter to the trial court after more than 30 years to cure the defect which goes to the root of the trial, though permissible in law, was not justified.

It explained that Clause (a) of Sub-Section (1) of Section 17 of the 1954 Act makes the person nominated to be in charge of and responsible to the company for the conduct of business and the company shall be guilty of the offences under clause (b) of Sub-Section (1) of Section 17 of the Act. Hence, Clauses (a) and (b) are not in the alternative but conjoint. Therefore, in the absence of the Company, the Nominated Person cannot be convicted or vice versa.

Since the Company was not convicted by the trial court, the finding of the High Court to revisit the judgment was found to be unfair to the appellant/Nominated Person who has been facing trial for more than last 30 years.

“Therefore, the order of remand to the trial court to fill up the lacuna is not a fair option exercised by the High Court as the failure of the trial court to convict the Company renders the entire conviction of the Nominated Person as unsustainable.”

[Hindustan Unilever Ltd. v. State of Madhya Pradesh, 2020 SCC OnLine SC 905, decided on 05.11.2020]


*Justice Hemant Gupta has penned this judgment 

Case BriefsSupreme Court

Supreme Court: The 3-judge bench of Dr. DY Chandrachud*, Indu Malhotra and Indira Banerjee, JJ has summarised the principles relating to conduct of a Test Identification Parade (TIP) and has held that

“… the identification in the course of a TIP is intended to lend assurance to the identity of the accused. The finding of guilt cannot be based purely on the refusal of the accused to undergo an identification parade.”

The Court was hearing a case where two men were convicted for killing a final year LLB student of Maharishi Dayanand University, Rohtak under Section 302 read with Section 34 of the India Penal Code and have been sentenced to imprisonment for life. The appellants had refused to undergo a TIP and it was contended that an adverse inference should be drawn against the appellants for refusing to submit themselves to a TIP.


Test Identification Parade: Principles summarised


  1. The purpose of conducting a TIP is that persons who claim to have seen the offender at the time of the occurrence identify them from amongst the other individuals without tutoring or aid from any source. An identification parade, in other words, tests the memory of the witnesses, in order for the prosecution to determine whether any or all of them can be cited as eyewitness to the crime;
  2. There is no specific provision either in the CrPC or the Indian Evidence Act, 1872 which lends statutory authority to an identification parade. Identification parades belong to the stage of the investigation of crime and there is no provision which compels the investigating agency to hold or confers a right on the accused to claim a TIP;
  3. Identification parades are governed in that context by the provision of Section 162 of the CrPC;
  4. A TIP should ordinarily be conducted soon after the arrest of the accused, so as to preclude a possibility of the accused being shown to the witnesses before it is held;
  5. The identification of the accused in court constitutes substantive evidence;
  6. Facts which establish the identity of the accused person are treated to be relevant under Section 9 of the Evidence Act;
  7. A TIP may lend corroboration to the identification of the witness in court, if so required;
  8. As a rule of prudence, the court would, generally speaking, look for corroboration of the witness’ identification of the accused in court, in the form of earlier identification proceedings. The rule of prudence is subject to the exception when the court considers it safe to rely upon the evidence of a particular witness without such, or other corroboration;
  9. Since a TIP does not constitute substantive evidence, the failure to hold it does not ipso facto make the evidence of identification inadmissible;
  10. The weight that is attached to such identification is a matter to be determined by the court in the circumstances of that particular case;
  11. Identification of the accused in a TIP or in court is not essential in every case where guilt is established on the basis of circumstances which lend assurance to the nature and the quality of the evidence; and
  12. The court of fact may, in the context and circumstances of each case, determine whether an adverse inference should be drawn against the accused for refusing to participate in a TIP. However, the court would look for corroborating material of a substantial nature before it enters a finding in regard to the guilt of the accused.

Examination of ballistics expert – When not necessary


The failure of the prosecution in a given case, to examine a ballistics expert has to be assessed bearing in mind the overall context of the nature of the evidence which is available. When direct evidence of an unimpeachable character is available and the nature of injuries is consistent with the direct evidence, the examination of a ballistics expert need not be insisted upon as a condition to the prosecution proving its case. On the other hand, where direct evidence is not available or there is doubt in regard to the nature of that evidence, the failure to examine the ballistic examiner would assume significance.


Discussion and ruling on facts


Scrutinising the evidence in the present case, the Court noticed the following aspects:

  • PW4, deceased’s father, in the course of his cross examination stated that the deceased had been facing trial in 2-3 cases and that he was a surety for his son. He claimed to be ignorant of the fact that the deceased was a coaccused with one of the appellants Rajesh, under Sections 454 and 380 of the, inspite of being the deceased’s surety in the same.
  • Similarly, PW5, deceased’s brother, during the course of his cross-examination, professed that he did not know whether the deceased was the co-accused with Rajesh. But he later deposed that, that he and his father PW4 used to go to court when Sandeep and Rajesh were being produced on various dates of hearing.

