Case BriefsSupreme Court

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

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

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

Background

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

However, the appellant survived but his wife died.

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

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

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

Analysis, Law and Decision

Appellant was convicted for the offence under Section 306 IPC.

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

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

Abetment of Suicide

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

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

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

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

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

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

Case BriefsSupreme Court

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

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

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

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

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

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

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

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

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

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

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

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

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


Tejaswi Pandit, Senior Editorial Assistant has reported this brief.

Case BriefsHigh Courts

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

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

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

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

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

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

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


Arunima Bose, Editorial Assistant has reported this brief.

Case BriefsSupreme Court

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

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

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

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

Facts

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

Discussion and Observations

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

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

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

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

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

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

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

Conclusion and Decision

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

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


Tejaswi Pandit, Senior Editorial Assistant has reported this brief.

Case BriefsSupreme Court

Supreme Court of India: The Division Bench of Navin Sinha and R. Subhash Reddy, JJ., reiterated the value of ocular evidence while reversing the acquittal of the accused.

Instant appeal arose from an acquittal order reversing the conviction of respondents 1 to 4 under Sections 302, 34, 120 B of the Penal Code, 1860 sentencing them to life imprisonment and 15 days imprisonment under Section 135(1) of the Bombay Police Act.

The deceased was assaulted while he was returning on a motorcycle with PW-2 who was the pillion rider.

Acquittal was premised on the reasoning that the evidence of the eye-witnesses PW-2 and PW-10 was inconsistent with the medical evidence, regarding the nature of injuries vis-à-vis the weapons of offence.

High Court erred in the appreciation of evidence by failing to take note that the iron rod had a sharp edge by which the injuries on the deceased were possible. It is only if the medical evidence was totally inconsistent with the ocular evidence, the former was to be given precedence.

Analysis, Law and Decision

Bench stated that it was not disputed that PW-2 who was accompanying the deceased on the motorcycle, took him to the hospital.

FIR was lodged barely hours later naming the respondents. There was no time for the witness to consider and ponder for naming the accused except to state the truth.

The respondents were not strangers, but were well known to PW­2 and the deceased. PW­12 deposed that the respondents had threatened the deceased earlier also and were compelling him to withdraw the case and would also demand money from him because of which the deceased had shifted from the locality where they all they lived earlier.

Court stated that there is evidence about the availability of light near the place of occurrence. Even otherwise, that there may not have been any source of light was hardly considered relevant in view of the fact that the parties were known to each other from earlier.

Bench expressed that, Criminal jurisprudence developed in this country recognizes that the eye sight capacity of those who live in rural areas is far better than compared to the town folks. Identification at night between known persons is acknowledged to be possible by voice, silhouette, shadow, and gait also. 

Court relied on Nathuni Yadav v. State of Bihar, (1998) 9 SCC 238 with regard to the identification in the dark.

Supreme Court expressed that it is only in a case where there is a gross contradiction between medical evidence and oral evidence, and the medical evidence makes the ocular testimony improbable and rules out all possibility of ocular evidence being true, the ocular evidence may be disbelieved.

In the present matter, Court found no inconsistency between the ocular and medical evidence.

High Court grossly erred in appreciation of evidence.

Conclusion

The acquittal by the High Court was based on misappreciation of the evidence and the overlooking of relevant evidence thereby arriving at a wrong conclusion.

Further, the Court stated that the present case was not where two views were possible or the credibility of the witnesses was in doubt. Neither was it a case of a solitary uncorroborated witness.

Conclusion of the High Court was therefore held to be perverse and irrational.

Therefore, in the nature of the assault, Section 304 Part II, IPC has no application.

Supreme Court directed respondents 1 to 3 to surrender within 2 weeks and Director General of Police, State of Gujarat shall take all necessary steps to apprehend the absconding, fourth accused and bring him to justice.

In view of the above, appeal was allowed. [Pruthviraj Jayantibhai Vanol v. Dinesh Dayabhai Vala, 2021 SCC OnLine SC 493, decided on 26-07-2021]

Case BriefsHigh Courts

Kerala High Court: T.R.Ravi, J., held that a monosyllabic “yes” cannot amount to pleading guilty.

The petitioner was convicted by the Magistrate for allegedly obstructing the procession taken out from the Thrikkulam Government High School in connection with the school admission festival and assaulted some of the volunteers. The FIR was registered for offences under Sections 143, 147, 353 read with 149 of the IPC and Section 35 (sic) of the Kerala Prevention of Disturbances of Public Meetings Act, 1961. All accused were convicted by the Trial Court on their pleading guilty of the offences.

The judgments were challenged mainly on the ground that the procedure adopted by the Trial Court, the petitioner contended that the conviction of an accused based on his plea of guilty results in that person being convicted and punished without trial and hence the Magistrates are bound to ensure that the plea is voluntary, clear and unambiguous and is put forth after understanding the implications of such admission. The petitioner contended that he was not made aware of the consequences of his pleading guilty and the unknowing act had resulted in the petitioner being denied appointment, in spite of the inclusion of his name in the ranked list of Constable (Telecommunication).

On scrutiny of the diary extract and records received from the lower court, the Bench noticed that the accused were asked whether they had committed the offences and they answered in the negative. After a few adjournments, the cases were taken up and the question whether the accused had committed the offences was repeated, this time the accused answered ‘yes’. This answer was treated as pleading of guilt and the accused were convicted. According to Sections 240 and 241 of CrPC, conviction of an accused based on the plea of guilty is not an empty formality. The procedure prescribed has to be followed strictly, since acceptance of the plea would result in an accused being convicted without trial. The Bench clarified,

“The words ‘plea and guilty, the term ‘pleading guilty’ should be require a positive and informed act of admitting all the elements of the offence/s. Mere lip service or a monosyllabic ‘yes’, in reply to a pointed question by the court, cannot, under any circumstance, be equated with, or accepted as, pleading of guilt by the accused.”

Accordingly, the Bench issued the following guidelines to be followed before acting upon the pleading of guilt by an accused;

  1. “The Magistrate should frame the charge, specifying the offences alleged against the accused;
  2. The charge should be read over and explained to the accused;
  3. The accused should be asked whether he pleads guilty of the offence/s with which he is charged;
  4. The accused should plead guilty after understanding the seriousness of the allegations and the implications of pleading guilty. The plea should be voluntary and expressed in clear and unambiguous terms.
  5. The Magistrate should record the accuseds plea of guilty in the words of the accused, to the extent possible.
  6. The Magistrate, after considering all relevant factors should exercise his discretion and decide whether to accept the plea of guilty or not
  7. If the plea is accepted, the accused can be convicted and suitable punishment imposed.”

Hence, the plea of guilty should not only be recorded, but such recording should, to the extent possible, be in the words spoken by the accused.

Whether the accused can plead guilty at a later stage, i.e., after framing of charges?

In CrPC, the opportunity to plead guilty is provided only under Sections 229, 241 and 252, for Sessions, Warrant and Summons cases respectively. This opportunity arises immediately after the charge/accusation is framed/stated. In Santosh v State of Kerala, 2003 SCC OnLine Ker 93, a Single Judge had opined that the plea of guilt can be advanced by an accused at any stage of the trial after framing charge. Relevant portion of the Judgment reads as under;

“No doubt, there is no specific provision in the Cr.P.C. enabling the court to permit an accused to withdraw his claim to be tried and convict him on a plea of guilty subsequently…there is also no prohibition in the Cr.P.C. to record the plea of guilty in the course of trial and convict the accused on his subsequent admission of guilt. The object of trial is to investigate the offence and to find out the truth. When the guilt is admitted by the accused and the admission is found to be voluntary, there is no reason why the court should not allow him to withdraw his claim to be tried and plead guilty…There is no reason to restrict the applicability of S. 229 of the Cr.P.C. to a particular date or occasion but the purport of section is obvious that plea of guilt can be advanced by an accused at any stage of the trial after framing charge. If an accused is allowed to withdraw his claim to be tried and plead guilty, an earlier termination of the trial can be secured and wastage of the precious time of the court can be avoided.”

