murder

Case BriefsSupreme Court

Supreme Court: The 3-judge bench of RF Nariman, Navin Sinha and Indira Banerjee, JJ has directed a de novo investigation into the suspicious death of National Law University (NLU)-Jodhpur student Vikrant Nagaich in 2017.

BACKGROUND OF THE CASE

The third-year law student, Vikrant was found dead on August 14, 2017, under unnatural circumstances near a railway track opposite the university. As per the authorities, the student committed suicide due to alleged depression.

Neetu Kumar Nagaich, the mother of the deceased student, had sought transfer of the investigation in the case from the Rajasthan police to the Central Bureau of Investigation (CBI). She approached the court and accused the state police of “lackadaisical and callous manner of the probe” into the FIR lodged on June 29, 2018, with Jodhpur’s Mandore police station. She has sought an independent inquiry while complaining of a shoddy probe with probable collusion to shield some influentials.

She that the FIR in the case was not registered for a period of 10 months from the date when the incident occurred, and was reluctantly filed thereafter. Three years since, the investigation is at a standstill with no progress and no chargesheet filed in the case, stated the plea. In the plea, she added that the state was “criminally negligent in the investigation” or was “trying to cover” up for the perpetrators or had some malafide intention.

KEY FACTS TAKEN INTO CONSIDERATION BY THE COURT

  • The occurrence took place in the intervening night of 13.08.2017 and 14.08.2017.
  • The inquest proceedings under Section 174 Cr.P.C. were registered on 14.08.2017 but remained inconclusive, and in view of the closure report deserves to be consigned. The death of the deceased was initially sought to be passed off as accidental by collision with a train or suicidal due to depression.
  • The F.I.R. under Section 302, IPC was registered very much belatedly on 29.06.2018, albeit reluctantly, only at the persistence of the petitioner and her husband after they repeatedly approached the higher authorities.
  • Even thereafter the investigation remained at a standstill till the filing of the counter affidavit before this Court as recent as 03.07.2020 with the respondents insisting that the death was accidental and that the nature of injuries could not attribute a homicidal death.
  • Earlier the husband of the petitioner had also petitioned the High Court where till 20.07.2019 the respondents insisted that the death was accidental in nature.
  • The Supreme Court had, on 08.07.2020, directed the completion of investigation within 2 months, after which a ‘very lengthy’ investigation closure report was placed before the Court us taking a stand that though the death was homicidal there was no clue.

COURT’S OBERVATIONS

The Court said that the High Court, despite noticing the long pendency of the investigation, took a misguided approach that the petitioner had not expressed suspicion against any one and neither had he alleged biased against the Investigating Officer, to pass an open ended order to investigate the case and file a report. Hence, the investigation remained inconclusive for nearly three long years with the investigating agency sanguine of passing it off as an accidental death without coming to a firm conclusion avoiding to complete the investigation.

The Court noticed that when, on 08.07.2020, it directed that the investigation be concluded within a period of two months and the final report be placed before it, suddenly a very lengthy investigation closure report was filed taking a stand that though the death was homicidal there was no clue. It, hence, said that

“The closure report is therefore, to our mind, a clear hasty action leaving much to be desired regarding the nature of investigation, because if a detailed investigation had already been done as is sought to be now suggested, there is no reason why a final report could not have been filed by the investigating agency in the normal course of events and needed an order to do so from this Court. The entire investigation and the closure report therefore lack bonafide.”

It was, hence, of the opinion that the interest of justice therefore requires a de novo investigation to be done, to sustain the confidence of the society in the rule of law irrespective of who the actors may be.

DIRECTIONS

  • closure report set aside and a de novo investigation by a fresh team of investigators to be headed by a senior police officer of the State consisting of efficient personnel well conversant with use of modern investigation technology also directed.
  • No officer who was part of the investigating team leading to the closure report shall be part of the team conducting de novo investigation.
  • fresh investigation must be concluded within a maximum period of two months and the police report be filed before the court concerned whereafter the matter shall proceed in accordance with law.

[Neetu Kumar Nagaich v. State of Rajasthan, WRIT PETITION (CRL.) NO.141 OF 2020, decided on 16.09.2020]

Case BriefsSupreme Court

Supreme Court: The 3-judge bench of Ashok Bhushan, R. Subhash Reddy and MR Shah, JJ has held that there is no hard and fast rule that in a case of single injury Section 302 IPC would not be attracted and that the same depends upon the facts and circumstances of each case.

“The nature of injury, the part of the body where it is caused, the weapon used in causing such injury are the indicators of the fact whether the accused caused the death of the deceased with an intention of causing death or not.”

In the case before the Court, it was argued that s it is a case of a single blow, Section 302 IPC shall not be attracted. Rejecting the contention, the Court said that it cannot be laid down as a rule of universal application that whenever the death occurs on account of a single blow, Section 302 IPC is ruled out. The fact situation has to be considered in each case, the events which precede will also have a bearing on the issue whether the act by which the death was caused was done with an intention of causing death or knowledge that it is likely to cause death, but without intention to cause death. It is the totality of the circumstances which will decide the nature of offence.

It was further argued that the motive alleged for the incident is prior to four months of the incident in question and, therefore, as such, the prosecution has failed to establish and prove the motive for the accused to kill the deceased.

The Court rejected this contention as well and said that

“motive is not an explicit requirement under the Penal Code, though “motive” may be helpful in proving the case of the prosecution in a case of circumstantial evidence.”

Considering that in the case at hand there were three eye­witnesses to the incident and the prosecution has been successful in proving the case against the accused by examining those three eye­witnesses and therefore, as rightly observed by the High Court, assuming that the alleged motive is the incident which had taken place prior to four months or the prosecution has failed to prove the motive beyond doubt, the same shall not be fatal to the case of prosecution.

Considering the totality of the facts and circumstances of the case and more particularly that the accused inflicted the blow with a weapon like knife and he inflicted the injury on the deceased on the vital part of the body, the Court held that it is to be presumed that causing such bodily injury was likely to cause the death.  Therefore, the case would fall under Section 304 Part I of the IPC and not under Section 304 Part II of the IPC.

[Stalin v. State, 2020 SCC OnLine SC 723, decided on 09.09.2020]

Case BriefsHigh Courts

Madras High Court: B. Pugalendhi, J., while addressing a petition, observed that,

“An impartial investigation is the basic requirement for any investigation. A fair investigation is also a part of constitutional right guaranteed under Articles 20 & 21 of the Constitution of India.”

“Majority of people are now hailing the police encounters and majority of people are now opting for other modes of redresses, like Kangaroo Courts, etc.”

Respondent had filed a final report against the Appellant for the offence under Sections 341, 302 and 394 r/w 397 of Penal Code, 1860.

Trial Court did not find the appellant guilty for the offence under Section 394 r/w 397 IPC but found him guilty for the offence under Section 341 and 304 (ii) IPC.

Property Dispute

Deceased Senthil had a property dispute with the family of one Ponnusamy.

Ponnusamy’s brothers Udayar and Jeyaraman; and one Sabarimalai surrounded the deceased was stabbed.