The Court, hence, noticed that the contention of the appellants that the refusal to undergo a TIP is borne out by the fact that Sandeep and Rajesh were known to each other prior to the occurrence and that PW4, who is a prime eye-witness, had seen Rajesh when he would attend the court during the course of the hearings, cannot be brushed aside.

Consequently, in a case, such as the present, the Court would be circumspect about drawing an adverse inference from the facts, as they have emerged. In any event, the identification in the course of a TIP is intended to lend assurance to the identity of the accused. The finding of guilt cannot be based purely on the refusal of the accused to undergo an identification parade. Hence,

“… in this backdrop, a refusal to undergo a TIP assumes secondary importance, if at all, and cannot survive independently in the absence of it being a substantive piece of evidence.”

Further noticing that the prosecution has failed to establish its case beyond reasonable doubt, the Court acquitted the appellants, giving them the benefit of doubt. The appellants have already undergone over 12 years of imprisonment. The Court, hence, directed that they shall be released and their bail bonds be cancelled unless they are wanted in connection with any other case.

[Rajesh v. State of Haryana,  2020 SCC OnLine SC 900, decided on 03.11.2020]


*Justice DY Chandrachud has penned the judgment 

Case BriefsHigh Courts

Karnataka High Court: M.G. Uma, J., setting aside the conviction order by the fast track Court, allows compromise between the parties.

The appellant-accused in the present case has been tried and convicted by the fast track Court against the offences punishable under Sections 324, 325, 504, 506 and 307 of Penal code, 1860

Counsel for the complainant submitted that the dispute between the complainant and the accused has been compromised and hence the charges may be compounded and the appellant-accused be acquitted accordingly. Additional Advocate General opposed the application stating that the offences under Sections 324 and 307 IPC are not compoundable. Supreme Court decision in, Yogendra Yadav v. State of Jharkhand, (2014) 9 SCC 653 and Gian Singh v. State of Punjab, (2012) 10 SCC 303 was relied on by the counsel for the appellant, wherein it was held, “High Courts can quash criminal proceedings under section 482 even though the offence alleged is non-compoundable if parties have amicably settled their dispute and victim has no objection. Further, this would depend on the fact of each case. Offences which involve moral turpitude, grave offences like rape, murder cannot be effaced by quashing proceedings because they have harmful effect on society and are not restricted to two individuals or groups.”

Further, the earlier order of the present Court was referred, where the decision in S.S. Joshi v. State of Haryana, 2003 Crl. L.J. 2028 was obeyed, allowing a compromise petition by setting aside the judgment of conviction by the trial court.

The Court while setting aside the conviction of the accused allowed the compounding of offences and ordered the deposition of fine as ordered by the trial court.[Yesaiah v. State of Karnataka, Criminal Appeal No. 2603/2012, decided on 3-09-2020]

Case BriefsHigh Courts

Delhi High Court: Vibhu Bakhru, J., in the present petition observed that,

“A deadly weapon is one, which is lethal and is likely to cause death when used in the manner in which it is intended. By its very nature, a deadly weapon is one, which is likely to result in a fatality.”

Appellant was convicted of the offences punishable under Sections 393/398 of the Penal Code, 1860 and Sections 25/27 of the Arms Act, 1959.

The present appeal has been filed impugning the judgment for the above-stated conviction and order of sentence.

It has been submitted that the accused was armed with a pistol which he placed on the complainant’s temple and asked him to hand over whatever he had.

While the accused was fleeing from the spot, two patrolling police officials pursued and apprehended him and the police officials snatched the pistol carried by the accused.

Analysis and Decision

Police Officials Testimony

Bench while analysing the facts and submissions in the present case stated that merely because witnesses from the general public that had allegedly assembled at the spot, were not examined does not mean that the testimony of the police officials is required to be discarded.

Supreme Court’s decision in Kalpnath Rai v. State, (1997) 8 SCC 732  was referred in the above context, wherein following was the Court’s proposition:

“There can be no legal proposition that evidence of police officers, unless supported by independent witnesses, is unworthy of acceptance.”

Further, there wasno doubt on the fact that a country made pistol (katta) was recovered from the accused also the fact that he was apprehended while he was fleeing from the spot has also been established.

Question to be determined is whether the appellant’s conviction under Sections 25 and 27 of the Arms Act is maintainable?

The country made pistol (katta) recovered from the appellant was designed to discharge a projectile and therefore, even though it may have fallen into disrepair it, nonetheless, falls within the definition of a ‘firearm’ within the meaning under Section 2(e) of the Arms Act.

Further the Court observed that the possession of ammunition is a punishable offence under Section 25 of the Arms Act. The use of such ammunition is punishable under Section 27 of the Arms Act.

Thus, there is little doubt that the appellant is guilty of committing an offence punishable under Sections 25 and 27 of the Arms Act.

Next issue to be examined is whether the country made pistol (katta) can be termed as a “deadly weapon” under Section 398 IPC?