In the light of the above, the Bench held that the petitioner having pleaded not guilty at the first instance, recording of the monosyllabic answer ‘yes’ in the questionnaire prepared at the stage of framing charge, could not, under any circumstance, be termed as pleading of guilt by the petitioner, based on which the Court could have convicted him. As such, the judgments convicting the petitioner were liable to be set aside. Accordingly, the petition was allowed and the conviction order was set aside.[Raseen Babu K.M. v. State of Kerala, 2021 SCC OnLine Ker 2526, decided on 08-06-2021]


Kamini Sharma, Editorial Assistant has reported this brief.


Appearance before the Court by:

For the Revisionist: Adv. D.Anil Kumar

For the State: PP T.R. Renjith and Sr. PP. C.S. Hrithwik

Op EdsOP. ED.

“Criminals do not die by the hands of the law. They die by the hands of other men.”[1]

In an around the period ranging from mid-sixteenth to late eighteenth century, a form of sanction was prescribed and practised in England, in the form of “branding”. This penalty, essentially, involved creating or etching of a permanent mark or a visible imprint on the body/skin of a convict by the use of hot metal, iron rods, etc.

As reported by Clive Emsley, Tim Hitchcock and Robert Shoemaker[2],

Convicts who successfully pleaded benefit of clergy, and those found guilty of manslaughter instead of murder, were branded on the thumb…. For a short time, between 1699 and January 1707, convicted thieves were branded on the cheek in order to increase the deterrent effect of the punishment, but this rendered convicts unemployable and in 1707 the practice reverted to branding on the thumb.  

This form of penalty was devised as means to, inter alia, identify controlled person(s), enhance deterrence, induce a fear of sanction amongst masses, etc. Fortunately, with the passage of time and with increased societal awareness, though, this heinous form of sanction eventually extinguished, however, the practice of stigmatising and labelling a criminal by other modes, regrettably, endures till date.

The Indian courts have, time and again, reiterated that the object behind the grant of penalty or sanctions is to, inter alia, protect the legitimate interest of the members of society. In fact, as per the Supreme Court[3]:

9…. Punishment is the just desert of an offender. The society punishes not because it has the moral right to give offenders what they deserve, but also because punishment will yield social useful consequences: the protection of society by incapacitating criminals, the rehabilitation of past offenders, or the deterrence of potential wrongdoers.

 It is, further, a settled law that it is a duty of every court to award proper sentence to a convict, having regard to the nature of the offence and the manner in which it was committed. In fact, while granting sanctions, law prescribes that the courts must be mindful of the fact that such penalties are adequate, just and proportionate with the gravity and nature of the crime. However, at the same time, the courts[4] have consistently cautioned that while awarding sanctions, “circumstances of the accused are also required to be kept in mind … as one of the objects of the criminal justice system is to rehabilitate the transgressors and the criminals”. Therefore, seen in this perspective, though, the motivating force behind grant of sanction primarily seems to be a mode of setting an example for the potential offender(s), however, while sanctioning a perpetrator of offence, the rights of rehabilitation and a possibility of acceptance of a convict, back into the society (on conclusion of such penalty) cannot be done away with. Accordingly, it is quite understandable as to why modern day penology emphasises on devising a fine balance between societal need and reintegration of a released convict. In the words of Elizabeth Fry, “Punishment is not for revenge, but to lessen crime and reform the criminal.”

Appreciating the need of rehabilitation of convicts, the United Kingdom’s Parliament, in the year 1974, enacted the Rehabilitation of Offenders Act, 1974 (“the Act”). The said Act, inter alia, aims to “rehabilitate offenders who have not been reconvicted of any serious offence for periods of years, to penalise the unauthorised disclosure of their previous convictions, to amend the law of defamation, and for purposes connected therewith”. The Act, essentially prescribes a specified “rehabilitation period[5]”, depending on the sentence passed, post which, an individual for the “purposes of this Act be treated as a rehabilitated person in respect of the first-mentioned conviction and that conviction shall for those purposes be treated as spent[6]”. Section 4 of the Act further, inter alia, provides that a person who has become a “rehabilitated person” in terms of the provisions thereof, “shall be treated for all purposes in law as a person who has not committed or been charged with or prosecuted for or convicted of or sentenced for the offence or offences which were the subject of that conviction”. In fact, this section specifically ensures that a rehabilitated person is not required to declare their “spent conviction or any circumstances ancillary to a spent conviction” when applying for most jobs or insurance, some educational courses and housing applications, entering into agreement/arrangements, etc.

 Section 9 of the Act, in fact, penalises unauthorised disclosure of spent convict. In particular sub-section (2) of Section 9 of Act provides:

9.(2) Subject to the provisions of any order made under sub-section (5) below, any person who, in the course of his official duties[7], has or at any time has had custody of or access to any official record or the information contained therein, shall be guilty of an offence if, knowing or having reasonable cause to suspect that any specified information[8] he has obtained in the course of those duties is specified information, he discloses it, otherwise than in the course of those duties, to another person.

Therefore, seen in the context and the purpose for which it was enacted, the Rehabilitation of Offenders Act, 1974 seems to be quite an effective device in wiping off the blemish of crime and assuring reintegration of a released convict. However, regrettably, a statute on similar lines is wanting in India.

Quite recently, the Supreme Court of Louisiana in State of Louisiana v. Tazin Ardell Hill (Parish of Lafayette)[9] dealt with the constitutionality of a statutory requirement that persons, convicted of sex offences carry an identification card branded with the words ‘sex offender’.” In the said case, the Court, at the outset, noted that the said requirement to carry a branded identification card was unique to the State of Louisiana as, “Forty-one other States do not require any designation on the identification cards of sex-offenders.” The Court, in the said regard, while thoroughly considering the relevant legal provisions, by a majority of 2:1 held that the said requirement constituted, compelled speech and hence, did not survive “First Amendment[10] strict scrutiny analysis”. As per the Court[11]:

“The branded identification card is compelled speech. As a content-based regulation of speech, it must pass strict scrutiny. While the State certainly has a compelling interest in protecting the public and enabling law enforcement to identify a person as a sex offender, Louisiana has not adopted the least restrictive means of doing so. As Louisiana has not used the least restrictive means of advancing its otherwise compelling interest, the branded identification card requirement is unconstitutional….”

Understandably, this judgment is illustrative of the judicial approach, balancing the right of a convict with that of the State.

Indian courts have time and again, reiterated the importance of assuring basic human rights to even convicts and prisoners. In fact, the Supreme Court[12] has determinedly resolved:

“22. Right to life is one of the basic human rights. It is guaranteed to every person by Article 21 of the Constitution and not even the State has the authority to violate that right. A prisoner, be he a convict or undertrial or a detenu, does not cease to be a human being. Even when lodged in the jail, he continues to enjoy all his fundamental rights including the right to life guaranteed to him under the Constitution.

 At the same time, the Court, acknowledging the reformative approach in criminology in the context of grant of parole, in Asfaq v. State of Rajasthan[13] observed:

“17. … The theory of criminology, which is largely accepted, underlines that the main objectives which a State intends to achieve by punishing the culprit are: deterrence, prevention, retribution and reformation. When we recognise reformation as one of the objectives, it provides justification for letting of even the life convicts for short periods, on parole, in order to afford opportunities to such convicts not only to solve their personal and family problems but also to maintain their links with the society. Another objective which this theory underlines is that even such convicts have right to breathe fresh air, albeit for (sic short) periods. These gestures on the part of the State, along with other measures, go a long way for redemption and rehabilitation of such prisoners. They are ultimately aimed for the good of the society and, therefore, are in public interest.”

Clearly, seen in this context, the provisions of the Probation of Offenders Act, 1958[14], which are aimed[15] to, inter alia, ensure that a convict is not completely deprived of societal ties/bonds and they do not transform into a hardened criminal, are a nascent development in the field of convict reintegration. Appositely even under the Code of Criminal Procedure, 1973, provisions under Section 432 of the said Code confer a power on appropriate Government[16] to, “suspend the execution of his sentence or remit the whole or any part of the punishment to which he has been sentenced”, in the manner as may be prescribed. Clearly, these provision, though, aim to provide a temporary respite, however, are not intended to completely extinguish the stain of past conviction on released convicts.