Mohideen Basha, Counsel for the appellant and Robinson, Government Advocate [Crl Side].

Decision

Bench noted certain lapses in the investigation of the present case.

High Court called the CD file to find out the manner in which the investigation was conducted.

Further, the Court stated that the investigation agency acted in a casual manner, so as to bury the truth and the real accused, who committed the brutal murder on a poor man escape from the clutches of law.

Hence, the appeal was allowed and the conviction and sentence imposed on the appellant were set aside.

Supreme Court’s decision in Popular Muthiah v. State, (2006) 7 SCC 296, was also cited.

The investigation must be unbiased, honest, just and in accordance with the law. The purpose of the investigation is to bring out the truth of the case before the Court of law.

In the present matter, it has been obliterated and the investigation has proceeded in a causal manner as to the whims and fancies of the investigation agency.

Court added that,

“1000 culprits can escape, but, one innocent person should not be punished.”

The available materials, in this case, expose the perfunctory and designed investigation and therefore, this Court is left with no other option except to interfere with the judgment of conviction passed by the trial Court.

A Crime is a public wrong, which involves the public rights of the community as a whole and also harmful to the society in general.

Criminal Justice System

It was also stated that the responsibility of the investigation agency in the criminal justice system plays a major role and they are, in fact, the kingpins in the criminal investigation system.

We are taking pride that the Tamil Nadu State Police is one of the best investigation agencies in the World and it is because of the exemplary service rendered by our police officers.

We cannot allow this reputation of the agency to be eroded by some irresponsible officers.

— Madras High Court

Further, the High Court also observed that the Tamil Nadu Police Reforms Act was enacted in the year 2013, yet it has not been implemented in letter and spirit.

Investigation

An investigation is not a mechanical work, which can be conducted in a casual manner, it requires expertise, knowledge and technical skills to collect the materials, which could unearth the truth.

Concluding the decision, Court stated that the accused can be declared innocents and can be set at liberty, either on the merits of the case or on the lapses committed by the Department. If it is on the lapses committed by the Department, steps should be taken on the side of the Department to avoid the same.

An innocent person does not deserve to suffer the turmoil of long drawn litigation, spanning over a decade or more.

Court placed certain queries for the State and DGP to give their response which are as follows:

i) How the investigation officers are equipped with the knowledge and expertise in conducting a criminal investigation and how it is ensured by the superior officials?

ii) Whether any disciplinary proceedings have been initiated as against the officials, who are responsible for acquittal because of their perfunctory investigation?

iii) How the superior officers, namely, the Deputy Superintendent of Police, Additional Superintendent of Police, Superintendent of Police, Deputy Inspector General of Police and Inspector General of Police are monitoring the investigation?

iv) In the case of lapses in the investigation, whether the investigation officer alone is responsible or the higher officials, who are expected to monitor the investigation, are also responsible?

v) The steps taken by the Government in fully implementing the decision of the Supreme Court in Prakash Singh v. Union of India, (2006) 8 SCC 1 and the Tamil Nadu Police Reforms Act, 2013, in letter and spirit, in all the police stations.

vi) The steps taken by the Government in implementing the decision of the Supreme Court in State of Gujarat v. Kishanbhai, (2014) 5 SCC 108.

vii) The steps taken by the Government and the Department, to implement the amendments made to Sections 161, 164 and 275 CrPC?

viii) The steps taken by the Government and the Department, to implement the amendments to Sections 161, 164 and 275 CrPC, pursuant to the direction of the Division Bench of this Court in Satheesh Kumar’s case (supra).

ix) Whether the Circulars issued by the Director-General of Police then and there are strictly complied with? In the event of non-compliance, whether any disciplinary proceedings are contemplated against them and if so, the details thereof.

x) Whether the circulars issued by the Director-General of Police are readily available in all the police stations, in the form of a manual and whether they are available in the common platform, such as websites, so that, it can be accessed by the general public?

xi) The existing mechanism to enhance the quality of investigation among the investigation officers and the ways and means to enhance the same as to the present-day scientific advancements.

xii) The possibility of issuing a checklist including the steps to be carried out by the investigation officers, step by step, depending upon the nature of crime and the applicability and training using advanced scientific techniques, like fixing the accused using call details and tower location, etc., and how such collected details be marked/produced before the Court.

xiii) Why not compensation of Rs 10,00,000 be awarded to the victim in this case, who suffered because of the perfunctory investigation, which could be recovered from the investigation officers, namely, PW 12, Thiru N. Muthukumar; and PW 14, Thiru Poun and the Deputy Superintendent of Police, Sivagangai concerned?

xiv) The Secretary to Government, Home, Excise and Prohibition Department; and the Director-General of Police, Chennai, shall give their comments/proposal as to the present case and the further course of action, if any, in view of the fact that ten years have lapsed since the commission of offence.

xv) Ways and means to address the issue raised & to effectively overcome the same.

xvi) Any other suggestions to avoid the acquittals due to such perfunctory investigations, in future, so as to regain the losing glory of the Department.

The present matter listed for 22-09-2020. [Balamurugan v. State, 2020 SCC OnLine Mad 2165, decided on 08-09-2020]

Case BriefsTribunals/Commissions/Regulatory Bodies

The National Human Rights Commission, India has taken suo motu cognizance of media reports that an 18-year old Dalit girl was found raped and murdered in Lakhimpur Kheri, Uttar Pradesh after she stepped out to fill a scholarship form online as she did not have internet access at home. She was a first-generation learner in her family and had aspirations of landing a government job to lift her family out of poverty.

The Commission has issued notices to the Chief Secretary and the Director-General of Police, Uttar Pradesh calling for a detailed report in the matter within 4 weeks. The report must mention the status of the statutory relief and any other assistance provided by the state government to the family of the victim.

Criminal intent

The Commission has observed that apparently, the people with criminal intent have no fear and respect for law and the innocent women, particularly from the vulnerable classes of the society are easily targeted by them. This is the duty of the state to make a fearless environment for its citizens so that they can live with respect and dignity.

Murder

According to the media reports, carried today on 27th August, 2020, the girl was murdered by a man whose marriage proposal she had rejected. The man was arrested on Wednesday. The dead body was found on 25.08.2020 in a dried pond in an area that falls under Neemgaon police station jurisdiction.

Heinous Crime

Reportedly, the girl, second of four children of the family, was the one, the parents had pinned their hopes on. She had just passed class 9th and was about to start her class 10th, the first one from her family to study up to that level. The only source of income for the family is a 2 Bigha plot. The girl aiming to get a Scheduled Caste scholarship would have helped ease some of the financial burden on the family but before it could happen, she became the victim of a heinous crime.

National Human Rights Commission

Press Release dt. 27-08-2020

Case BriefsHigh Courts

Bombay High Court: A Division Bench of Sunil P. Deshmukh and B.U. Debadwar, JJ., upheld the decision of the Additional Sessions Judge and discussed the credibility and competency of a child witness.

Present appeal was filed under Section 374 of the Code of Criminal Procedure, 1973 against the judgment of the lower court, whereunder the appellant has been convicted of offences punishable under Section 302 and 309 of Penal Code, 1860.

