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Bom HC | Circumstantial Evidence. Wife found dead, can husband be convicted on the basis of him being last seen with wife? Do Police Officers need to substantiate their stand on basis of documents? Read on

Bombay High Court: The Division Bench of Prasanna B. Varale and S.M. Modak, JJ., held that in a matter of circumstantial evidence, the law doesn’t require a particular number of circumstances to establish the chain, it only depends on nature.

The issue involved in the present appeal was:

Whether the link between the incident of murder and the accused is established on the basis of proved circumstances?

Present matter was based on circumstantial evidence.

It was expressed that, Law does not require a particular number of circumstance so as to establish the chain. It altogether depends upon the nature of the transaction.

In the present matter, there were a few circumstances relied upon by the prosecution and the Additional Sessions Judge believed those circumstances and drew an inference about the guilt of the accused of committing murder of his own wife Nirmala. Accused was convicted under Section 302 of Penal Code, 1860 and the said judgment has been challenged in the present appeal.

Accused and his wife were labourers. On the day of the incident both the accused and deceased went from duty a little early due to stomach pain of accused and then slept. On next day when the first informant went to wake them up, he saw Nirmala’ dead body. Accordingly, he lodged the complaint.

Circumstances on which the prosecution relied upon were as follows:

Last seen theory.
Motive
Noticing soaked blood stains on the clothes of the accused.
Absconding himself from the spot of the incident even though his wife is murdered.

Supreme Court has already laid down golden principles while appreciating circumstantial evidence. They still hold good. So the following are the principles:-

a) The circumstance relied upon must be fully established.
b) They must be consistent with the hypothesis of guilt of the accused.
c) They should be conclusive in nature. Only inference about guilt of the accused is to be inferred.
d) There should be complete chain of evidence so as not to lead any doubt about involvement of the accused.

Trial Court blamed the accused for not giving explanation. In Court’s opinion, Trial Court committed fault on two aspects first trial court forgot the difference between suspicion and proof.

Secondly, trial court forgot to put to the accused circumstance of ‘last seen together’ as evidenced by PW-2 first informant.

In view of the above reasons, Bench decided to set aside the conviction and laid down the following reasons:

ON THE POINT OF LAST SEEN TOGETHER

Last seen circumstance has to be proved just like any other circumstance. The only difference is once the prosecution will prove that both the deceased and accused were found last together then certainly it is for the accused to explain about whereabouts or what has happened about his companion. In this exercise the time of last seen and time of death also plays important.

For the above-stated, Supreme Court’s decision in State of Goa v. Sanjay Thakran, (2007) 3 SCC 755 was referred.

SPOT OF INCIDENT

Bench stated that it was very much clear that the spot was not situated within four walls of the house but an open space. There was reason to believe that the open space was not surrounded by walls but a place accessible. In view of the said, Court stated that it had to see whether there was a burden on accused to explain how deceased was found there in a dead condition.

Section 313 of the Code of Criminal Procedure empowers the Court to put questions in two eventualities.

One is optional and it may be at any stage of proceeding. Whereas 2nd is mandatory, and it is after prosecution witnesses were examined. Under the said Section, protection was also given to accused from possible punishment which may occur if he has refused to answer or given a false answer.

Whether this Court can remand the matter back to the trial Court for the purpose of putting that circumstance to the accused?

A similar situation arose before the Supreme Court in Nar Singh v. State of Haryana, (2015) 1 SCC 496.

There is no straight-jacket formula for deciding which course of action could be adopted, therefore it remains a question of fact.

In the present case, Bench was not inclined either to remit the matter or to put the questions to the accused.

While deciding the matter on merits, Bench stated that it has almost been 5 years since the accused was behind the bar. Further, even if the circumstance of the last seen together was considered, Court did not think that other circumstances were sufficient to prove the guilt of the accused. Court opined that prejudice was caused to the accused.

It was noted that the accused was denied the opportunity to give an explanation resulting in causing prejudice to him.

MOTIVE

“Suspecting the character of the deceased” was the motive suggested by the prosecution.

Motive is the purpose/reason for which offence is committed. Motive crops up in the mind of the culprit. We can understand the motive, only when it is manifested by some conduct. If the accused scolds, become angry and even beats the deceased it is manifestation.

A trifling act may make another person angry and a blunder may not make a person angry. So, it is difficult to opine which objectionable acts may compel another to take law into his own hand

No doubt man always wants his wife to be loyal to him and if wife has shifted loyalty towards another person, her husband never likes. It is true for wife also.

PW-4-Muktabai mother of the deceased was not eyewitness to this beating by the accused. Except her, there was no other witness. The said statement was not sufficient to believe about the reason for scolding and the group head’s opinion about cordial relations was also important as he resided in the immediate vicinity, hence Trial Court wrongly inferred about motive.

ARREST OF ACCUSED

When the accused was arrested, bloodstains were noticed on his clothes.

Police Officers are not a layman. They are the officers having the responsibility to carry out the investigation as per the police manual and as per the provisions of the Criminal Procedure Code. They need to substantiate their stand on the basis of documents which are created simultaneously.

In the present case, the witness police did not make any correspondence on the arrest of the accused, neither made any Panchama. Except the bare words of the two witnesses, there is nothing in writing.

High Court found no explanation coming forward from the prosecution for not creating and not producing the single document to show the entire exercise.

Trial Court’s decision about the arrest of the accused was also found to be flawed.

CAUSE OF DEATH

Bench expressed that merely because there was a huge time gap in between the timing of last seen together and probable timing of death, the evidence of last seen together could not be rejected in all cases.

WEAPON OF OFFENCE

As no one saw the assault Bench stated that it did not know how the accused had used the weapon koyta. Weapon Koyta was found at the spot when spot panchanama was carried out.

Prosecution had sufficiently proved the circumstances of last seen together.

The circumstance of motive was not proved, evidence on the point of arrest and seizure of clothes was not trustworthy. So, Court felt that the chain of circumstances was not established.

Hence, High Court held that there was Grave suspicion on accused that he had committed the murder of his own wife. As everyone knew that suspicion could not take place of proof, therefore, Court was unable to subscribe to the view taken by the trial court.[Sandip Baburao Waidande v. State of Maharashtra, 2021 SCC OnLine Bom 560, decided on 09-04-2021]

Advocates before the Court:

Mr Amit Mane (Legal aid) for the appellant.

Mrs M. M. Deshmukh, learned APP for the Respondent.

Case Briefs High Courts

Gau HC | “Nature of injury does not suggest that the appellant acted in cruelty”; HC converts conviction for murder into culpable homicide

Gauhati High Court: The Division Bench of Suman Shyam and Mir Alfaz Ali, JJ., heard the instant petition against the judgment and order dated 24-03-2011 rendered by Additional Sessions Judge, whereby, the appellant was convicted under Section 302 Penal Code, 1860 and sentenced to rigorous imprisonment for life.

The case of the prosecution was that on 07-11-2014, a fight took place between the deceased and the accused, both of whom were employees of one Shambu Shil. The appellant had inflicted injuries on the head of the deceased with an iron rod, which caused his death. An FIR was lodged by the employer of the deceased as well as the accused/appellant under Section 302 Penal Code, 1860. According to the doctor, the cause of death was shock and hemorrhage as a result of the injuries sustained. All the injuries were accessed to be ante mortem and homicidal in nature.

Moreover, the appellant had recorded a confession before the Judicial Magistrate, on the basis of which and testimony of the Trial Court had convicted the appellant under Section 302 IPC.

Counsel of the accused, B Bhagawati, Amicus Curiae argued that in the confessional statement, the appellant had stated that both were drunk at the time of the occurrence. Further, the confessional statement of the appellant, which was duly recorded by the Judicial Magistrate, and was corroborated by the eye witness’s accounts made it abundantly clear, that there was quarrel and fight between the appellant and the deceased and in course of the quarrel, the appellant hit the deceased with the iron rod at the heat of passion. Thus, the entirety of the evidence clearly demonstrates that there was no premeditation on the part of the appellant and the assault was made suddenly at the heat of passion in course of quarrel.

The Bench observed that, when the assault was made without premeditation, at the heat of passion in course of sudden quarrel and the appellant also did not take any undue advantage nor acted in cruelty, all the above factors had made the present case come squarely within the sweep of exception (4) to Section 300 IPC. However, said the Bench, having regard to the three injuries on the head and the weapon used, it could not be said that the appellant did not has intention to cause death or to cause such bodily injury as is likely to cause death.

Thus, taking note of the evidence in its entirety, the Bench opined that the conviction of the appellant under Section 302 IPC was not sustainable. Therefore, the impugned order was set aside and the appellant was convicted under Section 304 Part-I instead of 302 IPC. Further observing that the appellant had been in custody for more than 14 years, his sentence was reduced to the period already undergone. Accordingly, the appellant was directed to be released.[Debaru Majhi v. State of Assam, 2021 SCC OnLine Gau 422, decided on 05-03-2021]

Kamini Sharma, Editorial Assistant has reported this brief.

Case Briefs Supreme Court

SC confirms life imprisonment in brutal murder of children aged 4 years and 2 years by administering celphos

Supreme Court: The Division Bench comprising of Indu Malhotra and Ajay Rastogi*, JJ., dismissed the instant appeal filed against the order of High Court, whereby the appellant had been sentenced with imprisonment for life for killing two minor children. The Bench, while observing motive of the crime stated,

“He was living in a relationship with the complainant Anju who had two children from the previous marriage, and had taken away the life of two minor innocent children at the very threshold of their life and murdered in a brutal manner by administering celphos to them has been established.”

On the fateful day of 18-03-2013, at about 7.30 a.m., Anju (mother of the children) went to the temple or prayers. On her return, she saw both her children lying on the cot struggling for life and the appellant went away telling her that he had given poison to both the children.

The Trial Judge held the appellant guilty of an offence under S. 302 of IPC and punished him with imprisonment for life which would mean remainder of natural life and fine of Rs.5000. On an appeal preferred by the appellant the High Court revisited the record in totality and upheld the sentence imposed by the Trial Court.

The grievance of the appellant was that the statement of material prosecution witnesses PW1 and PW2 had been recorded without affording reasonable opportunity to the appellant to cross-examine the prosecution witnesses as mandated under S. 230 of CrPC, 1973.