In the case of juvenile offenders, the Indian courts have unfailingly professed towards a compassionate and reformative approach; including at the stage of grant of sanction. In fact, the Supreme Court in Hiralal Mallick v. State of Bihar[17] had, with extreme vehemence, professed on the individualisation of criminality and court’s power to issue suitable directives, consistent with law, to suit a particular accused. The Court, terming the act of attribution of an adult intent, automatically, to infant as an ‘adult error’, observed,

“6. … When a teenager, tensed by his elders or provoked by the stone hit on the head of his father, avenges with dangerous sticks or swords, copying his brothers, we cannot altogether ignore his impaired understanding, his tender age and blinding environs and motivations causatory of his crime.”[18]

Pertinently, appreciating the special needs/requirements/circumstances governing the juveniles in conflict with law, the Juvenile Justice (Care and Protection of Children) Act, 2015 (“the JJ Act”) prescribes specific provisions regarding the rehabilitation and reintegration[19], adoption[20], etc., of juvenile(s). Under the JJ Act, Section 39[21] provides for the process of rehabilitation and social reintegration of children under the said Act, inter alia, “based on the individual care plan of the child, preferably through family based care such as by restoration to family or guardian with or without supervision or sponsorship, or adoption or foster care”. Sections 43[22] and 44[23] of the JJ Act provide for open shelter and foster care, respectively, besides sponsorship by the State Government under Section 45 of the said Act[24]. Significantly, the JJ Act further makes provisions regarding inter-country adoption of an orphan or abandoned or surrendered child and inter-country relative adoption under Sections 59[25] and 60[26], respectively, thereof. Regrettably, a comprehensive legislation, which deals with the mechanism/procedure for the rehabilitation and reintegration of adult convicts, in still wanting in India.

Mr Nelson Mandela once remarked, “When a man is denied the right to live the life he believes in, he has no choice but to become an outlaw.” Undoubtedly, there is no straitjacket formula that is applicable to all the persons who find themselves at the wrong side of law. Therefore, there cannot be a single and unified mechanism of reprimand for all convicts. At any case, sanctions cannot be extended to such degrees, which deprive individuals of their basic human rights. It is quite understandable that where the sanctions prescribed under law, leave no avenue for a convict to reintegrate into a society and leaves him with a permanent blemish, there is a greater probability of recurrence of crime. Therefore, the State must attempt to ensure that even the released convicts are provided sufficient and reasonable avenues to start afresh and are not pushed into gallows of darkness based on their past deeds. It must be duly taken cognizance of the fact that branding of a convict based on his past action, which may have been motivated on a momentary impulse, is quite an unfair, unreasonable and archaic approach, especially in a country which prides itself as a welfare State. As aforementioned, countries like United Kingdom and the United States of America have made provisions which provide an assurance for a fresh start by convict, wiping of the past deeds and providing a fresh slate to released convicts. Accordingly, India too may consider introducing similar provisions, over and above the existing mechanisms of parole, remission, etc.

As someone[27] once rightly remarked, “ … bars can’t build better men and misery can only break what goodness remains.” Therefore, the endeavour of every welfare State must be to make attempts to eschew any form of penalties, which brand individuals/convicts permanently and beyond all possibilities of repair. The State must further endeavour to eradicate prejudices of past conviction and to provide avenues for rehabilitation to released convicts. At the same time, it is for the society to dissuade from labelling and classifying convicts/released convicts by their preceding deeds.


* Advocate, Supreme Court and High Court(s).

[1] George Bernard Shaw.

[2] Crime and Justice – Punishment Sentences at the Old Bailey, Old Bailey Proceedings Online. (<www.oldbaileyonline.org,> version 7.0, last accessed on 8-03-2021).

[3] Raju Jagdish Paswan v. State of Maharashtra, (2019) 16 SCC 380, 385.

[4] Refer to Wali Ahmed v. State of Maharashtra, 2018 SCC OnLine Bom 979, para 15.

[5] Section 5 of the Rehabilitation of Offenders Act, 1974.

[6] Section 1 of the Rehabilitation of Offenders Act, 1974.

[7]“official record” means a record kept for the purposes of its functions by any court, police force, government department, local or other public authority in Great Britain, or a record kept in Great Britain or elsewhere, for the purposes of any of Her Majesty’s forces, being in either case a record containing information about persons convicted of offences – Section 9(1) of the Rehabilitation of Offenders Act, 1974.

[8] “specified information” means information imputing that a named or otherwise identifiable rehabilitated living person/living protected person has committed or been charged with or prosecuted for or convicted of or sentenced for any offence which is the subject of a spent conviction. — Section 9(1) of the Rehabilitation of Offenders Act, 1974.

[9] 2020-KA-00323, dated 20-10-2020 (Supreme Court of Louisiana).

[10] “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”

[11] Majority decision rendered by Genovese, J. and Weimer, J. Dissenting opinion rendered by Craine, J.

[12] State of A.P. v. Challa Ramkrishna Reddy, (2000) 5 SCC 712, 723.

[13] (2017) 15 SCC 55, 62.

[14] Probation of Offenders Act, 1958.

[15] The Supreme Court in Yakub Abdul Razak Memon v. State of Maharashtra, (2013) 13 SCC 1  has observed:

  1. This Court in Rattan Lal v. State of Punjab, (1964) 7 SCR 676,  has observed to the effect that the Probation of Offenders Act, was enacted with a view to provide for the release of offenders of certain categories on probation or alter due admonition and for matters connected therewith. The object of the Act is to prevent the conversion of offenders into obdurate criminals as a result of their association with hardened criminals. The above object is in consonance with the present trend in the field of penology, according to which, efforts should be made to bring about correction and reformation of the individual offenders and not to resort to retributive justice. Although, not much can be done for hardened criminals, considerable stress has been laid on bringing about reform of offenders not guilty of serious offences and of preventing their association with hardened criminals. The Act gives statutory recognition to the above objective. It is, therefore, provided that offenders should not be sent to jail, except in certain circumstances.

[16] Section 432 of the Code of Criminal Procedure, 1973

 432.(7) In this section and in Section 433, the expression “appropriate Government” means,—

(a) in cases where the sentence is for an offence against, or the order referred to in sub-section (6) is passed under, any law relating to a matter to which the executive power of the Union extends, the Central Government;

(b) in other cases, the Government of the State within which the offender is sentenced or the said order is passed.

[17] (1977) 4 SCC 44.

[18] Id., 46.

[19] Ch. VII of the Juvenile Justice (Care and Protection of Children) Act, 2015.

[20] Ch. VIII of the Juvenile Justice (Care and Protection of Children) Act, 2015.

[21] Read in conjunction with the provisions of Section 53 of the Juvenile Justice (Care and Protection of Children) Act, 2015, which deals with the rehabilitation and reintegration services in institutions registered under the said Act and management thereof.

[22] Section 43, JJ Act.

[23] Section 44, JJ Act.

[24] Section 45, JJ Act.

[25] Section 59, JJ Act.

[26] Section 60, JJ Act.

[27] Stuart Turton.

Case BriefsHigh Courts

Bombay High Court: The Division Bench of Prasanna B. Varale and S.M. Modak, JJ., while addressing the present matter expressed that:

 “…relationship in between brother and sister, relationship in between mother and son, relationship in between father and daughter and so on were considered as sacrosanct. However, due to passage of time, these relationships have no more remained sacrosanct and there are various instances of overstepping the sacrosanct relationship by the near relationship.”

In the instant matter, appellant sexually abused his own daughter/victim. There are two views that is:

Whether the victim was a real daughter or a step-daughter. But the fact remains that she is victim.

Trial Court had convicted the appellant for the offence of Section 376 (2)(i), 506 IPC and under Section 4 of POCSO. A further separate sentence was imposed for the offence under Section of the said Act. Appellant had also obtained nude photographs of the victim on his mobile handset, trial court convicted him for the offence punishable under Section 67-B of the Information Technology Act 2000. Adding to this, the trial court acquitted the appellant for the offence punishable under Section 323 IPC.

In the present appeal, trial court’s judgment is challenged by the appellant.

Analysis, Law and Decision

Bench noted that the present matter was based on direct and corroborative evidence.

High Court considered the following:

Even though morally and legally Bench cannot think of a situation wherein the father has raped his minor daughter, but it is correct that Court is bound by rules of law. Even though such instances involving such a relationship are on rise, can Court take into account the evidence which is not admissible (as per existing provisions of law and on its interpretation) and convict the wrongdoer just for the purpose of sending a message in the society?

Bench stated that unfortunately, it cannot take such a view by bypassing the provisions of law.

