Allahabad High Court
Case BriefsHigh Courts

Allahabad High Court: In an appeal against the decision of the Trial Court whereby the accused/appellant has been convicted and sentenced to undergo imprisonment for life for the offence punishable under Section 376 of Penal Code, 1860 (IPC) with a fine of Rs. 10,000/- and in default thereof, to further undergo six months simple imprisonment, the bench of Ashwani Kumar Mishra and Shiv Shanker Prasad, JJ. has observed that the charge originally framed against the appellant of attempt to rape under Section 376/511 of Penal Code, 1860 (‘IPC’) is proved beyond reasonable doubt and the conviction of the appellant is altered from Section 376 IPC to Section 376/511 IPC and in view of the provisions contained in Section 57 IPC, the appellant was sentenced to undergo 10 years imprisonment. Further, as the appellant has already served the aforesaid sentence, he shall be released on compliance of Section 437-A Code of Criminal Procedure (CrPC). Thus, the Court sustained the order of conviction and partly allowed the present appeal.

In this case, the victim aged about 11 years went to jungle situated outside the village to collect wood, when the appellant with an evil intention grabbed the victim and dragged her inside the jungle and he attempted to rape her and threatened her to not disclose about the incident to her parents. However, the victim informed her mother about the said incident.

The Court noted that from the material placed on record, it did not appear that the statement of the victim was recorded under Section 164 of Code of Criminal Procedure, 1973 in the presence of the Magistrate and in her statement, recorded by the Police under Section 161 CrPC., she had only disclosed the offence of attempt of rape and not actual commissioning of offence of rape.

The Court observed that the complaint made orally by the informant did not contain any allegation regarding rape upon the victim. However, almost nine months after the alleged incident for the first time, the statements of the informant and the victim before the trial court contains a different story of actual commissioning of rape. Thus, these statements are not reliable or convincing.

The Court further observed that the statements of the informant and the victim about commissioning of offence of rape, appears to be clear improvement in the prosecution version, as no plausible explanation has been put forth as to why such disclosure was not made, when the first information report itself was lodged or when their statements were recorded under Section 161 CrPC. Moreover, even at the time of framing of charge such facts were not disclosed by the first informant or the victim. It further observed that “as these statements were made after nearly nine months from the date of alleged incident of commissioning of offence, therefore, does not inspire confidence of the Court”.

The Court also noted that the appellant has asserted in his statement recorded under Section 313 CrPC that he has been falsely implicated on account of enmity relating to election on the post of Village Pradhan, and the victim in her cross-examination has also admitted that her father was supporting the contestant for whom he worked, who had lost election of the said post to another contestant to whom the appellant and his family members supported.

The Court observed that “subsequent statements of the victim and the informant do not appear to be reliable, particularly when it is otherwise not supported by medical evidence”. It also observed that from the statement of the victim, coupled with the marks of injuries sustained by her and the statements of other witnesses, the charge originally framed against the appellant of attempt to rape under Section 376/511 IPC is proved beyond reasonable doubt. Thus, the Court sustained the order of conviction and released the appellant on compliance of Section 437-A CrPC, as he already served the given punishment of 10 years for attempt to rape.

[Mahesh Rathaur v. State of UP, 2022 SCC OnLine All 608, decided on 7.9.2022]


Advocates who appeared in this case :

Counsel for Appellant:- Advocate Sushil Kumar Dubey

Advocate Shivanand Mishra

Counsel for Respondent:- Government Advocate

Allahabad High Court
Case BriefsHigh Courts

   

Allahabad High Court: The Division Bench of Suneet Kumar and Syed Waiz Mian, JJ. held a Police Officer guilty of contempt for deliberately bypassing the mandate of the Supreme Court in the case of Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273 and sentenced him to undergo simple imprisonment for 14 days.

An application under Section- 167 CrPC was moved before the Additional Chief Judicial Magistrate-III, by Investigating Officer (contemnor) seeking 14 days judicial remand of accused under Sections- 353, 504, 506 IPC which was rejected in compliance of the directions of the Supreme Court rendered in Arnesh Kumar. The mandate of Section 41-A CrPC was not complied by the Investigating Officer, further, he had to furnish reasons for arresting the accused. Magistrate, thereafter, made contempt reference against Investigating Officer, noting therein that the opposite party, therein, did not follow the direction of Supreme Court rendered in Arnesh Kumar v. State of Bihar (2014) 8 SCC 273, therefore, the Investigating Officer was liable to be punished under the Contempt of Court Act.

It was found that though the concerned offences were covered under the provisions for which maximum punishment was not more than 7 years, however, the mandate of Section 41A was not complied with by the Investigating Officer and no proper reason for the arrest of the accused was recorded in writing. The contemnor had claimed that there was an apprehension of communal riots and therefore, he had arrested the accused however there was no entry in the General Diary that there was any such apprehension of a communal flare-up.

The Court noted the fact that that the contemnor, being a member of disciplined Force, in exercise of his powers of arrest, had willfully and deliberately bypassed the mandate of the Supreme Court in Arnesh Kumar case, which is binding on all the authorities, including, the Magistrate, in view of Article 141 of the Constitution of India.

Refusing to take a sympathetic view on the quantum of punishment, Court awarded simple imprisonment for 14 days to the contemnor and further imposed a fine of Rs. 1000.

[In Re v. Chandan Kumar, Contempt Application (Criminal) No. – 5 of 2022, decided on 18-08-2022]


Advocates who appeared in this case :

Sudhir Mehrotra, Advocate, Counsel for the Applicant;

R.V. Pandey, Abhishek Mishra, Ashutosh Kumar Pandey, R.V. Pandey, Advocates, Counsel for the Opposite Party.


*Suchita Shukla, Editorial Assistant has reported this brief.

Case Briefs

Supreme Court: On being appraised of high number of pending bail applications in 10-14 years old cases, the Division Bench of Sanjay Kishan Kaul and M.M. Sundresh, JJ., directed the Lucknow Bench of Allahabad High Court to decide all the cases in one go. The Bench directed,

“We would like a closure to all these matters of bail before the next date as the matters are directed to be taken up in one go.”

The Court had called a report from the Registrar of the Lucknow Bench of Allahabad High Court with regard to the submission that no criminal Bench available in the Court to hear matters for the last 25 days. Though the report suggested that the factual position was not what had been alleged, it also highlighted the number of convicts in jail for more than 14 years and 10 years whose appeals are pending consideration. The Court remarked,

“What is of concern to us is cases which are pending for 10 years and 14 years in appeal, where bail applications are also pending and some of them are in incarceration even without pending bail applications as they may have been disposed of.”