Fidelity

Appellant since the start of his marriage used to ill-treat his wife i.e. deceased raising doubt about her fidelity.

On a fateful day, appellant assaulted on person of the deceased by giving blows of pestle and blade o her neck and other vital organs of the body.

Attempt to Commit Suicide

After causing the death of the deceased, the appellant tried to commit suicide by inflicting injuries on the neck and both hands by a sharp-edged object.

FIR

First Informant lodged FIR against the appellant for the offence under Sections 302 and 309 of the Penal Code, 1860. Thereafter trial was conducted wherein the appellant was held guilty.

Petitioners’ Counsel P. S. Paranjape argued that the Additional Sessions Judge failed to appreciate that PW-4 a child witness was fully tutored by PW-2 (first informant).

According to the appellant’s counsel, the aged act of moving inside and outside the house after allegedly committing the crime in the naked condition is not a normal act.

No sane person would move after committing such a serious crime in naked condition in a locality where his house situates.

Decision and Analysis

Bench on perusal of the facts and circumstances of the case stated that the prosecution case is based on circumstantial evidence.

Court observed that the issue of the homicidal death of the deceased was not disputed in the present matter.

Child Witness

Further, the bench noted that before recording the evidence Additional Sessions Judge ascertained as to whether master Krishna Akhade is a competent witness and whether oath can be administered to him by putting certain preliminary questions.

Considering the tender age of the child, the Lower Court Judge decided no to administer the oath to him.

High Court stated that,

Merely for the reason that, master Krishna Akhade (PW-4) was in the custody of Sonawane (PW-2) prior to his entering into the witness box, inference cannot be drawn that, Mangesh Sonawane (PW-2) had tutored him before coming to the court for giving evidence.

The aspect of competency and credibility of child witness under Section 115 of the Indian Evidence Act, 1872 was dealt with in the Supreme Court decision of Dattu Ramrao Sakhare v. State of Maharashtra, (1997) 5 SCC 341.

Court relying on the above-stated decision held that the evidence of master Krishna Akhade is reliable and there is no likelihood of him being tutored.

Section 106 of the Indian Evidence Act, 1872 provides that, ‘when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him’.

When tests of reliability and free from tutoring are satisfied, merely for the reason that oath was not administered to master Krishna Akhade (PW-4), his evidence cannot be kept out of consideration under Section 118 of the Indian Evidence Act, 1872.

Appellant – accused has not brought on record any material fact either from the cross-examination of witnesses examined by the prosecution or by producing any defence witness on the basis of which inference can be drawn either that during the fateful morning at the instance of Sangita quarrel broke out and in that quarrel, Sangita had attacked appellant and while defending himself he assaulted Sangita or that some third person either for committing theft or for other reason had entered into the house and assaulted Sangita and appellant, both.

On perusal of the evidence and material on record, the case of the prosecution is squarely covered by clause three of Section 300 IPC.

Defence of insanity is not correct in the present matter and is a mere afterthought.

Witnesses examined by the prosecution are neither interested nor inimical in the present matter. 

While the incident took place inside the house, front and rear doors which are entry points were locked and closed from inside. There was no scope for the third person to enter and at the time of the incident, except appellant-accused, Sangita and their tender aged two children, nobody was present in their house.

Appellant failed to explain as to how the said incident took place.

Attempt to Suicide

Bench held that the chain leading to the conclusion that, none other than the appellant is the assailant and after committing the murder of wife had attempted to commit suicide.

Court upheld the decision of Additional Sessions Judge and dismissed the present criminal appeal. [Bhatu v. State of Maharashtra, 2020 SCC OnLine Bom 868, decided on 21-08-2020]

Case BriefsHigh Courts

Bombay High Court: A Division Bench of R.D. Dhanuka and Surendra P. Tavade, JJ., upheld the trial court’s decision based on circumstantial evidence of a woman murdering her newly born female child.

Appellant has filed the present appeal against the judgment passed by the Additional Sessions Judge by which she was convicted for the offence punishable under Section 302 of Penal Code, 1860. Appellant has been acquitted for Section 317 IPC — Exposure and abandonment of child under twelve years, by parent or person having care of it.

Facts of the Case

Informant while going to attend his duty saw a newly born female child lying beside the road, alive and lodged a complaint regarding this at the Uran police station.

PW11 in the meanwhile reached the spot and took the child to his house wherein his mother PW-6 bathed the child and later reported the matter to the police.

Later the police made enquiry with Hirabai who informed that she saw the appellant as pregnant, therefore police called the appellant.

Police took the child, appellant and Hirabai to the hospital wherein the child and appellant were allotted Cot No. 4. After a few hours, nurse found out that the child was movementless and on examining the child it was found that the child was dead.

In the postmortem report, it was found that the child died due to strangulation. Hence, crime no. 89 of 1993 was registered against the appellant.

Appellant was put under arrest and charge sheet was filed under Sections 317 and 302 IPC.

Trial Court on going through the evidence of record acquitted the appellant under Section 317 IPC but convicted her for the offence punishable under Section 302 IPC.

Circumstantial Evidence

When the case is based on circumstantial evidence, the motive plays a vital role. Generally, motive remains in the mind of the culprit, so it is difficult to prove it. The motive can be proved by circumstances of the case and the acts of the culprit.

In view of the circumstances of the present matter, it is clear that the custody of the child was with the appellant at the time of the death of the child.

The crucial circumstance against the appellant/accused is that she was having custody of the child in the hospital and ultimately child found dead on Cot No.4; so the effect of an acquittal of the appellant/accused under Section 317 of the Indian Penal Code would not come in the way of the prosecution to hold her guilty under Section 302 of the IPC.

It would have been a shame for the appellant/accused and the delivery of child would have affected her character since she was a widow for 8 years. Hence, the appellant/accused had a motive to done away with the life of the child

Homicidal Death

Prosecution has proved all the circumstances namely the abandonment of child, the good physical condition of the child prior to the death, the child was in possession of appellant/accused since the child was referred to the Rural Hospital, Uran. The prosecution has proved the homicidal death of the child.

Hence the Court concluded that chain of circumstances against the appellant was also proved beyond the shadow of reasonable doubt.

“There was nobody else except the appellant to commit murder of the said child.”

In view of the above circumstances, the appeal was dismissed. [Kamlabai Tukaram Gharat v. State of Maharashtra, 2020 SCC OnLine Bom 850, decided on 11-08-2020]

Case BriefsHigh Courts

Bombay High Court: A Division Bench of T.V. Nalawade and M.G. Sewlikar, JJ., directed that the persons who are aggrieved with regard to the care and treatment amidst the COVID-19 Pandemic can approach the Court directly.

Court has taken suo moto cognizance to see that all the authorities from all the districts which are under Court’s jurisdiction become active and they remain active till the virus is active.

Bench further observed that, the Court had earlier in of the orders directed the authorities to supply information with regard to the steps taken by them to contain the spread of virus in the village area.