Section 398 IPC states that if an offender is armed with a deadly weapon at the time of robbery or dacoity, the same would constitute an offence under Section 398 IPC.

Key Question:

Whether the country made pistol (katta) can be termed as a “deadly weapon” even if it is in a state of disrepair?

Court stated that in order for any weapon to be termed as deadly, it should one which is capable of or likely to cause death if used in the manner in which it is intended to be used.

There may be a large number of instruments or objects, which can be used in a lethal manner, however, if they are not intended or meant to be used in that manner, they cannot be understood to be weapons for the purposes of Section 398 of the IPC.

Bench also noted that there are a large number of instruments which if used in a particular manner, may result in a fatality. A pen is not a deadly weapon and merely carrying the said writing instrument, at the time of committing robbery or dacoity, would not constitute an offence punishable under Section 398 of the IPC.

Two necessary ingredients of a ‘deadly weapon’:

first, that it should be a weapon and capable of being used as such

second, that it must be inherently lethal and if used in the intended manner is likely to result in death.

Hence in view of the above analysis, it can be construed that even though the country made pistol recovered from the appellant constitutes a firearm, it cannot be considered as a deadly weapon.

In the present matter, at the material time, the pistol could not be used to inflict any fatal injury, if used in the manner in which it was meant to be used — that is, for the purpose of firing a bullet — on account of it being in disrepair.

Thus the impugned judgment convicting the appellant under Section 398 of the IPC was set aside and his sentence was also reduced.[Sonu v. State, 2020 SCC OnLine Del 1213, decided on 15-09-2020]

Case BriefsHigh Courts

Allahabad High Court: Suresh Kumar Gupta, J., while addressing the present jail appeal held that,

“…in cases involving sexual assault/rape, it is generally difficult to find any corroborative witnesses, except the victim herself and therefore, the evidence of the victim is sufficient for conviction unless there exist compelling reasons for seeking corroboration.”

Appellant has been convicted and sentenced under Section 376 of Penal Code, 1860 for 10 years rigorous imprisonment alongwith a fine of Rs 20,000 and in default of payment of fine, two years additional imprisonment, under Section 342 IPC for six months imprisonment alongwith fine of Rs 500 and in default of payment of fine fifteen days additional imprisonment and under Section 506 IPC for 2 years rigorous imprisonment alongwith fine of Rs 1000 and in default of payment of fine, one-month additional imprisonment. All the sentences shall run concurrently.

Trial Court held the accused guilty and convicted him for the charged offences as aforesaid.

Counsel for the appellant Deepak Rana and AGA for the State is Sri Jai Prakash Tripathi.

Bench observed that it is a settled principle of law that in cases involving sexual assault/rape, it is generally difficult to find any corroborative witnesses, except the victim herself and therefore, the evidence of the victim is sufficient for conviction unless there exist compelling reasons for seeking corroboration. Thus, a conviction can be sustained on the sole testimony of the prosecutrix, if it inspires confidence.

In Gagan Bihari Samal v. State of Orissa, (1991) 3 SCC 562 Supreme Court of India whilst observing that corroboration is not the sine qua non for conviction in a rape case, held as follows :

In cases of rape, generally, it is difficult to find any corroborative witnesses except the victim of the rape. It has been observed by this Court in Bharwada Bhoginbhai Hirjibhai v. State of Gujarat,(1983) 3 SCC 217.

Further, it is also a well-settled principle of law that the testimony of child witness can be relied upon along with other circumstances and corroborative evidence to convict the accused. Undoubtedly, the settled proposition of law that the evidence of child witness is required to be scrutinised and appreciated with great caution.

Court in view of the well-settled law examined whether the evidence adduced by the prosecution, particularly the testimony of the victim is trustworthy, credible and can be relied upon.

Victim clearly stated that she was misled by the accused/appellant Jonny and he took away her to his house and committed rape upon her by extending threat. The statement of PW-2 has also been corroborated by the mother of the victim PW-1.

Further, there are catena of Judgments of the Supreme Court of India that it is necessary for the Court to have a sensitive approach when dealing with the cases of rape.

In the Supreme Court decision of State of Punjab v. Ramdev Singh, (2004) 1 SCC 421  it was held that,

Sexual violence apart from being a dehumanizing act is an unlawful intrusion on the right of privacy and sanctity of a female. It is a serious blow to her supreme honour and offends her self-esteem and dignity.

It degrades and humiliates the victim and where the victim is a helpless innocent child or a minor. It leaves behind a traumatic experience. A rapist not only causes physical injuries but more indelibly leaves a scar on the most cherished possession of a woman i.e. her dignity, honour, reputation and not the least her chastity. Rape is not only a crime against the person of a woman, it is a crime against the entire society.

Bench stated that it has been established that in the absence of a family member of victim, the accused/appellant fraudulently called the victim to his house. On being called the victim reached the house where appellant forcefully committed rape. In these facts and circumstances in an ordinary procedure it cannot be said to be a case of false implication.