Noticing that after framing of charges, the appellant pleaded guilty, however following the rule of prudence, the Trial Court decided to examine four witnesses before recording the conviction the Bench rejected the contention of the appellant. Since, after cross examination of these two witnesses, the appellant pleaded to claim trial on and thereafter the evidence of other prosecution witnesses was recorded yet at no stage, the appellant moved any application for recalling the witnesses and this contention had been raised for the first time during second appeal.

Whether the Trial Court went ultra-vires while imposing imprisonment for remainder of natural life?

The appellant had contended that he had been sentenced with imprisonment for life which would mean a remainder of natural life which was not in the domain of the trial Court, and this could had been exercised only by the High Court or by this Court . to substantiate his claim, the appellant relied on Union of India v. V. Sriharan, 2016 (7) SCC 1, wherein it had been established that,

“The power to impose a modified punishment providing for any specific term of incarceration or till the end of the convict’s life as an alternate to death penalty, can be exercised only by the High Court and the Supreme Court and not by any other inferior court.”

The Bench, though, opined that it was true that the punishment of remainder of natural life could not had been imposed by the Trial Judge, but after looking into the entire case, it was held to be appropriate to confirm the sentence of imprisonment for life to mean the remainder of natural life while upholding the conviction under Section 302 IPC.

Hence, regardless of the irregularities of sentence as pointed out by the appellant, the Supreme Court agreed to exercise its jurisdiction and approve the sentence imposed by the Trial Court and dismissed the appeal.

[Gauri Shankar v. State of Punjab, 2021 SCC OnLine SC 96, decided on 16-02-2021]

Kamini Sharma has put this report together

*Judgment by: Justice Ajay Rastogi

Case Briefs High Courts

Bom HC | Can a person be held liable under S. 302 IPC on the basis of ‘last seen’ theory and not being able to offer sufficient explanation? Significance of ‘last seen’ theory in establishing homicidal nature of death discussed

Bombay High Court: The Division Bench of Sadhana S. Jadhav and N.J. Jamadar, JJ., while addressing the present matter, expressed that:

Where the prosecution succeeds in discharging its primary burden and brings evidence on record which indicates that the facts, thereby proved, rest within the special knowledge of the accused, Section 106 of the Evidence Act comes into play.

Suspicion, however strong, cannot take the place of proof.

Factual Matrix

Accused-Appellant has challenged the decision of the Additional Sessions Judge, wherein he was convicted for the offence punishable under Section 302 of the Penal Code, 1860 for having committed the murder of his wife Sunita (the deceased).

The accused harassed and ill-treated the deceased on suspecting fidelity of the deceased. The deceased and accused shifted to Beghar Vasti wherein they erected a temporary shed adjacent to the house of the first informant. Later the accused and deceased desired to erect a shed with a thatched roof.

To erect the shed with a thatched roof, both the accused and deceased went to the field in order to collect a wooden log. The first informant also went to the fieLd to graze the goats, wherein he saw that the deceased was lying near a mango tree and her clothes were stained with blood. However, first informant did not find the accused in the vicinity of the said spot. Thus, he suspected that the accused to have done so, after which he lodged a report.

During the investigation, it was found that the deceased was carrying six months pregnancy and the said occurrence resulted in the death of quick unborn child as well. The accused came to be arrested.

Additional Sessions Judge framed charge against the accused of the offences punishable under Sections 302 and 316 of the IPC.

After the trial, offence for Section 316 IPC was not established against the accused, though he came to be convicted under Section 302 IPC.

Aggrieved with the above, present appeal was preferred.

Analysis and Decision

Bench noted that the fact that the accused did not offer any explanation regarding the circumstances in which he parted the company with the deceased and how the deceased sustained those fatal injuries weighed with the Additional Sessions, Judge.

In the context of the marital relationship between the deceased and the accused and the indisputable fact that they were residing at Khatgun along with the first informant, the “last seen theory” constitutes the linchpin of the prosecution case.

Court added that the fact that the deceased was found beneath the mango tree in the said field, within a couple of hours of the accused and the deceased having left the house, can also be said to have been proved beyond the shadow of doubt.

Further, since there has been ample evidence to indicate that the first informant found the deceased lying in a motionless state with fatal injuries and when she raised alarm, the prosecution witnesses, Dharam Pawar (PW-6) and Sushila Pawar (PW-9) went to the scene of occurrence and found the deceased lying beneath the mango tree.

Adding to the above, Court also stated that in any event, the interval of time between the accused and the deceased leaving together their home and the deceased having been found dead in the field ‘Kolki’, did not exceed three hours.

It is trite law that the ‘last seen’ theory comes into play when the time gap between the point of time when the accused and the deceased were last seen alive and when the deceased is found dead, is so small that the possibility of any person other than the accused being the perpetrator of the offence, is inconceivable.

In view of the above law and facts of the case, Court held that the prosecution succeeded in establishing that the accused and the deceased were “last seen together”.

Nature of the death

The nature of the injuries found on the person of the deceased and the attendant circumstances are of determinative significance. Bench stated that the injuries found on the person of the deceased were on accessible and elective parts i.e. wrist and neck.

It is true that the accused did not endeavour to offer an explanation as regards the circumstances in which the deceased suffered the aforesaid injuries, when confronted with the incriminating material.

The question that triggers in the above circumstances is whether the failure to offer the explanation is sufficient to fasten the liability on the accused?

In the circumstances of the present case, in the absence of any positive evidence, motive to eliminate the deceased cannot be attributed to the accused on the premise that, before the accused and the deceased shifted to Khatgaun, their marital life was afflicted with discord.

Accused having changed the clothes with a view to conceal the fact that the clothes which he wore at the time of occurrence were stained with blood, is not of conclusive tendency and incriminating nature. Admittedly, the accused was found in an injured condition. Wounds were found on both the wrists and neck of the accused.

Adding to the above, Court expressed that the accused had visible injuries, on his person, when he was apprehended. The presence of bloodstains on the clothes of the accused, which he wore on the day of occurrence, therefore, cannot be construed as an incriminating circumstance.

Though prosecution made an endeavour to draw home the point that the accused had self-inflicted the above-stated injuries overcome by the feeling of guilt. Bench found it hazardous to draw an inference that the said attempt on the part of the accused to cause injuries to himself was due to the fact that the accused was overcome by the guilt, as held by the Additional Sessions Judge.

What emerges from the above discussion?

From all the above discussion, Court observed that there has been clear evidence of ‘last seen’ and the death of the deceased within a couple of hours of the deceased and the accused having been last seen together.

The wounds found on the person of the deceased especially the situs, elective parts, and nature were suggestive of suicidal infliction.

As the fundamental fact of the deceased having met a homicidal death itself is in the corridor of uncertainty.

In Court’s opinion, the circumstance of ‘last seen’, and the failure of the accused to offer a plausible explanation, on their own, were not sufficient to sustain the guilt of the accused beyond reasonable doubt.

Section 106 of the Evidence Act does not relieve the prosecution of its general or primary burden of establishing the guilt of the accused beyond reasonable doubt.

Supreme Court’s decision in Sawal Das v. State of Bihar, (1974) 4 SCC 193 was also referred for the above purpose.

Propositions that emerged from the above discussion:

If an accused is last seen with the deceased, he must offer an explanation as to how and when he parted company with the deceased.
The failure of the accused to offer a reasonable explanation in discharge of the said burden provides an additional link in the chain of circumstances proved against the accused.

In the present matter, homicidal nature of the death was not established and the prosecution case rested upon the circumstance of “last seen” to a great extent.

With regard to the legal position in respect to sustaining the guilt on the only circumstances of “last seen”, Court referred to the decision of Supreme Court in Dharam Deo v. State of U.P., (2007) 3 SCC 755.

Hence, Bench held that circumstance of ‘last seen’, in the totality of circumstances, cannot sustain the burden of establishing the guilt of the accused beyond a reasonable doubt, especially when the fact of homicidal death is in the realm of uncertainty.

High Court concluded its decision by referring to the decision in Navaneethakrishnan v. State, (2018) 16 SCC 161, wherein the legal position in the context of sustaining conviction on the basis of circumstantial evidence was expounded.

Conviction under Section 302 IPC could not sustained in view of the above discussion. [Krishna Mahadev Chavan v. State of Maharashtra, 2021 SCC OnLine Bom 191, decided on 12-02-2021]

Advocates who represented the parties:

Aashish Satpute, Advocate appointed by Court for appellant.

S.R. Agarkar, APP for respondent-State.

Hot Off The Press News

NHRC issues notice to Uttar Pradesh Government over reported missing children of a couple exonerated on false charges of murder

The National Human Rights Commission, India has taken suo-motu cognizance of a media report that after 5 years in jail in Agra district of Uttar Pradesh for the crime they didn’t commit, a couple can’t find their two kids, who had been reportedly sent to some orphanage in their absence.

Considering it as a serious issue of human rights violation, the Commission has issued notices to the Chief Secretary and DGP, Uttar Pradesh calling for a detailed report in the matter within four weeks.

The reports should include the enquiry/action taken, if any, against the police officers and the public servants who were responsible to ensure social security to the innocent children of the victim couple.

Issuing the notices, the Commission has observed that the gross negligence committed by a public servant has devastated the entire family. The State authorities including the police and the social welfare authorities of the district Agra have acted in a reckless manner, showing no respect towards the basic human rights.

According to the media reports, carried on the 23-01-2021, the couple was arrested by the police in the year 2015, when a boy aged five years was found murdered and they were named in the case. The Additional District and Sessions Court, while releasing the couple had mentioned in the order that it is unfortunate that innocent people have spent five years behind the bars and the main accused is still free. The Court has reportedly directed the Senior Superintendent of Police to take action against the investigating officer for his negligence. The Court has also recommended re-investigation of the case on the basis of the available evidences, to arrest the actual perpetrator.

It is specifically mentioned in the news report that the then Sub-Inspector, who was working with the investigating officer, had admitted in the Court that he did not even try to find out as to against whom the FIR was registered.