“…on one hand the number of infected persons in city area is coming down on the other hand the number of infected persons from rural area is going up and the trend is still in upward direction.”

Though the inter-district travel has been prevented till 31-08-2020, yet, persons from cities like Pune, Mumbai, Mumbai Metropolitan Region (MMR), etc. returned to their native places also some have bought properties in smaller cities and shifted themselves due to the virus spread.

In the line with the observations, another observation by the Court was when Justice T.V. Nalawade went for Court inspection to Jalna. He went with necessary pass and at the entry point of Jalna, he noticed that there was no strict checking and police force posted there were not asking to show pass to anybody. Casual inquiry was being made with the travellers and they were allowing the vehicles from Aurangabad side to Jalna side. This approach must have helped in spreading of the virus in the parts of this region.

Strict vigil needs to be kept and unless that is done, the authorities will not be in a position to control the things.

Further with regard to public servants, Court stated that,

“…in the situation which is created by the virus the public servants need to be tested and the servants who are useless need to be removed from the service by fling complaints against them in police station under the special Enactments like Epidemic Disease Act, 1897, Disaster Management Act, 2005 etc.”

Further, the Court expects that every order made by this Court is communicated to the authorities from all the districts which are under the jurisdiction of this Court. These orders need to be communicated to the private institutions like private hospitals as action can be taken against them under the provisions of Special Enactments.

Another complaint that the Court noted was of an infected person who had no supply of oxygen and was complaining about breathlessness, but nobody was there to supply oxygen to him. Eventually, he died that night.

Culpable Homicide not amounting to Murder

Bench stated that, when such grievance as stated above are present, it becomes the duty of the authorities concerned to fix the responsibility and give the complaint to police as such conduct is not less offence of than culpable homicide not amounting to murder.

CCTV System

Court wants affidavit of all the authorities or concerned officers to show that there is an installation of a CCTV system in isolation centers. CCTV systems should be installed in private hospitals also where the treatment is being given to infected persons.

Court added that, in our society, there are many who cannot afford to pay charges of private hospitals. It is learned that many poor persons and the persons who have no influence are not able to get admissions in hospitals even when they are infected.

Hence, in view of the above circumstances, the Court allows all those persons who have a grievance with regard to the care and treatment of infected persons to approach the Court directly.

State to supply information in respect of reservation of beds in designated hospitals and use of those beds. Information about the availability of ventilators and the deaths due to the non-availability of ventilators also needs to be supplied.

Information on action taken against negligence shown in treatment to be given to the Court.[Registrar (Judicial) v. UOI, 2020 SCC OnLine Bom 836, decided on 31-07-2020]

Case BriefsForeign Courts

Supreme Court of New Zealand: A Bench comprising Glazebrook, O’ Regan and Ellen France, JJ. dismissed an application for extension of time to apply for leave to appeal, filed by a man convicted of gang-rape and murder whose appeal against conviction had been rejected by the Court of Appeal.

The appellant was sentenced to life imprisonment, along with two other men, for the rape and murder of a woman in 1994. He appealed unsuccessfully to the Court of Appeal against this conviction, and has applied out of time for leave to appeal against that decision in the instant case.

During trial, the appellant had denied any responsibility for the injuries inflicted on the victim and apart from his confession of having consensual intercourse with the victim, there was no forensic evidence linking him to the scene. Moreover, he was not known to the co-accused persons before the incident. In the absence of evidence of direct involvement, he had been charged for forming a common intention with the other men of raping the victim and assisting each other in the act, and that he was aware of the risk that one of the co-accused could inflict grievous injury on the woman for committing rape and/or avoiding detection.

The applicant’s main contention in the first appeal was that there was insufficient evidence for his conviction, particularly the murder verdict. He contended that the interests of justice favour an extension of time, since correction of a miscarriage of justice is more important than the finality of a decision.

The Court accepted the Crown’s submission that the delay in filing this application is significant and largely unexplained. Moreover, the Crown would be prejudiced by the delay, due to the deaths of the defence counsel at trial and the expert witness on confabulation at trial and the absence of the former’s files and of original disks.

The Bench found that “the strength of the proposed grounds of appeal is not such as to provide a compelling reason to extend time.” It found that there are alternative remedies, such as an investigation by the Criminal Cases Review Commission or an application to the Governor-General to exercise the royal prerogative of mercy, which provide a more suitable forum to resolve the factual issues raised by the instant application. The Court rejected the application for extension of time to apply for leave to appeal, stating that the criteria for granting a leave to appeal were not met. [Mikaere Oketopa v. R, [2020] NZ SC 75, decided on 31-07-2020]

Case BriefsSupreme Court

Supreme Court: A bench headed by RF Nariman, J has granted Rajasthan Police two months deadline to complete the investigation into the suspicious death of National Law University (NLU)-Jodhpur student Vikrant Nagaich in 2017.

The court was hearing a plea by the student’s mother seeking transfer of the investigation in the case from the Rajasthan police to the Central Bureau of Investigation (CBI).

Neetu Kumar Nagaich, the mother of the deceased student, had approached the court and accused the state police of “lackadaisical and callous manner of the probe” into the FIR lodged on June 29, 2018, with Jodhpur’s Mandore police station. She has sought an independent inquiry while complaining of a shoddy probe with probable collusion to shield some influentials.

The mother of 21-year-old NLU student claimed that the FIR in the case was not registered for a period of 10 months from the date when the incident occurred, and was reluctantly filed thereafter. Three years since, the investigation is at a standstill with no progress and no chargesheet filed in the case, stated the plea. In the plea, she added that the state was “criminally negligent in the investigation” or was “trying to cover” up for the perpetrators or had some malafide intention.

The third-year law student, Vikrant was found dead on August 14, 2017, under unnatural circumstances near a railway track opposite the university. The authorities tried to present the case as that of suicide due to alleged depression.

[Neetu Kumar Nagaich v. State of Rajasthan, 2020 SCC OnLine SC 561 , order dated 08.07.2020]

(With inputs from ANI)

Case BriefsHigh Courts

Punjab and Haryana High Court: Arvind Singh Sangwan, J., dismissed the revision petition filed against the rejection of bail to the accused. The revision petition was filed by the juvenile accused of murdering another child in the washroom of a private school in Gurugram.

Order passed by Principal Magistrate, Juvenile Justice board, Gurugram has been prayed to be set aside which dismissed the application for bail filed by petitioner as well as the Order passed by the Appellate Court, Gurugram.

Rupinder Khosla, Senior Counsel for the petitioner submitted that on perusal of the Order passed by lower Courts the language used by them does not entitle the petitioner concession of bail as the following was observed:

no misplaced sympathy can be shown to a juvenile who has perpetrated the offence like murder.

Further it was argued that, as per Section 12 of the Juvenile Justice (Care and Protection of Children) Act, 2015 a person who is apparently a child alleged to be in conflict with law, be notwithstanding anything contained in the Code of Criminal Procedure, 1973 or in any other law for the time being in force, be released on bail with or without surety or placed under the supervision of a probation officer or under the care of any fit person.

