High Court Round UpLegal RoundUp

TOP STORY OF THE MONTH 


Marital Rape

Split Verdict on Criminalisation of Marital Rape| Can a Husband be labelled as a rapist? Does MRE provide impunity to offender? One says ‘Yes’, other says ‘No’

In a split verdict the Division Bench of Rajiv Shakdher and C. Hari Shankar, JJ., laid down their opinion on “Should a husband be held criminally liable for raping his wife who is not under 18 years of age?”

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Allahabad High Court


Employees State Insurance Act

Whether ‘Printing Press’ is a manufacturing process under Employees State Insurance Act?

Stating that the word ‘manufacturing process’ has been expansively defined under the Factories Act even to include Printing Press activity as a manufacturing process whereas in common parlance Printing Press cannot be termed as a ‘manufacturing process’, Pankaj Bhatia, J., held that, the term ‘manufacturing process’ was added to the ESI Act after the 1989 Amendment, hence, there would be no application of the said term prior to the said amendment.

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Abetment of Suicide

Biggest jolt for any married woman that her husband is being shared by some other lady or he is going to marry some other lady: Court dismisses discharge application of husband accused of abetting suicide of wife

Rahul Chaturvedi, J., noted that a lady soon after coming to know that her husband got married in clandestine way with some other lady, committed suicide.

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Loudspeaker

Use of loudspeaker in mosque is not a fundamental right

The Division Bench of Vivek Kumar Birla and Vikas Budhwar, JJ., held that the law has been settled, that use of loudspeaker from mosque is not a fundamental right.

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Maintenance

If wife sells out some property, in order to maintain her children, would that mean the wife will not have opportunity to claim maintenance under S. 125 CrPC?

Brij Raj Singh, J., while discussing the matter with regard to providing maintenance to a wife, noted that the Court below had made observations on being influenced by factual aspects which were not proved.

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Duty of father to maintain child, daughter entitled to seek maintenance from father

Brij Raj Singh, J., expressed that, a father is legally bound to maintain his child according to the status and lifestyle.

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Taj Mahal

Judges by experience and training not equipped to pronounce any verdict on non-justiciable issues: Sealed 22 rooms at Taj Mahal to stay locked

In a matter wherein the petitioner sought commissioning of a study so that the history of Taj Mahal could be explored, and controversy be put to rest, the Division Bench of Devendra Upadhyaya and Subhash Vidyarthi, JJ., held that the as to which subject should be studied or researched or which topic of a particular area or discipline are not issues where this Court can be said to be possessed of any judicially manageable standards to adjudicate upon.

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Divorce

If divorce is declared in one go and Fatwa is issued, Is muslim wife entitled to maintenance under S. 125 CrPC?

Brij Raj Singh, J., while addressing a maintenance case, observed that if a wife proves that she is unable to maintain herself, she will be entitled to maintenance.

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Sexual Assault

Junior of a practicing advocate alleges to have been subjected to sexual assault: Will All HC grant him bail?

In an alleged sexual assault case, Samit Gopal, J., noted that allegations of sexual assault were against a practicing lawyer by a junior in his office.

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Andhra Pradesh High Court


[Doctrine of Separability] AP HC discussed the enforceability of arbitration clause embedded in an unstamped charter party/agreement

“The doctrine of separability treats an agreement to arbitrate contained within a contract as an independent agreement that is deemed to be separable from the main contract. The doctrine preserves the validity and enforceability of the arbitration clause in a contract, even when the primary contract is found to be invalid and unenforceable, providing autonomy to the arbitration clause. The UNCITRAL Model law on International Commercial Arbitration, 1985, Article 16[1], integrates the doctrine of separability as an arbitration clause which forms part of a contract shall be treated as an agreement independent of the other terms of the contract.”

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Bombay High Court


News Items

Article on a rift between police officers published in newspaper: Will the reporter be punished under S. 505 IPC?

In a matter wherein, a journalist sought to quash proceedings against him for publishing news items regarding the rift between the officers of the police departments, the Division Bench of Prasanna B. Varale and S.M. Modak, JJ., expressed that:

“If we will say that any news article pertaining to two Sections of any Department will fall within the purview of Section 505(2) of the Indian Penal Code, in that case, we are interpreting the provisions of Section 505(2) of the Indian Penal Code too far and it is not expected by legislatures.”

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Dying Declaration

Dying declaration is by itself sufficient to convict an accused of accusation levelled against him provided dying declaration is found to be voluntary, truthful and hence, could inspire confidence of Court

While addressing a matter with regard to a husband setting ablaze his wifethe Division Bench of Sadhana S. Jadhav and Milind N. Jadhav, JJ., made an observation with respect to dying declaration that,

It is by itself sufficient to convict an accused for the accusation levelled against him provided the dying declaration is found to be voluntary, truthful and hence, could inspire the confidence of the court.

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Medical Test

Bom HC provides succor to a girl who was declared “male” in medical test, Directs State to consider her for post in Police department

The Division Bench of Revati Mohite Dere and Madhav J. Jamdar, JJ., directs the State Government of Maharashtra, to consider a woman who was declared as “male” in her medical test for the non-constabulary post in the police department.

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Section 377 Penal Code, 1860

Would kissing on lips and touching private parts of a minor be an offence under S. 377 Penal Code, 1860?

Anuja Prabhudessai, J., observed that touching private parts and kissing on the lips of a minor would not constitute to be an offence under Section 377 of Penal Code, 1860.

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Cruelty

Can filing of divorce petition by husband be an act of ‘Cruelty’?

Vibha Kankanwadi, J., held that, if a husband files a divorce petition that cannot be taken as an act of cruelty.

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Maintenance to in-laws

Can Maintenance and Welfare of Parents and Senior Citizens’ Tribunal direct the daughter-in-law to pay maintenance to her in-laws?

The Division Bench of S.S. Shinde and Revati Mohite Dere, JJ., observed that the daughter-in-law cannot be directed by the  Maintenance and Welfare of Parents and Senior Citizens’ Tribunal to pay maintenance to her in-laws.

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Bonafide Passenger

If a passenger carries a season ticket on local train but fails to provide an identity card, would he be not covered under ‘Bonafide Passenger’?

While partly allowing the appeal wherein a passenger sustained injuries in an untoward incident, Sandeep K. Shinde, J., expressed that, Railway Claim Tribunal, shall proceed to grant compensation to the appellants in terms of Rule 3 of the Rules, 1990, after verifying the medical evidence produced by the appellant in support of his claim.

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Calcutta High Court


Spot Memos

None of the proceedings initiated by the department shown to have been taken to the logical end; spot memos cannot be enforced

The Court was unclear about the fact that why different wings of the very same department have been issuing notices and summons to the appellants without taking any of the earlier proceedings to the logical end.

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Ocular Testimony

In case of discrepancy between ocular and medical evidence, ocular testimony shall prevail; Conviction set aside entitling benefit of doubt

Bibek Chaudhury, J. allowed an appeal which was filed assailing the judgment and order of conviction passed by the Trial Court for committing offence under Section 324 of the Penal Code, 1860 and consequence sentence of imprisonment for a term of one year with fine.

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Vital Facts

Vital facts overlooked by the Trial Court; Conviction set aside under Essential Commodities Act, 1955

Moushumi Bhattacharya, J. allowed an appeal which was filed assailing the impugned judgment passed under section 7 (1) (a) (ii), of the Essential Commodities Act, 1955 and paragraph 12 of the West Bengal Kerosene Control Order, 1968. The appellant was convicted under the aforesaid provisions with fine and simple imprisonment.

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Bail

Bail granted to NDPS accused with 100% speech and hearing impairment

The Division Bench of Kesang Doma Bhutia and Moushumi Bhattacharya, JJ. allowed a bail application of the petitioner suffering from 100% speech and hearing impairment under Section 439 of the Code of Criminal Procedure, 1973 under Section 21(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985.

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Income Tax

Not providing an opportunity to file a reply to the show-cause notice violation of principle of natural justice; Case remanded back to the Assessing Officer for fresh assessment

Md. Nizamuddin, J. allowed a petition which was filed challenging the impugned assessment order under Section 147 read with Section 144B of the Income Tax Act, 1961 relating to assessment year 2013-2014 on the ground of violation of principle of natural justice by not providing the petitioner with an opportunity to file a reply to the show-cause-notice.

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Conviction

Abscondence of an accused by itself does not establish his guilt; Conviction and sentence for punishment of murder set aside

The Division Bench of Joymalya Bagchi and Ananya Bandyopadhyay, JJ. allowed an appeal which was directed against the judgment and order convicting the appellant for commission of offence punishable under Sections 302 of the Indian Penal Code and sentencing him to suffer rigorous imprisonment for life and to pay fine.

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Chhattisgarh High Court


Irretrievable breakdown of Marriage

Chh HC dissolves marriage on appeal filed by husband against trial court order

Sanjay S. Agrawal, J., reversed the judgment of the trial court and granted divorce in an application filed by the husband, while granting Rs 15 lakhs permanent alimony to the wife.

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Excise Act

Confiscation order can only be challenged when it reaches its finality and the statute does not give any space to challenge any other order except the final one

Goutam Bhaduri, J., allowed the petition and directed the vehicle to be released on certain conditions.

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Negative Equality

Art. 14 of the Constitution does not envisage negative equality; Grant of study leave to employees under probation, cannot be a ground for claiming negative parity in the teeth of R. 42 (5) of Chhattisgarh Civil Services (Leave) Rules, 2010

A Division Bench of Arup Kumar Goswami CJ. and Rajendra Chandra Singh Samant J. dismissed the appeal and remarked that quality cannot be claimed in illegality.

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Appellate Tribunal

Whether the power exercised by the single-member Appellate Tribunal of STAT formed under MV Act would be valid under RERA and within jurisdiction?

The Division Bench of Goutam Bhaduri and Sanjay S Agarwal, JJ. directed that the State shall ensure that the Appellate Tribunal shall be made functional so that the grievance of the public at large who are affected are redressed.

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Cruelty

Would pledge of ornaments kept for marriage of a daughter and use for self without knowledge of husband would amount to cruelty?

In a matter pertaining to mental cruelty, the Division Bench of Goutam Bhaduri and N.K. Chandravanshi, JJ., expressed that, if a spouse by her own conduct, without caring about the future of the daughter, parts with ornaments which were meant for the marriage, it will be within the ambit of mental cruelty done by the wife.

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Delhi High Court


Shared Household

Visits of sundry family members to matrimonial home, without permanency or intention to treat premises as a shared household: Would it render family members as members of shared household?