As mentioned in the news report, the victim Narendra Singh, who was earlier working as a teacher, has been asking as to what was the fault of their children, son aged 5 years and daughter aged 3 years. The wife of Narendra Singh, who was also lodged in the jail with her husband, has reportedly written a letter to the Senior Superintendent of Police, Agra to search for their missing children. The couple never met their children after their arrest, and their bail application was rejected by the District Judge in the year 2015. It is also mentioned in the news report that the victim couple could not go further to approach the High Court due to their inability to afford the expenses.

National Human Rights Commission

[Press Release dt. 28-01-2021]

Fact Checks News

Fact Check: Has the Punjab & Haryana High Court observed that a wife is eligible for family pension even if she murders her husband?

An article published by India Today claimed that the Punjab and Haryana High Court in an unusual judgment had recently observed that the wife would be eligible for family pension even if she murders her husband. The article quotes an observation of the Court which stated that

“Nobody butchers the hen giving golden eggs. The wife cannot be deprived of the family pension even if she murders her husband. Family pension is a welfare scheme that was launched to provide financial help to the family in the event of a government employee’s death. Wife is entitled to family pension even if she is convicted in a criminal case,”

The article further quoted the facts of the case as ‘one Baljeet Kaur of Ambala told the court that her husband Tarsem Singh was a Haryana government employee who passed away in 2008. In 2009, she was booked for or a murder and was later convicted in 2011 (sic). Baljeet Kaur was getting the family pension till 2011 but the Haryana government stopped the pension immediately after her conviction.’

The article concluded by stating that the Court had directed the concerned department to release the petitioner’s family pension within two months along with the pending dues.

The screenshot of the news item can be seen below.

The screenshot of the controversial paragraph which stated that wife cannot be deprived of family pension even if she murders her husband can be seen below.

This news was also reported on other sites such as

Now let us test the veracity of the claims.

We looked up the judgment of this case on the website of Punjab and Haryana High Court and found a judgment with similar facts which was delivered on 25th January, 2021. The case was Baljinder Kaur vs. State of Haryana, CWP No. 24430 of 2017, delivered on 25.01.2021. The India Today article had got the name of the petitioner wrong. It was Baljinder Kaur and not Baljeet Kaur.

We read the judgment delivered by the court and found the paragraph quoted in red above has nowhere been mentioned in the written judgment. As per the facts, the petitioner’s husband died in 2008 after which she was receiving pension from the government for some time. However, after she was booked and later convicted for murder of another person in 2011 (who was obviously not her husband) she stopped receiving the pension. Therefore, the question of the wife murdering her husband does not arise in this case.

Under the Haryana Compassionate Assistance to the Dependents of the Deceased Government Employees Rules, 2006, the state government had denied the petitioner pension on the grounds that her conduct was not good as she was convicted of murder. They said that pension was not a charity or bounty and that it was a conditional payment depending upon the sweet will of the employer. As her sentence was not stayed and merely suspended for bail, they said that she was not entitled to any pecuniary benefits.

After going through the facts and arguments of the case, the bench of GS Sandhawalia, J. was of the opinion that denying pension to the petitioner on account of her conviction, was unrelated to the death of her husband and was therefore not sustainable. Accordingly, the said order was set aside.

The Court further clarified that it was not disputed that the petitioner had committed murder but she was out on bail and her sentence had been suspended. She needed the pension to maintain herself and the Court was of the opinion that she cannot be denied the financial assistance. Pension is not a bounty and is her right on account of the services rendered by her husband to the Government, the Court observed.

Conclusion

Therefore, we can safely conclude that the headline of the article on India Today and the quoted paragraph highlighted in red above is not reflected in the written judgment. The reasons for allowing pension to the petitioner was because her conviction for murder was in no way connected to the death of her husband.

Case Briefs Supreme Court

SC finds investigation in Ram Nath Chaubey murder case involving BJP MLA Sushil Singh a sham “designed to conceal more than to investigate”. SIT to takeover

“A fair investigation is, but a necessary concomitant of Articles 14 and 21 of the Constitution of India and this Court has the bounden obligation to ensure adherence by the police.”

Supreme Court: The 3-judge bench of RF Nariman, Navin Sinha and Krishna Murari, JJ has IPS Officer Satyarth Anirudh Pankaj as the senior officer, State of Uttar Pradesh to carry out further investigation in the Ram Bihari Chaubey murder case after it found the investigation and closure report submitted by the UP Police to be “extremely casual and perfunctory in nature”.

Directing that IPS Officer Pankaj will be free to select a team of competent officers of his choice, the Court directed that

“the investigation must be concluded within a period of two months from the date of receipt of a copy of this order, unless extension is required, and the final report be placed before this Court. The Director General of Police (DGP), Uttar Pradesh shall do the needful.”

Background

Ram Bihari Chaubey, was shot dead at his residence in Village Shrikanthpur, Chaubepur, Varanasi in the State of Uttar Pradesh, on 04.12.2015. Four unknown assailants were stated to have come on a motorcycle. Two of them entered the residence and shot the deceased, while the two others waited outside, after which they all escaped.

From the material collected during investigation it was apparent that the murder was committed due to political rivalry by hatching a conspiracy effectively with the help of BJP MLA Sushil Singh (the respondent no.5[1]). An affidavit filed before the Allahabad High Court, disclosed that Sushil Singh 24 criminal cases against him including under Section 302 IPC. In five cases final report had been filed in absence of credible evidence. In nine cases, he had been charge sheeted but was acquitted. Five criminal trials are still pending against him and he had also been put behind bars under the provisions of National Security Act by order dated 11.11.1998.

An affidavit was filed by the DGP before the Supreme Court on 22.02.2020 stating that there was no cogent evidence against Sushil Singh despite discreet efforts. Investigation of the case was therefore closed on 30.01.2019 and report submitted in the concerned court along with other police papers on 04.06.2019 with regard to the 4 accused persons only and no further investigation was pending against any person.

Analysis

The Court took note of the fact that the investigation which had been kept pending since 04.12.2015 was promptly closed on 30.01.2019 after this Court had issued notice on 07.09.2018.

Further, the Closure Report filed before the Court simply stated that there was no concrete evidence of conspiracy against Sushil Singh and that the informant had not placed any materials before the police direct or indirect with regard to the conspiracy. As and when materials will be found against Sushil Singh in future, action would be taken as per law.

Recording that the investigation and the closure report are extremely casual and perfunctory in nature, the Court noticed that the investigation and closure report do not contain any material with regard to the nature of investigation against the other accused including Sushil Singh for conspiracy to arrive at the conclusion for insufficiency of evidence against them.

“The closure report is based on the ipse dixit of the Investigating Officer. The supervision note of the Senior Superintendent of Police (Rural), in the circumstances leaves much to be desired. The investigation appears to be a sham, designed to conceal more than to investigate.”

The Court also reminded the police of its primary duty to investigate on receiving report of the commission of a cognizable offence.

“This is a statutory duty under the Code of Criminal Procedure apart from being a constitutional obligation to ensure that peace is maintained in the society and the rule of law is upheld and applied. To say that further investigation was not possible as the informant had not supplied adequate materials to investigate, to our mind, is a preposterous statement, coming from the police.”

On scope of judicial interference in investigations, the Court said that investigation is the exclusive privilege and prerogative of the police which cannot be interfered with but if the police does not perform its statutory duty in accordance with law or is remiss in the performance of its duty, the court cannot abdicate its duties on the precocious plea that investigation is the exclusive prerogative of the police.

“Once the conscience of the court is satisfied, from the materials on record, that the police has not investigated properly or apparently is remiss in the investigation, the court has a bounden constitutional obligation to ensure that the investigation is conducted in accordance with law. If the court gives any directions for that purpose within the contours of the law, it cannot amount to interference with investigation.”

The Court, hence, partially set aside the closure reports dated 02.09.2018, 17.12.2018 culminating in the report dated 30.01.2019 insofar as the non-charge sheeted accused are concerned only. Those already charge sheeted, were not interfered with.

Further, considering that the trial has commenced against the charge sheeted accused, the Court directed that further trial shall remain stayed.

[Amar Nath Chaubey v. Union of India, 2020 SCC OnLine SC 1019, order dated 14.12.2020]

[1] Ed Note: The order is silent on the name of Respondent No. 5. The name has been deduced from the Allahabad High Court verdict in Abhai Nath Chaubey v. State of U.P., 2019 SCC OnLine All 5782.

Case Briefs High Courts

All HC | Court should not be too technical when it feels convinced about trustworthiness of dying declaration, which if inspires confidence, can be acted upon, without any corroboration

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

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

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

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

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

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

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

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

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

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

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

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

Decision

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

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

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

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

Case Briefs High Courts

Del HC | Can an HIV positive patient be prosecuted for an offence of attempt to murder, if he had sexual intercourse without woman’s consent? Read detailed ruling of HC

Delhi High Court: Vibhu Bakhru, J., observed that If an HIV positive person is aware of their condition and has unprotected sex, the person can be punished under Section 270 of Penal Code, 1860.

Appellant was convicted by the trial court under Sections 376/313/307 of Penal Code, 1860.

Appellant was found guilty of raping his stepdaughter and since the appellant was found to be infected with Human Immunodeficiency Virus (HIV Positive) and was convicted for an offence punishable under Section 307 of IPC — attempt to murder.

Trial Court also observed that since the appellant was aware that his acts could result in transmitting the potentially lethal disease, he had knowingly committed an act, which if resulted in transmitting of HIV and consequently, the death of the victim from that disease, it would amount to murder.

Analysis, Law and Decision

Conviction for Rape — offence punishable under Section 376 of IPC

Whether there is any doubt that the appellant is guilty of committing an offence punishable under Section 376 IPC?

Considering that the prosecutrix gave varied statements at various points of time and had changed her stand on oath. The testimony of the prosecutrix could not be considered as wholly reliable and the trial court erred in proceeding on the said basis. However, Court also denied accepting that she was a wholly unreliable witness.

Further, in view of the above Court stated that it would be unsafe to rely on the testimony of the prosecutrix without any corroborative evidence and hence solely on her testimony, the appellant cannot be convicted.

Bench made another observation that,

in the instant case, there is unimpeachable corroborative evidence that the petitioner had raped the prosecutrix. The DNA Fingerprints of the Products of Conception and the DNA Fingerprints generated from the blood sample of the petitioner conclusively established that the appellant was the biological father of the abortus.