Prosecution by cogent and credible evidence is able to prove the charge under Section 376 IPC against the appellant.

In the present matter, victim is a minor and an adult committed rape on a girl of tender age, deterrent punishment is called for, taking a lenient view is out of the question.

Presently the appellant is incarcerated for more than 7 years. Conviction of the appellant is confirmed under Sections 376, 342 & 506 IPC. So on the point of conviction, the appeal is dismissed.

On the quantum of the sentence, this Court thinks that the end of justice would be met if the appellant is sentenced to imprisonment which he has already undergone.

In view of the above, the appeal is finally disposed of. [Jonny v. State of U.P., Jail Appeal No. 343 of 2018, decided on 03-09-2020]

Case BriefsHigh Courts

Bombay High Court: Vibha Kankanwadi, J., upheld the Special Court’s decision for conviction of a person accused of having committed unnatural intercourse with a 9 year old child.

Appellant had been accused for the offence punishable under Section 4 of the Protection of Child from Sexual Offences Act.

Accused had committed unnatural intercourse with the minor victim who was 9 years old.

After the above stated incident the victim and his father went to the police station and lodged a report.

Special Judge framed charged for the offence punishable under Section 377 of Penal Code, 1860 and Section 4 of POCSO Act. After the trial, Special Judge held the accused guilty for offence punishable under Section 4 of POCSO Act.

Accused aggrieved with the above, filed the present appeal.

Bench while observing the matter, noted that the medical officer stated that there was no sign of recent tears, no abrasion, contusion or any injury to the private part, though the ultimate conclusion that he stated was “findings are consistent with entry of penis into anus”.

Special Judge did not consider the fact that victim’s father and the accused had some enmity, and on the said basis it could have been drawn that there was possibility of false implication of the accused. The child could have been tutored. 

Withe regard to the enmity aspect between the parties, Court’s opinion was that, even if for the sake of arguments it is accepted that there is such civil dispute; yet, the gravity does not appear to be so that with the help of a small child, the father would level such kind of allegations against the accused.

Further medical officer’s statement was also noted wherein following was stated, not found any recent tears, stains due to semen, blood, faecal matters around the anus or there was no injury or no mark of violence, yet, he has stated that when he had digitally examined the anus, he had found the tone of the sphincter to be hypotonic.

Thus, when the medical evidence supported the victim and there was nothing in the cross examination of the victim to discard his evidence or brand it as unbelievable or untrustworthy, then the facts stated were sufficient to come to the conclusion that the accused committed the offence.

Therefore, Special Court was justified in holding that the prosecution had proved the guilt of the accused beyond reasonable doubt and proceeded to convict him.

Present appeal was dismissed in the above-view. [Mahesh Sambhaji Chafle v. State of Maharashtra, 2020 SCC OnLine Bom 705 , decided on 12-06-2020]

Case BriefsHigh Courts

Jharkhand High Court: A Division Bench of Shree Chandrashekhar and Ratnaker Bhengra, JJ. acquitted the accused-appellant of the charge under Section 302 of the Penal Code, 1860 on the ground that the prosecution has failed to prove by leading cogent and reliable evidence that the appellant has committed the crime.

The brief facts of the case are that the sole appellant, namely, Ratanu has been charged under Section 302 of the Penal Code, 1860 and convicted and sentenced to R.I. for life. Initially, five accused persons were sent up for trial, however, other accused persons were acquitted on the ground that the informant has not named them as accused in her fardbeyan. The prosecution has examined six witnesses; the informant Anjela Dhanwaris PW-1, the uncle of the informant, Kushal Topno PW-3 and Nelem Topno PW-2, the wife of PW-3. The witness, namely, Uday Purty PW-4 was declared hostile. Dr Sukanta Sheet PW-5, conducted the post-mortem examination and found major injuries on Prabodh Dhanwar which were ante-mortem in nature caused by sharp and blunt objects. Aggrieved by the impugned judgment, the present appeal was filed. 

The counsel Kripa Shankar Nanda for the appellant has submitted that PW-1 is not reliable and trustworthy, there is no independent corroboration to the evidence of PW-1, the crime weapon and the blood-stained soil collected from the place of occurrence were not produced in the court, and other prosecution witnesses have turned hostile which causes serious doubt has clouded the prosecution’s case. It further relied on the judgment titled Bhimapa Chandappa Hosamani v. State of Karnataka, (2006) 11 SCC 323, the Supreme Court observed that before conviction of an accused is recorded on the basis of testimony of a single witness it must be found that testimony of such a witness is of such sterling quality that it leaves no doubt about the complicity and involvement of the accused in the crime. 

The prosecution has projected Anjela Dhanwar, daughter of the deceased, as an eye witness whose conduct during the incident makes her testimony suspicious.