Senior counsel for the petitioner has further submitted that in the earlier petition, the CBI has admitted that it has no infrastructure to investigate the case. It is further argued that in the observation home there is overcrowding of children and the petitioner has already lost considerable weight, therefore, the petitioner be released on bail.

State’s Counsel submitted that as per the statement recorded by the probation officer, petitioner’s attitude towards the class was aggressive, he used to remain upset most of the time as he disclosed this fact to his music teacher; he was short-tempered and shouted over children; a low average student in studies; found under the influence of liquor.

Further CBI contended that the petitioner has on his own stated in the Supreme Court that he wants his application to be decided as an adult, there will be no applicability of Section 12 of the Act.

CBI also argued that proper hygiene condition are maintained in the protection home.

CBI adding to its contentions has also argued that considering the nature and gravity of the charge, severity of punishment in the event of conviction and the danger of accused absconding or fleeing, if released on bail; character, behaviour, means, position and standing of the accused; likelihood of the offence being repeated; reasonable apprehension of the witnesses being tampered with and danger of justice being thwarted by grant of bail.

Since petitioner has been facing allegation of committing heinous crime of a 7 year old minor child in a very barbaric manner by cutting his throat and then trying to demolish the evidence, no sympathy should be given.

Counsel for the complainant has also submitted that it is the petitioner’s side, who is not allowing the trial to conclude as they have challenged every order passed by the Courts below.

Bench found it appropriate to not grant bail for the following reasons:

  • Court is not inclined to grant any relief to the petitioner, in view of the order dated 28.02.2019 passed by the Hon’ble Supreme Court, directing that for deciding the bail application, the petitioner be treated as an “Adult”, therefore, there is little scope for this Court to find out whether the petitioner can be granted the relief under Section 12 of the Act.
  • Board and the Appellate Court have passed a detailed order declining the concession of bail to the petitioner in view of the proviso to Section 12(1) of the Act and this Court find no reason to form a different opinion.
  • arguments raised by senior counsel for the petitioner that the petitioner is not kept in a congenial atmosphere at Children’s Home and is facing medical problem, are not proved from the two reports of the Medical Board stating that the petitioner is not facing any serious problem/illness and rather it is noticed that the petitioner is gaining weight.
  • prosecution has cited certain witnesses, who are minors including the sister of the deceased and therefore, possibility of tampering the evidence, cannot be ruled out, at this stage in view of the totality of circumstances and the affidavit filed by the CBI.

Thus, in above view, revision petition was dismissed. [Bholu v. State of Haryana, 2020 SCC OnLine P&H 835 , decided on 30-06-2020]

Case BriefsHigh Courts

Calcutta High Court: A Division Bench of Sahidulla Munshi and Subhasis Dasgupta, JJ., upheld the conviction of accused-husband under Section 498-A IPC for the offence of cruelty to woman and under Section 302 for the murder of his wife. At the same time, the Court acquitted the accused-mother-in-law of the charge under Section 302 for murder while maintaining her conviction under Section 498-A IPC.

Present appeal was filed against the judgment and order of conviction and sentence passed by Additional Sessions Judge wherein accused/ appellants were convicted under Sections 498 A, 302, 34 of Penal Code, 1860.

Factual Scenario

Deceased in the present matter being the second daughter of the de-facto complainant/father was put to suffer death in her in-laws’s house by hanging.

After visiting to her in-law’s house, deceased victim was put to suffer cruelty, oppression and ill-treatment by her in-law’s members, including her accused husband for her black complexion.

Deceased was frequently abused and threatened by her in-laws .

The in-law’s members while causing ill-treatment upon victim made her understand just three days after her marriage for staying in a cow shed, expressing their dissatisfaction on the ground of her black complexion.

Deceased victim reported everything to her parents about the torture and cruelty, she received in her in-law’s house, when she visited her paternal house on several occasions.

Deceased’s father after persuading her to withstand such torture inflicted upon her, for her future benefit upon realisation of weak financial condition of her father.

Later, de-facto complainant/father of the deceased was informed by his on in law that the victim daughter had been put to suffer death by hanging.

Decision & Analysis

Court observed that the cause of inflicting torture was the black complexion of deceased victim which lead the in-law’s members of the victim including her accused husband to cause physical cruelty upon her.

Victim received threat from in-law’s members for her husband’s second marriage after driving her out from matrimonial home. So long victim remained alive and visited her paternal house, she expressed her extent of torture and cruelty inflicted upon her by her in- law’s members, and all the times the de-facto complainant persuaded his daughter to return to her in-law’s house for her future prospect, keeping in view the poor condition of de-facto complainant/father.

On observing the above, Court stated that causing cruelty to deceased victim for her black complexion even after her marriage by the in-law’s members would definitely attract Section 498 A/ 34 IPC against the in law’s members including husband.

Whether the victim suffered homicidal or suicidal death?

Autopsy Surgeon stated categorically in his evidence that if any person is pressed by telephone chord on his throat, then there could be ligature mark, as he found in the instant case, which might have caused the death of deceased victim.

Thus, noticing such continuous ligature mark Autopsy Surgeon opined in absence of poison in the viscera of deceased that it was a case of homicidal death, and ante-mortem in nature.

Whether non-production of weapon in a murder trial will lead to rejection of testimony of autopsy surgeon or not?

Court on noting the facts and circumstances along with the evidence stated that it is an established fact that there was an unnatural death of deceased in the in-laws’s house of the deceased victim after 7 months of her marriage.

Sufficient evidence was placed to show that the victim received oppression, ill- treatment, torture, cruelty in her in-law’s house by her in-law’s members for her black complexion.

Accused husband having failed to offer any explanation for the injuries caused to his wife, the failure would lead to the conclusion that the death of the deceased had occurred in the custody of accused husband as they both shared the same room after marriage.

Non-production of offending weapon in the absence of any explanation may be an error or latches on the part of prosecuting agency, but such error or omission would not itself discard the testimony of Autopsy Surgeon.

Hence, facts and circumstances would thus unerringly point to the guilt of accused husband/appellant for causing homicidal death to deceased/wife by strangulation for his non-satisfaction over the black complexion of his wife, which led to give birth his motive to cause death of his wife.

Commission of cruelty upon the deceased though proved against the mother-in-law under Section 498A read with Section 34IPC, but she should not have been held convicted for causing homicidal death of deceased victim under the behest of Section 302/34 IPC. on the simple ground that death of the victim was held in her matrimonial home.

Bench modified the conviction and sentence of accused mother-in-law under Section 498 A/34 IPC and deserves to be favoured with an order of acquittal for offence under Section 302/34 IPC.

Thus, the appeal was dismissed and accused mother-in-law be set free from correctional authority forthwith upon completion of sentence awarded against her under Section 498A/34 IPC.[Mazidul Miah v. State of W.B., 2020 SCC OnLine Cal 1077 , decided on 25-06-2020]

Case BriefsSupreme Court

Supreme Court: In a reference from a 2-judge bench verdict where Justice V. Gopala Gowda acquitted and Justice Arun Mishra convicted the accused in the abduction and murder of former Tamil Nadu MLA MK Balan, the 3-judge bench of RF Nariman, KM Joseph and V. Ramasubramanian, JJ agreed with Justice Mishra’s opinion and upheld the conviction.