Repeatedly Raped

It is also material to note that the prosecutrix had in the first instance, when she was brought to the Community Care Centre, reported to the nurse that her stepfather had been repeatedly establishing physical relations with her and had been sexually abusing her in front of her siblings.

Even the medical report recorded:

“Repeated Rape by HIV positive stepfather after the death of mother suffering from HIV/AIDS in Jan 2011. Patient was overdue by one week in April 2011 when she was given an injection to get back her periods back. She bled with clots and pieces. UPT done showing pregnancy positive result.”

High Court concurred with the decision of the trial court that the evidence obtained in the present case clearly established beyond any reasonable doubt that the appellant had engaged in sexual intercourse with prosecutrix without her consent and had committed an offence punishable under Section 376 IPC.

Conviction for causing miscarriage – offence punishable under Section 313 IPC

Whether it is established that the appellant is guilty of committing an offence punishable under Section 313 of the IPC?

Trial Court had held that the appellant was guilty of causing miscarriage to the prosecutrix by administering her pills. It is relevant to note that though the prosecutrix was in Sneh Sadan when she was allegedly administered pills by the appellant and the same was allegedly informed to doctors immediately, no action was taken by any of the doctors in this regard.

Bench stated that there is no material to indicate as to what pills were administered to the prosecutrix. Although three medical doctors were examined, none of them mentioned that in their opinion the prosecutrix‘s miscarriage was induced by the said pills.

Hence, the Court stated that there was no description of the pills allegedly administered to the prosecutrix. There is nothing on record to remotely indicate as to what was the substance that was allegedly administered to the prosecutrix.

Court was of the view that there was insufficient evidence to conclude that the appellant had committed the offence of causing the prosecutrix‘s miscarriage. Therefore, the appellant‘s conviction for committing an offence under Section 313 of the IPC could not be sustained.

Conviction for an attempt to murder – offence punishable under Section 307 IPC

Bench did not concur with the view that the appellant was guilty of an offence punishable under Section 307 IPC for several reasons.

Firstly, that the import of holding so would also mean that any sexual activity by a person infected by HIV is punishable under Section 307 of the IPC, notwithstanding that his or her partner has consented to such sexual activity. This is because the culpable act under Section 307 of the IPC does not cease to be one if the victim of such an act has also consented to the same.

Secondly, the trial court had drawn support for its conclusion by mentioning that several countries prosecute cases of transmission of HIV and non-disclosure of HIV status. However, the court had not examined the specific provisions or the rationale used in various jurisdictions for prosecuting non-disclosure of HIV positive status as general offences.

In cases of actual transmission where an HIV Negative person acquires the said disease as a result of engaging in any sexual activity with an HIV Positive partner, the offender is prosecuted for causing bodily harm.

In certain cases where an HIV Positive person fails to disclose his status and engages in any sexual activity, he/she may be prosecuted for sexual assault as in such cases, the consent of the other person to engage in sexual intercourse is vitiated and the sexual act can be construed as one without consent.

In cases of sexual assault or rape, it is widely accepted that the HIV Positive status of the offender is an aggravating factor to be considered while sentencing the offender.

Thirdly, on a plain reading of Section 307 of IPC, an offence under Section 307 IPC is not made out.

Section 307 of the IPC punishes any act which is done by a person with such intention or knowledge and under the circumstances that by that act cause death, the persons committing such act would be guilty of murder.

Bench observed that clearly, in the facts of the present case, the appellant had not raped the prosecutrix with an intention of causing her death.

According to the prosecution, the appellant was lonely after the death of his wife and he had sexually preyed on his stepdaughter (as allegedly disclosed by him in his disclosure statement).

It is relevant to note that one of the key ingredients of the second, third and fourth limb of Section 300 of the IPC is that the culpable act is so inherently dangerous as is likely to cause death; or is sufficient in the normal course of nature to cause death; or in all probability, it would cause death.

The assumption that penetrative sexual assault would in all probability lead to transmission of the disease, which in all probability would result in the death of a healthy partner is not established. In the facts of the present case, no evidence whatsoever was led to establish the probability of the prosecutrix being transmitted the said disease.

In the given circumstances, the decision of the Trial Court is largely based on surmises and impressions, without analysis of any scientific data to assume that sexual intercourse by an HIV positive patient would in all probability lead to the demise of his partner.

Fourthly, the appellant was medically examined and there is no evidence to indicate that he was a carrier of Herpes Simplex Virus. Thus, there is no evidence that the appellant would have transmitted the said disease to the prosecutrix.

Lastly, this Court is of the view that the Trial Court had erred in proceeding on the basis that provisions of Section 270 of the IPC would not be applicable.

In Supreme Court’s decision of Mr ‘X’ v. Hospital ‘Z’: (1998) 8 SCC 296, a case was considered where the respondent hospital had disclosed that the appellant was HIV positive to his fiancé. As a result of such disclosure, the appellant‘s marriage to his fiancé was called off. Appellant instituted an action to recover damages on the ground that the information regarding his HIV positive status was required to be kept secret under medical ethics and was disclosed illegally. The appellant pleaded that since the hospital had breached its duty to maintain confidentiality, they were liable to pay damages to the appellant.

“…the reasoning that unprotected sexual engagement by an HIV positive person, who is aware of the nature of his disease, can be termed as a negligent act, which he knows is likely to spread the infection of a disease that endangers life and is thus, liable to be punished under Section 270 of the IPC is persuasive and cannot be faulted.”

Court opined that even if the Trial Court was of the view that it would not be apposite to frame charges under Section 270 of the IPC, the same did not necessarily warrant that charges be framed under Section 307 of IPC.

In view of the above, the impugned judgment to the extent that it convicts the appellant for committing an offence punishable under Section 376 of the IPC was upheld.

Punishment for offences under Sections 313 and 307 of IPC was set aside. [Sabhajeet Maurya v. State (NCT of Delhi), 2020 SCC OnLine Del 1525, decided on 26-11-2020]

Case Briefs Supreme Court

Despite many witnesses turning hostile, SC finds man guilty of killing his wife in 1999; Says it’s not an unusual event in long drawn out trials in India

Supreme Court: In a case dating back to 1999 where a married woman was found dead in her matrimonial home, the bench of Sanjay Kishan Kaul* and Hrishikesh Roy, JJ upheld the conviction of her husband even though a large number of witnesses had turned hostile and the Trial Court was also not happy with the manner of prosecution conducted the case.

“… that is not an unusual event in the long drawn out trials in our country and in the absence of any witness protection regime of substance, one has to examine whatever is the evidence which is capable of being considered, and then come to a finding whether it would suffice to convict the accused.”

Factual Background

On 24.8.1999, one Sahodara Bai was found dead by her brother (PW 1) on a cot in her matrimonial home. It was alleged that few days ago, on 19.8.1999, the deceased had returned to her maternal home stating that she had been harassed at the hands of her in-laws for the last 6-7 months. Her brothers brought her back to her matrimonial home with the hope of reconciliation. On being asked whether they wanted her to live with them, the in-laws responded that they will see for a few days and then decide. The deceased thereafter stayed back at her matrimonial home.

The post-mortem report stated that the cause of death was asphyxia due to strangulation, and the nature of death was possibly homicidal. After all other causes of death were ruled out, on 21.7.2000, the Sessions Court held all the three accused persons guilty of offences punishable under Section 302 of the IPC.

An important aspect to be taken note of is that there was some improvement in the statement of PW-1, the brother of the deceased, to the extent that he had never mentioned deceased’s father-in-law’s explanation of the death of the deceased by snake bite in the earlier statement. All other aspects were found to be consistent with his earlier statements.

Analysis and Ruling

Stating that the fact of a large number of witnesses turning hostile was not consequential in the present case as the brother who turned hostile did so to preserve the close family ties which continued to exist by marriage in the instant case, in view of the siblings of the deceased and appellant herein being married. In the Indian context, there exists a continued relationship between two families wherein the daughter-in-law comes from another house.

On the fact that the case of the prosecution rested only on the testimony of PW-1 and the medical evidence, the Court noticed that the statement of PW-1 was consistent and cogent except to the extent that in the earlier statement he had not mentioned the factum of the death being attributed to snakebite.

“However, that itself would not nullify the remaining part of his testimony. In fact, the said witness did not back out from the statement, but could not state the reason why the police did not record it in the FIR though it was mentioned.”

On the testimony of the doctor, it was noticed that the doctor opined the cause of death to be asphyxia due to strangulation and thereafter, he had stated that nature may be homicidal.

“This was so stated because asphyxia being the cause of death, the doctor himself could not have conclusively said whether it was homicidal or suicidal. It was also voluntarily opined, that there had to be a minimum of five minutes of forceful pulling to cause the death.”

Further, stating that the most important aspect is where the death was caused and the body found, the Court noticed that it was in the precincts of the house of the appellant herein where there were only family members staying. The location of the house and the surrounding buildings was such that there was no possibility of somebody from outside coming and strangulating the deceased and that too without any commotion being caused or any valuable/jewellery missing.

“We are confronted with a factual situation where the appellant herein, as a husband is alleged to have caused the death of his wife by strangulation. The fact that the family members were in the home some time before is also quite obvious. No explanation has been given as to how the wife could have received the injuries. This is a strong circumstance indicating that he is responsible for commission of the crime.”

The Court, hence, said that the appellant herein was under an obligation to give a plausible explanation regarding the cause of the death in the statement recorded under Section 313 of the Cr.P.C. and mere denial could not be the answer in such a situation.

Dismissing the appeal, the Court directed the State to examine

“… whether the appellant herein has completed 14 years of actual sentence or not and if it is so, his case should be examined within a maximum period of two months for release in accordance with norms. If not, the exercise be undertaken within the same time on completion of 14 years of actual sentence.”

[Jayantilal Verma v. State of MP (now Chhattisgarh), 2020 SCC OnLine SC 944, decided on 19.11.2020]

Case Briefs High Courts

All HC | If a natural guardian faces criminal charges relating to death of spouse, can custody of children or visitation rights be granted? HC discusses

Allahabad High Court: J.J., Munir, J., addressed a matter wherein the father of the minor children has been facing trial for criminal charges and has instituted the petition seeking custody of his minor children.