On the submission of the High Court that in single offence cases, the matters are referred for remission after 14 years of actual incarceration and 20 years with remission, the Court expressed,

“We see no reason why these cases are not dealt with in one go by asking the State Government to take a stand in respect of such cases which are single offence cases and pending for 10 years or more and unless there are special circumstances, all of them can be enlarged on bail.”

To clear the backlog of some appeals, the Court directed that as far as cases which meet the norms of remission, the State Government, irrespective of pendency of the appeal, should be forthwith asked to take a call on the plea of remission as it may also facilitate posting all of the matters at one go. Further, the Court suggested that the counsels appearing for the convicts could be asked whether they would be satisfied with cases being considered for remission or would also like to urge the matter in appeal.

Noticeably, as on 22-04-2022, there were 159 convicts incarcerated for more than 14 years and 191 convicts incarcerated for 10-14 years 191, whose bail applications were pending in the High Court; making it a total of 350 pending bail applications.

Consequently, the Court directed to reach a closure to all those matters of bail before the next date as the matters were directed to be taken up in one go. The matter is listed on 25-07-2022 for directions.

[Suleman v. State of U.P., Misc. Application No.764 of 2022 in Cr. A. No.491 of 2022, decided on 09-05-2022]


Appearance by:

For Petitioner(s): Mohd. Irshad Hanif, AOR and Aarif Ali, Mujahid Ahmad, Rizwan Ahmad, Advocates

For Respondent(s): AOR Ajay Vikram Singh and Nikhil Goel, Naveen Goel, Priyanka Singh, Ajay Kumar Prajapati, Narender Rana, Neelambar Jha, Advocates


Kamini Sharma, Editorial Assistant has put this report together 

Case BriefsForeign Courts

Court of Appeal of the Democratic Socialist Republic of Sri Lanka: The Division Bench of P. Kumararatnam and  Sampath B Abayakoon, JJ., while hearing an appeal against the order of the High Court dismissed the same holding that the observation of the High court was appropriate.

In the instant case, the victim was the mother-in-law of the appellant in relation.  The incident took place on 06-07-2010 when the appellant visited the home of her mother-in-Law and informed her that her wife has run away with some other person. It was noteworthy that after a span of a short while the appellant attacked the victim from the back side behind using an axe and then eventually ran away from the crime scene. After trial, the appellant was found guilty as charged, and the High Court Judge after hearing both the parties on the sentence, imposed a term of four years rigorous imprisonment to the accused and a fine.

In the present appeal, the counsel for appellant contended that the appellant was 60 years old with three children and a farmer by profession and also that he has no previous convictions. The counsel further reiterated the same mitigatory circumstances and pleaded that given the circumstances, Court may consider the suspension of sentence imposed upon him.

The Court opined that the term of imprisonment imposed by the High Court Judge to the appellants was very much adequate given the facts and circumstances of the case and that the High Court has considered the mitigatory circumstances as well as the gravity of the offence. The appeal was dismissed.[Ratnayaka Arachchilage Wijesinghe v. The Attorney General, CA/HCC/0218/2018, decided on 07-03-2022]


Kugarajah for the Accused-Appellant

Maheshika Silva SSC for the Respondent


Suchita Shukla, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Allahabad High Court: Dr Yogendra Kumar Srivastava, J., while addressing a matter regarding recovery of maintenance amount, expressed that,

“Sentencing to jail can only be seen as a means of recovering the amount of arrears and not a mode of discharging liability.” 

High Court also observed that, scope of Sections 125(3) and 128 of the Code being different and the first proviso to Section 125(3) creating an interdict only on issuance of warrant for recovery under Section 125(3), the said period of limitation of one year cannot be held to create a fetter on the right to claim enforcement under Section 128.

An application under Section 482 of the Code of Criminal Procedure, 1973 was filed to quash the proceedings of Execution Case under Section 128 of the Code passed by Additional Principal Judge, Family Court.

Factual Matrix

An application under Section 125 of the Code was filed by OP 2 and it was allowed by means of an ex parte order with a direction to make payment of a monthly allowance of Rs 1,000 for life to the OP 2 and a monthly allowance of Rs 500 each to OPs 3,4,5 and 6 till they attain majority.

Proceedings for enforcement of the aforesaid order of maintenance under Section 128 of the Code were initiated pursuant to an application registered as Execution Case wherein a prayer was made for recovery of the amount.

Pursuant to a recovery warrant issued in the execution proceedings, the applicant appeared before the court and filed an application expressing his willingness to deposit fifty per cent of the amount due and order was passed directing that 50% of the amount due be deposited and the remaining amount be deposited in instalments. Subsequently, order in respect of recovery of balance amount was also passed.

In view of the above background, the present application had been filed seeking quashing of the subsequent orders and the entire proceedings of the execution case.

Crux of the matter

Order under Section 125(1) CrPC having been passed, the proceedings for enforcement of the order initiated under Section 128 of the Code pursuant to the application would be barred by limitation being beyond the period of one year from the date of order under Section 125(1).

Question for consideration

Whether the limitation prescribed under proviso to Section 125(3) would be applicable in respect of proceedings under Section 128 of the Code?

Analysis and Discussion

High Court noted that in Supreme Court’s decision of Kuldip Kaur v. Surinder Singh, (1989) 1 SCC 405, considered the distinction between the mode of enforcing recovery on the one hand and effecting actual recovery of the amount of monthly allowance which had fallen in arrears on the other, in the context of Sections 125(3) and 128 of the Code.

In the above-referred decision, it was held that,

“…sentencing a person to jail as per terms of Sections 125(3) of the Code is a ‘mode of enforcement’ and not ‘mode of satisfaction’ of the liability, which can be satisfied only by making actual payment of the arrears.” 

The provisions contained under Section 125(3) of the Code and the first proviso thereto again came up for consideration in Poongodi v. Thangavel, (2013) 10 SCC 618, and it was held that the first proviso to Section 125(3) does not create any bar or fetter on claiming arrears of maintenance and it neither extinguishes nor limits entitlement to arrears of maintenance.

High Court observed that,

The proceedings for maintenance under Section 125 of the Code are of a summary nature and the purpose and object of the same is to provide a simple and speedy remedy, and to ensure that the deserted wife, children and parents are not left destitute and without any means for subsistence.

