Kerala High Court
Case BriefsHigh Courts

Kerala High Court: In a POCSO case, Kauser Edappagath, J., upheld the Trial Court’s judgment convicting a father for sexually assaulting his minor daughter.  

The appellant-accused had assailed the Trial Court’s judgment of conviction and sentence convicting the appellant for an offence punishable under Section 9(n) read with Section 10 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act) for sexually assaulting his 15 years old daughter.   

The Trial Court convicted the appellant and imposed a sentence of five years’ rigorous imprisonment with a fine of Rs.25,000.  

Grievances of the Parties  

Assailing the impugned order of the Trial Court, the appellant contended that the conviction was based on the uncorroborated testimony of the child witness which suffered from contradictions and omissions. Further, the appellant alleged that there was inordinate delay in reporting the matter and lodging the FIR and that the age of the victim had not been legally proved.  

The victim deposed that even at the age of 7 years, the accused had sexually abused her by making her lie on his body and also touched her private parts. The victim submitted that thereafter the appellant went to Gulf and after returning, he regularly assaulted her sexually by catching her breast, buttocks, and private parts at night.  

The deposition of the victim was corroborated by her mother by admitting that the accused is her husband and after their marriage, the accused disturbed her elder sister due to which she along with the accused started to live separately. She also deposed that, on 30-05-2011 at 11 p.m. the appellant sexually assaulted the victim when she was sleeping and she along with the victim pushed him out of the house and closed the door. 

The victim also alleged that the appellant had made a hole in the bathroom to see her taking bath which was corroborated by her mother.  

Observations and Findings 

The Court noted that even though the victim was cross-examined at length by the accused, nothing tangible could be extracted from her to create any shadow of a doubt that she is not a truthful witness. The Court opined, 

“She gave a reliable, consistent, and credible version of the crime which inspires confidence. It is settled that, the evidence of a victim of a sexual offence is entitled to great weight, absence of corroboration notwithstanding. It is equally settled that the statement of a child witness should be scrutinized with great care and caution.” 

Relying on Hari Om v. State of Uttar Pradesh, (2021) 4 SCC 345, the Court held that corroboration of the testimony of the child witness is not a rule but a measure of caution and prudence is a well-accepted principle and in the instant case there is absolutely no ground for doubting the veracity of the victim. Similarly, the Court relied on State of Punjab v. Gurmit Singh, (1996) 2 SCC 384, to hold that the courts cannot cling to a fossil formula and insist upon corroboration even if, taken as a whole, the case spoken of by the victim of sex crime strikes the judicial mind as probable.  

With regard to the contention of inordinate delay in reporting the matter, the Court held that delay in the sexual offence has to be viewed differently. The Court expressed, 

“The delay in a case of sexual assault cannot be equated with a delay in a case involving other offences since several factors weigh on the mind of the victim and members of her family. In a tradition-bound society like ours, particularly in rural areas, it would be quite unsafe to throw out the prosecution case merely on the ground that there was a delay in lodging the FIR.” 

Hence, the Court held that failure to mention the exact time of occurrence concerning the incident which happened when the victim was aged 7 years did not create doubt in the prosecution case, particularly when the victim had clearly stated that she was very ashamed to complain about such acts against her father before others.  

Conclusion  

Thus, the Court concluded that there was nothing on record to doubt about the genesis or genuineness of the prosecution case on account of the alleged delay. With regard to contention that the victim’s age had not been proved before the Trial Court, the Court observed that the appellant had not raised such contentions before the Court below, hence, the same could not be entertained in appeal. The Court remarked,  

“The accused is none other than the father who is supposed to know the age of the victim. The evidence of the victim and her mother would show that the victim was a minor at the time of the incident. She clearly deposed that the accused sexually exploited her since she was seven years old. There is no challenge to the said evidence.” 

Lastly, on the question of sentence, the Court observed that the appellant was sentenced only to the mandatory minimum period of punishment; hence, considering the entire facts and circumstances of the case, the Court held that the sentence imposed by the Trial Court was absolutely reasonable.  