The instant petition was instituted for a writ of habeas corpus on behalf of two minor children.

Minors’ Custody

It was stated that respondent 4 and respondent 5 be directed to produce the two minor-children detenues before the Court and minors be given into the father’s custody who has instituted the instant petition.

Digvijay Singh, counsel for the petitioners and Pankaj Kumar Tyagi, counsel appearing on behalf of respondent 4 and Sri Jhamman Ram, Additional Government Advocate appearing on behalf of the State.

Analysis and Decision

The issue of minor’s custody in the present matter came into light after the unnatural death of their mother, regarding which Awadesh Gautam (husband) and four others of his family were reported to the police by the respondent 4 charging them with murder and destruction of evidence.

It was alleged that the minors were taken forcibly by respondent 4 when the husband of the deceased was sent to jail.

Bench on perusal of the above stated observed that the question regarding maintainability of a habeas corpus writ petition to decide issues regarding custody of children or guardianship between a parent snd some other kindred, or between two parents, both of whom are natural guardians, all of this has been fairly well-settled. The stated issue came up for consideration before the Supreme Court in Syed Saleemuddin v. Dr Rukhsana, (2001) 5 SCC 247 wherein it was held that:

“…in an application seeking a writ of Habeas Corpus for custody of minor children the principal consideration for the Court is to ascertain whether the custody of the children can be said to be unlawful or illegal and whether the welfare of the children requires that present custody should be changed and the children should be left in care and custody of somebody else. The principle is well settled that in a matter of custody of a child the welfare of the child is of paramount consideration of the Court.”

In Tejaswini Gaud v. Shekhar Jagdish Prasad Tewari, (2019) 7 SCC 42 it was held that:

“19. Habeas corpus proceedings is not to justify or examine the legality of the custody. Habeas corpus proceedings is a medium through which the custody of the child is addressed to the discretion of the Court. Habeas corpus is a prerogative writ which is an extraordinary remedy and the writ is issued where in the circumstances of the particular case, ordinary remedy provided by the law is either not available or is ineffective; otherwise a writ will not be issued. In child custody matters, the power of the High Court in granting the writ is qualified only in cases where the detention of a minor by a person who is not entitled to his legal custody. In view of the pronouncement on the issue in question by the Supreme Court and the High Courts, in our view, in child custody matters, the writ of habeas corpus is maintainable where it is proved that the detention of a minor child by a parent or others was illegal and without any authority of law.

20. In child custody matters, the ordinary remedy lies only under the Hindu Minority and Guardianship Act or the Guardians and Wards Act as the case may be. In cases arising out of the proceedings under the Guardians and Wards Act, the jurisdiction of the court is determined by whether the minor ordinarily resides within the area on which the court exercises such jurisdiction. There are significant differences between the enquiry under the Guardians and Wards Act and the exercise of powers by a writ court which is summary in nature. What is important is the welfare of the child. In the writ court, rights are determined only on the basis of affidavits. Where the court is of the view that a detailed enquiry is required, the court may decline to exercise the extraordinary jurisdiction and direct the parties to approach the civil court. It is only in exceptional cases, the rights of the parties to the custody of the minor will be determined in exercise of extraordinary jurisdiction on a petition for habeas corpus.”

In the present matter, Court stated that the custody cannot be termed as unlawful. Respondent 4 is the minors’ grandmother who has been given custody of the minors’ by Neeraj Gautam, the cousin or relative of Awadhesh’s in the presence of the Station House Officer.

Awadhesh who is the father of the minors’ could say that being the natural guardian of the two minors’ he has the right to seek their custody from the grandmother.

It is precisely this right which Awadhesh asserts, by virtue of Section 6 (a) of the Hindu Minority and Guardianship Act, 1956. He says he is the sole natural surviving guardian, and therefore, entitled to the minors’ custody. It is, no doubt, true that Awadhesh is the minors’ natural guardian under Section 6 (a) of Act, 1956, but the issue about the minors’ custody is not so much about the right of one who claims it, as it is about the minors’ welfare.

The issue of welfare of the child cannot be mechanically determined. It is to be sensitively approached, taking into consideration both broad and subtle factors that would ensure it best.

The principle governing custody of minor children, apart from other issues, fell for consideration of the Supreme Court in Nil Ratan Kundu v. Abhijit Kundu, (2008) 9 SCC 413.

In the above-cited case, the facts disclose that the father, who claimed the minors’ custody from his maternal grandfather and grandmother was like her, an accused in a case relating to his wife’s dowry death. Fathers’ involvement in a case relating to wifes’ dowry death was regarded by the Supreme Court as an important factor to be carefully addressed.

“…fact about the involvement of a natural guardian, in a criminal case relating to the death of a spouse, was held to be an important consideration while determining the question of welfare of the minor.”

Court interacted with the eldest amongst the minors’ who expressed that he is not disturbed at all about the fact that his maternal grandmother has placed him and his sister at Sri Braddhanand Bal Ashram.

Further, the child added that he does not wish to go back to his father or stay with him. On being asked the reason, he says that he fears for his life. He also said that he wishes to stay at the hostel. During the course of the conversation, the child emotionally brokedown and wept. He insisted upon staying with the hostel and refused to go back to his father.

Later the Court looked into the allegations for which the father was facing trial, wherein it was noted that the wife had called up her mother stating that there was a conspiracy afoot, where she could be crushed to death under the wheels of a tractor. Later on, she was found dead near portraying it as an accident.

The totality of the circumstances on record shows that unless acquitted, it would not be appropriate to place the two minor children in their father’s custody.

Bench held that the father is not entitled to the minors’ custody when he is facing criminal charges. Once he is acquitted, it would be open to him to make an appropriate application seeking their custody to the Court of competent jurisdiction under the Guardians and Wards Act, 1890.

In the totality of the circumstances obtaining for the present, this Court did not find it appropriate to grant any visitation rights to Awadhesh Gautam.[Shaurya Gautam v. State of U.P., 2020 SCC OnLine All 1372, decided on 10-11-2020]

Case Briefs Supreme Court

Timing of crime saves man from facing gallows or prison for the rest of his life for raping and killing 2.5 year old niece. SC commutes sentence under Section 376A IPC

Supreme Court: In a chilling case where a 21-year-old man was sentenced to death under Sections 302 and to life imprisonment under 376A of IPC for raping and killing his 2.5 years-old niece, the 3-judge bench of Justice UU Lalit*, Indu Malhotra and Krishna Murari, JJ has commuted the punishment to life imprisonment for the offence punishable under Section 302 IPC and to that of rigorous imprisonment for 25 years for the offence punishable under Section 376A IPC. The Court also affirmed the conviction and sentence recorded by the Courts below for the offences punishable under Section 376(1), (2)(f), (i) and (m) of IPC, and under Section 6 of the POCSO Act.

Sentencing under Section 302 IPC

The Court found the Appellant guilty of having committed the offence of culpable homicide amounting to murder under Section 300 IPC Fourthly. In such cases, according to the Court, it is very rare that the death sentence is awarded.

Considering the age of the victim i.e 2.5 years, the Court said that the accused must have known the consequence that his sexual assault on the child would cause death or such bodily injury as was likely to cause her death.

“The evidence on record also depicts an exceptional case where two and half years old girl was subjected to sexual assault. The assault was accompanied by bites on the body of the victim. The rape was of such intensity that there was merging of vaginal and anal orifices of the victim. The age of the victim, the fact that the Appellant was a maternal uncle of the victim and the intensity of the assault make the present case an exceptional one.”

However, it could not be held that the appellant consciously caused any injury with the intent to extinguish the life of the victim. Though all the injuries are attributable to him, his conviction under Section 302 IPC is not under any of the first three clauses of Section 300 IPC.

Sentencing under Section 376A IPC

The case at hand was a peculiar one as the offence was committed just a week after the amended Section 376A was brought into force in the year 2013. Hence, the question before the Court was whether awarding life imprisonment in the present case would mean “the remainder of that person’s natural life or with death” or not.

Two important conclusions were made by the Court:

The ex-post facto effect given to Section 376A inserted by the Amendment Act would not in any way be inconsistent with sub-Article (1) of Article 20 of the Constitution.
In view of the fact that Section 376A IPC was brought on the statute book just few days before the commission of the offence, the Appellant does not deserve death penalty or life imprisonment for the remainder of his life for said offence, however, considering the nature and enormity of the offence, the appropriate punishment for the offence under Section 376A IPC must be rigorous imprisonment for a term of 25 years.

To understand what led to this conclusion, let’s first take a look at the legislative developments that took place around the time when the crime was committed:

On 03.02.2013, the Criminal Law (Amendment) Ordinance, 2013 was promulgated by the President of India which substituted Sections 375, 376 and 376A of IPC;
The Criminal Law (Amendment) Act, 2013 received the assent of the President and was published on 02.04.2013 but was given retrospective effect from 03.02.2013.
The offence was committed on 11.02.2013 when the provisions of the Ordinance were in force

Here’s what the coming into force of the Ordinance and subsequently the Amendment Act meant:

Before 03.02.2013, the offence under Section 375 could be committed against a woman. The Ordinance sought to make the provision gender neutral and this gender-neutral provision remained in force from 03.02.2013 till 02.04.2020. However, the earlier position was restored through the Amendment Act.
Before 03.02.2013, the sentence for an offence under Section 376(1) could not be less than seven years but the maximum sentence could be life imprisonment; and for an offence under Section 376(2) the minimum sentence could not be less than ten years while the maximum sentence could be imprisonment for life. Section 376A dealt with cases where a man committed non-consensual sexual intercourse with his wife in certain situations.
As a result of the Ordinance, the sentences for offences under Sections 376(1) and (2) were retained in the same fashion. However, a new provision in the form of Section 376A was incorporated under which, if while committing an offence punishable under sub- section (1) or sub-section (2) of Section 376, a person “inflicts an injury which causes the death” of the victim, the accused could be punished with rigorous imprisonment for a term “which shall not be less than 20 years but which may extend to imprisonment for life, which shall mean the remainder of that person’s natural life or with death”. Thus, for the first time, Death Sentence could be imposed if a fatal injury was caused during the commission of offence under subsection (1) or (2) of Section 376.
Though the provisions of the Amendment Act restored the original non gender-neutral position vis-à-vis the victim, it made certain changes in sub-section (2) of Section 376. Now, the punishment for the offence could be rigorous imprisonment for not less than ten years which could extend to imprisonment for life, “which shall mean imprisonment for the remainder of that person’s natural life”. It was, thus, statutorily made clear that the imprisonment for life would mean till the last breath of that person’s natural life.
Similarly, by virtue of the Amendment Act, for the offence under Section 376A, the punishment could not be less than 20 years which may extend to imprisonment for life which shall mean imprisonment for the remainder of that person’s natural life, or with death.