Corroboration

Evidence given by way of corroboration cannot be said to be substantive evidence.

While elaborating on the concept of corroboration, High Court in light of the present context stated that when the trial court opined that the Section 164 statement can be utilized by way of corroboration, this Court fails to understand what the trial Court mean to say corroboration of which fact?

Trial Court failed to consider the difference and infact considered the Section 164 statement as substantive evidence itself. High Court stated that it is not permissible and hence the said observation was set aside.

Bench noted that there were image files of victim girls and video clips were pornographic. But there is a need to understand what is its evidentiary value, whether it is substantive evidence or whether it is a corroborative piece of evidence?

High Court for the above answered that the person who had seen the incident recorded or who is victim of events recorded can be the proper person and his evidence is substantive evidence. What is recorded and stored in the memory card when it is produced becomes corroborative piece of evidence.

Bench relied upon the following cases for the purpose of electronic evidence:

Bench laid down the finding that electronic evidence also needs to be proved just like any other evidence.

Further, the Court stated that it is not inclined to accept the FSL report at least for the purpose of inferring that it is the accused only who has taken those images or done recording. At the most, it can only be said that in the articles referred to in FSL report some pornographic images were found.

Bench stated that it was cautious of the relationship between the victim and accused. It was difficult to opine what compelled the victim not to state those facts which she stated before the police.

Present set of facts and circumstances warrants that there are certain materials suggesting sexual intercourse but the hands of the Court are tied due to the provisions of law.

Statement of the victim recorded under section 164 of CrPC has not been given the status of examination-in-chief in all circumstances (except in case of disability as provided in clause (b) to sub-section 5A to Section 164 of Cr.P.C.).

Supreme Court’s decision in Shivanna expressed the desire to consider the statement under Section 164 CrPC as examination in chief, amendment to that effect is not brought to Court’s notice.

Hence, with all pains, High Court had no alternative than setting aside the conviction of the appellant for the offence punishable under Section 376(2)(i) of IPC and under Section 506 of IPC, though conviction under Section 67-B of the Information and Technology Act was maintained.

Lastly, while parting with the decision, High Court opined that the authorities concerned of the State or Central Government will take some initiative in incorporating certain amendment under relevant laws as to give status to Section 164 statement as that of the examination-in-chief in all eventualities.

We hope that legislatures will also consider the practical realities of the life which the victim has to face. The trauma which victim has to undergo, after the incident does not stop there and when it comes to facing real-life issues, there may be occasion for the victim to forego all the trauma which she had undergone and to take U turn.

[Imran Shabbir Gauri v. State of Maharashtra, 2021 SCC OnLine Bom 511, decided on 31-03-2021]


Advocates before the Court:

Mr Aniket Vagal for the Appellant (Legal Aid). Mrs M. M. Deshmukh, APP for the State.

Case BriefsForeign Courts

Supreme Court of Minnesota: While deciding instant matter wherein the Court had to determine whether the appellant committed a third-degree criminal sexual conduct; i.e. sexual penetration with another person when the actor knows or has reason to know that the complainant is ‘mentally incapacitated’; Justice Paul Thissen held that the legislative definition of ‘mentally incapacitated’ as stated in Minn. Stat. Section 609.341, sub-division 7 (2020), does not include a person who is voluntarily intoxicated by alcohol.

Background

 J.S. was intoxicated after drinking alcohol and taking prescription narcotics. She went to a bar with a friend but was denied entry due to her intoxication. The appellant Francios Momolu Khalil approached J.S. outside of the bar and invited her to accompany him to a supposed party at a house. After arriving at the house, J.S. passed out and woke up to find Khalil penetrating her vagina with his penis. J.S. contacted the Minneapolis police department to report the incident. Upon conducting an investigation Khalil was charged with one count of third-degree criminal sexual conduct involving a mentally incapacitated or physically helpless complainant.

The District Court jury sought to clarify whether it was sufficient that J.S. voluntarily consumed the alcohol or whether Khalil or another person had to have administered the alcohol to J.S. without her agreement for her to qualify as mentally incapacitated. Upon perusal and interpretation of the relevant law, the jury found Khalil to be guilty of third degree criminal sexual conduct.

Minn. Stat. Section 609.341, sub-division 7 (2020) provides that ‘mentally incapacitated’ means that a person under the influence of alcohol, a narcotic, anesthetic, or any other substance, administered to that person, without the person’s agreement, lacks the judgment to give a reasoned consent to sexual contact or sexual penetration.

The issue before the Court was regarding the proper interpretation of ‘mentally incapacitated’ and whether “administered to that person without the person’s agreement” includes that a person can be mentally incapacitated under the statute when such person voluntarily ingests alcohol, or whether the alcohol must be administered to the person without his or her agreement.

Contentions

The State contended that ‘mentally incapacitated’ means that a person under the influence of alcohol, however, consumed, lacks the judgment to give a reasoned consent to sexual contact or sexual penetration.

The State also asserted that Khalil’s reading of the statute is incorrect because people normally do not speak of “administering” alcohol in everyday speech. It is not uncommon, however, for the word “administer” to be paired with the word “alcohol” in the context of criminal sexual conduct statutes.

The State further argued that the word “any” in the phrase “any other substance” breaks the link between the qualifier “administered to that person without the person’s agreement” and the nouns alcohol, narcotic, and anesthetic. 

Per contra, the appellant argued that ‘mentally incapacitated’ means that a person under the influence of alcohol, administered to that person without the person’s agreement, lacks the judgment to give a reasoned consent to sexual contact or sexual penetration.

Observations

The Court’s analysis centered on the principles vis-à-vis interpretation of statutes. The Court observed that the issue regarding interpretation of Minn. Stat. Section 609.341, sub-division  7 (2020) has arisen only because of the District Court’s instruction to the jury to interpret ‘mentally incapacitated’. The Court stated that, “Although district courts enjoy “considerable latitude in selecting jury instructions,” the instructions “must fairly and adequately explain the law of the case and not materially misstate the law”.

It was observed that the purposes of statutory interpretation is to “ascertain and effectuate the intention of the legislature” and to reflect a structural understanding that legislators are the elected representatives of the people and legislative bodies are institutionally better positioned than courts to sort out conflicting interests and information surrounding complex public policy issues.

The Court noted that the text, structure, and punctuation of the Legislature’s one-sentence definition of ‘mentally incapacitated’ supports the appellant’s interpretation, namely that-  a person is mentally incapacitated only if under the influence of alcohol administered to the person without the person’s agreement.The sentence is structured as an easily digestible series of similar nouns that describe intoxicating substances (alcohol, narcotic, anesthetic, or any other substance) followed by a qualifier (“administered to that person without the person’s agreement”) that sensibly applies to each noun”.

The Court noted that it takes modest mental energy “to process the individual nouns in the list present in the definition of mentally incapacitated, making it easy to apply the qualifier across them all”.

The Court pointed out that it was non convinced with the State’s interpretation that the phrase “administered to that person without the person’s agreement” should not be read to apply to alcohol – “Significant flaw in this argument is that the State plucks the single word “administered” out of the context of the entire phrase ‘administered to that person without the person’s agreement’”. The State erred in isolating the word ‘administered’ from the rest of the qualifier which is also demonstrated when one considers the other nouns in the series to which the qualifier applies. “Thus, the State’s narrow focus on the purported linguistic ill fit between the words alcohol and administered does not logically support the ultimate conclusion that the State asks us to reach”.

The Court stated that the appellant offered “the more reasonable explanation for the inclusion of the word “any” in “any other substance” by arguing that the Legislature intended to capture all substances, the consumption of which could deprive a person of judgment to give a reasoned consent”.

 The Court pointed out that The State simply assumes that a person may become mentally incapacitated (as defined by the Legislature in Section 609.341, sub-division 7) by voluntarily consuming alcohol. “The State’s argument that the Legislature must have intended felony classification for sexual penetration with a complainant who lacks the judgment to give a reasoned consent due to voluntary intoxication does not withstand scrutiny in light of the statutes’ structural complexity (five degrees of crime) and the differentiated punishments imposed for various types of nonconsensual sexual penetration and sexual contact”.