Consequently, the conviction and the sentence passed by the Trial Court were confirmed. Accordingly, the appeal was dismissed. 

[x v. State of Kerala, Crl. A. No. 649 of 2021, decided on 01-07-2022]  


Appearance by:  

For the Appellant: Advocates T.U. Sujith Kumar and Dinesh G Warrier 

For the State:  Smt. Ambika Devi S, Special GP (Atrocities Against Women and Children) and Smt. Bindu O.V.  PP 


*Kamini Sharma, Editorial Assistant has put this report together 

 

 

Case BriefsSupreme Court

Supreme Court: The bench of MR Shah* and BV Nagarathna, JJ has held that merely because a long period has lapsed by the time the appeal is decided cannot be a ground to award the punishment which is disproportionate and inadequate.

Factual Background

The Court was deciding the case where the accused was convicted by the trial Court for the offence under Section 307 IPC for having caused serious injuries on the vital part of the body of the victim/injured and sentenced him to undergo three years’ rigorous imprisonment. In the appeal before the Rajasthan High Court, the accused did not challenge the conviction, but only prayed the Court to reduce the sentence to the period already undergone by him by submitting that occurrence took place on 31.03.1989, i.e., about 26 years ago; that they were facing trial since last 26 years; and when the occurrence took place, they were young and now they are aged persons. The High Court, without any detailed analysis of the facts of the case, nature of injuries caused, weapon used, has simply reduced the sentence to the period already undergone (44 days).

Analysis and Ruling

The Court condoned the delay of 1880 days in preferring the appeal and observed that,

“Merely on the technical ground of delay and merely on the ground that after the impugned judgment and order, which is unsustainable, the accused have resettled in their lives and their conduct has since been satisfactory and they have not indulged in any criminal activity, is no ground not to condone the delay and not to consider the appeal on merits.”

The Supreme Court noticed that, in the present case, the accused could have been sentenced to undergo life imprisonment and/or at least up to ten years, however, the trial Court sentenced the accused to undergo three years rigorous imprisonment. Therefore, as such, the trial Court had already taken a very lenient view while imposing the sentence of only three years’ rigorous imprisonment. Therefore, the High Court ought not to have interfered with the same.

Noticing that the High Court has not at all adverted to the relevant factors which were required to be while imposing appropriate/suitable punishment/sentence, the Court held that the High Court had dealt with and disposed of the appeal in a most cavalier manner. The High Court has disposed of the appeal by adopting shortcuts. The manner in which the High Court has dealt with and disposed of the appeal is highly deprecated.

The Court, further made observation on the manner in which many High Courts are disposing off criminal appeals and said,

“We have come across a number of judgments of different High Courts and it is found that in many cases the criminal appeals are disposed of in a cursory manner and by adopting truncated methods. In some cases, the convictions under Section 302 IPC are converted to Section 304 Part I or Section 304 Part II IPC without assigning any adequate reasons and solely recording submissions on behalf of the accused that their conviction may be altered to Section 304 Part I or 304 Part II IPC. … We deprecate such practice of disposing of criminal appeals by adopting shortcuts.”

Therefore, the impugned judgment and order passed by the High Court reducing the sentence to the period already undergone (44 days) from three years rigorous imprisonment imposed by the trial Court was held to be absolutely unsustainable and was hence, quashed and set aside

“The judgment and order passed by the High Court reducing the sentence is nothing but an instance of travesty of justice and against all the principles of law laid down by this Court in a catena of decisions on imposing appropriate punishment/suitable punishment.”

Restoring the judgment of the Trial Court, the Court directed the accused to surrender before the appropriate jail authority/concerned Court, within a period of four weeks from the date of the judgment, to undergo the remaining sentence.

[State of Rajasthan v. Banwari Lal, 2022 SCC OnLine SC 428, decided on 08.04.2022]


*Judgment by: Justice MR Shah


For accused: Advocate Abhishek Gupta

Case BriefsHigh Courts

Delhi High Court: Chandra Dhari Singh, J., addressed a matter wherein the right of residence was claimed by the wife.

