Case BriefsHigh Courts

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Case BriefsHigh Courts

Chhattisgarh High Court: A Division Bench of Prashant Kumar and Gautam Chourdiya, JJ., while addressing the present criminal reference wherein the deceased/victim was a Five and a half Year deaf and dumb girl who was brutally raped and murdered by the accused, held that,

…considering the depraved and shameful manner in which the offence has been committed, the said mitigating factor would not outweigh the aggravating factors and as such, we are satisfied that present case falls within the ambit of “rarest of rare case”.

Informant –father of the deceased had informed that despite search at various places deceased was not traceable, therefore he expressed his suspicion on some unknown person who would have allured and abducted his daughter. FIR was registered against unknown person for offence under Section 363 Penal Code, 1860.

Kunti Sona (accused 3) informed the police that her younger son informed her that brother Ram Sona had murdered a girl and has kept the dead body in the house. Her son Ram Sona and his friend Keli reached the house and all three concealed the dead body in a muddy Nala besides the railway track and that she could point out the place.

Keli informed the IO that he had seen Ram Sona committing rape and thereafter murdering the deceased/victim, he also saw the deceased bleeding from her private parts.

Accused Ram Sona disclosed to the police that when the deceased was playing he brought her in his house by luring her, when he reached the house, his friend Keli was watching TV and when he was committing rape, his friend tried to restrain him and later on he thrashed her head on the ground due to which she became unconscious.

Further, he adds. That out of fear he gagged her, killed her and concealed the dead body. He also disclosed that the next day his brother Dipak informed that members of the locality were looking for him and he may be thrashed.

Based on the evidence on record, trial judge convicted the accused and sentenced accused Ram Sona to be hanged till death for the offence under Section 376(A) and 302 of IPC, with other sentences for remaining charges.

Appellants Counsel, argued that names of the accused persons were note mentioned in the FIR, therefore they were framed subsequently by the prosecution, as they were not finding the culprits. He further argued that abscondance of accused was neither a circumstance nor there was any evidence of such abscondance. Confession by Kunti Sona and Amrit Singh in their memorandum of statements cannot be admissible against Ram Sona as nothing pursuant to the same was recovered and stands inadmissible in evidence.

Fouzia Mirza, Additional AG – argued that under Section 30 of Evidence Act memorandum of statement of co-accused is admissible in evidence if it is self implicating.

Analysis and Decision of the Court

Bench drew the point of significance that the concentration should be on legality and evidentiary value of the memorandum statements of accused persons and to what extent they can be relied upon to establish one of the important circumstances against the appellant.

Court observed that all the three memorandum statements were proved by the prosecution. Accused Kunti and Amrit did not commit the main offence under Sections 376 and 302 of Penal Code but have only assisted the main accused Ram Sona in concealing the evidence of crime by disposing of the dead body, their disclosure statements were self inculpatory.

Bench referred to the decision of Supreme Court in Sukhvinder Singh v. State of Punjab, (1994) 5 SCC 152, wherein it was argued that the facts already discovered cannot be again discovered.

Balbir Singh v. State of Punjab, AIR 1957 SC 216, Supreme Court held that,

“…so far as the confessional statement of co-accused is concerned, it may be taken into consideration against the appellant if it fulfills the conditions laid down in Section 30 of the Evidence Act.”

Adding to its conclusion, Court also noted that confession of co-accused can be used when there are other corroborative evidence against the co-accused. Stage to consider the confessional statement arrives only after the other evidence is considered and found to be satisfactory.

Self inculpatory confession of accused can be used against the co-accused and there is no general proposition that it can never be used for any purpose.

Thus, the facts disclosed in the memorandum statement of Ram Sona find corroboration from the medical report, which found injuries over private parts of the deceased and over her head as well. It also corroborated the memorandum statement of Amrit Singh, who had stated that he had seen accused Ram Sona committing rape. It further corroborated from the memorandum statements fo accused Kunti Sona and Amrit Singh, who has stated that all the 3 concealed the dead body near muddy Nala besides the railway track.

Memorandum statements of Kunti Sona and Amrit Singh are therefore admissible in evidence against accused Ram Sona.

Bench with regard to absconcion of the accused Ram Sona stated that the same gained importance, as he was the person who was last seen together with the deceased.

“We are convinced that the chain of circumstantial evidence has been duly proved against all the accused including Ram Sona and it is he who brought the deceased to his house, committed rape and thereafter murdered deaf and dumb prosecutrix, aged about 5½ years.”