Conclusions

Upon detailed perusal, the Court concluded that the legislative definition of ‘mentally incapacitated’ is unambiguous and clearly means that substances (including alcohol) which cause a person to lack judgment to give a reasoned consent must be administered to the person without the person’s agreement. Therefore, Section 609.341, sub-division 7 means that, a person under the influence of alcohol is not mentally incapacitated unless the alcohol was administered to the person under its influence without that person’s agreement.

With this conclusion, the Minnesota SC also reversed the decision of the District Court which found Khalil guilty. The case was remanded to the District Court for a new trial.  [State of Minnesota v. Francios Momolu Khalil, A19-1281, decided on 24-03-2021]


Sucheta Sarkar, Editorial Assistant has reported this brief.


Image Credits: Slate.com

Case BriefsForeign Courts

Supreme Court of Canada: The Bench comprising of Wagner C.J., and Abella, Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin and Kasirer JJ., addressed an interesting regarding confusing jury verdict.  The Bench provided guidance to Appellate Courts and explained the way forward in cases of the inconsistent jury verdict.

 Background

 One, V was charged with historical sexual offences against a single complainant and convicted for sexual interference and invitation to sexual touching. However, the same jury acquitted him of sexual assault based on the same evidence. The convictions were appealed asserting that they were inconsistent with his sexual assault acquittal and therefore unreasonable.

The Crown cross‑appealed V’s acquittal maintaining that the charge was so unnecessarily confusing that it amounted to an error in law. A majority of the Court of Appeal held that there was no legal error in the jury instructions and that the convictions for sexual interference and invitation to sexual touching were unreasonable, as they were inconsistent with the acquittal on the sexual assault charge. Thus, the majority quashed V’s convictions and substituted verdicts of acquittal, and upheld the acquittal on the sexual assault charge. However, the minority found legal error in the jury instructions and would have ordered a new trial on all three charges.

Analysis by the Court

 The top Court opined that though the Trial judge misdirected the jury on the charge of sexual assault, the same was material only to the acquittal, and did not impact on the convictions. The Bench explained, where the Crown attempts to reconcile apparently inconsistent verdicts on the basis of a legal error, it must satisfy the appellate court to a high degree of certainty that there was a legal error in the jury instructions and that the error:

(1) had a material bearing on the acquittal;

(2) was immaterial to the conviction; and

(3) reconciles the inconsistency by showing that the jury did not find the accused both guilty and not guilty of the same conduct.

If these elements were satisfied, the verdicts would not actually be inconsistent. If the Appellate Court could not conclude with a high degree of certainty that the legal error did not taint the conviction, setting aside the acquittal will require a retrial on all charges.

“When the court can isolate the legal error to the acquittal, that charge should be the only one sent back for a new trial and the conviction should stand.”

In some circumstances, the appropriate remedy may be to enter a stay of proceedings on the charge for which the accused was acquitted in application of a court of appeal’s residual power under s. 686(8) of the Criminal Code. The Bench explained,

For an appellate court to issue a stay of proceedings under s. 686(8), three requirements must be met: first, the court must have exercised one of the triggering powers conferred under s. 686(2), (4), (6) or (7); second, the order issued must be ancillary to the triggering power; and third, the order must be one that justice requires.

“The Trial judge misdirected the jury on the charge of sexual assault by leaving the jury with the mistaken impression that the element of “force” required for sexual assault was different than the element of “touching” required for sexual interference and invitation to sexual touching.”

This legal error led the jury to return a verdict of acquittal on the sexual assault charge. Since it did not affect the convictions, the Trial judge’s instructions on sexual interference and invitation to sexual touching were legally correct. The jury found V guilty of sexual touching, hence the convictions, and not guilty of applying force beyond touching to the complainant in circumstances of a sexual nature, hence the acquittal. In particular, the failure to instruct the jury in clear terms that the “force” required to establish sexual assault was one and the same as the “touching” required to establish the other two offences constituted non‑direction amounting to misdirection.

Further, considering that the legal error was isolated to the acquittal as the Trial judge’s instructions on sexual interference and invitation to sexual touching were legally correct; the Bench held that the verdicts were not actually inconsistent and the convictions were not unreasonable on that basis. Accordingly, R.V.’s appeal from his convictions was dismissed. However, regarding the charge of sexual assault, the Court ordered a stay of the proceeding opining that ordering a retrial would needlessly risk abuse of process application and would bring no benefit to the administration of justice.

Taking those factors together, the Bench stated, justice requires a stay rather than sending the charge back for retrial. The Crown’s appeal was allowed, R.V.’s convictions were restored. The acquittal on R.V.’s charge of sexual assault was set aside and the proceeding on that charge was stayed, and the matter was remitted to the Court of Appeal for R.V.’s sentence appeal. [R. v. R.V., 2021 SCC 10, decided on 12-03-2021]


Kamini Sharma, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Tripura High Court: S.G. Chattopadhyay, J., dismissed a criminal revision petition which had been filed challenging the judgment delivered by the Sessions Judge in which the Judge had affirmed the judgment and order of conviction and sentence passed by the Chief Judicial Magistrate convicting the petitioner under Section 42 of the Indian Forest Act, 1927 and sentencing him to R.I for three months and fine of Rs.500 with default stipulation.

Officer-in-Charge of Forest Protection Unit, Garjee lodged a prosecution report in the Court of the Chief Judicial Magistrate alleging that at about 11.30 am on the day, he along with his accompanying forest staff detained a vehicle, soon after they stopped the vehicle the driver of the vehicle along with three other persons ran away. But the petitioner could not escape. A search operation was carried out in the vehicle and 23 unmarked sized logs of teak tree were found loaded in the vehicles which were seized and the petitioner was detained. On interrogation, the petitioner confessed to the forest patrolling team that he was engaged in smuggling forest produce from Udaipur to Bangladesh over a long period of time. Trial Judge had found him guilty and convicted him under Section 42 of the Indian Forest Act, 1927 after appreciation of evidence and the Sessions Judge had affirmed the conviction. The counsel for the petitioner, Ms Monalisa Pal contended that evidence available on record were not sufficient to hold him guilty for the said offence.

The question before the Court was that whether in the given facts of the case and the evidence recorded at the trial, the conviction and sentence of the petitioner under Section 42 of the Indian Forest Act, 1927 had been appropriate.

The Court explained that Indian Forest Act, 1927 was enacted to consolidate the law relating to forest, the transit of forest produce and duty leviable on timber and other forest produce. The Court further observed that the petitioner could not bring on record any material to disbelieve the consistent, corroborative and coherent evidence of the prosecution witnesses with regard to his involvement in the alleged offence. It has been established that he was found transporting 23 unmarked sized logs of teak tree in his vehicle from one place to another unauthorisedly and thereby committed breach of the provisions of the Tripura Forest Transit Rules, 1952 for which he was penalised by the trial Court after a full trial.

The Court dismissed the revision petition holding that there was no infirmity in the impugned judgment passed by the appellate Court.[Abdul Mannan v. State of Tripura,  2021 SCC OnLine Tri 144, decided on 17-03-2021]


Suchita Shukla, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Gauhati High Court: The Division Bench of Suman Shyam and Mir Alfaz Ali, JJ., heard the instant petition against the judgment and order dated 24-03-2011 rendered by Additional Sessions Judge, whereby, the appellant was convicted under Section 302 Penal Code, 1860 and sentenced to rigorous imprisonment for life.

The case of the prosecution was that on 07-11-2014, a fight took place between the deceased and the accused, both of whom were employees of one Shambu Shil. The appellant had inflicted injuries on the head of the deceased with an iron rod, which caused his death. An FIR was lodged by the employer of the deceased as well as the accused/appellant under Section 302 Penal Code, 1860. According to the doctor, the cause of death was shock and hemorrhage as a result of the injuries sustained. All the injuries were accessed to be ante mortem and homicidal in nature.

Moreover, the appellant had recorded a confession before the Judicial Magistrate, on the basis of which and testimony of the Trial Court had convicted the appellant under Section 302 IPC.

Counsel of the accused, B Bhagawati, Amicus Curiae argued that in the confessional statement, the appellant had stated that both were drunk at the time of the occurrence. Further, the confessional statement of the appellant, which was duly recorded by the Judicial Magistrate, and was corroborated by the eye witness’s accounts made it abundantly clear, that there was quarrel and fight between the appellant and the deceased and in course of the quarrel, the appellant hit the deceased with the iron rod at the heat of passion. Thus, the entirety of the evidence clearly demonstrates that there was no premeditation on the part of the appellant and the assault was made suddenly at the heat of passion in course of quarrel.