Further, the Court added that,

The provisions contained under Section 125(3), as aforesaid, would indicate that the issuance of warrant or the imprisonment of the person concerned, is only a mode of recovery of the amount due in terms of the order made under sub-section (1) to Section 125 for payment of monthly allowance. The mode of recovery by issuance of a warrant or by imprisonment of the person as per terms of Section 125(3), has been held distinct from actual satisfaction of the liability. 

Mode of Enforcing has been held to be not a Mode of Satisfaction

The purpose of imprisonment would not be to wipe out the liability which a person has refused to discharge; the imprisonment of the person concerned being in no way a substitute for the recovery of the amount of monthly allowance which has fallen in arrears.

Further, elaborating the provision, Court added that Section 125(3) of the Code circumscribes the power of the Magistrate to impose imprisonment for a term which may extend to one month or until the payment, if sooner made. The first proviso to Section 125(3) prescribing limitation of one year to seek recovery of arrears of maintenance, is only in respect of the procedure for recovery of maintenance as per terms of the sub-section, by construing the same to be a levy of fine.

Section 128 of the Code provides for enforcement of the order of maintenance against the person against whom the order of maintenance has been made.

Limitation

The entitlement to claim enforcement of the order of maintenance under Section 128 by seeking discharge of the liability as per terms of the order of maintenance granted under Section 125, therefore cannot be held to be extinguished in terms of the one-year limitation prescribed under the first proviso to Section 125(3), High Court noted.

The Bench further referred to the decision of Dwarka Prasad v. Dwarka Das Saraf, (1976) 1 SCC 128, with regard to the scope of a proviso as an internal aide to the interpretation of statutes. In the said decision it was held that a proviso must be limited to the subject matter of the enacting clause and must be read and considered in relation to the principal matter to which it is a proviso.

“Section 125 (3) of Code would have to be held to be confined to the Section which precedes it.”

Hence, the limitation of one year provided in terms thereof would have to be read in relation to issuance of a warrant for recovery of an amount due in terms of an order of maintenance passed under sub-section (1) of Section 125. The aforesaid limitation of one year under the proviso to Section 125 (3) cannot be held to travel beyond or stretch to an extent so as to being within its ambit the powers relating to enforcement of an order of maintenance under Section 128 of the Code. 

Therefore, concluding the decision, Court held that the proceeding for the enforcement of the order under Section 128 cannot be assailed on the ground that the same would be barred by limitation as provided under the proviso to Section 125(3) of the Code

In view of the above discussion, present application failed and was dismissed. [Mohammad Usman v. State of U.P., 2021 SCC OnLine All 640, decided on 31-8-2021]


Advocates before the Court:

Counsel for Applicant: Triloki Nath

Counsel for Opposite Party: G.A.

Case BriefsHigh Courts

Karnataka High Court: Sreenivas Harish Kumar, J., disposed of the petition and modified the judgment of the appellate court.

The facts of the case are such the petitioner was driving KSRTC bus and thereby caused an accident by dashing against a private bus due to rash and negligent driving. The petitioner was tried in the Court of JMFC, Belthangady, for the offences punishable under Sections 279 and 337 of IPC, held guilty and sentenced to two months simple imprisonment and fine of Rs1, 000/- with default sentence period of 15 days imprisonment in relation to offence under Section 279 IPC i.e. Penal Code, 1860, and two months simple imprisonment with fine of Rs 500/- and a default sentence period of 15 days for the offence under Section 337 IPC. The appeal preferred before IV Additional District and Sessions Judge, Dakshina Kannada, Mangaluru, was also dismissed, and hence the instant revision petition was filed.

Counsel for petitioner Mr Keshava Bhat submitted that the photograph of the accident scene clearly shows that probably two buses collided with each other because of the width of the road being very narrow. In this view, a lenient view may be taken and the petitioner may be just subjected to fine with an observation that the conviction is not a stigma to his employment.

Counsel for respondent Mr K S Abhijith submitted that when there is no scope for appreciation of evidence, another view cannot be taken with regard to accident and there is no scope for reducing the quantum of sentence also.

The Court observed that the evidence shows that the accident occurred when two buses were taking turn in a curve, however because of consistent findings of both the courts below, I do not find it necessary to re-appreciate the evidence because there is no perversity in them.

The Court stated that the petitioner is a driver in the KSRTC. Examined whether there is scope for imposing fine only, section 279 IPC provides for sentencing the accused with imprisonment which may extend to six months, or with fine which may extend to Rs.1,000/-, or with both. Similarly, section 337 IPC provides for sentencing an accused for imprisonment of either description for a term which may extend to six months, or with fine which may extend to Rs.500/-, or with both.

The Court thus held Therefore having regard to the sentencing structure provided in both the sections, I am of the opinion that the sentence may be confined to fine only instead of subjecting the petitioner to imprisonment. [Devendrappa H. v. State, Criminal Revision petition no. 1145 of 2021, decided on 17-01-2022]


Arunima Bose, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Gujarat High Court: Paresh Upadhyay, J., allowed an appeal which was filed against the judgment and order passed by the Special Judge (POCSO) and 3rd Additional Sessions Judge wherein appellant was convicted under Section 376 of the Penal Code, 1860 and Sections 4, 6, 8 and 12 of the Protection of the Children from Sexual Offences Act, 2012 and ordered to undergo sentence of rigorous imprisonment for ten years and fine of Rs 5,000/- was also imposed and in default thereof, to undergo further simple imprisonment.

Advocate for the appellant had submitted that, the appellant and the so-called victim were husband and wife and they had two children from this relationship. It was submitted that, the conviction was unsustainable and the same be quashed and set aside.

The Court found that it was an admitted position that the appellant and victim were in a relationship and that the victim, on her own, had walked out of home with the appellant, they stayed together since then at the house of the appellant, as husband and wife and she had given birth to two children.

The appellant is arrested by the police and was tried before the Special Judge (POCSO) and the Trial Court and was hence convicted.

The Court noted that the “victim” who stated that, she on her own, because of her wish had walked out of home and she started living with the present appellant and with that relation she has given birth to two children and neither the mother nor the father of these two children disown their birth nor paternity and still the father is convicted inter alia under Section 376 of the Indian Penal Code and is ordered to undergo RI for 10 years. The Court allowed the appeal and found that the conviction recorded by the Sessions Court needed to be set aside.

Standing at the place of law enforcement agencies, in the peculiar facts of the case, this can be termed as an offence under the Prohibition of Child Marriage Act, which is observed more in breach than in compliance, more particularly in the lower strata of society. Non-interference by this Court would reduce the lady and two children without shelter of husband / father, which in no way would be in furtherance of justice.