In the September 2016 verdict Justice V. Gopala Gowda had held that for Section 109 of IPC, it is not enough to show a conspiracy as it has to be taken a step further. He said that it needs to be proved that an act is committed in furtherance of that conspiracy. Whereas Justice Arun Mishra held that under section 109 IPC, the abettor is liable to the same punishment which may be inflicted on the principal offender if the act of the latter is committed in consequence of the abetment.

The 3-judge bench in the hearing the reference noticed that it was established that the deceased was confined illegally and that his body was cremated under a fictitious name. There was, however, no direct evidence that the accused had committed the murder of deceased by strangulating him. However, the recovery of a nylon rope and chain undoubtedly strengthens the prosecution case.

“A carefully thought out criminal plan has led to the cruel snuffing out of precious life. The players thought it through meticulously by destroying the corpus delicti by cremation.”

The Court further explained that the abduction followed by murder in appropriate cases can enable a court to presume that the abductor is the murderer. Now the principle is that after abduction, the abductor would be in a position to explain what happened to his victim and if he failed to do so, it is only natural and logical that an irresistible inference may be drawn that he has done away with the hapless victim. Section 106 of the Evidence Act would come to the assistance of the prosecution.

“Where abduction is followed by illegal confinement and still later by death, the inference becomes overwhelming that the victim died at the hands of those who abducted/confined him.”

In the light of the charge of abduction being proved, the Court held that even in the absence of any direct evidence relating to murder, the presumption of murder, being committed by the appellants would apply. In fact, the courts below have drawn a presumption about murder being committed. This is a presumption which cannot be said to be drawn without any basis.

[Somasundaram v. State, CRIMINAL APPEAL NO. 403 OF 2010, decided on 04.06.2020]

Also read:

September 2016 split verdict

Case BriefsSupreme Court

Supreme Court: In a case where 2 persons died after being shot during a celebratory firing in a wedding ceremony, a furious 3-judge bench of SA Bobde, CJ and BR Gavai and Surya Kant, JJ said,

“Incidents of celebratory firing are regretfully rising, for they are seen as a status symbol. A gun licensed for self­ protection or safety and security of crops and cattle cannot be fired in celebratory events, it being a potential cause of fatal accidents.”

In the incident dating back to 2007, celebratory gunshots were fired by the accused due to which, out of the 5 injured persons, 2 succumbed to their injuries. Pleading not guilty, the accused argued that he had no intention to cause anyone’s death. He stated that the firing was accidental and was caused by a ball with which some children were playing. The ball struck against the gun in his hand and led to the firing of shots.

Refusing the accept the submission, the Court noticed that the version of eye­witnesses completely belies such a defence story.

“Otherwise also, it does not appeal to common sense that a ball would strike the gun in appellant’s hand resulting in an undersigned firing. Unless the safety lock of the gun was moved forward, the gun wouldn’t go off automatically even if its butt was hit by a play­ball.”

The Court took note of the evidence on record which showed that the appellant aimed the gun towards the roof and then fired. It noticed that though it was an unfortunate case of mis­firing, the appellant of course cannot absolve himself of the conclusion that he carried a loaded gun at a crowded place where his own guests had gathered to attend the marriage ceremony. He did not take any reasonable safety measure like to fire the shot in the air or towards the sky, rather he invited full risk and aimed the gun towards the roof and fired the shot. He was expected to know that pellets could cause multiple gun­shot injuries to the nearby persons even if a single shot was fired.

“Appellant cannot escape the consequences of carrying the gun with live cartridges with the knowledge that firing at a marriage ceremony with people present there was imminently dangerous and was likely to cause death.”

The appellant was, thus, held guilty of an act, the likely consequences of which including causing fatal injuries to the persons being in a close circuit, are attributable to him. The offence committed by the appellant, thus, would amount to ‘culpable homicide’ within the meaning of Section 299, though punishable under Section 304 Part 2 of the IPC.

[Bhagwan Singh v. State of Uttarakhand, CRIMINAL APPEAL NO. 407 OF 2020, decided on 18.03.2020]

Case BriefsHigh Courts

Jharkhand High Court: A Division Bench of Shree Chandrashekhar and Ratnaker Bhengra, JJ. acquitted the accused-appellant of the charge under Section 302 of the Penal Code, 1860 on the ground that the prosecution has failed to prove by leading cogent and reliable evidence that the appellant has committed the crime.

The brief facts of the case are that the sole appellant, namely, Ratanu has been charged under Section 302 of the Penal Code, 1860 and convicted and sentenced to R.I. for life. Initially, five accused persons were sent up for trial, however, other accused persons were acquitted on the ground that the informant has not named them as accused in her fardbeyan. The prosecution has examined six witnesses; the informant Anjela Dhanwaris PW-1, the uncle of the informant, Kushal Topno PW-3 and Nelem Topno PW-2, the wife of PW-3. The witness, namely, Uday Purty PW-4 was declared hostile. Dr Sukanta Sheet PW-5, conducted the post-mortem examination and found major injuries on Prabodh Dhanwar which were ante-mortem in nature caused by sharp and blunt objects. Aggrieved by the impugned judgment, the present appeal was filed. 

The counsel Kripa Shankar Nanda for the appellant has submitted that PW-1 is not reliable and trustworthy, there is no independent corroboration to the evidence of PW-1, the crime weapon and the blood-stained soil collected from the place of occurrence were not produced in the court, and other prosecution witnesses have turned hostile which causes serious doubt has clouded the prosecution’s case. It further relied on the judgment titled Bhimapa Chandappa Hosamani v. State of Karnataka, (2006) 11 SCC 323, the Supreme Court observed that before conviction of an accused is recorded on the basis of testimony of a single witness it must be found that testimony of such a witness is of such sterling quality that it leaves no doubt about the complicity and involvement of the accused in the crime. 

The prosecution has projected Anjela Dhanwar, daughter of the deceased, as an eye witness whose conduct during the incident makes her testimony suspicious.

The Court relying on the Supreme Court decision in Gopal Singh v. State of M.P., (2010) 6 SCC 407, held the testimony not trustworthy and reliable and, therefore conviction of the appellant under Section 302 of the Penal Code cannot be recorded. [Ratanu v. State of Jharkhand,  2019 SCC OnLine Jhar 2485, decided on 23-10-2019]

Case BriefsHigh Courts

Orissa High Court: A Division Bench of Pramath Patnaik and Dr A. K. Mishra JJ. modified the conviction given by the trial court and convicted the accused under Section 304 Part-I Penal Code, 1860. 

The brief facts of the case are that the accused was charged under Section 302 IPC for having given a single blow to deceased mother. 

As per prosecution case, the accused and his wife quarreled and when mother intervened, the accused left the spot only to return later with a knife dealt a blow which struck to the right ear and the mother succumbed to her injuries. On investigation, accused was arrested, post mortem conducted and charge-sheet under Section 302 IPC submitted and consequently the accused faced trial by the Court of Session. 