Prateek Jalan, J., addressed the issue of whether visits of sundry family members to the matrimonial home, without permanency or the intention to treat the premises as a shared household, would render them members of the “shared household.

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Irretrievable Breakdown of Marriage

Husband and wife, two pillars of family, if one gets weak or breaks, whole house crashes down

In a matter of dissolution of marriage, the Division Bench of Vipin Sanghi, ACJ and Jasmeet Singh, J., expressed that husband and wife together can deal with any situation, if one gets weak or breaks, the whole crashes down.

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Judicial Functions

How an Additional Rent Controller did not exhibit a great degree of temperance in discharge of judicial functions

Hari Shankar, J., expressed that, Unwarranted and needless hypersensitivity is not expected of Judicial Officers, who are expected, at all times to maintain composure and poise, befitting the office they hold.

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Negotiable Instruments Act

When no offence is attributable to Company, it is not possible to attach liability on Managing Director by deeming provisions of S. 141 of the NI Act

Asha Menon, J., held that if no offence is attributed to the company, its Directors and other persons responsible for the conduct of its business cannot be saddled with any liability.

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Trademark Infringement

Infringement of Starbucks trademark FRAPPUCCINO | Del HC awards Rs 2 lakh in damages and 9 lakh costs

In a matter wherein Starbucks trademark ‘frappuccino’ was being infringed, Jyoti Singh, J., while observing that, FRAPPUCCINO trademarks have acquired formidable reputation and goodwill in India, awarded Starbuck Rupees 2 lakhs damages and 9 lakh costs.

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Titles of films are capable of being recognised under trademark law? Read Del HC’s decision in light of film ‘SHOLAY’

Prathiba M. Singh, J., expressed that, the word ‘SHOLAY’, is the title of an iconic film, and consequently, as a mark having been associated with the film, cannot be held to be devoid of protection

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[Trademark Battle] Karim’s v. Kareem’s | Kareem’s related to or associated with Delhi’s iconic Karim’s restaurant?

Prathiba M. Singh, J., has restrained Kareem Dhanani from opening any further restaurants under the marks “KARIM/KARIM’S/KAREEM/KAREEM’S” or any other marks which are identical or deceptively similar to the Plaintiff’s marks “KARIM/KARIM’S/KAREEM” till the next date of hearing.

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Section 304B Penal Code, 1860

Injuries found on person of deceased who was more than 6 months pregnant, but MM ignored postmortem report: Will onus be on husband to offer an explanation under S. 104 Evidence Act?

Asha Menon, J., while setting aside the conclusion of the Metropolitan Magistrate and upholding the intervention by Sessions Court expressed that, injuries were found on the person of the deceased who was more than 6 months pregnant during her residence with her husband, hence the onus will be on him under Section 104 of the Indian Evidence Act, 1872 to offer an explanation.

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Marital Rape

Explainer | Would striking down ‘Marital Rape Exception’ create a New Offence?

In the Split verdict on Criminalisation of Marital Rape Exception (MRE), the Division Bench of Delhi High Court pronounced a 393-Pages Judgment, wherein the Justices Rajiv Shakdher and C. Hari Shankar while disagreeing with each other on various issues, very significantly pointed out the issue if  “NEW OFFENCE”.

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Extradition

When does petitioner’s concern of lack of disclosure of evidence require court’s intervention?

Chandra Dhari Singh, J., while addressing a matter, expressed that,

Under Principles of Natural Justice, it is settled law that (a) where at the stage where an authority is merely required to form an opinion as to whether an enquiry should be held into allegations or contraventions, it is not required to give to the notice details of nature of evidence and documents, and (b) where a hearing for determination of guilt is to be held de novo, without any reference to any preliminary enquiry report, then the report need not be disclosed to the party affected.

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Post-Decisional Hearing

MeitY directed to provide original copy of blocking order and post-decisional hearing to owner and creator of website ‘Dowry Calculator’

The Division Bench of Manmohan and Dinesh Kumar Sharma, JJ., in a matter with regard to blocking of a website ‘Dowry Calculator’, directed the MeitY committee to give a copy of the order to the creator of the website.

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Ration Delivery Scheme

Delhi HC strikes down Delhi Government’s Doorstep Ration Delivery Scheme | Lieutenant Governor expressed his difference of opinion

The Division Bench of Vipin Sanghi, ACJ and Jasmeet Singh, J., held that, the Delhi Government’s Mukhya Matri Ghar Ghar Ration Yojana cannot be implemented and rolled out by the GNCTD since the LG expressed his difference of opinion.

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Society

Can an occupant deprived of his demarcated car parking in a Society registered under Delhi Cooperative Societies Act occupied by unauthorized occupants approach the Court?

The Division Bench of Mukta Gupta and Neena Bansal Krishna, JJ., observed that Court cannot assume the duties of the Administrator or the Executive Committee to address the day-to-day grievances.

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Condonation of Delay

Whether merely writing letters or making representations would give a sufficient cause or ground to a party to seek condonation of delay?

Stating that mere writing of a letter of representation cannot furnish an adequate explanation for the delay, Jyoti Singh, J., expressed that, it is a settled principle of law that in writ jurisdiction, the Court would not ordinarily assist those who are lethargic and indolent.

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Landlord-Tenant

Once tenant starts paying rent, can he/she turn around and challenge title of landlord?

In a matter with regard to the grant of leave to defend, Subramonium Prasad, J., expressed that, the tenant cannot merely make allegations that the landlord has other premises without producing some material to substantiate the same.

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Custom Duty

Import without custom duty, lower Court issued summons order, but Delhi HC sets aside: Read 5 reasons why impugned order was bad in law

Chandra Dhari Singh, J., while setting aside the order of lower Court in a case concerning Customs Act, laid down five reasons why the impugned order was bad in law.

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Maintenance

Whether right to claim maintenance under Domestic Violence Act and S. 125 CrPC are mutually exclusive?

Asha Menon, J., observed that, the right to claim maintenance under the Domestic Violence Act and those under Section 125 CrPC are not mutually exclusive i.e. the aggrieved person can seek interim maintenance before the Magistrate while also seeking permanent maintenance under Section 125 CrPC.

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Gauhati High Court


Can a husband escape from his liability to pay maintenance to his wife by signing an agreement to the contrary?

While addressing a matter with regard to maintenance of wife, Rumi Kumari Phukan, J., expressed that, the statutory right of a wife of maintenance cannot be bartered, done away with or negatived by the husband by setting up an agreement to the contrary.

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Gujarat High Court


Gratuity

If there is a delay in payment of gratuity, whether interest on delayed gratuity will be mandatory or discretionary?

Biren Vaishnav, J., reiterated that, interest on delayed payment of gratuity is mandatory and not discretionary

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Convict

Admission of co-accused cannot be sole base to convict any person; application dismissed

B.N. Karia, J. rejected an application under Section 397 read with Section 401 of the Code of Criminal Procedure, wherein the applicant-State has requested to quash and set aside the order and stay the implementation of the said order till hearing and final disposal of the present application.

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Motor Accident Claims Tribunal

Appeal dismissed on grounds of meagre amount; Order of Motor Accident Claims Tribunal upheld

Sandeep N. Bhatt, J. dismissed an appeal preferred by the Insurance Company being aggrieved and dissatisfied with the judgment and award passed by the Motor Accident Claims Tribunal by which the Tribunal has awarded Rs.65,200/- with 7.5% interest p.a. from the date of the claim petition.

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Himachal Pradesh High Court


Section 125 CrPC

The findings in a proceeding under S. 125 CrPC cannot be binding on matrimonial Court while dealing with an application for divorce on the ground of res judicata

Tarlok Singh Chauhan, J. remarked, “there has been no matrimonial relationship between the parties for the last nearly two decades, which in itself establishes that the parties are not in a position to live together any longer.”

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Jammu and Kashmir and Ladakh High Court


Freedom of Speech and Expression

Statement that Kashmir is under occupation of armed forces and people of Kashmir reduced to slaves, will be protected under Right to Freedom of Speech and Expression?

Stating that, the intention of a person can be gathered from the words spoken or written or other expressions, Sanjay Dhar, J., expressed that,

Expression of outrage at the negligence and inhuman attitude of the security forces, police and establishment would come within the ambit of freedom of expression of an individual which includes freedom to criticize the Government of the day which is permissible under law but the same may not be the position if an individual questions the fact of a State being a part of the Country by using the expression ‘occupation of military or the people being slaves etc.

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Bail

63-year-old woman aided her 65-year-old husband to commit rape on a minor girl: Can she be granted bail?

Sanjay Dhar, J., expressed that, in the cases involving offences of serious nature falling under IPC or POCSO Act, where the victim happens to be a minor child, the Court has to be alive to the need for protecting the victims and the witnesses and it is the duty of the Court to ensure that victim and witnesses, in such serious matters, are made to feel secure while deposing before the Court.

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Karnataka High Court


Lok Adalat

Kar HC issues general directions in matters relating to compromise before the Lok Adalat which are challenged by way of writ petitions

Suraj Govindaraj, J., allowed the petition and quashed the compromise decree in the original suit filed before Principal Senior Civil Judge at Hubballi in the Lok-Adalat proceedings.

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Arbitration

Whether Arbitration involving third parties leading to other proceedings would be arbitrable?

B.M. Shyam Prasad, J., held that there cannot be a complete adjudication of the petitioner’s rights unless the third parties are also heard.

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Maintenance

Granting or non-granting interim maintenance is not punishing any litigant; Kar HC observes Proviso to S. 125 of CrPC provides discretion to court to order interim maintenance during pendency of proceedings

M Nagaprasanna, J., dismissed the petition and refused to grant prayer as the case is at a pre matured stage and is not the right time to post the matter for examination.

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Juvenile Justice Act

In the absence of any declaration that the child is deserted by his biological or adoptive parents or guardians; no offence can be made out under S. 80 JJ Act

Hemant Chandangoudar, J., allowed the petition and quashed the impugned proceedings initiated against alleged offence under Section 80 of Juvenile Justice (Care and Protection of Children) Act, 2015.

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Work From Home

Work From Home under Maternity Benefit Act can be availed only if nature of work assigned to women is possible for them to work from home

Noting that the nature of work assigned to a woman cannot be carried from home, R Devdas, J., held that, as per Section 5(5) of the Maternity Benefits Act, 1961 work from home after availing the maternity benefit could be given only in a case where the nature of work assigned to the women is such that it is possible for her to work from home.