In the present case, when the crime was committed, the victim was about two and half years of age and the Ordinance which was holding the field. However, the sentence prescribed by Section 376(2) as amended by the Amendment Act, provided that the imprisonment for life “shall mean imprisonment for the remainder of that person’s natural life”. In such a case, the Court was posed with the question that whether such ex-post facto prescription would be consistent with the provisions of sub-Article (1) of Article 20 of the Constitution.”

The Court explained,

“An imposition of life sentence simpliciter does not put any restraints on the power of the executive to grant remission and commutation in exercise of its statutory power, subject of course to Section 433A of the Code. But, a statutory prescription that it “shall mean the remainder of that person’s life” will certainly restrain the executive from exercising any such statutory power and to that extent the concerned provision definitely prescribes a higher punishment ex-post facto. In the process, the protection afforded by Article 20(1) of the Constitution would stand negated.”

It was further held that since Section 376A as amended by the Ordinance being gender neutral so far as victim was concerned, naturally covered cases where a victim was a woman, hence, the ex-post facto effect given to Section 376A by the Amendment Act from the day the Ordinance was promulgated, would not in way be inconsistent with the provisions of sub-Article (1) of Article 20 of the Constitution.

It was, hence, declared that the punishment under Section 376(2) of the IPC in the present case cannot come with stipulation that the life imprisonment “shall mean the remainder of that person’s life”.

[Shatrughna Baban Meshram v. State of Maharashtra, 2020 SCC OnLine SC 901, decided on 02.11.2020]

*Justice UU Lalit has penned this judgment

Case Briefs Foreign Courts

UK SC | Can damages be recovered for “consequences” of having committed a crime during a serious psychotic episode? Detailed Report

Supreme Court of United Kingdom: In the instant appeal where the issue was whether the claimant can recover damages for the “consequences” (including the subsequent loss of liberty) of having committed the criminal offence during a serious psychotic episode, which she would not have committed but for the defendant’s negligence; the 7 Judge Bench of Lord Reed (President), Lord Hodge (Deputy President), Lady Black, Lord Lloyd-Jones, Lady Arden, Lord Kitchin and Lord Hamblen unanimously dismissed the appeal holding that the appellant’s claim for damages against Dorset Healthcare is barred by the appellant’s criminal act of manslaughter, and are therefore irrecoverable by reason of the doctrine of ex turpi causa non oritur actio (from a dishonorable cause an action does not arise) i.e. illegality.

Facts:

The appellant suffers from paranoid schizophrenia or schizoaffective disorder. On 25-08-2010 she stabbed her mother to death while experiencing a serious psychotic episode. She was charged with her mother’s murder but, in view of the psychiatric evidence, the prosecution agreed to a plea of manslaughter by reason of diminished responsibility. The appellant was sentenced to a hospital order under Section 37 of the Mental Health Act 1983 and an unlimited restriction order under Section 41 of the 1983 Act. The appellant has remained subject to detention pursuant to the 1983 Act ever since. Dorset Healthcare University NHS Foundation Trust (respondent) had admitted their negligence in failing to return the appellant to hospital on the basis of her obvious psychotic state. The tragic killing of her mother would not have occurred had this been done. On the basis of the respondent’s admission of negligence, the appellant furthered her claims to recover damages under several heads, such as- General damages for personal injury (a depressive disorder and post-traumatic stress disorder); damages for her loss of liberty caused by her compulsory detention in hospital; damages for loss of amenity arising from the consequences to her of having killed her mother; cost of caretaker and psychotherapy etc.

The relevant laws and case laws on point:

Before analyzing the merits of the instant appeal, the judges deliberated on the laws dealing with murder; insanity as a defence to murder; diminished responsibility as a partial defence to murder (Section 2 of the Homicide Act 1957); The Sentencing Council Guideline directing the sentencing judge to consider whether the offender’s degree of responsibility is high, medium or lower and the provisions of Mental Health Act, 1983 itself.

The Bench also referred to 2 major case laws dealing with similar issues- Gray v. Thames Trains Ltd, [2009] UKHL 33 and Patel v. Mirza, [2016] UKSC 42. In Gray, the House of Lords had held that Mr. Gray’s negligence claim was barred by the defence of illegality because the damages he sought resulted from: (i) the sentence imposed on him by the criminal court; and (ii) his own criminal act of manslaughter. In Patel, the UK SC had held that the proper approach to the illegality defence at common law was one based on a balancing of public policy considerations. In assessing whether the public interest would be harmed in that way, the Court should consider – the underlying purpose of the illegality in question, and whether that purpose would be enhanced by denying the claim; any other relevant public policy on which denying the claim may have an impact; and whether denying the claim would be a proportionate response to the illegality.

Observations:

While deliberating on the appeal, the Bench formulated 3 issues– whether Gray can be distinguished; if not, whether Gray should be departed from; and, can the appellant recover the damages under any of heads of loss she has claimed. The Bench observed that key consideration in Gray was that the claimant had been found to be criminally responsible for his conduct, not the degree of personal responsibility which that reflected. The Bench thereby rejected the appellant’s contention and held that, “Gray cannot be distinguished. It involved the same offence, the same sentence and the reasoning of the majority applies regardless of the degree of personal responsibility for the offending”.

Regarding the 2^nd issue, the Court while affirming Gray as being “Patel compliant” and should be applied and followed in similar cases, held that the policy reasons which support denial of the appellant’s claim include the consistency and public confidence principles identified in Gray. It was further held that, “Principles also include: the public interest in the proper allocation of NHS resources; close connection between her claim and her offence; and the public interest in deterring, protecting the public from and condemning unlawful killing. Although a claimant in the appellant’s position may not be deterred from unlawful killing by being deprived of a civil right to compensation, there may well be a broader deterrent effect in a clear rule that unlawful killing never pays. Any such effect is important given the fundamental importance of the right to life”.

Finally addressing the 3^rd issue, the Bench held that the appellant cannot claim damages for loss of liberty or for loss of amenity during her detention in hospital because these losses resulted from the sentence imposed on her by the criminal court. The other heads of loss cannot be recovered either because they result from the appellant’s unlawful killing of her mother.[Ecila Henderson v. Dorset Healthcare University NHS Foundation Trust, [2020] 3 WLR 1124, decided on 30-10-2020]

Sucheta Sarkar, Editorial Assistant has put this story together

Case Briefs Supreme Court

Police constable acquitted in a murder case but dismissed from service after a related disciplinary enquiry. Read why SC upheld the dismissal

Supreme Court: The bench of Dr. DY Chandrachud and Indira Banerjee, JJ has held that the conclusion of the criminal trial does not conclude the disciplinary enquiry.

Background of the case

A police constable, who was tried and acquitted in a murder case, had challenged his dismissal from service after a disciplinary enquiry. The Division Bench of the Rajasthan High Court granted the respondent reinstatement in service with no back wages for the seventeen years that elapsed since his termination. The State had, hence, challenged the reinstatement before the Supreme Court.

On 13 August 2002, the respondent proceeded on leave and had to report back on duty on 16 August 2002. He failed to do so and eventually reported for work on 19 August 2020.
On 15 August 2002, one Daulat Singh lodged a written complaint in relation to the death of his brother Bhanwar Singh, caused by an accident with an unknown vehicle. However, it appeared during the course of the investigation that the death was homicidal. The respondent, along with 2 co-accused was arrested on 9 September 2002.
The respondent was tried for the offence of murder and was acquitted by the Sessions Court on 8 October 2003.
Departmental proceedings were also initiated against the respondent wherein the charges that were leveled against the respondent were:
- Over-staying leave by a period of three days beyond the leave that was sanctioned;
- Not seeking an extension of leave from the superior officer;
- Involvement in the murder of Bhanwar Singh (the respondent was alleged to have run away from the scene of offence and tried to give it the colour of an accident);
- Getting additional leave sanctioned by suppressing the correct reason on a misrepresentation to the superior officer; and
- Conduct which has hurt the image of the police department.
In the finding of the Disciplinary enquiry it was noticed that the Court had not completely acquitted the said constable rather acquitted by giving him the benefit of doubt.

“From this it is clear that the Hon’ble Court has not acquitted charged constable in free form. Thus, I found said charge as completely proved due to which the image of police has blurred.”

What the Supreme Court said

On effect of acquittal in criminal trial on disciplinary proceedings

Though the acquittal brought finality to the question as to whether he had committed the offence of murder punishable under the Penal Code, however, the disciplinary enquiry stood on a broader footing. The disciplinary proceedings related not merely to the involvement of the respondent in the murder, but to the violation of service rules and the impact of his conduct on the image of the police force. Hence, the verdict of the criminal trial did not conclude the disciplinary enquiry.

Noticing that the disciplinary enquiry was not governed by proof beyond reasonable doubt or by the rules of evidence which governed the criminal trial, the Court said,

“True, even on the more relaxed standard which governs a disciplinary enquiry, evidence of the involvement of the respondent in a conspiracy involving the death of Bhanwar Singh would be difficult to prove. But there are circumstances emerging from the record of the disciplinary proceedings which bring legitimacy to the contention of the State that to reinstate such an employee back in service will erode the credibility of and public confidence in the image of the police force.”

On proof of misconduct in disciplinary proceedings

The standard of standard of proof in disciplinary proceedings is different from that in a criminal trial

In Suresh Pathrella v. Oriental Bank of Commerce, (2006) 10 SCC 572, a two judge Bench differentiated between the standard of proof in disciplinary proceedings and criminal trials in the following terms:

“ …the yardstick and standard of proof in a criminal case is different from the disciplinary proceeding. While the standard of proof in a criminal case is a proof beyond all reasonable doubt, the proof in a departmental proceeding is preponderance of probabilities.”