[Ashwinbhai v. State of Gujarat, R/Criminal Appeal No. 1089 of 2021, decided on 01-10-2021]


Suchita Shukla, Editorial Assistant has reported this brief.


For the Appellant: Mr MS Padaliya

For the Respondent: Mr Hardik Soni

Kerala High Court
Case BriefsHigh Courts

Kerala High Court: Ashok Menon, J., directed release of a 60-year-old man convicted in 14 criminal cases taking into account that the convict had already undergone 15 years of imprisonment and would have to be in jail for more than 18 years since sentence in all the cases were running consecutively.

Background

The petitioner, convicted in 14 criminal cases pertain to offences like theft, housebreaking, lurking house trespass by night, theft of property from inside the house, etc had approached the Court seeking order to direct his punishments run concurrently. It was the case of the petitioner that he had pleaded guilty and was convicted in all the cases for a period ranging between 6 months imprisonment to 5 years imprisonment and had been in prison since 10-04-2003.

The petitioner contended that being indulged in different cases committed at different periods of time and pending before different courts, none of the courts exercised the discretion under Section 427 CrPC to order the sentences to run concurrently. In such case, the sentences were to run consecutively one after the other, thus, he would has to remain behind bars for 30 years and 6 months. Stating his old age and ill health the petitioner stated that his continued detention was illegal and therefore, specific orders may be made directing the jail authorities to release him.

Reliance was placed by the petitioner on the decision of Supreme Court in State of Maharashtra v. Najakat, (2001) 6 SCC 311 wherein it was observed that for granting the benefit of set-off under Section 428 of the CrPC, the pre-trial detention of the accused has to be in the same case and not in a different case as is held by the Supreme Court. It was the case of the petitioner that he had pleaded guilty in all the cases and in consequence that he was awarded different sentences ranging from six months to five years of imprisonment and had been in custody now for a period of more than 15 years.

As per the report filed by the Superintendent of Central Prison & Correctional Home, after adjusting the set off granted by the Court, the remaining sentences would have to run consecutively and under those circumstances, the petitioner had not completed his term of imprisonment in all the cases.

Observation and Decision

Opining that the very fact that power under Section 482 of the CrPC is vested only in the High Court is a safeguard for the power being not abused, the Bench expressed that utmost care and caution is required while invoking the powers. Quoting its decision in Moosa v. Sub Inspector of Police, 2005 SCC OnLine Ker 605, the Bench stated, the object of exercise of power being to prevent abuse of process of court and also to secure the ends of justice, it follows that ends of justice are higher than the ends of mere law.

Reliance was placed by the Court on the Supreme Court’s decision in Benson v. State of Kerala, (2016) 10 SCC 307 wherein the Court had held that the normal rule regarding consecutive running of sentence is subject to a qualification and it is within the power of the Court to direct that the subsequent sentence shall run concurrently with the previous sentence. Accordingly, the Supreme Court had directed that sentences imposed in different theft cases should run concurrently.

Noticing that in Benson’s case the Supreme Court considered the fact that the petitioner was involved in several cases and that he would has to undergo imprisonment for three decades in case the sentences were to be undergone consecutively, the Bench opined that in the instant case, the facts were almost similar and the petitioner had already undergone more than 15 years imprisonment and the maximum imprisonment that was awarded to him in one case was only 5 years. Therefore, considering the fact that the petitioner had not even contested the cases and had pleaded guilty, in consequence of which he was sentenced to imprisonment and that he was more than 60 years old and would has to be in prison for more than 18 years, the Bench exercised jurisdiction under Section 482 of the CrPC and directed to release the accused recording that he had undergone the sentence in all the crimes in which he was convicted.[Sivanandan v. State Of Kerala, 2021 SCC OnLine Ker 2822, decided on 20-07-2021]


Kamini Sharma, Editorial Assistant has reported this brief.


Appearance by:

For the petitioner: Adv.V.John Sebastian Ralph, Adv. Jefrin Manuel, Adv. K.J.Joseph Ernakulam And Adv. V.John Thomas

For the Respondent: Pp. C.S.Hritwik

Case BriefsHigh Courts

Himachal Pradesh High Court: Anoop Chitkara J., allowed the petition and reduced the sentence to the period of imprisonment already undergone.

Background

The facts of the case are such that an unmarried boy aged 24 years, who is in custody for around three months, because a minor girl aged 16 years, came to his home as they love each other, stayed there, had coitus, which on the intervention of her parents led to the registration of FIR. The petitioner filed a bail petition under Section 439 Criminal Procedure Code i.e. CrPC before this High Court, wherein the bail petition was dismissed as withdrawn vide order dated 17-12-2020. Assailing the said order instant petition was filed seeking regular bail on the ground of the conduct of the victim.

Analysis

The Court observed that neither Section 376 of the Indian Penal Code, 1860, (IPC), nor Section 6 of the Protection of Children from Sexual Offences Act, 2012, (POCSO) create any restriction on grant of bail. It was further observed that after perusing the facts and circumstances, it seems that the petitioner and the victim knew each other and were romantically involved and there is no case of forcible sexual relationship; instead, the victim surrendered to the petitioner’s physical desires out of her love and affection towards him. The victim’s boldness to declare her passion towards the petitioner in the presence of her father and Police speaks volumes. Further, she also told them explicitly that she left her home out of her own free will and refused to go back with her father. These facts point out that the victim, being 16 years of age, though a minor, voluntarily left her home. Therefore, the rigors to reject bail and reasons to continue incarceration are reduced by the mitigating factors in the present case.

Observations

The Court further observed that adverting to the facts of the present case, the appellant has unintentionally admitted his culpability and the appellant has failed to propound how the elements of kidnapping have not been made out. His core contention appears to be that in view of consensual affair between them, the prosecutrix joined his company voluntarily. Such a plea, in our opinion, cannot be acceded to given the unambiguous language of the statute as the prosecutrix was admittedly below 18 years of age.

The court relied on judgment Satish Kumar Jayanti Lal Dabgar v. State of Gujarat, (2015) 7 SCC 359 and stated that consent of the minor is immaterial for purposes of Section 361 of IPC and provisions in the IPC and other laws like the Indian Contract Act, 1872, minors are deemed incapable of giving lawful consent. Section 361 IPC goes beyond this simple presumption and bestows the ability to make crucial decisions regarding a minor’s physical safety upon his/her guardians. Therefore, a minor girl’s infatuation with her alleged kidnapper cannot by itself be allowed as a defence, for the same would amount to surreptitiously undermining the protective essence of the offence of kidnapping. Similarly, Section 366 of IPC postulates that once the prosecution leads evidence to show that the kidnapping was with the intention/knowledge to compel marriage of the girl or to force/induce her to have illicit intercourse, the enhanced punishment of 10 years as provided thereunder would stand attracted.