Defence took the plea of denial simplicitor and examined none. The trial court appreciated the evidence of doctor and eyewitnesses and found the death of deceased to be homicidal in nature convicted and sentenced the accused. Aggrieved by the impugned judgment has filed the instant petition.

The counsel for the appellant, Ambika Prasad Ray, submitted that the manner in which the knife blow was inflicted to the mother is nothing but without premeditation and due to heat of passion, out of sudden quarrel and not in a cruel manner for which exception 4 of Section 300 IPC is attracted. 

He further requested the Court to convert the conviction to Section 304 Part-I of IPC. 

The counsel for the respondent, Zafarullah, did not dispute the factum of quarrel but stated that no such plea was taken before the Trial Court. 

After carefully perusing the evidence on record and hearing all the witnesses from both sides, the Court observed that the accused son had no animosity with the deceased mother, rather the incident had the genesis of quarreling between accused and his wife for which it could be said that there was no premeditation and no motive. The Court further observed that the trial Court has committed error in not appreciating the law in the right perspective whereas the material in abundance proves that the offence committed is culpable homicide not amounting to murder as defined under Exception 4 of Section 300 IPC and for that the accused is to be convicted under Section 304 Part-I IPC instead of Section 302 IPC. 

In view of the above, the appeal was allowed and sent back. [Santosh Toppo v. State of Odisha, 2020 SCC OnLine Ori 59, decided on 29-02-2020]

Hot Off The PressNews

Supreme Court:  A 3-judge bench of Arun Mishra, Vineet Saran, and MR Shah, JJ has commuted the death sentence of a convict, Manoj Suryavanshi, in the 2011 Chhattisgarh triple murder case to life imprisonment and said that the convict should be kept in jail for at least 25 years.

A Bilaspur court had on May 5, 2013, sentenced Suryavanshi to death for murdering and hiding the bodies of three children in 2011, a decision which was upheld by the Chhattisgarh High Court on August 8, 2013. The three children, namely Vijay Dhiver (8), Ajay Dhiver (6) Sakshi Dhiver (4), were found dead in a field in Bilaspur district on February 11, 2011. Suryavanshi was working as a labourer at the house of Shivlal Dhiver, the complainant and father of the victims, when his wife — Sumrit Bai — went missing. Suryavanshi suspected that she had eloped with the younger brother of Dhiver, following which he killed the children.

A special leave petition was filed in the Supreme Court in the matter on September 9, 2013.

(Source: ANI)

Case BriefsHigh Courts

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

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

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

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

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

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

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

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

Analysis & Decision of the Court

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

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

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

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

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

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

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

Case BriefsSupreme Court (Constitution Benches)

Supreme Court: A five-judge Constitution bench of the Supreme Court today dismissed the curative petition filed by Pawan Kumar Gupta, a death row convict in the Nirbhaya gangrape and murder case.

“The application for an oral hearing is rejected. The application for stay of execution of the death sentence is also rejected. The Curative Petition is dismissed in terms of the signed order,”

The five-judge Constitution bench of NV Ramana, Arun Mishra, RF Nariman, R Banumathi and Ashok Bhushan, JJ held,

“In our opinion, no case is made out within the parameters indicated in the decision of this Court in Rupa Ashok Hurra vs. Ashok Hurra, 2002 (4) SCC 388. Hence, the Curative Petition is dismissed.”

Gupta had on Friday filed a curative petition before the Supreme court seeking the commutation of his death sentence to life imprisonment. He is the fourth convict in the case to file a curative petition.The Supreme Court has already rejected the curative petitions of the remaining three.

This comes as a lower court issued a fresh death warrant  for the four convicts — Vinay Sharma, Akshay Thakur, Pawan Gupta and Mukesh Singh, which orders their hanging at 6 am on March 3 at Delhi’s Tihar Jail. Meanwhile, the Supreme Court has also slated for March 5 hearing on a petition, filed by the Union Ministry of Home Affairs, seeking directions to execute the death row convicts in the Nirbhaya gangrape and murder case separately.

The 23-year-old paramedic student, referred to as Nirbhaya, was gang raped and brutally assaulted on the intervening night of December 16-17, 2012 in a moving bus in south Delhi by six people before being thrown out on the road. She died on December 29, 2012 at Mount Elizabeth Hospital in Singapore. Besides Mukesh, three others – Akshay, Vinay, and Pawan are facing the gallows for the heinous crime that shook the entire nation. One of the six accused in the case, Ram Singh, allegedly committed suicide in the Tihar Jail here.

On July 9, 2018 , the Court had dismissed the review pleas filed by the three convicts in the case, saying no grounds have been made out by them for review of the 2017 verdict.

On December 18, 2019, the 3-judge bench of R Banumathi, Ashok Bhushan and AS Bopanna, JJ rejected the review petition of the last convict, Akshay Kumar Singh, seeking modification and leniency.

On January 21, 2020, the 3-judge bench of R. Banumathi, Ashok Bhushan and AS Bopanna, JJ had dismissed the Special Leave Petition filed by Pawan Kumar Gupta, one of the four death row convicts in the Nirbhaya Gang rape case where he “reagitated” the plea of juvenility.

A juvenile, who was among the accused, was convicted by a juvenile justice board and was released from a reformation home after serving a three-year term. Two of the convicts are yet to file curative petitions before the Supreme Court.

Another accused, Ram Singh, allegedly committed suicide in Tihar Jail in March 2013 during the trial. Another convict, who was a minor at the time of the crime, was sent to a reform facility and released after three years of the crime.

[Pawan Kumar Gupta v. State of NCT of Delhi, 2020 SCC OnLine SC 264, decided on 02.03.2020]

(With inputs from ANI)

Case BriefsHigh Courts

Bombay High Court: A Division Bench of Surendra P. Tavade and Ranjit More, JJ., while dismissing the present appeal upheld the trial court’s decision for an offence punishable under Sections 302, 392 read with Section 34 of Penal Code, 1860.

Reason for appeal to be preferred

Appellant – Original accused challenged the Judgment and conviction order passed by Additional Sessions Judge of wherein the appellant was convicted for the offence punishable under Sections 302, 392 read with 397 IPC.

Facts

First informant was deceased’s daughter and worked at a sugarcane juice stall. Balli used to clean the sugarcane at informant’s place and take the same to informant’ Juice Stall. On one day, Balli when did not reach the stall, informant called the deceased to know whether the servant Balli had proceeded to the shop, to which her mother replied that his work was not over yet, and he may stay for some time and then attend the shop.

When the informant reached her house in the night, she found her mother lying in the pool of blood, with knife pierced in her chest and a deep injury on the neck.

Later, FIR was registered and during investigation through the call records, it was found that appellant was moving in the vicinity at the time of the incident. Police on searching for the appellant found him at his native place and was further arrested.

 Trial Court held the appellant guilty for the offence punishable under Sections 449, 397 and 302 of IPC.

Contentions

Counsel for the appellant submitted that prosecution did not prove the chain of circumstances to prove the guilt of the appellant.