The Court relying on the Supreme Court decision in Gopal Singh v. State of M.P., (2010) 6 SCC 407, held the testimony not trustworthy and reliable and, therefore conviction of the appellant under Section 302 of the Penal Code cannot be recorded. [Ratanu v. State of Jharkhand,  2019 SCC OnLine Jhar 2485, decided on 23-10-2019]

Case BriefsHigh Courts

Himachal Pradesh High Court: Sandeep Sharma, J. compounded and quashed the impugned judgments and acquitted the petitioner of the charge framed under Section 138 of Negotiable Instruments Act, 1881

The brief facts of the case are that the respondent-complainant instituted a complaint under Section 138 of the Act against the present petitioner-accused, alleging he lent sum of Rs 1,00,000 to the petitioner-accused to buy a car. The petitioner accused with a view to discharge his liability issued a cheque in favour of the complainant which was dishonored on its presentation on account of insufficient funds. Since petitioner-accused failed to make the payment within the stipulated period despite issuance of legal notice, respondent/complainant initiated proceedings under Section 138 of the Act. 

The trial Court held the petitioner-accused guilty under Section 138 of the Act and sentenced him accordingly. Being aggrieved, accused preferred an appeal in the court of learned Sessions Judge, Una, which also came to be upheld by the trial court. Hence the present petition seeking acquittal and setting aside of the judgments of conviction recorded by the courts.

The counsel Dheeraj K. Vashishat for the petitioner informed the Court that parties have resolved to settle their dispute amicably inter-se for a total sum of Rs 1,15,000 and Rs 15,000 stands already paid, remaining amount shall be paid on or before 18.2.2020. It was further submitted by learned counsel for the parties that entire sum of Rs 1,15,000 stands received by the respondent complainant in terms of compromise arrived inter-se between them. 

The counsel Leena Guleria for respondent states that since amount in terms of compromise arrived inter-se parties stands received by the complainant, the complainant shall have no objection in case prayer made on behalf of the petitioner for compounding the offence is accepted. Respondent-complainant (Rahul Kumar), who is present in Court stated on oath that he of his own volition and without there being any external pressure has entered into compromise stated to have no objection in case petitioner is acquitted of the charge under Section 138 of the Negotiable Instruments Act. 

The Court while exercising power under Section 147 of the Act and relying on the Judgment titled Damodar S. Prabhu v. Sayed Babalal H., (2010) 5 SCC 663, wherein it has been categorically held that, while exercising power under Section 147 of the Act, Court can proceed to compound the offence even after recording of conviction.

Consequently, in view of the above, the present matter was compounded and impugned judgments quashed and set-aside and the petitioner-accused was acquitted of the charge framed against him under Section 138 of the Act.

In view of the above, the petition was disposed of. [Satish Kumar v. Rahul Kumar, 2020 SCC OnLine HP 338, decided by 03-03-2020]

Case BriefsForeign Courts

Court of Appeal of the Democratic Socialist Republic of Sri Lanka: A Division Bench of K.K. Wickremasinghe and K. Priyantha Fernando, JJ., dismissed an appeal filed to set aside the judgment of the High Court.

The prosecutrix had testified that, the incidents had taken place about two years prior to testifying when she was in Grade 8 and the appellant had abused her for 5-6 times. The prosecutrix had narrated these incidents to her mother who took her to the police station and as per the prosecution evidence, the incident had taken place three months prior to making the police complaint. The JMO had testified that no injuries were found but the possibility of sexual abuse cannot be excluded as per the short history was given by the prosecutrix. The appellant had denied committing the offence and contended that he was being falsely implicated by his wife as he had caught her with her paramour. He further submitted that his wife lodged a complaint at the police station asking for the custody of the children and he had denied the same after which the wife had challenged him that she would send him to the prison and would take the custody of the children.

The counsel for the appellant AAL K. Kugaraja contended that the prosecution had failed to establish the date of offence to which the counsel for the respondent Sudarshana De Silva, submitted that the prosecutrix had clearly stated that the incident took place in the latter part of 2007. The accused-appellant had been indicted under three charges for committing Grave sexual abuse on his daughter, an offence punishable under Section 365B (2) (b) of the Penal Code, 1860 as amended. The Trial Court had convicted the accused-appellant and had sentenced him to 18 years of rigorous imprisonment along with fines aggrieved by which this appeal was filed.

The Court while dismissing the appeal explained that the Judgment of the High Court was well reasoned as when the victim is a small child and is abused by someone who is associated to him/her on a daily basis its nearly impossible to specify the exact same date of offence and also the evidence of the prosecution was corroborated by other witnesses as well and the High Court was satisfied with the trustworthiness of the evidence so there was no reason to disturb the findings of the trial court.[Kurundukara Hakuruge Ariyadasa v. Attorney General, C.A. Case No: HCC-0384 of 2017, decided on 05-12-2019]

Case BriefsHigh Courts

Bombay High Court: V.M. Deshpande, J. allowed an appeal against the judgment of the trial court whereby the appellant was convicted under Section 305 (abetment of suicide of child or insane person) of the Penal Code, 1860.