In the present matter, marriage between respondent 1 and the son of the petitioners was solemnized according to Hindu rites and rituals and petitioner 1 (since deceased) and petitioner 2 are mother-in-law and father-in-law of the respondent.

Petitioner 1 has been represented by her legal representatives as petitioner 2(a), (b) and (c).

Between the respondent and her in-laws was cordial in the beginning and eventually it started to deteriorate with time. Further, the respondent left her matrimonial home and consequently more than 50 cases, both civil and criminal were filed by the parties.

In one of the cases, the respondent claimed the right of residence.

Aggrieved by the order of Metropolitan Magistrate that had entitled the right to residence, petitioner filed the criminal appeal.

Appellate Court considered the facts and circumstances and upheld the order of Metropolitan Magistrate observing that the respondent had been living in the said premises since her marriage and her husband was the 50% shareholder to the house which gave her the right to continue to live there.

In the present petition, order of the Appellate Court has been impugned.

Analysis, Law and Decision

The existence of the strained relationship between the Petitioner and the Respondent has been well established by the fact that there are more than about 60 criminal and civil cases pending between the parties.

High Court found that the decision of Metropolitan Magistrate was in consonance with the findings of the Supreme Court in SR Batra v. Tarun Batra, (2007) 3 SCC 169,  as well as the fact that the respondent had an emotional attachment to the house given that she had lived there for over 20 years of her married life and even the Appellate Court was right in upholding the same while passing the impugned Order.

Therefore, the Appellate Court rightly appreciated that the respondent has the right to live at her husband’s co-owned property.

In view of the above, the petition was dismissed.[Om Prakash Gupta v. Anjani Gupta, 2022 SCC OnLine Del 701, decided on 8-3-2022]


Advocates before the Court:

For the Petitioners: Anurag Jain, Advocate

For the Respondents: Arvind Varma, Sr. Advocate with Abhishek Chhabra, Advocate for R-1 along with R-1 in person

Raghuvinder Varma, APP for R-2/State

Case BriefsHigh Courts

Himachal Pradesh High Court: Anoop Chitkara, J., dismissed an appeal filed to challenge the acquittal of the respondents-accused, for causing simple hurt and wrongful restraint. The appellant-State had come up before this Court seeking the conviction of accused, by filing the Criminal Appeal under Section 378 of the CrPC.

An FIR was filed by the complainant alleging that she was a farmer and while she was lopping leaves from her compound, Accused 1 and Accused 2, who was carrying a bamboo stick obstructed her from lopping the leaves and claimed that the land belonged to her. On the suspicion that the accused was going to beat her, she ran to her house and requested them that she did not want to quarrel and if the compound fell on their land then they could go for demarcation and if the land was found belonging to them then she would vacate her possession but the accused entered the house and started beating her with sticks. Her mother in law tried to stop the accused on which they started beating her also due to which she suffered several injuries. The medical examination of the complainant and the mother in law was conducted and the sticks were recovered from the accused and the trial court had framed charges under Sections 451 and 323 both read with 34 of Penal Code. The accused had denied all the offences but had not produced any evidence in their defense. The complainant during the cross-examination had admitted to the fact that a civil case was going on between them since 3 years, she also admitted later that at the time of the quarrel Balwant Singh, her daughter, two sons, her mother-in-law and members of the family of accused were also present The JMIC had acquitted both the accused of all the charges thus the instant appeal.

The Court while dismissing the appeal explained that the judgment of the trial court was a well-reasoned Judgment and was based on correct, complete and proper appreciation of evidence provided by the sole independent witness of the case who was the neighbor of the parties and he had stated that the accused Nirmala Devi was in his house and Seema Devi was in her own house. [State of H.P. v. Nirmala Devi, 2020 SCC OnLine HP 31, decided on 03-01-2020]

Case BriefsHigh Courts

Orissa High Court: S.K. Sahoo, J. dismissed a criminal appeal for the acquittal of the appellant under Section 376 of the Penal Code, 1860.

