Case BriefsHigh Courts

Gauhati High Court: The conviction and sentence awarded to the appellants in a criminal case for the offences punishable under Section 302 read with Section 34 IPC, was set aside by a Division Bench comprising of Ajit Singh, CJ and Prasanta Kumar Deka, J.
The appellants were accused of committing sexual assault on the deceased and subsequently killing her. They were booked under the above said sections of IPC and convicted by the trial court. The conviction of the appellants was based on the alleged extra judicial confession made by them. The appellants challenged the said decision of the trial court.
The High Court inter alia found that the alleged extra judicial confession was made in police custody. Sections 25 and 26 have to be strictly construed. Such confession, according to the Court, was inadmissible in light of Section 26 of Evidence Act. Further, the averments of the alleged extra judicial confession were not proved in light of the post-mortem report. It was alleged that the appellants had confessed that they raped the deceased and then killed her. However, in the PMR, no such fact was recorded. Therefore, the conviction and sentence awarded to the appellants was quashed and set aside. [Dulu Basak v. State of Assam,  2018 SCC OnLine Gau 320,  order dated 02-05-2018]

Case BriefsHigh Courts

Chhattisgarh High Court: In an appeal before the High Court, the appellants challenged their conviction by Sessions Judge in murder case of wife of one of the appellants under Sections 302 read with Section 34 IPC. In the present case, the deceased Basanti Bai died in the intervening night in 2006 at their village. During investigation, statements of the witnesses were recorded. The trial court after considering the material available on record by the impugned judgment convicted and sentenced the accused-appellants to imprisonment for life.

After going through the facts of the case, the Court heard the counsel for the appellant who pleaded that firstly, the cause of the death of deceased had yet not been established as the doctor in her post-mortem report had mentioned that she died due to asphyxia that may also be caused due to any general disease and thus, death cannot be called homicidal. Secondly, he told the Court that the witnesses adduced by the prosecution are hearsay witnesses, which is not legally admissible. Thirdly, he pleaded that there had been not even a single witness from the village where the incident took place, thus weakening the stand of the prosecution to a great extent.

The Court considered the fact that all the evidences taken into consideration by the trial court are the evidence of relatives of deceased and whatever had ever been spoken by the deceased during visit of their house had been reproduced by them before the Court thus, failing to be legal as per Section 60 of Evidence Act which states that oral evidence must always be direct to be admissible. To support its observation, the Court cited Kalyan Kumar Gogoi v. Ashutosh Agnihotri (2011) 2 SCC 532 in which the Supreme Court had explained reasons as to why hearsay witnesses were not admitted like truth comes in diluted and diminished form this way and the witness in such cases will not have any responsibility on him and so on.

The Court went on to say that as the evidence upon which the inference of trial court is based is admissible, the other aspects of the matter needed to be examined in depth. The Court noticed that none of the 13 witnesses examined belonged to the village where deceased died. The Court observed that in such cases of hearsay evidence, Section 106 of the Evidence Act may be attracted if a reasonable inference can be drawn regarding the existence of certain other facts, unless the accused by virtue of special knowledge regarding such facts failed to offer any explanation which might drive the court to draw a different inference and its purpose is not to relieve the prosecution to prove the burden of guilt. But in the present case, out of all the witnesses, no one stated that the appellant was inside the house at the time of the incident.

The Bench of Ram Prasanna Sharma, J. on minute scrutiny of the facts and examined witnesses said that that suspicion however grave cannot take the place of proof and that the prosecution just in order to succeed on a criminal charge cannot afford to lodge its case only on the basis of “may be true” but has to essentially elevate it to the grade of “must be true”. [Shankarlal v. State of Chattisgarh, 2017 SCC OnLine Chh 1138, decided on 6-10-2017]

Case BriefsHigh Courts

Madhya Pradesh High Court: Recently, an application was made under Section 482 CrPC against the order in which the plea of applicants under Section 311 CrPC for recalling witnesses who were already examined and re-examined. The reason given by the applicant was that the counsel who was earlier engaged by the applicants could not put several questions on the material aspects, therefore, they had to change their counsel and because of the inability of their earlier counsel, they pleaded that they were being denied the fair trial. The applicants also took a plea under Section 138 of the Evidence Act which talks about the order of examination of witnesses and re-examination.

To this, it was responded by the counsel from the State that although the free and fair trial is the cardinal principle of criminal jurisprudence, but the applicants had engaged the counsel of their own choice and the applicants were given full opportunity to cross examine the witnesses.

The Court went on to examine both the provisions relied upon by the applicants and their inter-connection. The Court observed that a reading of the provision shows that the expression ‘any’ has been used as a prefix to ‘court’, ‘inquiry’, ‘trial’, ‘other proceeding’, ‘person as a witness’, ‘person in attendance though not summoned as a witness’, and ‘person already examined’. It simply means all that is required to satisfy the court in relation to such evidence that it appears to the court to be essential for the just decision of the case. While Section 138 of the Evidence Act provides for the order of examination of witnesses in the Court. So, the re-examination will be conducted as per the order prescribed under Secion 138 at the desire of ‘any’ person referred to in Secion 311 CrPC and most importantly, at the satisfaction of the Court suggested by Section 311 CrPC that is, paramount for the just decision of the case. In all, the Court meant to convey that such power of allowing re-examination must be used sparingly as well as judiciously with utmost care and caution, only with the purpose of finding the truth or obtaining proper proof of such facts.