The Court further relied on State of Madhya Pradesh v. Surendra Singh, (2015) 1 SCC 222

“13. It is the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed. The sentencing courts are expected to consider all relevant facts and circumstances bearing on the question of sentence and proceed to impose a sentence commensurate with the gravity of the offence.

The Court thus observed that there cannot be any mechanical reduction of sentence unless all relevant factors have been weighed and whereupon the Court finds it to be a case of gross injustice, hardship, or palpably capricious award of an unreasonable sentence. The Court further held that “the quantum of sentence awarded to the appellant deserves to be revisited”.

Grounds for revision

  1. No force, no pre-planning, use of any weapon or any vulgar motive had been present in the act of kidnapping.
  2. The young age of the accused at the time of the incident cannot be overlooked.
  3. trial delay at different levels i.e. more than twenty-two years have passed since the incident.
  4. The present crime was one of passion. No other charges, antecedents, or crimes either before 1998 or since then, have been brought to our notice.
  5. There is no grotesque misuse of power, wealth, status or age which needs to be guarded against.

The Court thus held that “the prosecution has established the appellant’s guilt beyond reasonable doubt and that no case of acquittal under Sections 363 and 366 of the IPC is made out. However, the quantum of sentence is reduced to the period of imprisonment already undergone.”

In view of the above, petition was allowed.[Virender Singh v. State of HP, 2021 SCC OnLine HP 280, decided on 04-02-2021]


Arunima Bose, Editorial Assistant has put this story together.

Hot Off The PressNews

The Trial Court at Saket, New Delhi has sentenced 19 accused, namely (i) Brajesh Thakur, owner of the NGO Sewa Sankalp Evam Vikas Samiti to undergo Life Imprisonment with total fine of Rs 32.20 lakh; (ii) Indu Kumari, Superintendent of Children Home for Girls to undergo three years Rigorous Imprisonment with fine of Rs 10,000/-; (iii) Minu Devi, House Mother, Children Home for Girls to undergo Life Imprisonment with fine of Rs 80,000/- ;(iv) Manju Devi, Counselor, Children Home for Girls to undergo ten years Rigorous Imprisonment with fine of Rs 40,000/- ;(v) Chanda Devi, House Mother, Children Home for Girls to undergo ten years Rigorous Imprisonment with fine of Rs 60,000/-; (vi) Neha Kumari, Nurse, Children Home for Girls to undergo ten years Rigorous Imprisonment with fine of Rs 40,000/-; (vii) Hema Masih, Probation Officer, Children Home for Girls to undergo ten years Rigorous Imprisonment with fine of Rs 60,000/-; (viii) Kiran Kumari, Helper, Children Home for Girls to undergo Life Imprisonment with fine of Rs 80,000/-; (ix) Ravi Kumar Roshan, the then Child Protection Officer, Muzaffarpur to undergo Life Imprisonment with total fine of Rs 3.25 lakh; (x) Vikas Kumar, the then Member, Child Welfare Committee, Muzaffarpur to undergo Life Imprisonment with total fine of Rs 14.50 lakh; (xi) Dilip Kumar Verma, the then Chairman, Child Welfare Committee, Muzaffarpur to undergo Life Imprisonment with total fine of Rs 2 lakh; (xii) Vijay Kumar Tiwari, driver of Brajesh Thakur to undergo Life Imprisonment with total fine of Rs 75,000/-; (xiii) Guddu Kumar Patel @ Guddu, employee of Brajesh Thakur to undergo Life Imprisonment with total fine of Rs 85,000/-; (xiv) Krishan Kumar Ram @ Krishna @ Kishan, employee of Brajesh Thakur to undergo Life Imprisonment with fine of Rs 50,000/-; (xv) Rosy Rani, the then Assistant Director, District Child Protection Unit, Muzaffarpur to undergo six months Rigorous Imprisonment; (xvi) Ramanuj Thakur @Mamu, uncle of Brajesh Thakur to undergo Life Imprisonment with fine of Rs 60,000/-; (xvii) Ramashankar Singh @ Master Saheb @ Masterji, employee of Brajesh Thakur to undergo ten years Rigorous Imprisonment with fine of Rs 60,000/-; (xviii) Dr. Aswini @ Asmani, employee of Sewa Sankalp Evam Vikas Samiti to undergo ten years Rigorous Imprisonment with fine of Rs 30,000/- and (xix) Saista Praveen @ Madhu, employee of Sewa Sankalp Evam Vikas Samiti to undergo Life Imprisonment with fine of Rs 4.10 lakh.

CBI had registered the case on 28.07.2018 and taken over the investigation of the case, earlier registered at Mahila Police Station, Muzaffarpur (Bihar). After thorough investigation, CBI filed a chargesheet on 18.12.2018 against 21 accused before the Designated Court, Muzaffarpur. The Supreme Court vide Order dated 07.02.2019 transferred the trial to Saket Court at New Delhi. The charges in the case were framed on 30.03.2019 against 20 accused persons under the provisions of IPC, POCSO Act and JJ Act for commission of physical and sexual assault, including rape of the victims. Prosecution evidence commenced on 06.04.2019 which continued on a day-to-day basis. The trial was concluded within six months time as stipulated by the Supreme Court of India.

On conclusion of the trial, the Court held 19 accused persons guilty on 20.01.2020 for having committed the offences of rape, gang rape, aggravated penetrative sexual assault and abetment of the said offences in the Muzaffarpur Shelter Home case (Bihar) and acquitted one person.


Central Bureau of Investigation

[Press Release dt. 11-02-2020]

Case BriefsTribunals/Commissions/Regulatory Bodies

The Special Judge CBI, Vyapam Cases, Bhopal (Madhya Pradesh) has sentenced the three accused, therefore the candidate Amit Gaur, the impersonator Nitish Kumar and the middleman Pankaj Kuma, all to undergo seven years rigorous imprisonment with a fine of Rs 3000 each.