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Industrial Disputes Act

Labour Court has no jurisdiction to first decide the workmen’s entitlement and then proceed to compute the benefit so adjudicated; Labour Court’s power like that of the Executing Court’s power

K.S. Mudagal, J., allowed the petition and set aside the impugned award awarding compensation as well as the silver medal allowance without considering the question of maintainability of the petition under Section 33C(2) of the I.D. Act.

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Indian Nursing Council

No objection from the Indian Nursing Council is not required for the purpose of University granting recognition or approval for the GNM Course

P Krishna Bhat, J. disposed of the application with a direction to KSNC and State to consider the applications of petitioners which were filed in the year 2019 and take a final decision on the same.

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Negotiable Instruments Act

A 138 NI complaint filed was barred by limitation but such issue was raised for the first time before the Appellate Court and not Trial Court

HP Sandesh J. dismissed the petition and upheld the judgment by the Appellate Court and further directed the complainant to file necessary application to condone the delay.

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POCSO

Teacher aged 55 years harassed a student on separate occasions, booked under POCSO, released on bail

H.P. Sandesh, J. allowed the petition and granted bail to the petitioner in connection with a crime registered in  Magadi Police Station, Ramanagara District, for the offence punishable under Sections 8 and 12 of the POCSO Act.

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GST Act

Whether on coming into force of GST Act a Municipal Corporation can levy advertisement tax/fee?

The Court observed that in the entire transaction of GST, the petitioners are only a collecting agency who collects the GST payable on the service rendered and deposits the same with the authorities, the incidence of tax, i.e., GST being on the services rendered or goods supplied, the obligation of payment being on the person availing the service and or receiving the goods.

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Kerala High Court


Suicide

Person tries to commit suicide after being subjected to severe mental stress, which is a punishable offence: Is there any provision which can save her from penal provision?

Expressing that, Criminal prosecution followed by conviction and imposing substantive sentences and fines on those convicted of suicidal behaviours are believed to constitute an affront to human dignity, K. Haripal, J., pointed out that a large section of the society considers that suicidal behaviour is typically a symptom of psychiatric illness or an act of psychological distress, suggesting that the person requires assistance in his personal and psychological life, not punishment with imprisonment or fine.

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Maternity Benefits

Do employers have a responsibility to ensure that delivering and raising a child, shall not be detrimental to female officer’s career?

Addressing a matter wherein maternity benefits were not being allowed to female officersRaja Vijayaraghavan V, JJ., expressed that the employer is to take all steps possible to ensure that they are sympathetic to the cause of the female officer so that she can achieve her potential in the workplace and the time spent by her to deliver and raise her child shall not be detrimental to her career or her prospects.

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Floods

Persons who violate directions of Corporation, as mandated by law, against deposit of garbage into canals, shall be taken to task under fullest warrant of law

Expressing that, as much as this Court does not desire to control the management of the drains or the flood mitigating systems of the city on regular basis, it is forced to do so because of the large-scale inundation witnessedDevan Ramachandran, J., held that it is necessary that citizens understand their duty to ensure that canals are fenced and maintained well and kept free of debris, which otherwise would challenge the lives of many other affected by the flooding.

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Educational Loan

Can low CIBIL Score of a co-borrower be a reason for denial of an education loan?

In a case wherein, due to low CIBIL Score education loan was denied, N. Nagaresh, J., directed for reconsideration of loan applications, disregarding the low Credit Score of the co-obligants.

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Right of Press

Right of Press to report truthfully and faithfully | Press shall NOT indulge in sensationalism

Stating that, though the Press has a duty to inform the public, the Division Bench of Devan Ramachandran and Sophy Thomas, JJ., observed that, it is the well-accepted thumb rule that the Press shall not indulge in sensationalism; or in speculating upon the guilt or otherwise of any accused or other individual; or to create an opinion about the comportment or character of a person involved in the Trial; and not to embellish, by impelling or sponsoring an opinion they seek.

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Promise to Marry

Whether promise to marry made to married women is legally enforceable?

In a bail matter,P.V. Kunhikrishnan, J., noted the position of law that, a promise to marry made to married women is not legally enforceable, the offence of rape is not attracted.

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Political Rallies

Can organisers of political rallies be responsible for provocative slogans raised by any of the participants during such rallies?

P.V. Kunhikrishnan, J., observed that, if a member of a rally raises provocative slogans, the persons who organize the rally is also responsible.

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Madras High Court


Legal Entity

Mother Nature is a living being having legal entity? Madras HC answers

Stating that the past generations have handed over the ‘Mother Earth’ to us in its pristine glory, S. Srimathy, J., expressed that it is the right time to declare/confer juristic status to the “Mother Nature”.

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Right to Worship

Whether constitutional guarantee of freedom of religion enshrined in Art. 25(1) of the Constitution of India extends even to rites and ceremonies associated with a religion?

Expressing that, the right of worship guaranteed under the Constitution to be respected by all concerned and devotees cannot be denied their right to worship under any circumstances, S.M. Subramaniam, J., held that every devotee has got a right to enter into the temple and worship Lord Sri Varadaraja Perumal in the way he likes without affecting the rights of other devotees/worshippers and temple activities.

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Negotiable Instruments Act

Obligation of Thumb Impression and Signature, both, for a Pro-Note under Negotiable Instruments Act: Mandatory or Not?

Teekaa Raman, J., observed that there is no mandatory provision under the Negotiable Instruments Act that both the signature and thumb impression has to be obtained for a pro-note and the lower Appellate Judge has totally misguided and misused the provision of the Negotiable Instruments Act, regarding the burden of proof and not even followed basic rudimentary of Section 20 of the Negotiable instruments Act.

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Public Employments

Can appointments be claimed as a matter of absolute right?

S.M. Subramaniam, J., observed that, equal opportunities in public employment is the Constitutional mandate.

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Madhya Pradesh High Court


Retiral Dues

Illicit deduction of amount from the retiral dues; Directions issued to refund the amount

Sushrut Arvind Dharmadhikari, J. allowed a writ petition which was filed assailing the legality, validity and propriety of the order dated 1-8-2018 whereby the excess amount of Rs.81,239/- has been sought to be recovered from the gratuity payable to him.

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Section 311 CrPC

Permission to change statement before Court would be dangerous for legal system and it may be also misused of S. 311 of CrPC; application for restatement after 2 years dismissed

Anil Verma, J. dismissed a criminal revision filed against the impugned order whereby an application preferred by the applicant/prosecutrix under Section 311 of CrPC was been dismissed.

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Civil Suit

Application under S. 151 of CPC maintainable despite the fact that order allowing the application under Or. 7 R. 11 of CPC is appealable; Trial Court directed to restore civil suit

Dwarka Dhish Bansal, J. allowed a civil revision under Section 115 of CPC against the order rejecting the application filed under Section 151 of CPC holding that the same was not maintainable.

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Bail

Not entitled to keep the amount of compensation paid to the State government in the event of a false rape case; Court allows bail

Vivek Agarwal, J. deciding a second bail application filed by the applicant in connection with Crime under Sections 376, 376(2)(N), 506 of IPC and Sections 3,4,5J(ii), 5L POCSO Act and Sections 3(1)(w)(II), 3(1)(w)(II), 3(II)(V) of SC/ST Act directed the Trial Court to ask the prosecutrix to refund the compensation amount paid by the State.

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Police Protection

Major Couple entitled to police protection in event of any future threats from parents; Permission granted to approach police commissioner directly

Vivek Rusia, J. decided on a petition which was filed seeking police protection.

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Termination of Pregnancy

Victim of rape allowed to terminate 13-week pregnancy; Direction issued to District Hospital for immediate action

Vivek Rusia, J. allowed an appeal which was filed seeking permission/ direction for termination of pregnancy.

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Principles of Natural Justice

Order by Trial Court violative of principles of natural justice; IO to be given opportunity to be heard

Atul Sreedharan, J. allowed a petition which was filed aggrieved by the order where after deciding a criminal case, the Additional Sessions Judge passed an order asking the Superintendent of Police to take action against the petitioner, who was the Investigating Officer of the case.

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Meghalaya High Court


Piling up Garbage

With serious menace of garbage piling up in one of the major towns, State administration seeks only to play the fiddle; matter receives the urgent attention at the highest quarters

The Division Bench of Sanjib Banerjee, CJ. and W. Diengdoh, J. took up a petition on a matter pertaining to the piling-up of garbage in the town of Jowai. The petition was filed on 12-04-2022 complaining of household waste and general garbage not being collected in the Jowai urban township area from 04-02-2022. The Court had served the respondents served immediately and informed that the matter will appear a week hence for a preliminary hearing and appropriate directions on 20-04-2022.

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Orissa High Court


Exercise of power involving Application under Or. 1 R. 10 of CPC is completely different from Exercise of Power under Or. 21 Rules 97, 99 & 101 of CPC; Scope of latter is much wider

“…there exist two decrees passed by two different courts at the instance of third party and the other at the instance of the Plaintiff- Petitioner involved here in the Execution Proceeding.”

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Section 37 IT Act

The reasonableness of the expenditure had to be adjudged from the point of view of the businessman; Applied the test of commercial expediency

A Division Bench of S. Muralidhar CJ and R. K. Pattanaik J. dismissed the appeal filed by the assessee and upheld AO’s decision to disallow part of the payment towards commission.

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Food License

Any person selling article or food without a license would be punishable under S. 16 (I)(a)(ii) PFA Act as per S. 7(iii) PFA Act

Muralidhar CJ dismissed the revision petition and set aside the conviction decision of the Trial Court which was later affirmed by the Appellate Court.

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POCSO

Proceedings of the High Court cannot be held hostage to the whims of the investigating agency; granted bail to a CCL

V Narasingh, J. disposed of the bail application and restrained the Court to not grant any further adjournments and released the petitioner on bail.

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Industrial Disputes Act

It is not mandatory for Central Government to make a reference to a dispute which is of national importance to a National Tribunal in view of S. 7-B r/w S 10 (1-A) ID Act

A Division Bench of S. Muralidhar, CJ and R.K. Pattanaik J. dismissed the petition and upheld the judgment by CGIT, Bhubaneshwar declining the prayer of the Petitioner as regards the maintainability of the dispute before it.

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Contract

It is only when a purchase order is placed that a ‘contract’ would be entered into and only then arbitration clause would become part thereof

Muralidhar, CJ. dismissed the petition, declined the appointment of arbitrator and left it open to the petitioners to avail other remedies as may be available to them in accordance with law.