Further, the involvement of a member of the police service in a heinous crime, if established, has a direct bearing on the confidence of society in the police and in this case, on his ability to serve as a member of the force. Such an individual is engaged by the State as a part of the machinery designed to preserve law and order. The State can legitimately assert that it is entitled to proceed against an employee in the position of the respondent in the exercise of its disciplinary jurisdiction, for a breach of the standard of conduct which is expected of a member of the state police service.

“Confidence of the State in the conduct and behaviour of persons it has appointed to the police is integral to its duty to maintain law and order.”

On judicial review over disciplinary matters

In exercising judicial review in disciplinary matters, there are two ends of the spectrum. The first embodies a rule of restraint. The second defines when interference is permissible.

Rule of restraint:

“The determination of whether a misconduct has been committed lies primarily within the domain of the disciplinary authority. The judge does not assume the mantle of the disciplinary authority. Nor does the judge wear the hat of an employer.”

Deference to a finding of fact by the disciplinary authority is a recognition of the idea that it is the employer who is responsible for the efficient conduct of their service. Disciplinary enquiries have to abide by the rules of natural justice. But they are not governed by strict rules of evidence which apply to judicial proceedings. The standard of proof is hence not the strict standard which governs a criminal trial, of proof beyond reasonable doubt, but a civil standard governed by a preponderance of probabilities. Within the rule of preponderance, there are varying approaches based on context and subject. The first end of the spectrum is founded on deference and autonomy – deference to the position of the disciplinary authority as a fact finding authority and autonomy of the employer in maintaining discipline and efficiency of the service.

Interference when permissible

“The ultimate guide is the exercise of robust common sense without which the judges’ craft is in vain.”

At the other end of the spectrum is the principle that the court has the jurisdiction to interfere when the findings in the enquiry are based on no evidence or when they suffer from perversity. A failure to consider vital evidence is an incident of what the law regards as a perverse determination of fact. Proportionality is an entrenched feature of our jurisprudence. Service jurisprudence has recognized it for long years in allowing for the authority of the court to interfere when the finding or the penalty are disproportionate to the weight of the evidence or misconduct.

Judicial craft lies in maintaining a steady sail between the banks of these two shores which have been termed as the two ends of the spectrum. Judges do not rest with a mere recitation of the hands-off mantra when they exercise judicial review. To determine whether the finding in a disciplinary enquiry is based on some evidence an initial or threshold level of scrutiny is undertaken. That is to satisfy the conscience of the court that there is some evidence to support the charge of misconduct and to guard against perversity. But this does not allow the court to re-appreciate evidentiary findings in a disciplinary enquiry or to substitute a view which appears to the judge to be more appropriate. To do so would offend the first principle i.e. the rule of restraint.

[State of Rajasthan v. Heem Singh, 2020 SCC OnLine SC 886, decided on 29.10.2020]

Hot Off The Press News

Allegations made by women for being subjected to gang-rape in lockup: NHRC takes suo motu cognizance

The National Human Rights Commission issued notice to the Chief Secretary, Director General of Police and the Director-General of Prisons, Madhya Pradesh after taking suo motu cognizance about the allegations made by women on five cops for gang rape in lockup.

It is mentioned in the news report that a 20-year-old woman has levelled allegations that she was kept in lock-up for 10 days in the month of May this year and was subjected to rape by 5 police personnel including the Police Station Incharge and SDPO of Mangawan area of Rewa district of Madhya Pradesh. The woman, as mentioned in the news report, was an accused in a case of murder and presently she is lodged in judicial custody. The incident occurred in the month of May and it came to the knowledge of the District Judge after a period of five months. Even the prison warden did not have the courage to report the matter to the higher authorities.

It is further added that as alleged by the victim woman, she was subjected to rape between 09-05-2020 to 21-05-2020 while the police contradict, to be arrested on 21-05-2020. The female constable had protested at that time but she was rebuked by her seniors.

The Commission considered the vulnerable position of the victim. She was in police custody when she was allegedly subjected to utmost cruelty and sexual assault by the 5 police personnel. Even a protest made by a female police official went in vain. Very serious allegations have been levelled by the victim woman. Public servants from the law enforcement agencies, who are supposed to safeguard the citizens especially the women and the people from the vulnerable classes of the society have allegedly committed the heinous crime against a woman in their custody.

The Commission directs that the matter may be investigated by a senior police officer, not below the rank of the Deputy Inspector General of Police.

National Human Rights Commission

[Press Release dt. 19-10-2020]

Case Briefs Supreme Court

SC| Evidence has to be weighed and not counted

Supreme Court: Giving benefit of doubt to the accused convicted under Section 302 IPC r/w Section 34 IPC, the 3-judge bench of SK Kaul, Anirudhha Bose and Krishna Muraji, JJ reiterated that Court can and may act on the testimony of single eye-witness provided he is wholly reliable.

“… the prosecution has miserably failed to prove the guilt of the accused beyond doubt the appellants therefore must be given benefit of doubt.”

The Court was heading the matter where the appellants were convicted for killing the deceased by giving him hockey and knife blows. The Trial Court came to the conclusion that the prosecution had brought home the guilt of the accused persons and accordingly sentenced them to Life Imprisonment.

Before the Supreme Court, it was argued by the defence that

The knife which was recovered had a blunt tip, as such, the injuries as mentioned in the post mortem report were not possible to be caused by the said knife. Even, this knife was not shown to the doctor to seek his opinion whether injuries were possible by the said blunt knife or not.
Recovery of hockey at the instance of the appellant was not even believed by the Trial Court.
the conviction and sentence of the appellants based upon the sole testimony of one eye witness, whose conduct was unnatural and inconsistent with the ordinary course of human nature making his presence at the site of incident extremely doubtful, is highly unsafe without corroboration from other piece of evidence.
The other two eye witnesses have turned hostile and nothing could be elicited from their cross-examination by the prosecution.

Prosecution argued

Two Courts have recorded concurrent finding of guilt of the accused appellants based on the testimony of an eye witness which they found to be reliable and there exists no legal impediment for conviction on the basis of the same.
Evidence of a hostile witness is not to be discarded as a whole and relevant parts thereof which are admissible in law can be relied upon by the prosecution.
The conviction cannot be assailed merely because of some lacuna in investigation and any failure or omission of the investigating officer cannot render the prosecution case doubtful or unworthy of belief, in a case where the prosecution case is fully established by direct testimony of eye witness duly corroborated by medical evidence.

Considering the submissions and material on record, the Court noticed,

“There is no legal impediment in convicting a person on the sole testimony of a single witness. That is the logic of Section 134 of the Evidence Act, 1872. But if there are doubts about the testimony, Courts will insist on corroboration. It is not the number, the quantity but quality that is material. The time honoured principle is that evidence has to be weighed and not counted. On this principle stands the edifice of 8 Section 134 of the Evidence Act. The test is whether the evidence has a ring of truth, is cogent, credible and trustworthy or otherwise.”

The Court said that in the facts and circumstances of the case this was serious lapse on the part of the investigating officer. Though normally minor lapses on the part of the investigating officer should not come in the way of accepting eye witness account, if otherwise reliable. But in the circumstances of the case at hands where the conduct of sole eye witness is unnatural and there are various other surrounding circumstances which make his presence at the site of incident doubtful, such a lapse on the part of the investigating officer assumed significance and is not liable to ignored.

It was, hence, held,

“… ordinarily this Court could be reluctant to disturb the concurrent view but since there are inherent improbabilities in the prosecution story and the conduct of eye witness is inconsistent with ordinary course of human nature we do not think it would be safe to convict the appellants upon the incorroborated testimony of the sole eye witness.”

[Amar Singh v. State (NCT of Delhi), 2020 SCC OnLine SC 826, decided on 12.10.2020]

Case Briefs High Courts

Jhar HC | Abscondence alone may not be a determinative factor to infer guilt under S. 302 IPC but when medical evidence discloses homicidal death abscondence becomes a relevant fact

Jharkhand High Court: Shree Chandrashekhar J., upheld the impugned judgment and dismissed the appeal being devoid of merits.

The case at hand involves murder of a woman Bhondi Khariain by her husband who was found dead at her own residence and her husband found to be absconding. An informant who is a co villager John Kullu informed the police about the same pursuant to which an FIR was registered under Section 300 of Penal Code, 1860 i.e. IPC. An investigation followed by trial was conducted before Additional District and Session, Judge, Fast Track Court who convicted and sentenced him to rigorous imprisonment for life and fine of Rs 5000 under Section 302 IPC for committing murder of his wife.

The present case solely is based on circumstantial evidence due to lack of any eye witness available. The Court relied on a judgment titled Sharad Birdhichand Sarda v. State of Maharashtra, (1984) 4 SCC 116 and observed that in a case based on the circumstantial evidence, the prosecution must establish the incriminating circumstances by leading cogent and consistent evidence and the circumstances so proved against an accused must lead to irresistible conclusion that it was the accused and the accused alone who has committed the crime and no other hypothesis consistent with the innocence can be inferred.

Circumstantial Evidence 1: Dead body of Bhondi Khariain was found in the house of the appellant

Due to few witnesses turning hostile later during cross-examination and denied making any statement before police regarding accepting that they saw the husband murdering his wife by strangulation through a rope or even seeing the dead body etc, the court relied on a judgment titled Lahu Kamlakar Patil v. State of Maharashtra, (2013) 6 SCC 417 and observed that the evidence of a hostile witness is not liable to be rejected altogether rather it can be used by the prosecution to corroborate its case against the accused. The Court thus believed through this that the deceased died in her matrimonial home.

Circumstantial Evidence 2: The Medical Evidence

The post mortem report clearly states that the eyes of the deceased were partially open; mouth open and tongue protruded outside the mouth, fracture of thyroid cartilage and subcutaneous tissues under the ligature mark were ecchymosed with bruising of neck muscles, colour bluish. The doctor based on above finding stated that this is a case of accidental death or suicide. The court relied on judgment Vadugu Chanti Babu v. State of A.P. (2002) 6 SCC 547 and observed that a stray statement of the doctor in his cross-examination is not a conclusive opinion but it is only a possibility.