High Court considered,

 “Whether the death sentence awarded to accused Ram Sona is to be confirmed or the same deserves to be commuted to life imprisonment.”

In Supreme Court’s decision of Bachan Singh v. State of Punjab, (1980) 2 SCC 684, it was held that,

“…normal rule is that offence of murder shall be punished with the sentence of life imprisonment. The Court can depart from that rule and impose sentence of death only when there are special reasons for doing so.”

“If Court finds that the offence is of exceptionally deprave and heinous character and constitutes, on account of its design and manner of its execution, a source of grave danger to the society at large, the Court must impose the death sentence.”

Another case that was relied on by the bench was of Laxman Naik v. State of Orissa, (1994) 3 SCC 381, in this case also the victim was a 7-year-old girl who fell prey to the accused’s lust and the Court held that,

“…The appellant seems to have acted in a beastly manner as after satisfying his lust he thought that the victim might expose him for the commission of the offence of forcible rape on her to the family members and others, the appellant with a view to screen the evidence of his crime also put an end to the life of innocent girl who had seen only seven summers.”

“…appellant had conceived of his plan and brutally executed it and such a calculated, cold-blooded and brutal murder of a girl of a very tender age after committing rape on her would undoubtedly fall in the category of rarest of the rare cases attracting no punishment other than the capital punishment.”

Hence, the High Court in view of the above-cited cases along with few others affirmed the conviction and death sentence imposed upon Ram Sona, Amrit Singh and Kunti Sona. [In ref. Of State of Chhattisgarh v. Ram Sona,  2020 SCC OnLine Chh 9, decided on 31-01-2020]

Case BriefsHigh Courts

Bombay High Court: A Division Bench of Surendra P. Tavade and Ranjit More, JJ., while dealing with a case in regard to homicidal death upheld the decision of the trial court which was in challenge before the Bench.

In the present case, appellant preferred the appeal against the Judgment passed by Additional Sessions Judge wherein the appellant was charged for the offence punishable under Section 302 of Penal Code, 1860.

Facts

Informant who was the brother-in-law of the deceased had given his two-wheeler to the deceased on his request as he had to visit the appellant’s factory. Deceased had informed the informant that he would return back within a short period. But on failure of his return, informant inquired the workers of the factory about the deceased’s visit and came to know that the deceased did not visit the factory that evening.

Later on the next day of the said event, the informant received a call from appellant’s father-in-law who further informed him that appellant had killed Zuber (deceased) and had locked the shutter of his factory. On receiving the said information, informant enquired the same with the accused who confessed the same.

Thereafter, informant took the appellant to the Police Station and further appellant took the police to the factory where he had killed Zuber and directed towards his dead body. Appellant was arrested and after the completion of trial was punished under Section 302 IPC.

Trial Court relied on the extra-judicial confessions along with the circumstantial evidence.

Contentions

Advocate Subhash Jha, represented the appellant and submitted that extra-judicial confession is a weak type of evidence. To corroborate the extra-judicial confession no other circumstances were proved. The entire prosecution case was based on circumstantial evidence. Hence he prayed for acquittal for the appellant.

J.P. Yagnik, APP for the Respondent-State, submitted that, Subsequent conduct of the appellant of showing remorse for his acts and all the other facts stated above supported the extra-judicial confession.

For a crime to be proved, it is not necessary that the crime must be seen to have been committed and must in all circumstances to be proved by direct, ocular evidence, by examining before the Court those persons who had seen its commission. Thus offence can be proved by circumstantial evidence also.

Reference to the decision in Sharad Birdhi Chand Sarda v. State of Maharashtra, (1984) 4 SCC 116 was made, wherein while dealing with circumstantial evidence it was held that, onus was on the prosecution to prove that the chain is complete and the infirmity of lacuna in the prosecution cannot be cured by a false defense or plea.

Another significant point to be noted in the present case, medical officer categorically opined that death is not due to strangulation, but by throttling; so there is no doubt regarding the cause of death of the deceased. Thus it rightly proved the homicidal death of the deceased.

Decision

High Court on perusal of the facts and circumstances of the case noted that prosecution established the homicidal death of the deceased. Appellant had made voluntary extra-judicial confessions which were corroborated by other circumstances namely taking the police and witnesses to the premise where the incident occurred.

Thus, the prosecution proved the chain of circumstances that lead to the homicidal death of the deceased, said circumstances unerringly pointed out the guilt of the appellant.