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Patna High Court


Negotiable Instruments Act

Can an order of interim compensation under S. 143-A NI Act, be enforced as ‘public demand’ under Bihar & Orissa Public Demands Recovery Act, 1914?

The Division Bench of Sanjay Karol, CJ and S. Kumar J., held that an order of payment of interim compensation under the Negotiable Instruments Act, 1881 can be enforced under the Bihar & Orissa Public Demands Recovery Act, 1914 as ‘public demand’.

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Punjab and Haryana High Court


Protection of Life and Liberty

State’s respect for individual independent choices has to be held high

“Courts’ responsibility to uphold the principles of constitutional morality, there exists a parallel duty to not infringe upon the personal relationship between two free willed adults.”

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Abetment of Suicide

Abetment of suicide by wife and mother-in-law of deceased?

Vikas Bahl, J., granted bail to mother-in-law and wife alleged to have incited husband to commit suicide.

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Maintenance Tribunal

If a person is aged below 58 years, Can Maintenance Tribunal invoke jurisdiction under the Maintenance and Welfare of Parents and Senior Citizen Act?

Arun Monga, J., held that the Maintenance Tribunal has no jurisdiction under the Maintenance and Welfare of Parents and Senior Citizen Act, 2007 if a person is aged below 58 years old.

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Mental Cruelty

If a husband stops talking to the wife, would that cause mental cruelty?

In a matter with regard to mental cruelty, the Division Bench of Ritu Bahri and Ashok Kumar Verma, JJ., observed that, even if the husband and wife were staying together and the husband stopped talking to the wife, it would cause mental cruelty and a spouse staying away by sending vulgar and defamatory letters or notices by initiating a number of judicial proceedings could make the life of other spouse miserable.

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Sedition

Can an act of dissent be labeled as sedition?

Expressing that, in a democratic set-up, there always would be voices of dissent and opinions against rules and protest against actions, Vinod S. Bhardwaj, J., observed that, some protests may have aggression but still an act of dissent would not be ordinarily labeled as sedition.

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Rajasthan High Court


Remedy

Writ Petition not maintainable due to having an alternative and efficacious remedy under S. 17 of the SARFAESI Act

Mahendar Kumar Goyal, J. dismissed the writ petition in view of availability of alternative remedy to the petitioners under the provisions of the SARFAESI Act. 

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Sikkim High Court


Penetrative Sexual Assault

Trial Courts should exhibit sensitivity to the plight of a child victim but they cannot go overboard and stonewall steps that are mandatory to be complied with when analysing and interpreting evidence given by  witnesses; Sentence of rape accused modified

The Division Bench of Meenakshi Madan Rai and Bhaskar Rai Pradhan, JJ. partly allowed an appeal which was filed by the appellant who aged about 40 years, was accused of having committed the offence of aggravated penetrative sexual assault, as defined under Section 5(m) of the Protection of Children from Sexual Offences Act, 2012, on the victim, aged about 10 years. Trial Court on consideration of the evidence on record convicted the Appellant of the offence under Section 5(m) punishable under Section 6 of the POCSO Act, 2012 by the impugned Judgment and Order on Sentence, both dated 11- 11-2020, and sentenced him to undergo rigorous imprisonment for a term of 40 years and to pay fine of Rs 30,000/- (Rupees thirty thousand) only, with a default clause of imprisonment of 5 years.

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Telangana High Court


Police Negligence

Tel HC remarks several writ petitions are filed complaining about police negligence and delays during investigation; Such issues cannot be decided by invoking jurisdiction under Art. 226 of the Constitution

“…The appropriate and efficacious remedy available to the petitioner, if she is aggrieved by the action/inaction of the Investigating Officer is to file a private complaint against the said officer before the competent Court.”

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Contempt of Court

‘slap- say sorry-forget cannot be accepted’; An apology can neither be a defence nor a justification for an act which tantamount to Contempt of Court

A Division Bench of P Naveen Rao and M G Priyadarshini, JJ. dismissed the petition and held that contempt has taken place and no apology must be given.

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Uttaranchal High Court


POCSO

Minor contradictions or insignificant discrepancies in the statement of a prosecutrix should not be a ground for throwing out an otherwise reliable prosecution case; appeal dismissed in POCSO matter

Ramesh Chandra Khulbe, J. dismissed a criminal appeal which was filed from jail assailing the judgment and order whereby the Trial Court had convicted and sentenced the appellant on the counts of Sections 376, 377, 506 Penal Code and Section 6 of POCSO Act.

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Juvenile Justice Act

Child in conflict with law cannot be allowed anticipatory bail as JJ Act does not make any provision for the same; Application dismissed

Ravindra Maithani, J. dismissed an application for anticipatory bail in regards to an ongoing trial under Sections 376, 323, 504, and 506 Penal Code, 1860. The previous anticipatory bail application of the applicant had been rejected by the Fast Track Court/Special Judge, POCSO/Additional Sessions Judge, Dehradun on the ground that since the applicant is a child in conflict with the law (“CIL”) and the Juvenile Justice (Care and Protection of Children) Act, 2015 (“the Act”) does not make any provision for anticipatory bail, the application cannot be allowed.

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Intra-Court Appeal

Adequate opportunity of filing counter-affidavit should be afforded to State; intra-Court appeal allowed

The Division Bench of S.K. Mishra, ACJ and A.K. Verma, J. allowed an intra-Court appeal wherein the State has assailed the order passed by the Single Judge whereby the Writ Petition of the writ petitioners-respondents herein was allowed supposedly on the concession made by the government pleader.

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Case BriefsHigh Courts

Bombay High Court: While addressing a matter with regard to a husband setting ablaze his wife, the Division Bench of Sadhana S. Jadhav and Milind N. Jadhav, JJ., made an observation with respect to dying declaration that,

It is by itself sufficient to convict an accused for the accusation levelled against him provided the dying declaration is found to be voluntary, truthful and hence, could inspire the confidence of the court.

The appellant was convicted for the offence punishable under Section 302 of the Penal Code, 1860 by the Additional Sessions Judge.

Factual Background


Appellant was married to Manisha and in the year 2009, Manisha was admitted to a hospital with a history of burn injuries.

It was disclosed by Manisha to the Police that her husband used to be always under the influence of alcohol and insisted upon her to pay money for the alcohol and if she refused to oblige, he used to assault and abuse her.

On night, when Manisha refused to give money to her husband for liquor, while sleeping the appellant was dowsing kerosene on her and in order to rescue herself, she tried to flee from the house and at that juncture, her husband lit the matchstick and threw at her, setting her ablaze.

Later she raised a hue and cry, after which her sister-in-law tried to rescue her and her husband who had fled from the house came and pretended to extinguish the flames.

In view of the above, charge sheet was filed for the offence punishable under Section 302 IPC.

Analysis, Law and Decision


High Court observed that the trial court did not refer to the history given by the patient herself.

Further, the history narrated by the patient before the doctor created a doubt in respect of the statement recorded and which was held to be the dying declaration.

“A dying declaration is by itself sufficient to convict an accused for the accusation levelled against him provided the dying declaration is found to be voluntary, truthful and hence, could inspire the confidence of the court. It is not necessary that a dying declaration shall necessarily be recorded in question and answer form or in any particular format.”

The Bench noted that various Supreme Court decisions have held that in case of multiple dying declarations/statements of the deceased there shall be no variance whatsoever.

The disclosure leading to the incident in which the deponent had died shall be consistent, cogent and corroborative. The prosecution has to pass this test by all means, as an onus is cast upon the prosecution to establish the guilt of the accused and authorship of the injury by the accused beyond reasonable doubt.

Reasonable doubt

Reasonable doubt means an explanation or a fact which would appeal to the reason of a prudent mind and a judicially conscious court, since such a statement of a deceased must inspire the confidence of the court.

High Court opined that the appellant was in custody since 2009 and deserves to be acquitted of all the charges levelled against him as the dying declaration would constrain the Court to take another possible view.

Whenever there is another possible view, it would be incumbent upon the court to take a view in favour of the accused, provided there is contemporaneous records which is in the nature of admissible evidence.

 Hence, the appeal was allowed.

Lastly, the Court appreciated the efforts taken by the Advocate Ashish Satpute, appointed to espouse the cause of the appellant. [Satish Mahadeo Kale v. State of Maharashtra, 2022 SCC OnLine Bom 1004, decided on 6-5-2022]


Advocates before the Court:

Mr. Ashish Satpute, advocate appointed for appellant.

Ms. M.M. Deshmukh, APP for State.

Case BriefsHigh Courts

Delhi High Court: While upholding the decision of Trial Court, Division Bench of Vipin Sanghi and Jasmeet Singh, JJ., reiterated that dying declaration of a person by itself, maybe sufficient to find the accused guilty and if the statement is reliable and credible, it does not even need corroboration.

Convict preferred the present appeal against the decision of lower court arising out of an FIR registered under Sections 302, 304B, 498A, 34, 174A of Penal Code, 1860 against the four accused, namely Rohtash, Santosh, Sumit and Jitender.

Appellant Sumit – accused 3 was found guilty of commission of offence of murder under Section 302 IPC. Other accused persons were acquitted of the offence for which they were charged.

Factual Background

Deceased and her sister were married to both sons of the accused Rohtash and few days after the marriage, father-in-law, mother-in-law, brother-in- law and the husband of the deceased started abusing and beating both the sisters and even damaged the articles given in the marriage. Later both the sisters were beaten and removed from the matrimonial house and the child aged 15-16 days was also snatched from the deceased. Though the child was given back to the mother after police intervention.

After a few days, the accused and other relatives settled the matter and took the sisters to the matrimonial home, where they were both beaten again. After a few days, while the accused Sumit was quarrelling with and beating the deceased, he poured kerosene on her, and she was set on fire. Later the neighbours doused the fire and took her to the hospital.

To the Executive Magistrate, deceased in her statement alleged that she was tortured for the demand of car and two fridges by all the accused persons and her husband had set her ablaze in the presence of other accused persons.

In view of the above-stated background,

Charges were framed against the accused persons, but they all pleaded ‘not guilty’.

Eye Witness (PW-3) sister of the deceased deposed about the incident and about the physical and mental torture to which the deceased was subjected by the accused persons.

Detailed Analysis

High Court stated that the trial court had acquitted the accused including the appellant in relation to the offence under Section 398A and 304B of the Penal Code, 1860.

In Court’s opinion, the testimony of the deceased’s sister was corroborated by the Dying Declaration of the deceased.