The appellant’s son had committed suicide by hanging himself. He left behind a suicide note wherein he had mentioned that his father, the appellant, was habitual to drinking. According to the prosecution, the deceased was under great stress due to the appellant’s behavior and, therefore, committed suicide. The appellant faced trial and was convicted as aforesaid. Aggrieved thereby, he filed the instant appeal.

The High Court referred to Section 107 (abetment of a thing) as well as Sections 305 and 306 and noted that the law on abetment to commit suicide is well crystallised by numerous decisions of the Supreme Court. It was also stated that the only difference between Sections 305 and 306 IPC is that Section 305 is a punishing section for abetting the suicide of an insane or a child, whereas Section 306 is a punishing section for the accused who abetted any other person to commit suicide. However, said the Court: “The parameters for deciding the fact under Section 305 and 306 IPC are identical.”

The Court noted various admitted facts on record and observed: “The admitted position also speaks that the mother of the deceased was a psychic patient having nothing to do with the drinking of the appellant. Therefore, he used to be always under depressing conditions. Different persons may react differently to the same situation. Therefore, merely because the deceased by writing a note mentioning about the drinking habit of his father and committed suicide, in my view, it cannot be treated as an abetment, especially when the prosecution evidence falls short to show that there used to be ill-treatment at the hands of the appellant under the influence of liquor to the deceased so as to drive the deceased to take the extreme step of his life.”

The Court was of the view that the trial court had swayed away with the fact that the deceased boy committed suicide for an admitted position that the appellant was a drunkard. However, according to the Court: “Merely drinking can never be an abetment for a person to commit suicide.”

Accordingly, on the representation of the entire prosecution case, the Court allowed the instant appeal and set aside the conviction of the appellant as recorded by the trial court. [Ramrao Kisan Rathod v. State of Maharashtra, 2020 SCC OnLine Bom 29, decided on 04-01-2020]

Case BriefsHigh Courts

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

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

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

Case BriefsForeign Courts

Supreme Court of the Democratic Socialist Republic of Sri Lanka: A Full Bench of Buwaneka Aluwihare, P. Padman Surasena and S. Thurairaja, JJ., dismissed an appeal filed by the Accused-Appellant, being aggrieved by the judgment of the High Court and the Court of Appeal.

The Accused-Appellant was an employee attached to the Sri Lanka Rupavahini Corporation as a technical officer and he was found guilty on selling copper transmission cables that probably belonged to the said Corporation, to a scrap metal dealer. The said vendor gave evidence to the fact that he had dealt with the Appellant on several occasions with regard to similar cables. The Accused-Appellant had been indicted by the High Court on 3 counts which were Section 367 of the Penal Code to be read with Section 3 of the Offences against Public Property Act and Section 395 of the Penal Code. The High Court in their judgment found the Accused-Appellant guilty on the third count and sentenced him with 5 years of imprisonment and fine aggrieved by which he had approached the Court of Appeal but the appeal was dismissed thus the instant appeal where leave to appeal was granted questioning whether the punishment granted by High Court was excessive. The counsel for the Accused- Appellant, Nihara Randeniya, stated that the Appellant was a first offender, was married and had school-going children and the only bread earner in the family further he was not challenging the conviction but just the quantum of the sentence.

The Court while dismissing the appeal observed that the persons who work in the government institutions when found guilty on criminal offences, plead ‘first offender’ as a mitigating factor where it is obvious that a person in government service cannot be a convicted criminal, therefore, plea of ‘first offender’ cannot be acceptable and Acts causing loss to state property especially at their institution cannot be pardoned or condoned. The Court also stated that where the current offence carries a maximum punishment of 20 years, the imposition of 5 years by the trial judge was reasonable. [Ranathunga Arachchilage Ranjith Chandrathilake v. Attorney General, SC Appeal 134 of 2019, decided on 18-12-2019]

Case BriefsHigh Courts

Gauhati High Court: A Division Bench of Mir Alfaz Ali and Nani Tagia, JJ., allowed an appeal filed against the order of the trial court whereby the appellant was convicted for the offence of murder punishable under Section 302 IPC.

The appellant was alleged to have murdered his son after a quarrel took place between the two. Apparently, there was no direct evidence against the appellant and his conviction was based on circumstantial evidence. The trial court held that the deceased was found dead in the house of the appellant and the appellant did not offer any explanation as to how the death of the deceased was caused. Thus, basically relying on the said circumstance, the conviction of the appellant was recorded putting a reverse burden on the appellant under Section 106 (burden of proving fact especially within knowledge) of the Evidence Act. Aggrieved by the order of the trial court, the appellant filed the instant appeal.

