Case BriefsHigh Courts

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

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

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

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

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

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

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

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

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

Case BriefsHigh Courts

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]

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]

Case BriefsTribunals/Commissions/Regulatory Bodies

National Human Rights Commission (NHRC): NHRC on May 11, has based on a media report, taken suo moto cognizance of the arrest and incarceration of two minor girls, aged 12 and 16 years. These girls, along with 7 other family members, some of whom are minors, were arrested from their home in Muzaffarnagar, UP in December 2017 on allegations of cow slaughter and attempt to murder. Though bail was granted against the latter charge, the lower court did not grant bail for alleged cow slaughter. They were finally released in April after spending over 3 months in prison.

The Commission observed that this arrest and incarceration on the basis of the girls’ physical appearance looking like that of an adult to the arresting officers, and the disregarding of documentary evidence in the form of Aadhaar cards which clearly showed that they were minors was a violation of the Juvenile Justice Act, which requires minors be sent to juvenile homes and produced before special Juvenile Boards. The girls, however, were produced before a regular court as adults. Section 10 of the JJ Act reads:

“10. Apprehension of child alleged to be in conflict with law.

1. As soon as a child alleged to be in conflict with law is apprehended by the police, such child shall be placed under the charge of the special juvenile police unit or the designated child welfare police officer, who shall produce the child before the Board without any loss of time but within a period of twenty-four hours of apprehending the child excluding the time necessary for the journey, from the place where such child was apprehended:

Provided that in no case, a child alleged to be in conflict with law shall be placed in a police lockup or lodged in a jail.”

The Commission said that if proved, this shall be a “gross violation of Human Rights”, and therefore issued a notice to the Chief Secretary and DGP of the Government of Uttar Pradesh and asked them to submit a report within 4 weeks.

National Human Rights Commission

Case BriefsHigh Courts

Patna High Court: In a criminal appeal decided by a Single Judge Bench comprising of Vinod Kumar Sinha, J., the period of sentence of imprisonment inflicted upon the accused under Sections 392 and 411 of IPC along with Section 25(1)(1-B) of the Arms Act was reduced to the period of imprisonment already undergone by the accused.

The accused stood convicted by the trial court under the abovesaid sections along with other sections of the Arms Act and were sentenced to undergo rigorous imprisonment of five years. The said order of the trial court was challenged by the accused in the instant appeal. The High Court considered the record as well as submissions made on behalf of the parties and upheld the conviction of the accused under the sections mentioned stated above. However, the conviction of the accused under other sections of the Arms Act was set aside. Learned counsel for the accused prayed to reduce their sentence of imprisonment.

The High Court perused the record and found that the accused remained in custody for more than three years; the incident occurred in the year 2002 and as such the accused have faced rigors of trial for more than fifteen years. Considering these facts and circumstances, the Court was of the view that the sentence of imprisonment inflicted upon the accused should be reduced to the period of imprisonment already undergone by them.

The appeal was disposed with the aforesaid modification in conviction and sentence. [Ranjeet Kumar Singh v. State of Bihar, 2018 SCC OnLine Pat 449, decided on 19-03-2018]