The Bench observed that, when the assault was made without premeditation, at the heat of passion in course of sudden quarrel and the appellant also did not take any undue advantage nor acted in cruelty, all the above factors had made the present case come squarely within the sweep of exception (4) to Section 300 IPC. However, said the Bench, having regard to the three injuries on the head and the weapon used, it could not be said that the appellant did not has intention to cause death or to cause such bodily injury as is likely to cause death.

Thus, taking note of the evidence in its entirety, the Bench opined that the conviction of the appellant under Section 302 IPC was not sustainable. Therefore, the impugned order was set aside and the appellant was convicted under Section 304 Part-I instead of 302 IPC. Further observing that the appellant had been in custody for more than 14 years, his sentence was reduced to the period already undergone. Accordingly, the appellant was directed to be released.[Debaru Majhi v. State of Assam,  2021 SCC OnLine Gau 422, decided on 05-03-2021]


Kamini Sharma, Editorial Assistant has reported this brief.

Case BriefsSupreme Court

Supreme Court: Setting aside the conviction of a man under Sections 7 and 13(2) read with 13(1)(d) of the Prevention of Corruption Act, 1988, the 3-judge bench of Ashok Bhushan, R. Subhash Reddy and MR Shah has reminded the Courts to take utmost care in scanning the evidence before recording conviction under the provisions of Prevention of Corruption Act.

“Once conviction is recorded under provisions of Prevention of Corruption Act, it casts a social stigma on the person in the society apart from serious consequences on the service rendered.  At the same time it is also to be noted that whether the view taken by the trial court is a possible view or not, there cannot be any definite proposition and each case has to be judged on its own merits, having regard to evidence on record.”

In the present case, the accused, working as Sanitary Inspector in Madurai Municipal Corporation, was charge-sheeted for the offence under Sections 7, 13(2) read with 13(1)(d) of the Act for an amount of Rs.500/¬ and a cell phone as illegal gratification from one Thiru. D. Gopal, who was working as Supervisor in a Voluntary Service Organisation called Neat And Clean Service Squad (NACSS), which was given sanitation work on contract basis in Madurai Corporation.

While the Trial Court acquitted the accused, the Madras High Court convicted him. It was argued by the accused that the well reasoned judgment of the trial court, which was rendered by appreciating oral and documentary evidence on record, was reversed by the High Court without recording valid and cogent reasons.

Having regard to material contradictions that were put forth before the Court, the Supreme Court noticed that acquittal is a “possible view”. Even assuming another view is possible, same is no ground to interfere with the judgment of acquittal and to convict the appellant for the offence alleged.

The trial court has disbelieved witnesses by recording several valid and cogent reasons, but the High Court, without appreciating evidence in proper perspective, has reversed the view taken by the trial court.  Further, the High Court also has not recorded any finding whether the view taken by the trial court is a “possible view” or not, having regard to the evidence on record.

“Though the High Court was of the view that PW-2, 3 and 5 can be believed, unless it is held that the view taken by the trial court disbelieving the witnesses is not a possible view, the High Court ought not have interfered with the acquittal recorded by the trial court.”

In view of the material contradictions, the prosecution has not proved the case beyond reasonable doubt to convict the appellant. It is equally well settled that mere recovery by itself cannot prove the charge of the prosecution against the accused.

“Mere recovery of tainted money, divorced from the circumstances under which such money and article is found is not sufficient to convict the accused when the substantive evidence in the case is not reliable.”

The Court was, hence, of the view that the demand for and acceptance of bribe amount and cell phone by the appellant, is not proved beyond reasonable doubt. Having regard to such evidence on record the acquittal recorded by the trial court is a “possible view” as such the judgment of the High Court is fit to be set aside.

[N. Vijayakumar v. State of Tamil Nadu, 2021 SCC OnLine SC 53, decided on 03.02.2021]


*Justice R. Subhash Reddy has penned this judgment

Appearances before the Court by

For accused: Senior Advocate S. Nagamuthu

For State: Advocate M. Yogesh Kanna

Case BriefsSupreme Court

Supreme Court: In a case relating to Prevention of Corruption Act, the 3-judge bench of Ashok Bhushan, R. Subhash Reddy and M.R. Shah*, JJ has partly allowed the appeal regarding quantum of sentence, while concurrent order of conviction by the Courts below was confirmed.

The appellant was convicted for offences under Sections 7, 13(2) read with 13(1) (d) of the Prevention of Corruption Act, 1988 whereby the Special Judge had sentenced him to undergo rigorous imprisonment for a period of two years with fine of Rs 5,000; which was confirmed by the High Court of judicature at Madras.

Aggrieved and dissatisfied, the appellant contended that he was a senior citizen aged about 69/70 years and had been already dismissed from service on being convicted for the offences under the Prevention of Corruption Act. Therefore, it was prayed to reduce the sentence imposed to the sentence already undergone.

Considering the fact that, out of two years sentence imposed by the Special Court, confirmed by the High Court, the appellant had already undergone approximately one year and one month and that the appellant was a senior citizen aged about 70 years who had been already dismissed from service, the Court stated,

“The ends of justice would be met if the sentence of two years rigorous imprisonment as imposed by the learned Special Court, confirmed by the High Court, is reduced to that of one year and one month rigorous imprisonment.”[S. Sundara Kumar v. State, 2021 SCC OnLine SC 21, decided on 13-01-2021]


*Justice M.R. Shah has penned this judgment

Case BriefsHigh Courts

Orissa High Court: A Division Bench of S.K Mishra and Savitri Ratho JJ. dismissed the appeal and directed to adjudication application for remission within 60 days of the receipt of the application.

The facts of the case are the deceased-Urmila had married the appellant-accused in 1994 during which a sum of Rs 20, 000 gold chain, ring etc., were given as per the demand made from the side of the appellant. After the marriage, the appellant further demanded a sum of Rs 10, 000 and he used to assault Urmila and force her to bring the said amount as dowry. The matter was settled by village heads on many different occasions until one night, on 07-07-2003 appellant set Urmila on fire after forcibly opening the door while she was sleeping with her son. Urmila had sustained extensive burn injuries and succumbed to death after recording her dying declaration before Basanta Kumar Jena, Officer-in-charge of Binjharpur P.S. where the FIR was lodged. All the circumstantial articles were collected for forensic examination and investigation. The Additional Sessions Judge convicted the appellant based on upon the dying declaration of the deceased which has been established beyond all reasonable doubt as there was no eye witness to prove the contrary. Aggrieved by the conviction, the appellant-accused has filed the instant appeal assailing the said conviction under Section 302 of the Penal Code, 1860 for acquittal or remission of sentence.

Counsel for the appellants Ramani Kanta Pattnaik and Savitri Ratho disputed the veracity of the dying declaration as the F.I.R. lodged implicates six persons including the appellant but in the dying declaration no such implication has been made out against five other persons, who happen to be the relations of the appellant. It was further submitted that no medical examination was conducted before the drying declaration was recorded to the effect that the deceased was in the right mental state to have recorded the same. It was further submitted that there is no independent corroboration of the dying declaration; it cannot be the sole basis of conviction and hence it is liable to be rejected.

Counsel for the respondents Subir Kumar Pallit submitted that if the dying declaration is accepted to be true and voluntary, conviction can be upheld on the basis of the uncorroborated testimony and uncorroborated dying declaration of the deceased. It was also submitted that it is a mere rule of prudence and not the ultimate test as to whether or not the dying declaration was truthful or voluntary. It was also argued that no format has been prescribed for recording a dying declaration.

The main issue in the instant case is whether the judgment of conviction recorded by the Additional Sessions Judge only on the basis of the dying declaration stands scrutiny or not.