While perusing the record, the High Court noted that evidently, the body of the deceased was found in the rented house of the tenant of the appellant. Also, when the dead body was recovered and people came to the place of occurrence, the appellant was found in his own house in an inebriated condition. When the police came, then only, he came out on being called by the police. The trial court observed that the appellant was found inside the house where the occurrence took place, but, there was no evidence on record to support such observation, and as such, this finding of the trial court appear to be perverse.

Regarding the law on Section 106, the High Court observed:

“In a criminal trial burden is always on the prosecution to prove the guilt of the accused beyond reasonable doubt and Section 106 of the Evidence Act is not intended to relieve the prosecution of its burden. Only when prosecution proves certain fact from which reasonable inference can be drawn regarding certain other facts, which unless explained by the accused by virtue of his special knowledge, tend to inculpate the accused, in such circumstance the accused owe an explanation, otherwise section 106 of the Evidence Act does not put any burden on the accused to prove his innocence.”

Referring to the facts of the instant case, the Court held:

“In the present case evidently prosecution has not been able to prove any fact, from which an adverse inference could be drawn to attribute culpability to the appellant, in absence of any explanation. As already indicated above, the findings of the learned trial court, that the deceased was found with the appellant in his house was perverse. Once, these findings are discarded, there are no other materials on record to attribute any special knowledge to the appellant in respect of the death of the deceased.”

Accordingly, the appeal was allowed and the conviction and sentence awarded to the appellant was set aside. [Tunu Urang v. State of Assam, 2019 SCC OnLine Gau 5528, decided on 19-12-2019]

Case BriefsHigh Courts

Rajasthan High Court: Sandeep Mehta, J. suspended the punishment awarded by the Additional Sessions Judge in the Sessions Case No. 46 of 2017, Udaipur. The co-accused of the same case already got relief from this Court. 

The appellant, in this case, is convicted and sentenced for offences under Sections 307, 323/34 and 324/34 of the Penal Code. The applicant in the appeal has already served nearly four and a half years of punishment out of seven years of rigorous punishment awarded by the trial court. Whereas the Court already suspended the sentence awarded to the co-accused. Before giving any relief to the appellant, the Court looked into the previous convictions of the appellant. It was collected that the appellant did not have any other grievous criminal history, except for the present one. Hence, the Court decided that the applicant will be granted bail during the pendency of the appeal, following the principle of parity.

Section 389 of Code of Criminal Procedure, 1973 provides for the provision of bail in certain cases and this Court suspended the sentence of the trial court till the final disposal of this appeal. 

The Court asked the appellant to produce a personal bond of a sum of Rs 50,000 with two sureties of Rs 25,000 each. In addition, the Court ordered for his appearance in this court on 06-01-2020. The Court also ordered that the appellant will have to appear before the trial court in the month of January, of every year, until the appeal is decided. The appellant is also supposed to inform the trial court if he changes his place of residence or the sureties residence. The Court ordered the trial court to maintain attendance of the accused- applicant in a separate file. Further, this Court ordered the trial court to inform if the applicant does not produce himself. If so, then the High Court will cancel the bail of the applicant. [Mustaffa Sheik v. State of Rajasthan, 2019 SCC OnLine Raj 4477, decided on 04-12-2019]

Case BriefsForeign Courts

Court of Appeal of the Democratic Socialist Republic of Sri Lanka: A Division Bench of K.K. Wickremasinghe and K. Priyantha Fernando, JJ., allowed an appeal setting aside the conviction and acquitting the Accused-Appellant from the charge of murder.

The Appellant and the victim (deceased) were husband and wife. Appellant was a serving Brigadier in the Sri Lankan Army, they were sleeping in their room and the victim’s brother (PW 2) was sleeping in another room with the appellant’s son (PW 1). After hearing some unusual noise the PW2 ran to check what had happened on the other hand PW 1 followed the appellant to his room and saw saliva coming out of the mouth of the deceased and blood on her head, she was taken to the hospital where she succumbed to injuries in about 2 hours.

There was no dispute that the shot was fired from the personal weapon of the

Appellant and that the deceased died of that gunshot injury.

The counsels for the appellant Shavindra Fernando PC and Ananda Weerasinghe contended that the deceased had committed suicide by shooting herself and the appellant had tried to grab the weapon while he saw the deceased standing with the gun on her head but he was unsuccessful. After trial, the High Court Judge found the Appellant guilty of the charge and sentenced him to death aggrieved by which the instant appeal was filed. The counsels for the appellant contended that the trial judge had erred in his decision by not considering various important factors like the bullet was fired from a distance of 30 cm away from the head of the deceased and the judgment was based on hearsay evidence and he was denied fair trial. The arguments of both the parties were analyzed again and opinion of expert witnesses was referred to which was unable to prove a case against the appellant and hold him liable for the offence beyond reasonable doubt.