CBI had registered a case on 15.12.2015 and taken over the investigation of the case from the Madhya Pradesh Police on orders dated 09.07.2015 & 11.09.2015 of the Hon’ble Supreme Court of India. It was alleged that unfair means were used in the Madhya Pradesh Police Constable Recruitment Test-2012 (PCRT-2012) conducted by the Madhya Pradesh Professional Examination Board (VYAPAM) involving candidate Amit Gaur (resident of Morena, MP) who had arranged and used the impersonator Nitish Kumar@ Montu Kumar (resident of Bihar) through racketeers/middlemen namely Pankaj Kumar (resident of Bihar) & Nemi Chand (resident of Morena, MP), for passing the written examination of PCRT-2012. The impersonator Nitish Kumar@Montu Kumar was caught while appearing in the said examination at a school in Piplani, Bhopal on 30.09.2012 in place of the candidate Amit Gaur. The two middlemen who were involved in this crime were identified/traced during the investigation.

After investigation, a charge sheet was filed against the accused persons in June 2016 before the Designated Court.

The Trial Court found the three accused guilty and acquitted one person.


Central Bureau of Investigation

[Press Release dt. 17-12-2019]

Case BriefsHigh Courts

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

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

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

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

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

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

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

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

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

Jharkhand High Court
Case BriefsHigh Courts

Jharkhand High Court: Anil Kumar Choudhary, J. disposed of a revision petition, filed against the judgment of the trial court, whereby the petitioner was convicted and sentenced for simple imprisonment for six months for offences punishable under Section 33 of the Indian Forest Act, 1927 but it did not pass any separate sentence for his conviction under Section 2 of the Forest (Conservation) Act, 1980.

The facts of the instant case were that two forest guards while patrolling through the protected forest area, had found the revision petitioner and other co-accused persons ploughing the forest land within the protected forest. On being questioned, they disclosed their names and addresses but resisted confiscation of their ploughing implements. The guards confirmed that 3.5 acres had been ploughed by the petitioner and the other co-accused persons and they had no documents proving ownership of the land. Another witness stated that the land was ploughed after being encroached upon. The trial court relied on the evidence and convicted the revision petitioner and the co-accused persons. The first appellate court conducted an independent comprehension of the evidence on the record and agreed with the decision of the trial court and dismissed the appeal.

Abhilash Kumar and Anurag Kashyap, counsels for the revision petitioner, submitted that both the lower courts had made an error by convicting the revision petitioner for the offence punishable under Section 2 of the Forest (Conservation) Act, 1980 as this was not penal provision. They also added that the appellate court did not properly consider the evidence on the record. They further stated that the petitioner was an old man of 74 years and had been facing the severity of criminal prosecution since 1993. Moreover, the petitioner had remained in custody until he was granted bail. Thus, in case his conviction was sustained, a lenient sentence could be given to him.

Sanjay Kumar Pandey, counsel appeared on behalf of the State and defended the impugned judgment passed by the appellate court and contended that the appellate court had rightly upheld the conviction of the revision petitioner. He asserted that this revision was not based on any merit and hence should be dismissed.

The Court held that both the lower courts had erred by convicting the revision petitioner for the offence punishable under Section 2 of the Forest (Conservation) Act, 1980 as this was not a penal provision. Consequently, his conviction under the abovementioned Act was ‘not sustainable in law’ and thus he was acquitted for the same. It observed that the evidence on the record was adequate to establish the charge for the offence punishable under Section 33 (1) (c) of the Indian Forest Act, 1927. Thus, the Court did not need to exercise revisional jurisdiction in this aspect. However, the court remarked that there was no specific evidence on the record about the dimension of the area which was cleared for cultivation by the petitioner and noted the fact that he had undergone the rigors of the criminal prosecution for a considerable period of time. Hence, it held that the sentence of the petitioner be modified to the period that he had previously spent in custody. [Prasad Paswan v. State of Jharkhand, 2019 SCC OnLine Jhar 772, decided on 13-03-2019]

Case BriefsDistrict Court

“It is a fundamental right of every citizen to have his own political theory and ideas and to propagate the same and work for their establishment so long he does not stick to do so by force or violence.”

Sessions Court, Berhampur: First Additional Sessions Judge S.K Sahoo sentenced Maoist leader Sabyasachi Panda, to life imprisonment for waging, attempting to wage a war and abetting waging of a war against the Union of India.

Sabyasachi Panda, one of the dreaded Maoist leaders in Odisha, is allegedly involved in several major cases of Maoist violence in Odisha such as – attack on R. Udaygiri town in Gajapati district, the Nayagarh armoury loot, the murder of VHP leader Swami Lakshmanananda Saraswati and his four associates in Kandhamal district and abduction of two Italian tourists in Kandhamal district. He was initially a member of the outlawed CPI (Maoist), from which he was expelled in 2012. After his expulsion, he formed the Odisha Maovadi Party (OMP).

Background of this case was that the police was informed by its local asset that Naxal leader Sabyasachi Panda (accused herein), against whom many cases of murder, rioting, kidnapping, sedition and unlawful activities were pending in different districts of Odisha, was planning to organize disruptive activities by staying in the house of a local village resident. Following a gunfight, Panda was arrested and around a dozen phones, 45 SIM cards, laptops, cash, gold and a bundle of leaflets containing anti-government slogans were seized from him. It was ascertained that he had come with an intention to conspire against the State by organizing terrorist gang attacks and that he intended to further his disruptive activities which were against the unity, integrity, sovereignty and war against the State. He shouted slogans against the government such as “Mao Sangathan Jindabad Police Kukura Murdabad, Sasashtra Sangram Dwara Maobadi Sasan Prathista Hebo”.  An FIR was registered against him under Sections 353, 121, 121(A), 124 (A) of the Penal Code, 1860 and Sections 25(1-B)(a) and 27 of the Arms Act, 1959 read with Sections 18, 20 and 38 of Unlawful Activities (Prevention) Act, 1967. Panda pleaded not guilty to the charges drawn against him and claimed for trial. Hence, this case.

Learned defence counsel D.K. Pattnaik pleaded that since the independent witnesses examined by the prosecution have not completely supported the case of the prosecution, the evidences of official witnesses cannot be relied upon and for the said reason only prosecution case fails. He further said that one Mouser was found from the possession of the accused and he attempted to fire to police personnel by said Mouser, but during the course of investigation, the complainant or any of the investigating officers did not take any step to obtain the fingerprints of accused.