Supreme Court in the decision of Khushal Rao v. State of Bombay, AIR 1958 SC 22, held that the dying declaration of a person by itself, may be sufficient to find the accused guilty and if the statement is reliable and credible, it does not even need corroboration.

Bench found that the dying declaration of the deceased was very clear in the present matter.

What did she state?

She stated that yesterday i.e. 14.09.2012, in the night at about 10/10:30 P.M., her husband Sumit @ Vicky, her father in law – Rohtash, her mother in law – Santosh and brother in law – Jitender @ Tinku were all at home and her husband Sumit caught held of her hand and took her to the terrace and her husband poured kerosene oil on her and lit the matchstick in the presence of the other persons/ accused and put her on fire. Her elder sister was also on the terrace at that time, and she was shouting “bachao bachao”. However, nobody came to help her and they all went down. That is when her elder brother in law – Pradeep came to the terrace and with his help and the help of the neighbours, her brother in law Pradeep took her to the hospital. She stated that the accused used to demand dowry and harassed her for the same. They had demanded a car and two fridges in dowry and after her marriage she was being harassed for dowry. She stated that her husband – Sumit, mother in law – Santosh, father in law – Rohtash, and brother in law – Jitender @ Tinku were responsible for her condition.

Deceased’s statement on the aspect of the manner and cause of her death inspired the confidence of its voluntariness, truthfulness and correctness, and was also sufficiently corroborated by testimony of PW-3 and other evidence brought on record.

Conclusion

Hence, Trial Court’s decision was upheld as the finding of the appellant’s guilt in the commission of the offence under Section 300 IPC and was correctly convicted under Section 302 IPC.

Appeal was dismissed in view of the above decision. [Sumit v. State, 2021 SCC OnLine Del 4551, decided on 30-9-2021]


Advocates before the Court:

For the Appellant: Siddharth Yadav, Advocate

For the Respondent: APP for the State

Case BriefsSupreme Court

Supreme Court: The bench of Navin Sinha and Krishan Murari, JJ has held that there cannot be any rigid standard or yardstick for acceptance or rejection of a dying declaration and whether or not it will be admissible in evidence will depend upon the fact of each case.

The Court was hearing a case dating back to 1991 where a married woman succumbed to 95% burn injuries. The case became complicated as there was no eye-witness account and the prosecution had based it’s case of circumstantial evidence involving the dying declaration of the deceased. The husband and the sister-in-law of the deceased were acquitted as the dying declaration did not inspire confidence.  “It vacillated between blaming the husband and the sister¬in-law, coupled with the absence of any certificate by the Doctor that the deceased was in a fit state of mind when she made the dying declaration.”

Explaining the law relating to admissibility of dying declaration under Section 32 of the Evidence Act, 1872, the Court held that it alone can also form the basis for conviction if it has been made voluntarily and inspires confidence.  However,

“If there are contradictions, variations, creating doubts about its truthfulness, affecting its veracity and credibility or if the dying declaration is suspect, or the accused is able to create a doubt not only with regard to the dying declaration but also with regard to the nature and manner of death, the benefit of doubt shall have to be given to the accused. Therefore, much shall depend on the facts of a case.”

Applying this principle the Court took note of the following facts at hand:

  • The statement of the deceased was based on hearsay evidence that the deceased was set on fire by her husband. There was no reference to sister-in-law in this statement and neither had she said anything about dowry demand.
  • The next statement of the deceased blamed the sister-in-law. This statement was not signed by anybody and the Doctor who recorded the statement has not been examined. Merely because his signature has been identified by the record clerk of the hospital cannot establish the correctness of its contents.
  • The third statement of the deceased was recorded by the Assistant Sub­Inspector blaming sister-in-law alone without any allegation against the husband, and on the contrary states that she was brought to the hospital by her husband. “It again does not disclose any dowry demand.”
  • Assistant Sub­Inspector who recorded the dying declaration does not state that the deceased was in a fit state of mind to make the statement. He states that the Doctor had certified fitness of mind of the deceased, when the dying declaration itself contains no such statement. In cross examination he acknowledges that the fitness of the deceased was certified by a resident junior doctor separately but whose signature and endorsement is not available on the dying declaration. The record clerk of the hospital also made a statement that the Doctor had not signed in his presence and that at times doctors would come and put their signatures in the record room.

In such facts and circumstances, considering that the statements of the deceased have vacillated, the Court noticed that there is no evidence about the fitness of mind of the deceased to make the dying declaration including the presence of the Doctor, the veracity and truthfulness of the dying declaration remains suspect. Hence,

“it would not be safe to simply reject the probable defence of suicide, to reverse the acquittal and convict the respondents.”

[Naresh Kumar v. Kalawati, CRIMINAL APPEAL NO. 35 OF 2013, decided on 25.03.2021]


*Judgment by Justice Navin Sinha

Know Thy Judge| Justice Navin Sinha

Appearances before the Court by

For appellant: Advocate Rajendra Singhvi

For respondents: Senior Advocate Ramesh Gupta

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

Allahabad High Court: The Division Bench of B. Amit Sthalekar and Shekhar Kumar Yadav, JJ., held that dying declaration can be acted upon without any corroboration when the Court feels convinced about its trustworthiness.

Appellants filed the instant criminal appeal against the order passed by Additional Sessions Judge whereby appellants have been convicted under Section 302/34 of Penal Code, 1860.

All the appellants except appellant Kamal were convicted under Section 498-A IPC and sentenced to three years rigorous imprisonment along with fine with default stipulation. Further, all the appellants except appellant Kamal were convicted under Section 3 of the Dowry Prohibition Act and sentenced to three years rigorous imprisonment along with fine with default stipulation.

Adding to the above, all the appellants except appellant Kamal were convicted under Section 4 of the Dowry Prohibition Act and sentenced to two years imprisonment along with fine with default stipulation.

Appellant filed the instant bail applications in light of the above-stated.

The factual matrix of the instant case shows that informant alleged that the marriage of his niece was solemnised with accused-appellant Raju son of Jaiprakash. Raju, his mother and father, sister and his friend were continuously torturing and harassing the niece of informant for bringing less dowry and for not giving vehicle in the marriage, and these torturous acts of appellants/applicants were regularly complained to the informant’s side by his niece and for which a case of dowry was also registered and pending between the parties.

It was further added to the allegations that the appellants/applicants took the niece of the informant to her matrimonial home, thereafter, she has been continuously harassed and maltreated again for bringing less dowry, which was also complained by her to the informant and the family members.

It was alleged that the appellants set ablaze the informant’s niece with the intention to kill her and when the informant and his family members got the said information, they took her to the hospital and on enquiry by the informant she narrated that all the appellants set her at ablaze with an intention to kill her.

During the treatment, informant’s niece lost her life.

Appellants Counsel submitted that the dying declaration is not trustworthy because, in the dying declaration, it has not been recorded that the deceased was in a fit state of mind to make the said dying declaration.

AGA for the State placed reliance on the dying declaration recorded by the Executive Magistrate to contend that there is no contradiction or inconsistency in the dying declaration so as to disbelieve the same. It was further submitted that Executive Magistrate in his deposition stated that before recording the dying declaration, he enquired about the mental status of the victim from the Doctor and on being satisfied regarding the fit mental status of the deceased, he proceeded to record the dying declaration and it is not the requirement of law that the Executive Magistrate was under an obligation to record his satisfaction that the deceased was in a fit state of mind to make the dying declaration.

AGA also placed reliance on the Supreme court decision in Laxman v. State of Maharashtra, (2002) 6 SCC 710, wherein it was explained that medical certification is not a sine qua non for accepting the Dying Declaration.

Decision

Bench on prima facie reading of dying declaration noted that the deceased gave the dying declaration before the Executive Magistrate, who after having been satisfied that she was in a fit state of mind in giving the statement, recorded her dying declaration.

In the dying declaration, deceased categorically stated the manner in which she was burnt by the appellants.

It is trite law that the court should not be too technical when it feels convinced about the trustworthiness of the dying declaration, which inspires confidence, can be acted upon, without any corroboration.

Bench found a case against the appellants and hence bail was rejected.[Babli v. State of U.P., 2020 SCC OnLine All 1461, decided on 09-12-2020]

Legislation UpdatesNotifications

Government of India has taken steps to strengthen legislative provisions to deal with incidents of sexual offences against women and girls.

Government of India has also issued various advisories to the States/ Union Territories from time-to-time emphasizing the strict actions to be taken by the police in cases of crime against women, including in cases of sexual assault which includes registration of FIR, collection of evidence for forensic examination and use of Sexual Assault Evidence Collection (SAEC) Kit, completion of investigation in sexual assault cases in two months, use of National Database on Sexual Offenders for identifying and tracking repeat sexual offenders, etc.

Criminal laws relating to sexual offences against women provide, inter-alia, for the following actions to be taken by the Police in such cases:

Zero FIR

(i) Compulsory registration of FIR in case of cognizable offence under sub-section (1) of section 154 of the Code of Criminal Procedure, 1973 (CrPC). The law also enables the police to register FIR or a “Zero FIR” (in case the crime is committed outside the jurisdiction of police station) in the event of receipt of information on commission of a cognizable offence, which includes cases of sexual assault on women.

Punishment to a Public Servant

(ii) Section 166 A(c) of the Indian Penal Code 1860 (IPC) provides for punishment to a public servant for failure to record FIR in relation to cognizable offences punishable under section 326A, Section 326B, Section 354, Section 354B, Section 370, Section 370A, Section 376, Section 376A, Section 376AB, Section 376B, Section 376C, Section 376D, Section 376DA, Section 376DB, Section 376E or Section 509 in IPC.

Police Investigation in 2 months | Rape

(iii) Section 173 of CrPC provides for completion of police investigation in relation to rape in two months. In order to facilitate the State police to monitor compliance, in this regard MHA has provided an online portal called Investigation Tracking System for Sexual Offences (ITSSO) for monitoring the same. This is available exclusively to law enforcement officers.

Registered Medical Practitioner

(iv) Section 164-A of CrPC provides that in rape/sexual assault investigation the victim shall be examined by a registered medical practitioner under consent within twenty-four hours from the time of receiving the information relating to the commission of such offence.