The court relied on judgments Khushal Rao v. State of Bombay; [1958] S.C.R. 552 and Paniben v. State of Gujarat (1992) 2 SCC 474 wherein it was held that

“Though a dying declaration is entitled to great weight, it is worthwhile to note that the accused has no power of cross-examination. Such a power is essential for eliciting the truth as an obligation of oath could be. This is the reason the Court also insists that the dying declaration should be of such a nature as to inspire full confidence of the Court in its correctness. The Court has to be on guard that the statement of deceased was not as a result of tutoring, prompting or a product of imagination. The Court must be further satisfied that the deceased was in a fit state of mind after a clear opportunity to observe and identify the assailants. Once the Court is satisfied that the declaration was true and voluntary, undoubtedly, it can base its conviction without any further corroboration. It cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated. The rule requiring corroboration is merely a rule of prudence”

 Comprehensive principles regarding dying declaration are  

  • There is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration. [Mannu Raja v. State of M.P; (1976) 3 SCC 104
  • If the Court is satisfied that the dying declaration is true and voluntary it can base conviction on it, without corroboration. [State of U. P. v. Ram Sagar Yadav; (1985) 1 SCC 552] 
  • The Court has to scrutinize the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination. The deceased had opportunity to observe and identify the assailants and was in a fit state to make the declaration. [Ram Chandra Reddy v. Public Prosecutor; (1976) 3 SCC 618]
  • Where dying declaration is suspicious it should not be acted upon without corroborative evidence. [Rasheed Beg v. Sate of M P; (1974) 4 SCC 264]
  • Where the deceased was unconscious and could never make any dying declaration the evidence with regard to it is to be rejected. [Kake Singh v. State of M. P.; 1981 Supp SCC 25] 
  • A dying declaration which suffers from infirmity cannot form the basis of conviction. [Ram Manorath v. State of U.P.; (1981) 2 SCC 654]
  • Merely because a dying declaration does not contain the details as to the occurrence, it is not to be rejected. [State of Maharashtra v. Krishnamurthi Laxmipati Naidu; 1980 Supp SCC 455] 
  • Equally, merely because it is a brief statement, it is not be discarded. On the contrary, the shortness of the statement itself guarantees truth. [Surajdeo Ojha v. State of Bihar; 1980 Supp SCC 769] 
  • Normally the court in order to satisfy whether deceased was in a fit mental condition to make the dying declaration look up to the medical opinion. But where the eye witness has said that the deceased was in a fit and conscious state to make this dying declaration, the medical opinion cannot prevail. [Nanahau Ram v. State of M.P.; AIR 1988 SC 912]
  • Where the prosecution version differs from the version as given in the dying declaration, the said declaration cannot be acted upon. [State of U.P. v. Madan Mohan; (1989) 3 SCC 390]

Issue 1: Dying Declaration

The Court thus observed based on the examination of the deceased and her statements and other documents available on record that the all the evidence read together leaves no doubt in the mind of the Court that the dying declaration is true and voluntary.

The Court thus held that dying declaration was relied upon by the Additional Sessions Judge, who had the opportunity of observing the demeanor of the witnesses when the evidence was recorded and therefore, this is not a case where the dying declaration should be viewed with suspicious and hence the impugned judgment with respect to conviction must prevail.

Issue 2: Remission of Sentence

The Court observed that Remission consists of two types, one where remission is earned by a prisoner under the Prison Rules or other relevant rules based on his/her good behaviour or such other stipulations prescribed therein. The other remission is the grant of it by the appropriate Government in exercise of its power under Section 432 of the Criminal Procedure Code. The Court further relied on judgment Swamy Sraddananda v. State of Karnataka; (2008) 13 SCC 767  and observed that the only right of the convict i.e. recognized is a right to apply to the competent authority and have his case considered in a fair and reasonable manner.

The Court held that it is open for appellant to make an application to the proper authority in the State of Odisha, the Principal Secretary, Department of Home, Government of Odisha. So, we give liberty to the appellant to make an application to that effect to the concerned authority for remission of his sentence to the period already undergone.

In view of the above, appeal was dismissed.[Shyam Sundar Jena v. State of Orissa, 2020 SCC OnLine Ori 934, decided on 16-12-2020]


Arunima Bose, Editorial Assistant has put this story together

Case BriefsHigh Courts

Kerala High Court: N.Anil Kumar, J., allowed the instant revision petition against the concurrent findings of the Trial Court and the Appellate Court.

The facts of the case are such that, on 24-10-1998 the accused was found in possession of 2.5 litres of illicit arrack in contravention of the Kerala Abkari Act, 1077 (“the Act”). The Trial Court convicted and sentenced the accused to undergo rigorous imprisonment for a period of one year and also to pay a fine of Rs1,00,000, and in default of payment of fine to undergo simple imprisonment for six months. Against which, the petitioner preferred an appeal before the Court of Additional Sessions Judge. The Appellate Court while retaining the sentence of fine; reduced the substantive sentence of rigorous imprisonment for one year to rigorous imprisonment for six months.

In the instant case, the petitioner had challenged the impugned judgment of the Appellate Court. The counsel for the petitioner, V. Rajendran, submitted that the petitioner had already undergone the sentence imposed in this case. The Court, on recording the submission, directed the Superintendent, Central Prison, Kannur to furnish the detail of sentence undergone by the petitioner. The Superintendent of Prison submitted that the accused was released from prison after completion of sentence and default sentence for failure to pay fine.

On going through the evidence on record, the Court found no legal infirmity or perversity to set aside the concurrent conviction imposed by the two Courts. Thus, the Court confirmed the conviction concurrently imposed by the Trial Court as well as the Appellate Court. While dismissing the revision petition the Court directed that no further coercive steps shall be initiated against the petitioner anymore. [Prabhakaran Chirangodan v. State of Kerala, 2020 SCC OnLine Ker 7728, decided on 22-12-2020]

Case BriefsHigh Courts

Chhattisgarh High Court: P. Sam Koshy J., dismissed the petition stating that no interference is required at this juncture keeping in mind the settled position of law.

The facts of the case are such that Petitioner was working with the Respondents as Minig Sirdar, Grade-3. An FIR was lodged against the Petitioner and the Central Bureau of Investigation (CBI) registered a criminal case against him for the offence punishable under Sections 120-B, 420, 468, 471 of the Indian Penal Code i.e. IPC as well as under Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act i.e PCA and the Petitioner is being prosecuted before the Special Judge, CBI, Dhanbad. Meanwhile, the employer, i.e., the Respondents has initiated a departmental enquiry against the Petitioner which is under challenge in the present Writ Petition.

Counsel for the petitioners submitted that the witnesses in both the cases, i.e., the criminal case as also in the departmental enquiry, would be the same and in the event if the Petitioner is made to disclose his defence before the departmental authorities first, it may have an adverse bearing on the outcome of the criminal case wherein evidence would get adversely affected.

The court relied on judgment S. Sreesanth v. Board of Control for Cricket in India, 2019 (4) SCC 660 and Karnataka Power Transmission Corporation Limited v. C. Nagaraju, 2019 (10) SCC 367 wherein it was held that “Acquittal by a criminal court would not debar an employer from exercising the power to conduct departmental proceedings in accordance with the rules and regulations. The two proceedings, criminal and departmental, are entirely different. They operate in different fields and have different objectives. In the disciplinary proceedings, the question is whether the Respondent is guilty of such conduct as would merit his removal from service or a lesser punishment, as the case may be, whereas in the criminal proceedings, the question is whether the offences registered against him under the PC Act are established, and if established, what sentence should be imposed upon him. The standard of proof, the mode of inquiry and the rules governing inquiry and trial in both the cases are significantly distinct and different. It is settled law that the acquittal by a Criminal Court does not preclude a Departmental Inquiry against the delinquent officer. The Disciplinary Authority is not bound by the judgment of the Criminal Court if the evidence that is produced in the Departmental Inquiry is different from that produced during the criminal trial. The object of a Departmental Inquiry is to find out whether the delinquent is guilty of misconduct under the conduct rules for the purpose of determining whether he should be continued in service. The standard of proof in a Departmental Inquiry is not strictly based on the rules of evidence. The order of dismissal which is based on the evidence before the Inquiry Officer in the disciplinary proceedings, which is different from the evidence available to the Criminal Court, is justified and needed no interference by the High Court.”