Hence trial court had rightly held the appellant guilty and in view of such findings, the High Court dismissed the appeal. [Mohammad Ismail Noormohammad Madana v. State of Maharashtra, 2020 SCC OnLine Bom 238, decided on 12-02-2020]

Case BriefsHigh Courts

Bombay High Court: K.R. Shriram, J., dismissed an appeal filed by the Union of India against the order of the trial court whereby the respondents were acquitted of offences under various provisions of the Customs Act, 1962.

The respondents were accused of illegal dealing in foreign marked gold biscuits. Pursuant to information received, the Directorate of Revenue Intelligence affected a raid and search of premises where they found the respondents and recovered 24 marked gold biscuits along with large quantities of foreign and Indian currency. The respondents were brought to the DRI Office. Summons were issued to them under Section 108 of the Customs Act and their statements were recorded. After completion of the investigation, a complaint was filed against the respondents. Before the trial court, the respondents took the stand they were poor villagers who came to Mumbai in search of work. While searching for a job, somebody gave them the address of the said premises, and they had reached there just a couple of minutes prior to the raiding party. At the conclusion of the trial, the respondents were acquitted by the trial court, Aggrieved thereby, the Union of India filed the instant appeal.

The High Court noted that the respondents had, at the first opportunity, filed an application before the Metropolitan Magistrate for retracting their statements recorded under Section 108. The prosecution asserted that the statements of the respondents were voluntarily and correctly recorded without any force or inducement. However, the High Court found that there was no independent corroboration by any witness of the Section 108 statements of the respondents.

Discussing whether the statement of respondents was to corroborated, K.R. Shriram, J. observed, “If I have to simply accept the statement recorded under Section 108 as gospel truth and without any corroboration, I ask myself another question, as to why should anyone then go through a trial. The moment the Customs authorities recorded the statement under section 108, in which the accused has confessed about his involvement in carrying contraband gold, the accused could be straightaway sent to jail without the trial court having recorded any evidence or conducting a trial.”

The Court reiterated that in absence of any corroboration by an independent and reliable witness, a statement recorded under Section 108 in isolation could not be relied upon.

Furthermore, it was also noted that the Judgment of acquittal was passed in 2001 and more than 19 years have passed since. In such view of the matter, the High Court held that the order of acquittal passed by the trial court did not warrant interference. Accordingly, the appeal filed by the Union of India was dismissed. [Union of India v. Kisan Ratan Singh, 2020 SCC OnLine Bom 39, decided on 07-01-2020]

Case BriefsForeign Courts

Court of Appeal of Sri Lanka: The Bench of M.M.A. Gaffoor and K.K. Wickremasinghe, JJ. dismissed the appeal of the accused-appellant who was indicted for committing the murder of a fifteen-year-old girl.

The facts of the case were that the deceased was a fifteen-year-old girl living together with the accused as husband and wife however she was not legally married to the accused. On the day of the incident accused came to the house of his mother with the deceased and after sometime went to accused’s house which was in the same compound. After a short while, the accused had come and told his mother and sister who were in the main house about the incident. The deceased was found hanging in the accused’s house. The testimony of the mother and sister against the accused which were well corroborated were taken into account. The postmortem report revealed that death was due to ligature strangulation. Thereafter for his defense, the accused opted to give a dock statement wherein he stated that a person whom he named was responsible for the death of the deceased. Accused further said the same person had told him to surrender to the Police. This position had never been suggested by any of the prosecution witnesses including the investigating Police Officers thus the dock statement made by the accused was considered as an afterthought and thus the Court rejected the same. The High Court convicted the accused. When this matter came up for argument the counsel for the accused took up several defects in the High Court Trial including that a mere non-confession utterance by the appellant had been converted to a confession statement by the State Counsel thereby denying the accused of a fair trial.

The Court after perusing the case record and the submissions made by both Counsel rejected the submissions made by Counsel for the accused with regard to the above defects highlighted as they had no merit. The Court resonated the opinion of Justice Thilakawardena, in AG v. Sandanam Pitchi Mary Theresa, S.C. Appeal No. 79 of 2008, wherein he stated that “Discrepancies that do not go to the root of the matter and assail the basic version of the witness cannot be given too much importance.” The appeal was thus dismissed. [Ambagahagedara Nimal Ratnayake v. Attorney General’s Department, 2019 SCC OnLine SL CA 3, decided on 01-04-2019]

Case BriefsForeign Courts

Court of Appeal of Tanzania: The Bench of K.M. Mussa, S.A. Lila and R.K.Mkuye, JJ., decided in an appeal concerning the conviction of the appellant for the offence of “Rape” contrary to Sections 130(1) (2) (e) and 131 (1) of the Penal Code, Cap 16 R.E. 2002.