Learned Additional Public Prosecutor Gyanendra Nath Jena argued that there was clear, cogent, clinching, trustworthy and direct evidence available against the accused. He further submitted that though the independent witnesses had not supported the prosecution’s case in toto, they had supported prosecution case to some extent, and their evidence could not be thrown away due to minor and trivial contradictions. He pleaded that some independent witnesses might retract due to gravity of the case but the Court must apply the principle enunciated in State of Orissa v. Uttara Pradhan, 2017 SCC OnLine Ori 314 where it was held that “while disposing of sessions cases, the court has to stick to the evidence on record instead of expressing his impression or thoughts and probabilities and possibilities which are unknown to criminal jurisprudence.”

The Court, after hearing both the parties, observed and opined as below:

Evidence of official witnesses:

The Court relied on Sumit Tomar v. State of Punjab, (2013) 1 SCC 395 where it was held that “it is desirable to examine independent witness, however, in the absence of any such witness if the statements of Police Officer are reliable and when there is no animosity established against them by the accused, conviction based on their statements cannot be faulted with.”

Inconsistencies in evidence:

Placing reliance on State of Karnataka v. Suvarnamma, (2015) 1 SCC 323 it was held that “the court dealing with a criminal trial is to perform the task of ascertaining the truth from the material before it. It has to punish the guilt and protect innocent. Burden of proof is on the prosecution and the prosecution has to establish its case beyond reasonable doubt. Much weight cannot be given to minor discrepancies which are bound to occur on account of difference in perception, loss of memory and other invariable factors.”

Assault on public servant (Section 353 IPC) and using unlicensed arms (Section 3 Arms Act):

The Court opined that the evidence of prosecution clearly pointed out that there was a tussle between accused and the police personnel during the raid and his arrest. When the accused tried to flee from the spot, he used criminal force against the police with an intention to prevent and deter those persons from discharging their duties as such public servants. He was in possession of a country made revolver with live ammunition in contravention of Section 3 of the Arms Act. He also used the said revolver in contravention of Section 5 of Arms Act for which offence under Sections 353 IPC and Sections 25(1-B)(a) and 27 of the Arms Act were clearly made out against him.

Assaulting President or Governor (Section 124 IPC)

However, the Court finding Panda not guilty for the offence under Section 124 of the IPC opining that there was absolutely no evidence available against him to establish that he had assaulted or used criminal force to the President, Governor, etc. with intend to compel or restrain the exercise of any lawful power.

Waging War against the Government of India:

The Court opined that it is the settled principle of law that to constitute an offence under Section 121 IPC, no specified number of persons is necessary, and the test is to look at the purpose or intention of the gathering. The object of the gathering must be to attain, by force and violence, an object of a general public nature thereby striking directly against the Government authority. A person taking part in an organizing an armed attack on the constituted authority and for subverting the government is guilty of the offence if he recruits people with the said object, and punishes those who refuse to join him, he is guilty of waging war. Abetting the waging of war is also ascertained on the same basis as waging of war.

It was observed that so long as a man tries to inflame feeling to excite estate of mind he is not guilty of anything more than sedition. It is only when he incites to action that his guilty of instigating and therefore abetting the waging of war.

Further, there are two kinds of conspiracies namely (i) conspiracy to commit the offences punishable under Section 121 IPC; and (ii) conspiracy to overawe by means of criminal force or show of criminal force the Central or State Government.  The word ‘overawe’ imports more than the creation of one apprehension or alarmed or even fear. It connotes the creation of a situation in which the members of the Central or the State Government feel compelled to choose between yielding to force or exposing themselves and the members of the public to very serious danger.

Laxity of investigating authorities:

The Court also observed that the authorities had investigated a grave and sensational case in a very casual manner. Prosecution had not conducted trial of the case properly and the official witnesses have adduced their evidence haphazardly. No steps were taken to collect fingerprints of the accused for examination; alleged revolver used by accused was not sent for any examination or ballistic opinion; call detail records (CDRs) of the phone number used by accused was not obtained; investigating officer had deposited seized gold and cash without taking permission from the competent court for shape deposit.

However, it was opined that such irregularities would not vitiate the case of the prosecution where other clear, cogent, clinching and trustworthy materials were produced by the prosecution before the court. Reliance in this regard was placed on State v. Gurmit Singh, (2014) 9 SCC 632 where it was held that “in cases of defective investigation, the court has to be circumspect in evaluating the evidence, but it would not be correct to acute the accused solely on account of defect in investigation. To do so would tantamount to playing into the hands of the investigating officer even if the investigation is designedly defective”.

In view of the abovestated facts and law, the Court opined that though the seizure of incriminating materials and slogans given by the accused were not supported by any independent witness, considering the facts and circumstances, evidence of official witnesses could not be disbelieved. It was held that while the accused was apprehended he was attempting to wage war and abetting others to wage war against the Government of India; he was also conspiring to wage war against the Government and to overawe by means of criminal force. As such, he was convicted for offence under Sections 121, 121-A, 353 of IPC and Sections 25(1-B)(a) and 27 of Arms Act. He was thus, sentenced to rigorous life imprisonment and a total fine of Rs 25,000 was imposed on him.[State v. Sabyasachi Panda, Sessions Trial No. 33 of 2015, decided on 18-05-2019]

Jharkhand High Court
Case BriefsHigh Courts

Jharkhand High Court: The Bench of  Deepak Roshan, J. allowed a petition insofar as it modifies the sentenced to undergo the imprisonment for the period already undergone him. 

In the present case the petitioner was found guilty for the offence under Section 3(a) of Railway Property (Unlawful Possession) Act and was sentenced to undergo simple imprisonment for 2 years and also directed to pay a fine of Rs 2000 and in default of payment of fine, he was further directed to undergo simple imprisonment for six months. The learned counsel for the petitioner submitted that he remained in custody for nearly one year and eight months and he has already suffered much as such some leniency may be accorded to the petitioner.

The Court held that the prosecution has proved its case beyond all shadow of reasonable doubts. But the fact that the petitioner remained in custody for more than one and a half years and the case is pending since 1994, has certainly made the petitioner suffer who remained in custody. Therefore, the Court found it “expedient in the interest of justice that the order of sentence already undergone will suffice for the ends of justice for the alleged offence”.[Fahim Khan v. State of Jharkhand, 2019 SCC OnLine Jhar 457, decided on 03-05-2019]

Case BriefsForeign Courts

Supreme Court of Pakistan: The Five-Judge Bench of Mian Saqib Nisar, Asif Saeed Khan Khosa, Gulzar Ahmed, Mushir Alam and Mazhar Alam Khan Miankhel, JJ.,  refused to interfere with the Judgment of Division Bench of Islamabad High Court granting bail to former Prime Minister Nawaz Sharif, his daughter Maryam Nawaz Sharif and son-in-law Capt. (Retd) Muhammad Safdar.