Dying Declaration

(v) Section 32 (1) of the Indian Evidence Act, 1872, provides that the statement, written or verbal, by a person who is dead shall be treated as relevant fact in the investigation when the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death. Hon’ble Supreme Court in its order dated 7th January 2020, in the matter of Criminal Appeal Nos. 194-195 of 2012 in the case of Purshottam Chopra & Anr. v. State (Govt. of NCT Delhi), directed that a particular statement, when being offered as dying declaration and satisfies all the requirements of judicial scrutiny, cannot be discarded merely because it has not been recorded by a Magistrate or that the police officer did not obtain attestation by any person present at the time of making of the statement.

Forensic Evidence

(vi)The Directorate of Forensic Science Services (DFSS) under the MHA has issued Guidelines for collection, preservation & transportation of forensic evidence in sexual assault cases for Investigation Officers and Medical Officers. In order to facilitate the State Police, Bureau of Police Research and Development (BPR&D) has issued Sexual Assault Evidence Collection (SAEC) Kits to every State/UT. It is necessary to use these SAEC kits in every case of sexual assault reported. MHA advisory dated 5th October 2020 in this matter may be referred. BPR&D and LNJN National Institute of Criminology and Forensic Sciences (NICFS) have been regularly conducting Training and Training of Trainers (ToT) programmes on the procedure for collection, preservation and handling of forensic evidence for Police/Prosecutors and Medical Officers respectively.

Further, MHA stated, any failure of police to adhere to the mandatory requirements may not augur well for the delivery of criminal justice in the country, especially in the context of women safety. Such lapses, if noticed, need to be investigated into and stringent action taken immediately against the officers concerned responsible for the same.

Read the Advisory here: ADVISORY


Ministry of Home and Affairs

[Advisory dt. 09-10-2020]

Case BriefsHigh Courts

Bombay High Court: A Division Bench of S.M. Gavhane and T.V. Nalawade, JJ., while partially allowing the appeal, held that,

“…with regard to offence under Section 498-A IPC, prosecuton has to prove that the accused in furtherance of their common intention caused cruelty within the meaning of cruelty given under explanation A and B of Section 498-A IPC.”

The present appeal was filed to challenge the judgment and order of Sessions Judge that had passed conviction and sentence for offence punishable under Section 498-A read with Section 34 of Penal Code, 1860, along with punishment under Section 302 read with 34 IPC.

Facts of the case were that the deceased was married to accused 1 about five months before the incident. While the deceased and accused 1 were cohabiting, the deceased sustained 86% burn injuries on 17-11-2007.

Later, dying declarations were recorded in which it was stated that since the marriage accused were harassing the deceased and asking her to bring Rs 10,000 from her parents. On account of the same, the deceased was assaulted and harassed.

On 16-11-2007, accused had beaten her by fist and kick blows and stick and on the morning of 17-11-2007, her father-in-law and mother-in-law caught hold her and her husband poured kerosene on her person and set her on fire by lighting the match stick and thus attempted to commit her murder.

Advocate for the appellants/accused 1 submitted that when both the dying declarations were recorded the deceased was not in a position to make a statement due to 86% burns suffered by her. Further, he stated that both the written dying declaration are not voluntary and trustworthy.

APP submitted that there was no material to show that dying declarations were the result of the product of imagination, tutoring or prompting.

Analysis & Decision of the Court

High Court stated that the death of the accused was not natural.

Looking to the defence of the accused and case of the prosecution it is to be seen whether the death of the deceased is homicidal, suicidal or accidental and if the death of deceased is homicidal whether the accused are responsible for causing burns to the deceased and to her death.

Nothing was found in favour of the accused in the cross-examination of medical officer. Court also noted that the contents of the dying declarations were not specifically put to the accused in the statement under Section 313 CrPC and as such no opportunity was given to the accused to explain the circumstances appearing against them in both the dying declarations.

Further Court found that kerosene residues were present on the burnt clothes of the deceased. If the deceased would have caught fire accidentally no kerosene would have been found on the clothes on her person. Evidence of the defence witness is not believable and sufficient to state that the deceased sustained burns accidentally.

Thus, accused 1 was responsible for causing burn injuries to the deceased and ultimately to cause her death.

Findings of the trial court that the prosecution has proved offence under Section 302 IPC against accused 2 & 3 father-in-law and mother-in-law of deceased is not correct and sustainable.

Hence in the above view, the appeal was partly allowed. [Dadarao v. State of Maharashtra, 2020 SCC OnLine Bom 346, decided on 03-03-2020]

Case BriefsHigh Courts

Bombay High Court: A Division Bench of M.G. Sewlikar and T.V. Nalawade, JJ., upheld the decision of the trial court to convict the accused under Section 302 of Penal Code and held that,

“ A person who pours kerosene on someone and sets him on fire has no right to say that he had no knowledge that this act of his would cause death or would cause such bodily injury as is likely to cause death.”

The present appeal was preferred against the conviction under Sections 302, 323 and 506 of Penal Code, 1860.

Facts

Appellant/accused was a liquor addict and one evening when he came to home, the deceased (wife) asked him why he consumed liquor after which the appellant/accused abused her and said that he would get rid of her.

On the night of the above-stated incident, when the deceased and her son went off to sleep, accused/appellant poured kerosene on the deceased and ignited the match stick and threw it at her and ran out of the house. Thereupon, accused/appellant poured water on her and extinguished the fire.

Two dying declarations were recorded wherein the deceased stated the same story as above, after which offences under Sections 307, 323, 504 and 506 of IPC were registered. Offence was converted under Section 302 of Penal Code as the deceased breathed her last.

Analysis

Sessions Judge found that both the dying declarations were voluntary and truthful.

“Principle on which dying declaration is admitted in evidence is based on the legal maxim “Nemo Moriturus Praesumitur Mentire”: i.e. the man will not meet his maker with a lie in his mouth. It is based on the principle that in the face of death, all the worldly aspirations of a man do not exist. It is unlikely that a person who is on death bed would falsely implicate an innocent.”

Principles of governing the dying declaration are enumerated in the case of Paniben v. State of Gujarat, (1992) 2 SCC 474.

Law on the dying declaration is that if the Court is satisfied that the dying declaration is true and made voluntarily by the deceased, conviction can be based solely on it, without any further corroboration. When the dying declaration suffers from some infirmity, it cannot alone form the basis of conviction.

Dying declaration is enshrined in Section 32 of the Evidence Act as an exception to the general rule contained in Section 60 of the Evidence Act.

Court noted that the dying declaration was recorded and signed by the victim when the doctor declared her to be in a fit state to do so. Thus, both the dying declarations appear to be truthful and voluntary.

Bench observed that, accused had failed to explain the circumstances in which the incident occurred. Prosecution proved both the dying declarations. It also proved the presence of the accused at the time of incident and also proved that kerosene was detected on the clothes of the accused.

Having regard to the above, trial court did not commit any error in placing reliance on both the dying declarations and recording the conviction against the accused under Section 302 of IPC.

Counsel Shri Chatterji for the accused had contended that the accused had no intention of doing the said act i.e. the intention to murder as he had poured water on the person of the deceased soon after she was engulfed by fire.

For the above argument, Court stated that,

The act is so inherently dangerous that a man of ordinary intelligence can also contemplate that setting a person on fire would entail death or would cause such bodily injury as is likely to cause death.

Thus, the High Court on noting the above held that the prosecution has proved that the death is homicidal. Bench also cited the Supreme Court’ decision in Suraj Jagannath Jadhav v. State of Maharashtra, 2019 SCC OnLine SC 1608, wherein it was held that,

“Even assuming that the accused had no intention to cause the death of the deceased, the act of the accused falls under clause Fourthly of Section 300 IPC that is the act of causing injury so imminently dangerous where it will in all probability cause death.”

Hence, in view of the above, appeal is dismissed. [Navin Bhimrao Bansode v. State of Maharashtra, 2020 SCC OnLine Bom 284, decided on 17-02-2020]

Case BriefsHigh Courts

Bombay High Court: A Division Bench of Ranjit More and Surendra P. Tavadae, JJ., while disposing of the present appeal altered the conviction under Section 302 to Section 304 Part-II of Penal Code, 1860.

The Judgment and order of the Sessions Judge who had convicted the appellant under Section 302 IPC was challenged.

The facts pertinent to the case are that, the appellant was addicted to liquor and in the influence of the same he used to abuse and assault the deceased (Sarika). On the night of the incident, appellant picked up a quarrel on a petty ground and poured thinner on the person of Sarika and set her on fire. Later, appellant himself tried to extinguish the fire by putting water on the person of Sarika and took her to the hospital.

On the basis of the statement of Sarika, crime initially came to be registered under Section 307 of IPC. During the treatment, Sarika succumbed to injuries. After the post-mortem was performed, the offence under Section 302 IPC was added by the Investigating Officer. Later the appellant as arrested.

Advocate for the appellant submitted that the prosecution heavily relied on two written dying declarations and one oral dying declaration of the deceased. He further states that there are major flaws in recording the two dying declarations and they are concocted. Defence of the appellant is more probable than the prosecution theory.

Adding to his submissions, he stated that the appellant had no intention to kill his wife. Therefore the case falls under Section 304 Part-II of IPC.

APP for the State submitted that the dying declarations are consistent and there no flaws in recording the same. Thus, the same can form the basis for conviction under Section 302 IPC. Adding to his submission, APP stated that prior to the incident the appellant had threatened to kill his wife by setting her on fire and with this, it cannot be said that he had no intention of killing his wife.

The entire theory of prosecution depends on dying declarations alleged to have been given by the deceased immediately after the incident. Sarika (deceased) had disclosed her brother that the appellant poured thinner and set her on fire by a match stick. She also stated that the appellant had threatened that if she disclosed the name she would be killed.

Further, it is to be noted that the sum and substance of the first written dying declaration shows that deceased disclosed the cause of the incident as a quarrel over a petty count. The second dying declaration was recorded by the Special Executive Magistrate.

While going through both the declarations, they both appear to be consistent and there seems to be no scope for concoction. The first oral dying declaration was made by Sarika to her brother and thereafter, Police and Special Executive Magistrate recorded Sarika’s statement with the opinion of Medical Officer. Nothing was brought on record to establish that the dying declarations were concocted.

APP relied on the Supreme Court’s decision in Kalu Ram v. State of Rajasthan, (2000) 10 SCC 324; wherein it was held that the conduct cannot be seen divorced from totality of circumstances.

Decision

In the present case, it is established on record that due to quarrel between the appellant over a petty issue he poured thinner on the person of deceased and set her on fire. Taking into consideration the same it cannot be said that the appellant out of control did act of setting his wife on fire but subsequently he extinguished the fire by showing his remorse towards the act of setting fire. Therefore, the appellant had no intention to kill his wife and the said act cannot fall into the purview of Section 302 IPC but it squarely falls under the provisions of Section 304 Part-II IPC.