Appellant was sentenced to life imprisonment and for the said his appeal to the High Court was unsuccessful. Hence, the second appeal.

In the evening of the fateful day, the appellant went to Beatrice Ishiaka’s (PW1) home and took PW1 together with Pascal Mode to the orange farm to harvest oranges. While at the farm the appellant ordered PW1 to sit down and get the money. However, the appellant raped her. Thereafter, PW1 went home and informed her grandmother (PW3) to have been raped by the appellant. The matter was reported to the relevant authorities which led to the appellant’s arrest.

Appellant denied to have raped PW1 and lodged a memorandum of appeal comprising 4 grounds of appeal.

The Court of Appeal while reaching to a conclusion went through the grounds of appeal, facts and the material on record in the most careful manner and stated that

Court is required to be cautious and very slow to disturb the concurrent findings of facts of the two courts below. The Court could only do that if there are completely misapprehensions of the substance, nature and quality of evidence which result into fair conviction.”

Further, the Court on examining the grounds of appeal mentioned by the appellant dealt with only ground number 3 and 4 that touched the “credibility of witnesses” and the “standard of proof”.

Placing reliance on the case of Aloyce Mgovano v. Republic, Criminal Appeal No. 182 of 2011; Court dealt with “credibility of witnesses”. In the said case, Court also cited Shabani Daudi v. Republic, Criminal Appeal No. 28 of 2000; wherein it was stated that,

Credibility of a witness can also be determined in two other ways: one, when assessing the coherence of the testimony of the witness. Two when the testimony of that witness is considered in relation with the evidence of other witnesses, including that of the accused person. In these two other occasions the credibility of a witness can be determined even by a second appellate court when examining the findings of the first appellate court.”

Court stated that evidence of PW1 was taken without the oath. This is a situation where corroboration was required. It is settled law that unsworn evidence most often requires corroboration. Unfortunately, Pascal Mode who was with PW1 did not testify. PW2 and PW3 cannot be taken to corroborate her evidence as their evidence was mere hearsay as regards to who raped PW1. It was also observed that even if PW 3 saw some features suggesting that PW 1 was raped, she could not be in a position to know who did it.

Hence, the Court concluded that, unfortunately, no reasons for failure to call Pascal were given as he was a material witness in the present case which led the Court to agree with appellant and merit was found in the stated grounds. Appeal was allowed and conviction quashed and set aside, with the release of the appellant. [Raphael Mhando v. Republic, 2019 SCC OnLine TZCA 1, Order dated 01-03-2019]

High Courts

Punjab and Haryana High Court:  Denouncing the tendency of the people to give older date of birth in the matriculation examination to qualify in the matriculation examination but then to rely upon the birth certificate that he is younger in age at the time of employment, cannot be countenanced,  the division bench comprising of Hemant Gupta and Lisa Gill, JJ., held that though the Birth Certificate carries with it a presumption of correction being maintained by a public office in discharge of his official duties, even then, in the case of there being variation in the date of birth in the Birth Certificate and the Matriculation Certificate a person would be estopped as per the law of estoppel laid down in Section 115 of the Evidence Act, 1872, from disputing the same in the guise of correcting the mistake in the Matriculation Certificate. The date of birth cannot be permitted to be corrected in terms of the regulation of the School Board merely because in a birth certificate issued by the Registrar, there is a different date than what is mentioned in the matriculation certificate. Only correction of clerical errors can be allowed in such case.

In case of persons born before the registration of births became mandatory, they would be granted a limited right to corrections on the basis of the doctrine of Ante Litem Motam, which presumes that in case of things done before arising of a legal dispute the declarant has no motive to lie. The person will still not be permitted to dispute the entry of the date of birth in the Matriculation Certificate.

It was also held by the Court that in cases where the date of birth was given in the school records by the parents of a child when he was minor, by virtue of Section 6 of the Limitation Act, 1936 which gives a right to the person suffering from legal disabilities including a minor to assert his rights after the cessation of such disability, such a minor can dispute the date of birth given in the matriculation certificate but the same has to be exercised within the period of limitation of 3 years of his attaining majority as laid down in Section  8 of the same act.  Ambika Kaul v. Central Board of Secondary Education,  2015 SCC OnLine P&H 1669decided on 21.05.2015.