The victim in the present case was forcibly raped by the appellant on the pretext that he will marry her. The appellant visited the victim on many occasions and raped her and would give her the assurance of marriage. Even after the victim became pregnant, the appellant continued raping her. The news of the pregnancy of the victim spread in the village and the appellant confessed his guilt before the uncles of the victim. He also admitted to having impregnated the victim in presence of the entire village post which, on 11-04-2011, she lodged an FIR. The trial Court acquitted the appellant on 28-06-2012 under Section 417 of the Penal Code but found him guilty under section 376 and sentenced him to undergo rigorous imprisonment for a period of ten years and to pay a fine of rupees five thousand.

The appellant challenged this judgment and order of conviction on the grounds that there was a delay in filing the FIR by the victim and the prosecution has not satisfactorily explained this delay. It was further contended that there is no hard evidence to prove the age of the victim, and if the age of the victim is held to be more than sixteen years then it can be said that she was a consenting party.

Priyabrata Tripathy, Additional Standing Counsel for the victim, submitted that delay in lodging the FIR in a rape case cannot be a ground to hold the entire prosecution case suspicious. He argued that the victim remained silent an account of assurance of marriage given by the appellant and when the victim disclosed about her pregnancy, an FIR was lodged. Further, there is no infirmity in the evidence of the victim.

The Court held that, “the law is well settled that delay in lodging the FIR in an offence of rape is a normal phenomenon as the FIR is lodged after deliberation. It takes some time to overcome the trauma suffered, the agony and anguish that create the turbulence in the mind of the victim, to muster the courage to expose one in a conservative social media, to acquire the psychological inner strength to undertake a legal battle against the culprit.”

Secondly, the victim stated her age to be fifteen years at the time of her deposition, which was recorded on 13-08-2011. She stated that the occurrence last took place in 2010. No evidence was brought out in the cross-examination to challenge her age. The doctor who conducted ossification test of the victim stated that on the basis of the physical findings, dental examination and development of secondary sexual characteristics and menstrual history and ossification test, that the age of the victim to be more than fourteen years and less than sixteen years. Therefore, the question of the victim being a consenting party was not taken into account.

The appellant also submitted that he has been in judicial custody since 14-04-2011 and he was never released on bail either during pendency of the trial or during pendency of this appeal and therefore, he has already undergone the substantive sentence of eight years and three months and therefore, the substantive sentence should be reduced to the period already undergone.

The Court upheld the order of conviction of the appellant under Section 376 of the Penal Code, 1860 but reduced the substantive sentence from rigorous imprisonment for ten years to the period already undergone. In view of the enactment of the Odisha Victim Compensation Scheme, 2012, keeping in view the age of the victim at the time of occurrence and the nature and gravity of the offence committed and the family background, the Court recommend the case to District Legal Services Authority, to examine the case of the victim for grant of compensation under the Scheme.

The Criminal Appeal was dismissed and the appellant was released from jail custody.[Budha v. State of Odisha, 2019 SCC OnLine Ori 262, decided on 01-08-2019]

Case BriefsHigh Courts

Rajasthan High Court: A Division Bench of Sandeep Mehta and Abhay Chaturvedi, JJ. partly allowed a criminal appeal wherein they reduced the sentences of the accused-applicant due to lack of evidences produced by the prosecution.

In the present case, the accused-applicant was charged under Sections 307 and 326 of the Indian Penal Code, 1860 in an order passed by the learned trial court. The learned trial court passed a strict sentence under the aforementioned provisions. It was alleged that the accused-applicant had indulged in looting and scandalizing the informant’s shop. The informant had lodged a report of the incident to the police. Thereafter, accused-applicant, armed with an acid bottle, assaulted the informant and his son by throwing acid on them. The incident left both the informant and his son with severe burns on their body. On the basis of the report, an FIR was registered by the police station for the offences under Section 323 and 326-A IPC. During the proceedings in the trial court, the accused-applicant had provided a different set of facts. He presented that the accused applicant had visited the shop to purchase some groceries and upon not being able to pay the full amount the informant was furious. While passing by their shop, the accused-applicant was accosted and beaten up with an acid bottle. However, the trial court upon perusal of the evidences and medical report placed on record, framed charges against the accused-applicant for the above offences.