Circumstantial Evidence 3: The appellant was found absconding

During examination of the accused under Section 313 of the Code of Criminal Procedure, the appellant was put this circumstance that he has killed his wife by throttling through a rope in the night of 12.03.2006, however, except stating that it is false and he has not committed the crime, he has not offered any explanation how his wife has died. The Court relied on a judgment titled State of Maharashtra v. Suresh (2000) 1 SCC 471 and observed that offering no explanation or evasive reply to an incriminating circumstance cannot form the basis for conviction of an accused, but a husband must say something how his wife has died in his house. In a situation like this, the appellant’s offering no explanation on death of his wife would by itself become an incriminating circumstance which would provide a link in the chain of the circumstances.

On Law of Circumstantial Evidence

The Court relied on judgment titled Trimukh Maroti Kirkan v. State of Maharashtra, (2006) 10 SCC 681 and observed:

“12. ….…..The normal principle in a case based on circumstantial evidence is that the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established: that those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused: that the circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and they should be incapable of explanation on any hypothesis other than that of the guilt of the accused and inconsistent with their innocence.”

The Court after hearing facts and perusing the circumstantial evidences in detail held the accused guilty on grounds that the prosecution has led cogent and consistent evidence on the homicidal death of Bhondi Khariain even though the motive for the crime has not been established.

In view of the above, the impugned judgment upheld and the appeal dismissed.[Kandra Kharia v. State of Jharkhand, 2019 SCC OnLine Jhar 2730, decided on 26-11-2019]

Arunima Bose, Editorial Assistant has put this story together

Case Briefs Supreme Court

Is active involvement in the commission of offence a pre-condition for common intention? SC answers

Supreme Court: The 3-judge bench of RF Nariman, Navin Sinha and Indira Banerjee, JJ has held that it is not necessary that before a person is convicted on the ground of common intention, he must be actively involved in the physical activity of assault. If the nature of evidence displays a pre-arranged plan and acting in concert pursuant to the plan, common intention can be inferred.

BACKGROUND OF THE CASE

The Court was hearing the matter where the appellants, convicted under Section 302/34 and sentenced to life imprisonment, had sought acquittal in a case where 2 men died as a result of assault by the appellants. Out of 5, 2 accused were acquitted by the Sessions Court giving them benefit of doubt. While the eye witnesses had deposed of assault upon the two deceased by appellants nos.2 and 3 only. There was no allegation that appellant no.1 was armed in any manner or that he also assaulted any one of the two deceased. It was, hence, contended that there is no material to infer common intention with regard to appellant no.1.

COMMON INTENTION

The Court explained that common intention consists of several persons acting in unison to achieve a common purpose, though their roles may be different. The role may be active or passive is irrelevant, once common intention is established.

“There can hardly be any direct evidence of common intention. It is more a matter of inference to be drawn from the facts and circumstances of a case based on the cumulative assessment of the nature of evidence available against the participants.”

The foundation for conviction on the basis of common intention is based on the principle of vicarious responsibility by which a person is held to be answerable for the acts of others with whom he shared the common intention. The presence of the mental element or the intention to commit the act if cogently established is sufficient for conviction, without actual participation in the assault. It is therefore not necessary that before a person is convicted on the ground of common intention, he must be actively involved in the physical activity of assault. If the nature of evidence displays a pre-arranged plan and acting in concert pursuant to the plan, common intention can be inferred. A common intention to bring about a particular result may also develop on the spot as between a number of persons deducible from the facts and circumstances of a particular case.

“The coming together of the accused to the place of occurrence, some or all of whom may be armed, the manner of assault, the active or passive role played by the accused, are but only some of the materials for drawing inferences.”

CONCLUSION ON FACTS

The Court took note of the facts that

appellant no.1 lay in wait along with the other two appellants who were armed.
appellant no.1 stopped the two deceased who were returning from the market. The assault commenced after the deceased had halted.
While one deceased died on the spot as a result of the brutal assault, the other was injured in the first assault upon him by appellant no.3, after which he tried to flee.
Appellant no 1 along with the other accused chased him, caught hold of him after which he was brutally assaulted. He was then dragged by the accused persons to the place where the first deceased lay motionless.

The Court, hence, said,

“To our mind no further evidence is required with regard to existence of common intention in appellant no.1 to commit the offence in question.”

It, hence, refused to grant any benefit to appellant no.1 on the plea that there is no role or act of assault attributed to him, denying the existence of any common intention for that reason.

[Subed Ali v. State of Assam, 2020 SCC OnLine SC 794, decided on 30.09.2020]

Case Briefs Tribunals/Commissions/Regulatory Bodies

NHRC notice to Uttar Pradesh Government over reported mob beating of a murder accused person and negligence of public authority

The Commission takes suo-motu cognizance of the matter and directs the issuance of notice to the Director-General of Police, Uttar Pradesh calling for a detailed report in the matter within 4 weeks including the status of the investigation of the cases registered in connection with both the cases of murder.

The Commission also directs to issue a notice to the Chief Secretary to the Government of Uttar Pradesh calling for a report on whether any relief has been granted to the NOK of the deceased as the state has failed to secure the right to a fair trial of the victim. He is also expected to inform the status of any disciplinary action initiated against the delinquent officers/officials.

According to the police, the deceased man was from Gorakhpur and had come to the village, looking for a teacher named, Sudhir Kumar Singh. As soon as he saw Singh, he took out his father’s gun and killed the teacher, according to the police. After shooting the teacher, the man tried to escape but on spotting a crowd outside the house, he climbed the terrace, waved the gun and fired to keep the villagers at bay. A police team followed him to the terrace but the man escaped and was caught by a crowd, which set upon him. The videos relating to the incident emerged later, showed the man in police custody before the mob grabbed and attacked him.

According to the media reports, several policemen were present on the spot when the incident occurred. Some of the policemen were seen trying to control the crowd but the blows did not stop even when the man lay motionless. The police station in-charge of the area has been suspended for negligence. The victim’s head appeared to have been bashed in as the ground was splattered with blood.

The Commission has perused the contents that cruel high handedness by the villagers, taking law in their hands that too in the presence of police force, cannot be denied. A well-equipped police team was present on the spot when the victim was brutally attacked with sticks and stones.

The police personnel present at the time of the fateful incident and their in-charge definitely failed to do their lawful duty. Human life has been lost due to the apparent negligence of the public authority. This is a serious violation of human rights.

NHRC

Press Release dt. 08-09-2020

Case Briefs Foreign Courts

[Manslaughter v. Murder] English Law on Envy, Malice and Hatred

Lord Kelyng, J., while distinguishing the offence of manslaughter from murder, held the accused guilty for the offence of murder acknowledging the element of ‘malice’

Brief Facts

The accused, Mr. John Mawgridge was invited by the deceased Mr. Cope, Lieutenant of the Queen’s guard in the Tower, and the principal officer commanding there. During the exchange of hot words between the accused and a woman present in the room, Mr. Cope intervened and warned the accused to mind his conduct. Subsequently, the accused lost his temper and assaulted Mr. Cope, with a sword, on the left part of his chest, striking and piercing through, thereby mortally wounding him. Fatefully, Mr. Cope succumbed to his death. The accused pleaded not guilty on the charge of murder and hence the present trial.

Issue

Whether the accused in the present case committed murder or manslaughter?
Whether the act committed is protected by any exception to murder?

Decision

Convicting the accused for murder, the Court observed that there is an express malice in the nature and manner of Mawgridge throwing the bottle and drawing his sword thereupon. An intention accompanied by a well-designed act is reflected which cannot diminish or find any alteration to by the act of Mr. Cope. In no case, can the Court believe the present act of brutality to be something of so low a degree as manslaughter. The Court further made a significant distinction between, Envy, hatred and malice, stating;

Envy is repining or being grieved at the happiness and prosperity of another, invidus alterius rebus macrescit opimis.
Hatred, which is odium, is a settled mind of one towards another, leveling upto several degrees. It may arrive to so high a degree that it provokes a man against whom the feeling of hatred exist, though not being a perpetrator himself.
Malice is a design formed of doing mischief to another and he who designs or uses the means to do ill, is malicious.

Further, the Court enumerated certain rules to identify the offence of manslaughter by illustrations;

If a man upon angry words shall make an assault upon another, either by pulling him by nose, or filliping upon the forehead, and he that is so assaulted that he draws his sword, and immediately run the other through, that is but manslaughter.
Secondly, if a man’s friend be assaulted by another or engaged in a quarrel that comes to blows, and he in the vindication of his friend, shall on a sudden take up a mischievous instrument and kill his friend’s adversary, that shall be manslaughter.
Thirdly, if a man perceives another by force to be injuriously treated, pressed or restrained of his liberty and though the person abused does not complain or call for aid or assistance, the others out of compassion come to his rescue and kill any of those who so restrain him, shall be called a manslaughter.
Fourthly, when a man is stabbed for adultery against the other man’s wife, it shall be considered a case of manslaughter.

Relied/referred judgments and rules

Grey’s Case, 18 Car. 2, In this case, the master (Mr. Grey), in anger, struck an iron bar upon the head of his servant (Mr. B), against which the latter succumbed to death. Noticeably, there was an element of alleged provocation by the servant but the Court decided it as murder, observing that even if it is accepted that the negligent act of the servant was a provocative factor, the degree of retaliation was heavily too violent, disproportionate and reflective of malice.
Clement against Sir Charles Blunt; Clement, in the instant case, had promised a dog to Sir Charles Blunt and being requested accordingly, refused and beat the dog home to his house. Mr. Blunt fetched his sword and came to Clement’s house for the dog. Clement stood at the door and refused his entry. Blunt thereupon killed Clement. The jury held his act to be of
Buckner’s case; Buckner was indebted and B, C came to his chamber upon the account of his creditor to demand the unpaid sum of money. B took a sword that hung up and was in the scabbard, stood at the door with it in his hand undrawn, to keep the debtor in until they could send for a bailiff to arrest him. The debtor, in consequence, took out a dagger which he had in his pocket, and stabbed B. It was held to be a case of manslaughter, for the debtor was insulted and restrained from any movement, without any process of law and though within the words of the Statute of Stabbing, yet not within the reason of it.

[Regina v. Mawgridge, 84 ER 1107 (1707)]

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