 In the case of Shashi Bhusan Prasad v. Inspector General, CISF, 2019 (7) SCC 797 wherein it was held that “19. We are in full agreement with the exposition of law laid down by this Court and it is fairly well settled that two proceedings criminal and departmental are entirely different. They operate in different fields and have different objectives. Whereas the object of criminal trial is to inflict appropriate punishment on an offender, the purpose of enquiry proceedings is to deal with the delinquent departmentally and to impose penalty in accordance with the service Rules. The degree of proof which is necessary to order a conviction is different from the degree of proof necessary to record the commission of delinquency. Even the rule relating to appreciation of evidence in the two proceedings is also not similar. In criminal law, burden of proof is on the prosecution and unless the prosecution is able to prove the guilt of the accused beyond reasonable doubt, he cannot be convicted by a Court of law whereas in the departmental enquiry, penalty can be imposed on the delinquent on a finding recorded on the basis of ‘preponderance of probability’. Acquittal by the Court of competent jurisdiction in a judicial proceeding does not ipso facto absolve the delinquent from the liability under the disciplinary jurisdiction of the authority. This what has been considered by the High Court in the impugned judgment in detail and needs no interference by this Court.

XXX XXX XXX

  1. The judgment in G.M. Tank case (supra) on which the learned counsel for the appellant has placed reliance was a case where this Court had proceeded on the premise that the charges in the criminal case and departmental enquiry are grounded upon the same sets of facts and evidence. This may not be of any assistance to the appellant as we have observed that in the instant case the charge in the criminal case and departmental enquiry were different having no nexus/corelationship based on different sets of facts and evidence which has been independently enquired in the disciplinary proceedings and in a criminal trial and acquittal in the criminal proceedings would not absolve the appellant from the liability under the disciplinary proceedings instituted against him in which he had been held guilty and in sequel thereto punished with the penalty of dismissal from service.

 Based on facts, observations and authoritative judgments Court held that it would not be proper to exercise its extraordinary power under Article 226 of the Constitution of India to interfere with the disciplinary proceedings initiated against the Petitioner.

In view of the above, petition was dismissed.[Prayag Prasad v. South Eastern Coal Fields Limited, 2020 SCC OnLine Chh 1449, decided on 24-11-2020]


Arunima Bose, Editorial Assistant has put this story together

Hot Off The PressNews

The National Human Rights Commission, NHRC, India, in order to ensure effective prosecution leading to conviction in cases of sexual assault on women, has prepared a ‘Standard Operating Procedure (SOP) on Collection & Processing of scientific/forensic evidences.’ The SOP, prepared in consultation with medical experts, has been sent to the States/UTs for issuing instructions to all the officers concerned for implementation.

The SOP has been divided into seven sections of key operating procedures. These are: victim care, promptness and examination, collection of samples, collection of blood and urine samples, genital and anal evidence, handing over samples to FSL and general. It can be accessed through the link: https://nhrc.nic.in/acts-and-rules/standard-operating-procedure-sop-collection-processing-scientificforensic-evidences

The Commission has come out with this SOP after it observed that in many cases of alleged rape and sexual assault, there is a substantial delay in medical examination, collection & processing of scientific/forensic evidences of the victim of sexual assault. The exhibits are forwarded to the Forensic Science Laboratory, FSL after much delay and by that time, the samples deteriorate/autolyse and become unsuitable for examination. This delay adversely affects the investigation for effective prosecution leading to a conviction.

The NHRC has expressed the hope that this Standard Operating Procedure if implemented in letter & spirit by the concerned authorities, will definitely help improve the system of medicolegal investigation in cases of sexual assault on women in the country.


National Human Rights Commission

[Press Release dt. 16-12-2020]

Case BriefsHigh Courts

Orissa High Court: S.K. Sahoo J. allowed the appeal in part setting aside conviction under Sections 376/511, 354 and 457 of  Penal Code, 1860 and upholding conviction under Section 448 IPC.

The facts of the case are such that on 03-10-1989 at about 9.30 p.m. while the victim/informant was sleeping with her younger brother in one room of her house and her elder brother Jubaraj Nag and his elder brother’s wife Jayanti Nag were sleeping in the adjacent room, the appellant entered into the room where the victim was sleeping by opening the bamboo door of the victim’s room, disrobed her saree and attempted to commit rape on her. Hearing hullah of the victim, the elder brother and his wife came inside her room. The appellant tried to conceal himself underneath a raised platform inside the bedroom but the victim, as well as his elder brother, assaulted him by firewood. Due to tussle of the appellant with the victim, the bangles of the victim were broken and were lying underneath the cot. Then the brothers of the appellant came and took him to their house. FIR was lodged against the appellant under Sections 457 and 354 of the Penal Code, 1860 i.e. IPC. The appellant Satrughana Nag faced trial in the Court of learned Additional Sessions Judge, Titilagarh for offences punishable under Sections 376/ 511, 354 and 457 of the IPC. The learned trial Court vide impugned judgment and order dated 17-03-1990, found the appellant guilty of the offences charged and sentenced him accordingly. Aggreived by the same, instant appeal was filed.

Counsel for the appellants submitted that there are certain improbability features in the prosecution case which create doubt that the appellant attempted to commit rape on the victim rather the victim appears to be a consenting party and when she was caught in a compromising position with the appellant by her family members, she reacted and brought false accusation against the appellant just to save her own skin.

Counsel for the respondents submitted that evidence of the victim is clear, cogent and trustworthy, that in itself is sufficient to convict the appellant.

The Court based on the evidence put on record and the witnesses submissions observed that it is the settled principle of law that if the statement of the prosecutrix is found to be worthy of credence and reliable, then it requires no corroboration and the Court can act on such testimony and convict the accused. There may be compelling reasons in some cases which may necessitate looking for corroboration to the statement of the prosecutrix. The evidence of the prosecutrix is more reliable than that of an injured witness. Minor contradictions or insignificant discrepancies in the statement of the prosecutrix should not be a ground to discard her version, if it inspires confidence. Corroboration to the testimony of the prosecutrix is not a requirement of law but a guidance of prudence under the given circumstances. The very nature of offence makes it difficult to get direct corroborating evidence.

The Court further observed on the issue of whether victim was a consenting party or not and stated that law is well settled that even in the absence of a specific defence of consent being taken by an accused charged with the offence of rape, if the evidence on record indicates that the victim was a consenting party, then the Court can always take the view that the sexual intercourse with the prosecutrix was not against her will but with her consent. Whether there was consent or not, is to be ascertained only on a careful study of all relevant circumstances. An inference as to consent can be drawn only basing on evidence or probabilities of the case. ‘Consent’ is stated to be an act of reason coupled with deliberation. It denotes an active will in mind of a person to permit the doing of the act complained of. If the victim fails to offer sufficient resistance, the Court may find that there was no force or threat of force or the act was not against her will. ‘Consent’ does not mean submission under the influence of fear or terror. There must be an exercise of intelligence based on knowledge of its significance and moral quality and there must be choice between resistance and assent. If the woman resists to a point whereafter further resistance would be useless or until her resistance is overcome by force or violence, submission thereafter is not consent. Verbal resistance apart, the woman can give effective obstacles by means of hands, limbs and pelvic muscles. Resistance by any or more of these will amount to resistance in the eye of law. A mere act of helpless resignation in the face inevitable compulsion, acquiescence, non-resistance or passive giving in, when volitional faculty is either clouded by fear or vitiated byduress, cannot be deemed to be a consent, as envisaged in law.

The Court thus held that the victim’s version in the Court was of rape but when it is compared with the one given during investigation, certain irreconcilable discrepancies are noticed. The evidence regarding actual commission of rape is at variance from what was recorded by police during evidence. Therefore, the victim cannot be said to be a truthful witness. It was further held that coming to the charge of attempt to commit rape, the reaction of the victim at the time of occurrence and immediately thereafter are very relevant features, but its absence is not always a decisive factor. As per examination and records it is clear that there were many opportunities earlier for the victim to raise shout and protest but she did not do that.

In view of the above, the conviction of the appellant under Sections 376/511 and 354 of IPC was held to not be sustainable in the eye of law however; there are enough materials to make out an offence of house18 trespass as defined under Section 442 of IPC which is punishable under Section 448 of IPC.

The court thus allowing the appeal in part held conviction of the appellant under Sections 376/511, 354 and 457 of  IPC is hereby set aside, instead the appellant is convicted under Section 448 of the IPC and sentenced to undergo imprisonment for the period already undergone by him.[Satrughana Nag v. State of Odisha, 2020 SCC OnLine Ori 885, decided on 11-12-2020]


Arunima Bose, Editorial Assistant has put this story together

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., 2020 SCC OnLine All 845, decided on 09-07-2020]