Anand Purohit, Senior Advocate, assisted by Kapil Purohit representing the accused-applicant, challenged the trial court order and stated that the facts presented by the prosecution were incorrect. The Senior Advocate, without challenging the fact that the accused-applicant had caused the injuries, submitted that due to the incident occurring at the spur of the moment and not being pre-mediated, the Court should reduce the sentences awarded by the trial court.

Public Prosecutor representing the Respondents, N.S. Bhati, claimed that the accused-applicant was merely a drug addict hence such an act was expected from him. Adding to that, he had troubled the respondents twice on that fateful day. He, therefore, stated that the impugned judgment is just and legal and does not deserve any sort of interference.

The High Court noted the fact that the accused-applicant did not challenge the fact that the acid-attack was perpetrated by him. However, the court also put forth that there was no police report by the injured party about the incident of looting thus there was a falsification of facts however it considered the medical report proving the injuries to be caused by acid. There was also a medical report proving the accused-applicant bearing a hole in his heart thereby mitigating the circumstances of causing an attack on others and thus, the Court felt the sentences passed by the trial court needs to be revisited. The High Court awarded a sentence of 10 years of rigorous imprisonment to the accused-applicant in light of the above facts.[Mohd. Rizwan v. State, D.B. Criminal Appeal No. 967 of 2017, decided on 29-07-2019]

Case BriefsHigh Courts

Bombay High Court: Swapna Joshi, J. partly allowed a criminal appeal and altered the conviction of the appellant — an Ayurvedic certificate holder — from the one under Section 304 (II) IPC to that under Section 304-A IPC.

The appellant was convicted for causing the death of two deceased persons. The deceased had visited the appellant for treatment of knee pain. The appellant, who was not qualified as a doctor/medical practitioner, administered an injection to the deceased. Both the deceased persons, after administration of the injection, developed lumps which resulted in their deaths. The appellant was convicted under Section 304 (II) IPC and Section 33 of the Maharashtra Medical Practitioner Act, 1961. Aggrieved thereby, the appellant filed the present appeal.

According to the High Court: “The accused was not registered as a medical practitioner. He was simply a certificate holder in Ayurvedic Medicine. He was under a statutory duty not to enter the filed of any other system of medicines as he was not qualified in other system i.e. allopathy. The accused trespassed into a prohibited field and therefore he is liable to be prosecuted under Section 33 of the Maharashtra Medical Practitioners Act, 1961.”

However, the Court was of the view that his conviction for committing culpable homicide not amounting to murder was liable to be altered to causing death by negligence. Holding that the appellant had no knowledge the injury was likely to cause death, the High Court observed: The learned trial Judge should have considered the evidence led by the prosecution witnesses in its right perspective. In the instant case, the accused did not have a knowledge that the death was likely to be caused due to the act of administering unsterilised injections. It appears that the accused in good-faith has treated both the deceased to relieve them from knee pain from which they were suffering. The conduct of the accused shows that the accused has taken Muktabai from one doctor to the other to save her life, however, unfortunately, she succumbed to her injuries and died due to septicemia which was developed due to the piercing of the injections. There is no convincing evidence on record to show that the accused had a knowledge that due to the piercing of the injection, the lump would be created, due to which, septicemia would cause.”

Resultantly, the criminal appeal filed by the appellant was partly allowed in the terms above. [Bhupal Malayya Agbattini v. State of Maharashtra, Crl. Appeal no. 406 of 2018, decided on 09-04-2019]

Case BriefsHigh Courts

Bombay High Court: V.M. Deshpande, J. dismissed a criminal appeal and imposed costs of Rs 5000 on the appellant for filing the criminal complaint under Section 138 of the Negotiable Instruments Act, 1881 and thereafter going dormant for years together.

The present was a matter wherein after filing a complaint under Section 138, the complainant became dormant in prosecuting the case and did not take any step further as were necessarily required under law. Even after directing the complainant to take necessary steps, he remained absent and therefore the trial judge dismissed his application for condonation of delay. The complainant filed the present appeal against the order of the trial judge.