Thus, relying on the ratio of the decision in Kalu Ram v. State of Rajasthan, (2000) 10 SCC 324, Court was inclined to alter the conviction punishable under Section 302 to 304 Part-II IPC. [Avinash Baburao Rayate v. State of Maharashtra, Criminal Appeal No. 873 of 2010, decided on 31-01-2020]

Case BriefsHigh Courts

Bombay High Court: A Division Bench of P.N. Deshmukh and Pushpa V. Ganediwala, JJ., allowed a criminal appeal filed against the order of the trial court whereby the appellant was convicted for committing the offence of murder punishable under Section 302 IPC and for the offence of cruelty to women punishable under Section 498-A IPC. 

The appellant was convicted for the murder of his wife. It was alleged by the prosecution that the appellant used to ill-treat and harass the deceased after consuming liquor. The deceased died as a result of a hundred percent burn injuries. The conviction of the appellant was based on the dying declaration of the deceased recorded in the hospital. Aggrieved by his conviction, the appellant filed the instant appeal. 

The High Court considered the submissions made by R.M. Daga, Advocate appearing for the appellant, and S.P. Deshpande, Additional Public Prosecutor representing the State. 

Perusing the order of the trial court, the high court noted that the order convicting the appellant was based only on the dying declaration of the deceased. Considering the post mortem report, the Court found that the deceased died of hundred percent burn injuries.  In such circumstances, the Court was of the opinion that a bare perusal of the dying declaration would reveal the deceased’s thumb impression thereon with clear ridges, which creates a doubt in the case of the prosecution. 

Moreover, no medical officer was examined by the prosecution to bring on record the fact of the physical and mental state of the deceased before and after recording the statement, nor there is anything on record to establish that in spite of any attempts made by the prosecution, no presence of concerned medical officer could be obtained. Reliance was placed on the decision of the Supreme Court in State of H.P. v. Jai Lal, (1999) 7 SCC 280. wherein it was held that the report of an expert witness cannot be accepted as it is unless the expert witness has been examined and in the absence of examination of the medical expert, the certificate given by him cannot be read into evidence. It was also held that medical witness is an expert witness and his evidence stands on a different pedestal than an ordinary witness.    

In such view of the matter, the High Court allowed the appeal and set aside the order of the trial court conviction the appellant. [Pravin v. State of Maharashtra, 2020 SCC OnLine Bom 95,  decided on 07-01-2020]

Case BriefsHigh Courts

Rajasthan High Court: A Division Bench of Sabina and Goverdhan Bardhar, JJ., while dismissing the appeal upheld the judgment passed by the trial court.

In the instant case, respondent Nafisa in her dying declaration stated that her husband Amin who is the appellant, in this case, used to beat her out of matrimonial home under the influence of liquor. On 14-08-2011 Amin under the influence of liquor gave beatings to her and poured kerosene oil on her and set her on fire around 8-9 pm. The children were sleeping at that time so she raised an alarm she was taken to the hospital by her neighbours. Meanwhile, the appellant fled away from the spot. Respondent’s statement was recorded under Section 164 of the Code of Criminal Procedure, 1973. Respondent died on 15-08-2011 at 3:30 am so the offence under Section 302 of the Penal Code, 1860 was added. 

During the investigation, appellant said he was falsely framed in this case and said his wife had prepared meals and had served to children and he had no knowledge of how the fire was caught. Moreover, he said he tried to extinguish the fire and suffered injuries on his hands and face. When children were examined they didn’t support prosecution case and said their father tried to extinguish fire. Medical examination of the appellant said he suffered burn injuries on his hands and forearm. Even the parents of the deceased also admitted that she never complained about her husband to them. 

Therefore, the question before Court was that the statement recorded as dying declaration under Section 164 of the Code of Criminal Procedure, 1973 recorded by the magistrate the entire case should rest upon it.

The Court relied on the case Muthu Kutty v. State of T.N., (2005) 9 SCC 113 where Supreme Court laid down that though the dying declaration is of great value and importance, the accused is left with no power of cross-examination. The Court has to be on guard “that the statement of deceased was not as a result of either tutoring, or prompting or a product of imagination”. In another case of Munnu Raja v. State of M.P., (1976) 3 SCC 104, the Supreme Court laid down that there is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration.

The Court opined that the dying declaration in this case was obtained by all legal means as it was recorded by magistrate under Section 164 of the Code of Criminal Procedure, 1973 and the doctor deemed her fit to give statement and it was also signed by doctor and moreover no reason was established of her to such a thing in her death bed. The appellant neither took her wife to the hospital and nor was present in the hospital during the time of treatment. Moreover, the medical examination of the appellant happened on 28-09-2011 and the incident took place on 14-08-2011. Delay of so many days further questions the credibility of the medical report. This establishes guilt in the mind of appellant. [Amin v. State of Rajasthan, 2019 SCC OnLine Raj 3945, decided on 23-10-2019]

Case BriefsHigh Courts

Chhattisgarh High Court: Prashant Kumar Mishra, J. disposed of a criminal appeal where he altered the conviction of the appellant from the one under Section 302 (punishment for murder) to that under Section 304 Part I (punishment for culpable homicide not amounting to murder) of the Penal Code.

The appellant was convicted for the murder of her sister-in-law. The appellant had developed a fancy for the deceased. The marriage of the deceased was fixed on the day previous to the incident. On the morning of the day of the incident, the appellant inflicted axe blow on the deceased in the field. She went to her house and after some time she was taken to the police station where she registered FIR. After that, she was taken to the hospital but she died on the way. The appellant was tried and convicted by the trial court for the offence of murder punishable under Section 302. Aggrieved thereby, the appellant filed the present appeal.

The High Court noted that the deceased having died immediately after lodging FIR, it was required to dwell on the legal character of the said FIR, as to whether the same was admissible in evidence as dying declaration. Relying on Dharam Pal v. State of U.P., (2008) 17 SCC 337, the Court observed: “The legal position is therefore well settled that the FIR lodged by the deceased would attain the character and legal status of dying declaration if the victim dies before his/her examination in the Court.” Considering the same, the Court upheld the finding that the appellant committed the act that resulted in the death of the deceased.

However, the Court considered medical opinion of the doctor who conducted the post-mortem on the deceased, who stated that the deceased would have been saved if she would have been administered treatment immediately after the incident. The relatives of the deceased committed mistake by taking her first to the police station, rather taking her to the hospital. Considering such mitigating circumstances, the High Court altered the conviction of the appellant mentioned above. Also, the sentence of life imprisonment awarded to him by the trial court was reduced to 10 years, as already undergone by the appellant.[Ram Kumar v. State of Chhattisgarh, 2019 SCC OnLine Chh 83, decided on 22-07-2019]

Case BriefsForeign Courts

Supreme Court of Pakistan: A Full Bench of Manzoor Ahmad Malik, Syed Mansoor Ali Shah and Qazi Muhammad Amin Ahmed, JJ. set aside the impugned judgment and conviction of the appellant by extending the benefit of doubt.

The prosecution’s case was hinged on the dying declaration made by the deceased Haji Muhammed Zamin Khan (complainant), in which he said that he was on his way back from a condolence meeting when the respondent herein fired upon him. After making this statement to the police, he succumbed to his wounds. The accused was arrested, convicted under Section 302 of Pakistan Penal Code, 1860 and sentenced to death. Peshawar High Court however altered the death penalty into imprisonment for life. Aggrieved by the said order, the present appeal was filed by complainant’s son.

The learned counsel for the appellant, Astagfirullah, contended that in the absence of any mitigating circumstance, there was no occasion for the learned High Court to alter the death penalty into imprisonment for life. Whereas learned counsel for the accused-respondent, Ghulam Mohyuddin Malik, questioned the legality of conviction on the ground that the case was founded primarily on a dying declaration and the prosecution miserably failed to show as to who recorded deceased’s last words and thus it was unsafe to maintain the conviction.

The Court noted that the statement of the deceased was recorded by Munawar Khan, one of the prosecution witnesses, who dictated it to Khan Ghalib Khan (another prosecution witness) to be recorded in the first information report. However, the second prosecution witness denied recording the first information report and thus it was unknown as to who had recorded the deceased’s last words.

It was observed that dying declaration is an exception to the general rule of direct evidence and it is admitted to the detriment of an accused without the opportunity of cross-examination upon the declarant under the belief that a person, face to face with God, would tell nothing but the whole truth. Therefore, it was held that prosecution must demonstrate beyond the shadow of a doubt that the dying declaration comprised of the words of declarant alone without extraneous prompting or additions. Thus, the person who recorded the dying declaration is the most important witness to verify its veracity. However, this person was missing in the present case.

In view of the above, the Court held that it was grievously unsafe to maintain the conviction and hence by extending the benefit of the doubt to the appellant, the appeal was dismissed and respondent was directed to be released.[Somaid v. Ali Gohar, 2019 SCC OnLine Pak SC 9, decided on 30-04-2019]

Case BriefsHigh Courts

Allahabad High Court: A Division Bench of Pritinker Diwaker and Ali Zamin, JJ. dismissed an appeal filed by the accused and held that the trial Judge was justified in convicting the appellants under Sections 302 and 34 of the Penal Code, 1860.

In the present case, the deceased Radhey Shyam Maheshwari was a practicing lawyer and also an active politician. Accused Chob Singh was earlier a block President of Congress party and he was expelled due to his anti-party activities. Since then he had inimical relations with the deceased. When deceased was going to the house of Advocate Rajendra Pal Gupta, the accused Chob Singh apprehended him and accused Dharma Pal and other three other accused attacked him. Dying declaration was also recorded regarding the same. Trial Judge framed charges against the accused-appellants and the deceased accused under Sections 302 and 34 IPC; whereas against accused-appellant, an additional charge was framed under Section 25 of the Arms Act, 1959. During the pendency of the trial, accused Chob Singh expired and the trial court proceeded with the case of remaining three accused persons. The trial Judge convicted the accused on the basis of the dying declaration and statements of two prosecution witnesses. The trial judge convicted the accused-appellant and acquitted Shyam Lal under Section 25 of Arms Act. The present appeal was filed challenging the said order.

Learned counsel for the appellant, Arvind Kumar Srivastava, contended that prosecution witnesses 1 and 2 were not trustworthy, and that language of dying declaration prima facie showed that it was a concocted piece of evidence. He submitted that no one in his dying declaration would say that he is making a statement on oath.