The Court while allowing the appeal set aside the conviction of the appellant and acquitted him on the count of murder explaining that the prosecution had failed to prove the charge beyond reasonable doubt against the Appellant. [Democratic Socialist Republic of Sri Lanka v. Don Chandana Priyantha Rupasinghe, 2019 SCC OnLine SL CA 11, decided on 26-11-2019]

Case BriefsHigh Courts

Sikkim High Court: Bhaskar Raj Pradhan, J., upheld the decision passed by the Sessions Judge while rejecting the present appeal filed.

In the present case, FIR was lodged by PW 1 complaining that her sister, i.e. the victim (PW 12) was burnt and bitten by the appellant. In lieu of the same case was registered under Section 307 of the Penal Code, 1860 against the appellant.

The  Sessions Judge framed the charge under Section 307 IPC and on the plea of “not guilty” the trial commenced.

At the time of the trial, Sessions Judge examined the appellant under Section 313 of the Code of Criminal Procedure, 1973. Sessions Judge delivered the impugned judgment holding the appellant guilty as charged.

Present appeal challenges the conviction and sentence.

C. Sharma, was the Counsel for the appellant and Thupden Youngda, learned Additional Public Prosecutor, represented the State-respondent.

Victim stated that appellant, who she was in a relationship with, had a fight with her and started damaging the furniture after which she called the police. Appellant picked up the kerosene jar, poured kerosene oil over her and burnt her after lighting a matchbox. Eyewitness tried to douse the fire by putting water and thereafter took the victim to the hospital.

Defence alleged that she had pressurised the appellant to marry him and so they had a discussion and in a fit of anger, poured kerosene upon herself, lighted a matchbox and set herself on fire.

Dr Simmi Rasaily (PW 13) who examined the victim found burn injuries and recorded in her report that there was kerosene smell on her body, which corroborates victim’s deposition.

Deposition of the victim was adequately corroborated by both oral and material evidence. Failure of PW 1 to give certain details about her visit to see the victim at the hospital does not dislodge the fact that she had lodged the FIR after visiting the victim. Further, the only issue raised by the Appellant’s Counsel that required examination is an alleged failure of the prosecution to produce the eyewitness.

“In a criminal trial, an accused person is considered innocent until proven guilty. It is for the prosecution to establish its case beyond all reasonable doubt.”

It was further noted that P. Dewan (DW 1) had recorded the statement of the eyewitness during the appellant’s departmental inquiry which must be given credence.

However, whether what P. Dewan heard and the eyewitness stated in her statement was the truth could have been found only if she had been produced as a witness and subjected to cross-examination. Evidence of P. Dewan is, therefore, hearsay to that extent. Therefore, there is no credible evidence led by the defence to create enough doubt in the mind of the Court to defeat the prosecution case.

High Court with respect to the above stated that the defence evidence does not make probable his innocence in view of the overwhelming evidence led by the prosecution.

Further adding to its observation, Court stated that the victim’s deposition cannot be doubted, her testimony has its own significance.

Therefore, in the present case prosecution has established its case that it was only the appellant who had poured kerosene over the victim and burnt her with the knowledge that if he by that act caused death, he would be guilty of murder and consequently, by such an act, the victim was hurt.

Appeal is rejected in the above terms and Sessions Judge’s judgment of conviction and order on sentence, both have been upheld. [Deepen Pradhan v. State of Sikkim, 2019 SCC OnLine Sikk 195, decided on 30-11-2019]

Case BriefsForeign Courts

Supreme Court of the Democratic Socialist Republic of Sri Lanka: A Full Bench of Jayantha Jayasuriya, PC, CJ and Priyantha Jayawardena, PC, and Murdu N.B. Fernando, PC, JJ., allowed appeals filed by two appellants out of eight accused.

The two Accused-Appellant-Petitioners (hereinafter called Appellants) were charged along with six others in the Magistrate’s Court of Jaffna. They were charged for “Joining an Unlawful Assembly armed with any deadly weapon”, an offence punishable under Section 141 of the Penal Code; “Voluntarily Causing Grievous Hurt by dangerous weapons or means” while being members of an unlawful assembly, an offence punishable under Section 317 read with Section 146 of the Penal Code; and “Voluntarily Causing Grievous Hurt by dangerous weapons or means” punishable under Section 317 read with Section 32 of the Penal Code.

The Magistrate convicted all eight accused for the first two counts, after trial. The two appellants being aggrieved with the conviction and the sentence appealed to the High Court of Jaffna.

The High Court Judge affirmed the conviction and sentence. Thus the instant appeal was filed.

The Counsels for the appellants M.A. Sumanthiran, PC, J. Arulanantham and D. Mascarange contended that he would mainly address the issue of dock identification as there was no proper dock identification relating to two appellants and there was no sufficient evidence to establish the identity of the two appellants. There was no dispute that neither the victim nor any other witness, in this case, knew the two appellants.

The Court while allowing the appeal opinioned that the evidence was unsatisfactory and the conviction and sentence of the two appellants was set aside accordingly acquitted. [Rathnasingham Janushan v. Officer In-charge, SC (Spl) Appeal No. 07 of 2018, decided on 04-10-2019]