The Court took note of certain shortcomings in the impugned judgment such as commenting on the merits of the case, making premature conclusions at the stage of bail/ suspension of sentence, recording of a lengthy bail order in contravention of this Court’s guidelines. However, despite the said deficiencies, it was observed that considerations for grant of bail and those for its cancellation are entirely different. 

It was opined that no allegation had been levelled regarding any misuse or abuse of the concession of bail by respondents. One of the said respondents was already in jail after having been convicted and sentenced in connection with another criminal case, another of the said respondents was a woman and the law envisaged concession for her in the matter of bail, and the sentence of imprisonment passed by the trial Court against yet another of the said respondents was quite short. Thus, the Court concluded that there was no occasion for interference with the jurisdiction and discretion exercised by the High Court in the matter of the said respondents’ bail upon suspension of their sentences during the pendency of their appeals. Thus, the appeal was dismissed.[National Accountability Bureau v. Mian Muhammad Nawaz Sharif, Civil Appeal No. 1340 of 2018, decided on 14-01-2019]

Case BriefsHigh Courts

Delhi High Court: Sunil Gaur, J., reduced the sentence of imprisonment awarded to the appellant for the offences under Section 7 and Section 13(1)(d) read with 13(2) of the Prevention of Corruption Act, 1988.

The appellant was held guilty by the trial court of receiving a bribe of Rs 25,000 while he was working as Assistant General Manager (Administration), East Zone, Delhi in MTNL. He was found guilty of taking the bribe for releasing a security deposit of around Rs 7 lakhs in favour of the complainant Company. The trial court sentenced him to rigorous imprisonment of 3 years and a fine of Rs 25,000 for the offence under Section 7. He was awarded another sentence of rigorous imprisonment of 3 years and a fine of Rs 25,000 for the offence under Section 13(1)(d) read with Section 13(2).

Aditya V. Singh, Advocate for the appellant did not challenge his conviction. He, however, prayed for reduction of sentence. It was submitted that the appellant was aged 64 years and he had to look after his ailing wife aged 63 years along with his mid-aged widowed sister who was living with him.

Upon perusal of the matter, the High Court reduced the sentence awarded to appellant to the period already undergone by him while enhancing the fine imposed from Rs 25,000 to Rs 50,000 on both counts. Considering the minimum sentence as provided under the relevant sections at the time when the offence was committed, the Court stated, under the relevant sections at the time when the offence was committed, the court stated, “sentence of more than one year already undergone by appellant will meet the ends of justice, as the minimum sentence of one year was provided by law, when the offence in question was committed by appellant.” The appeal was disposed of in the manner stated above. [Mangal Singh Arya v. State, 2019 SCC OnLine Del 7456, Order dated 28-02-2019]

Case BriefsForeign Courts

High Court of South Africa, Eastern Cape Local Division: This case was filed before a Bench of G.G. Goosen, J. where Court dealt with the sentencing of accused who was convicted for kidnapping, rape and robbery with aggravating circumstances.

The two accused were convicted of kidnapping, robbery and rape. It was found that Accused 1 had already been convicted on 4 occasions. With respect to Accused 1 Court stated that- “He is however not a youth whose callow immaturity might explain his aberrant conduct.” He had experience of the effects of punishment and despite that, it did not cause him to change his behaviour which mandates a heavy punishment. The impact of the crime subjected to the victim, outweighs the personal circumstances of the accused. Accused 2 was a minor and thus was to be dealt with under the Child Justice Act, 2008. Accused 2 was of 16 years of age at the time of the commission of a crime. He had no previous convictions and the life he had been through showed that he was a child used to drugs and in need of care.

High Court found direct sentencing of imprisonment to be appropriate. According to the Act, imprisonment was to be given as a last resort and the Court viewed the case of Accused 2 to be one falling within the scope of imprisonment. [State v. Donovan Heugh, Case No. CC 17 of 2018, dated 25-01-2019]

Case BriefsForeign Courts

Eswatini High Court: This matter was brought before a Bench of M. Langwenya, J. for judgment on sentence.

Facts of the case were such that accused was found guilty of murder with extenuating circumstances. The accused was found to have been drinking alcohol at the time when the deceased was stabbed. Pieces of evidence were present showing that the accused was provoked by deceased which reduced the moral blameworthiness due to its effect on the state of mind of accused.

Accused defended by submitting mitigating factors such as his young age, his remorsefulness towards the crime, that he is a first-time offender and that he had already been in the custody for five years, five months and two days. Court referred the case of Samkeliso Madati Tsela v. Rex, (2010) [2011] SZSC 13 in order to decide on the sentence of accused which is an authority setting out the appropriate range of sentences in cases of murder in the country.

High Court was of the view that murder was a serious offence but considering the personal circumstances of the accused and his young age, Court was inclined to sentence him to twelve years of imprisonment, where the time period already spent in custody would be adjusted. [Rex v. Lwazi Tshepo Kubheka, Case No. 43 of 2016, decided on 15-11-2018]

Case BriefsHigh Courts

Bombay High Court: A Single Judge Bench comprising of M.G. Giratkar, J. partly allowed an appeal filed against the judgment of the trial court whereby the appellant was convicted under Section 20(b)(i)(A) of the Narcotic Drugs and Psychotropic Substances Act, 1985.

The case against the appellant was that 24 small packets containing ganja along with some currency notes were seized from his hotel. Thereafter, he was taken to the police station and a case was registered against him. The sample of seized material was sent to chemical analyser and it was proved that the material was ganja. Charges were framed against the appellantHe was tried and convicted by the trial court as mentioned above. Aggrieved thereby, the instant appeal was filed.

On perusal of the facts, the High Court found that the conviction of the appellant was based on proper appreciation of facts and the trial court gave a well-reasoned judgment. Therefore, on the issue of conviction, the Court held that no interference with the judgment impugned was warranted. However, on the issue of quantum of sentence, the High Court considered the fact that the appellant was aged about 68 years and was facing prosecution since 2006. In such circumstances, the Court held that the ends of justice would be met if the sentence of imprisonment (3 months) which was imposed on the appellant would be reduced to the period already undergone by him, i.e., 16 days. the appeal was, thus, partly allowed. [Vitthal v. State of Maharashtra,2018 SCC OnLine Bom 3707, dated 20-10-2018]