Adding to the above, it was also submitted that there could be a possibility of involvement of third person committing offence and appellant was wrongly convicted for the offences.

APP submitted that discovery of ornaments, blood-stained cloths from the possession of the appellant unequivocally proved involvement of the appellant in the crime.

Further appellant’s counsel submitted that even it was proved that the appellant was found in possession of stolen articles, he could not be held guilty for the charge under Section 302 IPC and at the most, he will be held guilty under Section 392 IPC.

Decision

High Court noted that the appellant had contacted PW-17 and shown him the gold articles, further the said articles were seized from the appellant. After the incident, appellant went to his native place and showed gold ornaments to PW-17.

Appellant was found in possession of the gold articles immediately after the incident. He also produced clothes that were stained with blood. Another circumstance to be noted against the appellant was that he was seen in the vicinity of the scene of offence before the incident and during the time of the incident.

This, in view of the above, trial court’s decision is upheld and the present appeal is to be dismissed. [Girvarsingh Bhagwatsingh Devda v. State of Maharashtra, 2020 SCC OnLine Bom 315, decided on 25-02-2020]

Case BriefsHigh Courts

Chhattisgarh High Court: A Division Bench of Prashant Kumar and Gautam Chourdiya, JJ., while addressing the present criminal reference wherein the deceased/victim was a Five and a half Year deaf and dumb girl who was brutally raped and murdered by the accused, held that,

…considering the depraved and shameful manner in which the offence has been committed, the said mitigating factor would not outweigh the aggravating factors and as such, we are satisfied that present case falls within the ambit of “rarest of rare case”.

Informant –father of the deceased had informed that despite search at various places deceased was not traceable, therefore he expressed his suspicion on some unknown person who would have allured and abducted his daughter. FIR was registered against unknown person for offence under Section 363 Penal Code, 1860.

Kunti Sona (accused 3) informed the police that her younger son informed her that brother Ram Sona had murdered a girl and has kept the dead body in the house. Her son Ram Sona and his friend Keli reached the house and all three concealed the dead body in a muddy Nala besides the railway track and that she could point out the place.

Keli informed the IO that he had seen Ram Sona committing rape and thereafter murdering the deceased/victim, he also saw the deceased bleeding from her private parts.

Accused Ram Sona disclosed to the police that when the deceased was playing he brought her in his house by luring her, when he reached the house, his friend Keli was watching TV and when he was committing rape, his friend tried to restrain him and later on he thrashed her head on the ground due to which she became unconscious.

Further, he adds. That out of fear he gagged her, killed her and concealed the dead body. He also disclosed that the next day his brother Dipak informed that members of the locality were looking for him and he may be thrashed.

Based on the evidence on record, trial judge convicted the accused and sentenced accused Ram Sona to be hanged till death for the offence under Section 376(A) and 302 of IPC, with other sentences for remaining charges.

Appellants Counsel, argued that names of the accused persons were note mentioned in the FIR, therefore they were framed subsequently by the prosecution, as they were not finding the culprits. He further argued that abscondance of accused was neither a circumstance nor there was any evidence of such abscondance. Confession by Kunti Sona and Amrit Singh in their memorandum of statements cannot be admissible against Ram Sona as nothing pursuant to the same was recovered and stands inadmissible in evidence.

Fouzia Mirza, Additional AG – argued that under Section 30 of Evidence Act memorandum of statement of co-accused is admissible in evidence if it is self implicating.

Analysis and Decision of the Court

Bench drew the point of significance that the concentration should be on legality and evidentiary value of the memorandum statements of accused persons and to what extent they can be relied upon to establish one of the important circumstances against the appellant.

Court observed that all the three memorandum statements were proved by the prosecution. Accused Kunti and Amrit did not commit the main offence under Sections 376 and 302 of Penal Code but have only assisted the main accused Ram Sona in concealing the evidence of crime by disposing of the dead body, their disclosure statements were self inculpatory.

Bench referred to the decision of Supreme Court in Sukhvinder Singh v. State of Punjab, (1994) 5 SCC 152, wherein it was argued that the facts already discovered cannot be again discovered.

Balbir Singh v. State of Punjab, AIR 1957 SC 216, Supreme Court held that,

“…so far as the confessional statement of co-accused is concerned, it may be taken into consideration against the appellant if it fulfills the conditions laid down in Section 30 of the Evidence Act.”

Adding to its conclusion, Court also noted that confession of co-accused can be used when there are other corroborative evidence against the co-accused. Stage to consider the confessional statement arrives only after the other evidence is considered and found to be satisfactory.

Self inculpatory confession of accused can be used against the co-accused and there is no general proposition that it can never be used for any purpose.

Thus, the facts disclosed in the memorandum statement of Ram Sona find corroboration from the medical report, which found injuries over private parts of the deceased and over her head as well. It also corroborated the memorandum statement of Amrit Singh, who had stated that he had seen accused Ram Sona committing rape. It further corroborated from the memorandum statements fo accused Kunti Sona and Amrit Singh, who has stated that all the 3 concealed the dead body near muddy Nala besides the railway track.

Memorandum statements of Kunti Sona and Amrit Singh are therefore admissible in evidence against accused Ram Sona.

Bench with regard to absconcion of the accused Ram Sona stated that the same gained importance, as he was the person who was last seen together with the deceased.

“We are convinced that the chain of circumstantial evidence has been duly proved against all the accused including Ram Sona and it is he who brought the deceased to his house, committed rape and thereafter murdered deaf and dumb prosecutrix, aged about 5½ years.”

High Court considered,

 “Whether the death sentence awarded to accused Ram Sona is to be confirmed or the same deserves to be commuted to life imprisonment.”

In Supreme Court’s decision of Bachan Singh v. State of Punjab, (1980) 2 SCC 684, it was held that,

“…normal rule is that offence of murder shall be punished with the sentence of life imprisonment. The Court can depart from that rule and impose sentence of death only when there are special reasons for doing so.”

“If Court finds that the offence is of exceptionally deprave and heinous character and constitutes, on account of its design and manner of its execution, a source of grave danger to the society at large, the Court must impose the death sentence.”

Another case that was relied on by the bench was of Laxman Naik v. State of Orissa, (1994) 3 SCC 381, in this case also the victim was a 7-year-old girl who fell prey to the accused’s lust and the Court held that,

“…The appellant seems to have acted in a beastly manner as after satisfying his lust he thought that the victim might expose him for the commission of the offence of forcible rape on her to the family members and others, the appellant with a view to screen the evidence of his crime also put an end to the life of innocent girl who had seen only seven summers.”

“…appellant had conceived of his plan and brutally executed it and such a calculated, cold-blooded and brutal murder of a girl of a very tender age after committing rape on her would undoubtedly fall in the category of rarest of the rare cases attracting no punishment other than the capital punishment.”

Hence, the High Court in view of the above-cited cases along with few others affirmed the conviction and death sentence imposed upon Ram Sona, Amrit Singh and Kunti Sona. [In ref. Of State of Chhattisgarh v. Ram Sona,  2020 SCC OnLine Chh 9, decided on 31-01-2020]