Learned counsel for the State, Amit Sinha, supported the impugned judgment and argued that the statement of the two eye-witnesses were supported by the injury/medical report of the deceased and that the dying declaration of the deceased was fully reliable and trustworthy as the same was duly certified by the Doctor and the recorder of dying declaration i.e. the Executive Magistrate had administered oath to him before the accused died.

The Court placed reliance on Ramakant Mishra v. State of UP, (2015) 8 SCC 299 where it was held that mere fact that in the dying declaration an oath had been administered to the deceased before recording the same, would not doubt the credibility of the dying declaration and would not nullify the same.

Taking cumulative effect of all the facts and evidence it was held that the trial judge was justified in convicting the appellants as the Court found no substance in the argument of the defense that due to his physical condition the deceased was not in a position to make any such dying declaration. Hence, the appeal was dismissed.[Vidya Ram v. State of U.P., 2019 SCC OnLine All 2265, decided on 07-05-2019]

Case BriefsHigh Courts

Tripura High Court: A Division Bench of S. Talapatra and Arindam Lodh, JJ. dismissed an appeal filed against the decision of the Sessions Judge whereby the appellant was convicted and sentenced under Section 302 IPC for committing the murder of his wife.

The appellant was alleged to have poured kerosene on his wife and put her ablaze. He was accordingly convicted by Sessions Judge. Senior Advocate P.K. Biswas assisted P. Majumdar, Advocate representing the appellant challenged the dying declaration made by the deceased wife. It was argued that the dying declaration was not taken in accordance with the established principles of law and thus could not form the basis of recording conviction against the appellant. Per contra, A. Roy Barma, Additional Public Prosecutor appearing for the State submitted that the objections relate to some technical defects which should be ignored.

The High Court, on careful scrutiny of evidence, found that the signature or thumb impression of the victim could not be taken on the dying declaration as her hands were totally burnt. The Court put reliance on Inder Singh v. State (UT of Delhi), (1978) 4 SCC 161 and Pattu Rajan v. State of T.N. (2019) 4 SCC 771. It was stated: “There is no thumb rule that dying declaration must be certified by doctors. It can be said to be only a rule of prudence. In our considered view, if the person who records the dying declaration is convinced with the fitness of the victim at the time of recording the declaration in question, then, there is no reason to doubt the reliability or credibility of the dying declaration.”

The Court further observed: “Another important aspect to be borne in mind is that in our country, the Executive Magistrates or the Doctors are not adequately trained in such affairs. Keeping in mind the principle enunciated in Pattu Rajan case we are also of the considered view that the traditional dogmatic hyper-technical approach should be replaced by the realistic and traditional approach  for administering justice in a criminal trial.” In such conspectus, it was held that there was no reason to interfere with the impugned judgment and the appeal was, therefore, dismissed.[Khokan Sarkar v. State of Tripura, 2019 SCC OnLine Tri 197, decided on 25-04-2019]

Case BriefsHigh Courts

Bombay High Court: A Bench of B.P. Dharmadhikari and Prakash D. Naik, JJ. allowed a criminal appeal and set aside the decision of the trial court whereby the appellant was convicted under Section 302 IPC for murdering his wife.

The appellant was convicted on the basis of dying declaration recorded by his deceased wife. It was alleged that on the fateful day, the appellant and his wife had a quarrel after which he poured kerosene on her and set her ablaze. The wife untimely succumbed to burn injuries in hospital. Aggrieved by his conviction recorded by the trial court, the appellant filed the present appeal.

Neha Bhide, Advocate, representing the appellant contended that there were lacunae in the dying declaration, it was unreliable and a fake document. Per contra, V.V. Gangurde, APP, appearing for the State submitted that there was nothing to doubt the genuineness of the dying declaration.

The High Court noted that the infirmities in the dying declaration spoke volumes about its genuineness. It did not bear the endorsement of the Doctor as to whether the wife was in a fit state to make a statement. There were interpolations at more than one places in the declaration. There was no description as to whether the thumb impression was of the right hand or left hand. The Court observed: “A dying declaration can be the basis of conviction, if the Court comes to the conclusion that it represents truthful version. To pass the test of reliability a close scrutiny is necessary as the accused has no opportunity to cross examine the maker of dying declaration. It must inspire full confidence of the Court regarding its correctness and voluntariness and court must ensure that the statement was not the result of tutoring, prompting or product of imagination.” 

Holding that the dying declaration in the present case failed to pass the test of reliability, the Court was of the opinion that appellant deserved to be given benefit of doubt. Consequently,the appeal was allowed and the appellant was acquitted of charges as framed. [Ashwini Rammeher Sharma v. State of Maharashtra, 2019 SCC OnLine Bom 803, decided on 08-04-2019]

Case BriefsHigh Courts

Bombay High Court: In absence of convincing evidence for sustaining the conviction of the appellants (in-laws), Sadhana S. Jadhav, J. reversed the trial court’s judgment whereby they were convicted for the offences punishable under Sections 306 (abetment of suicide) and 498-A (cruelty to woman) IPC.

Ujawala (deceased) was married to Pravin, son of the appellants. She had disclosed to her parents that she was happy with Pravin, but was ill-treated and harassed by her in-laws. On 06-04-1995, she immolated herself. Pravin extinguished the fire and took her to the hospital, but she succumbed to burn injuries. Appellant’s conviction rested on the dying declaration made by Ujwala where she categorically stated that the appellants quarreled with her and abused her for no reason, and therefore being fed up, she immolated herself.

Shekhar A. Ingawale, Advocate represented the appellants. Per contra, Pallavi Dabholkar, Assistant Public Prosecutor appeared for the State.

The High Court noted some pertinent facts: (i) There was a doubt as to endorsement  of the Doctor that Ujawala was in a fit condition to give the statement; (ii) as per the record, Ujwala sustained 100% burn injuries on both hands, in spite of that a clear thumb impression was obtained on her statement; (iii) the statement was snot read-over to Ujwala; (iv) Ujwala’s father was present at the time of recording of her statement  and even countersigned it. Such and other facts, in the Court’s opinion, spelled a doubt on the veracity of Ujwala’s dying declaration.

The Court additionally noted that options were open to Ujwala. She was working in a factory, was economically independent and her husband was supportive. In such a view, it was held that no conviction could be recorded solely on the basis of the dying declaration. The appeal was thus allowed. [Nana Dhondiram Lad v. State of Maharashtra, 2019 SCC OnLine Bom 605, decided on 15-03-2019]

Case BriefsSupreme Court

Supreme Court: The bench of MM Shantanagoudar and Dinesh Maheshwari, JJ has held that it cannot be laid down as an absolute rule of law that a dying declaration cannot form the sole basis of conviction unless it is corroborated by other evidence. It was held that:

“A dying declaration, if found reliable, and if it is not an attempt by the deceased to cover the truth or to falsely implicate the accused, can be safely relied upon by the courts and can form the basis of conviction. More so, where the version given by the deceased as the dying declaration is supported and corroborated by other prosecution evidence, there is no reason for the courts to doubt the truthfulness of such dying declaration.”

The Court was hearing a matter wherein the deceased had died after the accused stabbed him during a quarrel relating to land dispute. He gave a statement to the Doctor when he was taken to primary care and that statement, in which the victim narrated the occurrence including the names of the assailants, was treated as a dying declaration. The Trial Court had, upon appreciation of the material on record, acquitted all the accused and held that the dying declaration of the victim was unreliable.

Noticing that the Trial Court had given more weightage to the minor variations found in the evidence   of the prosecution witnesses as compared to the information found in the dying declaration, the Court said:

“The courts cannot expect a victim like the deceased herein to state in exact words as to what happened during the course of the crime, inasmuch as it would be very difficult   for   such   a   victim, who has suffered multiple grievous injuries, to state all the details of the incident meticulously and that too in a parrot­like manner.”

The Court also said that the Trial   Court   was wrong in assuming that   the   Investigation   Officer   in collusion   with   the   doctor   wilfully   fabricated   the   dying declaration. It said:

“It is needless to state that the Investigation Officer and the doctor are independent public servants and are not related either to the accused or the deceased.  It is not open for the Trial Court to cast aspersions on the said public officers in relation to the dying declaration, more particularly when there is no supporting evidence to show such fabrication.”

[Laltu Ghosh v. State of West Bengal, 2019 SCC OnLine SC 236, decided on 19.02.2019]

Case BriefsHigh Courts

Delhi High Court: A Division Bench of the Delhi High Court comprising of Sunil Gaur and Pratibha M. Singh JJ., dismissed an appeal against conviction before it. The appellant had been convicted under Section 302 IPC for the pre-meditated murder of the deceased and pleaded for scaling down of the offence convicted for to culpable homicide not amounting to murder under Section 304 IPC.

The trial Court had convicted the accused relied on the dying declaration of the deceased (Ext. PW 3/A), the evidence of his wife (PW 3) and the evidence of the accused’ brother (PW 7). The appellant challenged the conviction on the grounds that the evidence of the initial investigating officer (PW 19) and the accompanying constable (PW 14) were inconsistent regarding the time of preparation of rukka (statement given) and that the same creates serious doubts as to authenticity of the prosecution’s case. Further, the appellant submitted that PW 7’s statements in the cross examination were vastly different than his statements in the examination-in-chief and hence, the ocular evidence is inconsistent and unreliable.

The Court took note of the submissions and held that the dying declaration of the deceased was fully corroborated by evidence of PW 3 who was an eyewitness to the incident. Her testimony remained unshaken in the cross-examination. Regarding PW 7 turning hostile, the Court observed that his cross-examination had taken place almost 13 months after recording of evidence and opined that such a long gap may have urged him to turn hostile.

Relying on the Supreme Court judgment in Ramesh v. State of Haryana, (2017) 1 SCC 529, the Court reiterated that it is common for witnesses to turn hostile in criminal cases and that it should not be a reason to let the accused go scot free if there are other evidences to support the charges against the accused. Explaining the importance attributed to a dying declaration, the court relied on Lakhan v. State of M.P., (2010) 8 SCC 514 to reiterate that a conviction can be upheld solely on the basis of a dying declaration meaning that a dying declaration is to be disbelieved only if there are suspicious circumstances surrounding the same. The rukka was thus held to be reliable evidence unshaken by the contradictory versions of PW 7. Appeal dismissed. [Vishal v. State, 2018 SCC OnLine Del 8709, decided on 21-4-2018]