The Court citing  Hoffman Andreas v. Inspector of Customs, (2000) 10 SCC 430 explained as to when and under what circumstances such powers must be used. It was held in this case that but illness and death of the counsel was in the facts and circumstances considered to be a valid ground for recall of witnesses.

Another principle that the Court emphasised upon is that it’ll always be presumed that the counsel conducting a case is competent particularly when a counsel is appointed by choice of a litigant. It even warned that justice will be prejudiced if a retrial is followed on every change of a counsel and would be detrimental to the interests of the victims, especially so, of heinous crimes, if they are required to repeatedly appear in court to face cross-examination.

It even went on to deal with the possibility that if the counsel is physically or mentally unfit to deal with the case, the interests of justice would suffer badly. The Bench suggested that the Advocates Act and the other relevant rules be reviewed in order to ensure the fitness of the counsel in larger interest of the society and also to avoid such pleas as presented in the case before it. The Court persuaded that the Law Commission and the Bar Council of India must look into it. [Paijaram v. State of M.P., M.Cr.C. No.11624/2016, decided on 20.01.2017]

Case BriefsHigh Courts

Delhi High Court: Acquitting the appellant of charges under Section 304-B read with 34 IPC, the Single Judge Bench of P.S. Teji, J. said that since the prosecution has failed to establish the necessary ingredient of dowry death i.e. cruelty or harassment meted out to the deceased by the appellant soon before her death, the presumption under Section 113-B of the  Evidence Act cannot be raised.

It was not in dispute that the deceased died due to burning within one year of her marriage and the bodily injuries resulted in death otherwise than under normal circumstances but the most important ingredient of Section 304-B that the deceased was subjected to cruelty and harassment on account of demand of dowry by her husband or any relative of her husband soon before her death could not be proved beyond reasonable doubt by the prosecution. The Court relied  on the ratio in Vipin Jaiswal v. State of A.P., 2013 STPL 198 SC where the Hon’ble Supreme Court held that in the absence of specific allegations like date, time and incident that too by public witnesses who were not found reliable and trustworthy, the prosecution had failed to establish beyond reasonable doubt that the deceased was meted with cruelty and harassment by the accused persons for or in connection with demand of dowry.

This Court further observed that it was necessary to establish the offence of Section 498-A IPC to prove the charges under Section 304-B IPC and thereafter the presumption under Section 113-B of the Evidence Act can be drawn. [Ramesh Chander v. State of Delhi, 2016 SCC OnLine Del 6473, decided on 21.12.2016]

Case BriefsHigh Courts

Rajasthan High Court: While deciding a writ petition the Court has stated that Section 65 B of Evidence Act is not applicable to the evidence in the form of Pin Hole camera with a hard disk memory on which a recording was done, as it was submitted as Primary evidence, since Section 65 B it deals only with Secondary evidence.  The present writ petition was filed by the wife challenging the admissibility of the electronic record (Pin hole Camera, memory and recordings) filed by the husband in a family court, along with the affidavit in evidence in support of the divorce petition. The Court and also held that the privilege in respect of the husband and the wife’s communication under Section 122 of Evidence Act would not attract in Family court proceedings.

The Court observed while rejecting the contention of the wife that, “Section 65B of the Act of 1872 only deals with the secondary evidence qua electronic records. It does not at all deal with the original electronic records, as in the instant case, where the pinhole camera, with a hard disk memory on which the recording was done has been submitted before the Family Court. The Supreme Court in the case of Anvar P.V. v. P.K. Basheer (2014) 10 SCC 473 has held that if an electronic record is produced as a primary evidence under Section 62 of the Evidence Act, the same is admissible in evidence without compliance with the conditions of Section 65B of the Act of 1872. That evidence would take the colour of primary evidence, subject no doubt to its credibility based on forensic examination and cross examination.”

The single judge Bench comprising of Alok Sharma, J. observed that “Section 14 of the Family Court Act, 1984 provides that a family court may receive any evidence, report, statement, documents, information or matter which in its opinion will facilitate the effective adjudication of the disputes before it, whether or not the same would be otherwise relevant or admissible under the Indian Evidence Act, 1872. The aforesaid section therefore makes it pellucid that the issues of relevance and admissibility of evidence which regulate a regular trial do not burden proceedings before the family courts. It is the discretion of the family court to receive or not to receive the evidence, report, statement, documents, information etc. placed before it on the test whether it does or does not facilitate an effective adjudication of the disputes before it.”  The bench further observed “the privilege in respect of the husband and the wife’s communication under Section 122 of the Act of 1872 would also not attract, as Section 14 of the Family Court Act eclipses Section 122 of the Evidence Act in proceedings before the Family Court. Section 14 aforesaid is a special law, so to say, as against the general law, which Section 122 of the Act of 1872 encapsulates vis-a-vis privileged communications between husband and wife.” [Preeti Jain v. Kunal Jain 2016 SCC OnLine Raj 2838 Decided on 27.05. 2016]