The High Court said that the litigant cannot be dormant for years together; when a proceeding has filed a litigant before the court of law, it is his onerous duty to prosecute the same diligently. It was observed that since the present was a private complaint, it was complainant’s duty to serve the non-applicants. The Court said: “It appears from conduct of the applicant/complainant that it is his luxurious litigation. The Courts are experiencing filing of necessary litigations since there are some type of litigants who want to torment their ego.” It was further said: “This type of attitude on the part of the litigants has to be curbed though it is the right of citizens to approach to the court of law for redressal of their grievance if any,. At the same time, it is the duty of such citizens to prosecute the remedy availed of diligently and should not allow proceedings to remain in a dormant state for years together.”

During the course of hearing, the complainant could not offer any explanation as to why he could not any step to serve the non-applicants. In that view of the matter, the appeal was dismissed with costs of Rs 5000 to be deposited with the High Court Legal Service Sub-Committee at Nagpur. [Ramzan Khan v. Khadim Tours and travels, 2019 SCC OnLine Bom 709, decided on 24-04-2019]

Case BriefsHigh Courts

Delhi High Court: A Single Judge Bench comprising of C. Hari Shankar, J. allowed a criminal appeal filed against the judgment of the trial court whereby the appellant was convicted under Section 18(b) of the Narcotic and Psychotropic Substances Act, 1985.

The appellant challenged his conviction contending the non-compliance of provisions of Section 50 of the Act. It was an admitted fact that after apprehending the appellant, he was searched by the raiding party in which opium was recovered from his possession. It is pertinent to note that as per Section 50, a person to be searched under Sections 41, 42 or 43 NDPS Act has to be searched in presence of a Gazetted Officer or a Magistrate. The prosecution, per contra, submitted that the appellant, before the search, was apprised of his right to be searched by a Gazetted Officer or a Magistrate; however, he waived off that right.

The High Court, for adjudication of the matter, perused the cases decided by the Supreme Court including Dilip v. State of M.P.,(2007) 1 SCC 450; State of Rajasthan v. Parmanand, (2014) 5 SCC 345 and Arif Khan v. State of Uttarakhand, 2018 SCC OnLine SC 459Relying on the said cases, the Court held that compliance with the provisions of Section 50 was mandatory. In the instant matter, it was held there was non-compliance with the said provisions and therefore the search and alleged recovery of opium was vitiated in toto. The appellant was, therefore, held to be entitled to an acquittal from all the charges. The appeal was allowed and the judgment impugned was set aside. [Dharambir v. State,2018 SCC OnLine Del 12305, dated 13-11-2018]

Case BriefsHigh Courts

Himachal Pradesh High Court: Chander Bhushan Barowalia, J., allowed a criminal appeal filed against the judgment of the trial court whereby the appellant was convicted under Section 20 of NDPS Act, 1985.

The case against the appellant was that while the police was on patrol duty, the appellant saw the police and started to run. He was apprehended by the police. The appellant was carrying a bag which was searched and it was found that the appellant was carrying charas. Thereafter, the person of the appellant was searched by the police personnel without informing him about his right under Section 50 to get searched before a Magistrate or a Gazetted Officer. He was tried by the trial court and convicted under the section mentioned above. Aggrieved by the same, the appellant filed the instant appeal.

The High Court relied on the Supreme Court decision in State of Rajasthan v. Parmanand, (2014) 5 SCC 345, wherein it was laid down that compliance with the condition of Section 50 NDPS Act, was a mandatory provision. The purpose of the section is to inform the person to be searched about his right to get searched before a Magistrate or a Gazetted Officer. However, in the present case, there was no compliance with the mandatory provision. The High Court was of the view that such failure on part of the police, vitiated the case against the appellant due to not following the procedure laid by the law. In such circumstances, the High Court held that the appellant could not have been convicted by the trial court. Accordingly, the appeal was allowed and the impugned judgment was set aside. [Joginder Singh v. State of H.P.,  2018 SCC OnLine HP 836, dated 03-07-2018]