Punjab and Haryana High Court
Case BriefsHigh Courts

Punjab & Haryana High Court: While allowing the instant bail petition preferred by Kalyani Singh against the FIR dated 13-4-2016 under Sections 302, 120-B, 201 of Penal Code, 1860 and under Sections 25, 27 and 54 of the Arms Act, 1959, Sureshwar Thakur, J., grants a regular bail to the petitioner due to lack of thorough investigation by the CBI.

Facts:

Sukhmanpreet Singh Sidhu, alias Sippy Sidhu, was shot dead near the green park on a pedestrian track by unknown assailants in 2015 at Chandigarh at 10 PM. An intimation was sent to the Police Station through wireless message that a person is lying dead on the streets. The police noticed that the person was carrying injuries on his left cheek and chest and blood was oozing from the injuries.

Initially, the Chandigarh police were investigating the crime but later it was transferred to CBI on 20-1-2016 by Home Secretary, Chandigarh Administration. As a result, the crime event was registered with the Special Crime Branch, CBI, Chandigarh for thorough investigation.

After 6 years, on 15-6-2022, the present petitioner was arrested, based on certain inculpatory evidence as was collected by the CBI. The Investigation Agency informed that on completion of the investigation, it filed a report under section 173 of CrPC in 2020 and requested to take up further investigation with reference to the role of the suspect in Sippy Sidhu’s murder.

The petitioner in the instant case also approached the trial court in July but her bail application was rejected. Hence, this instant bail petition was filed.

Investigation Report by CBI:

  1. Petitioner and the deceased were in a close relationship and the petitioner wanted to marry the deceased. But the family of the deceased was against the marriage as they did not want inter-caste marriage to which the petitioner raised issues.

  2. After the rejection of the marriage proposal, Sippy Sidhu leaked some objectionable pictures of the petitioner to her family and friends. The petitioner asked her friends to delete the pictures saying that these are morphed.

  3. CBI stated that the petitioner had the motive as the leaked pictures and rejection annoyed Kalyani Singh and conspired in the murder of Sippy Sidhu with an unknown assailant.

  4. Investigation revealed that Kalyani Singh, her family members and their relatives were present at a birthday party at the day and time of incident on 20.09.2015 which started from 8:15 P.M. to 11:00 P.M. The other members of the birthday party also corroborated the same.

  5. Petitioner compelled the deceased to meet her at the park where she was present with assailant and killed Sippy Sidhu with a gun.

  6. Though the murder weapon is not found.

  7. Though the polygraph report of the petitioner revealed that on the questions which included the relevant issues like absence from party, presence at crime scene and killing Sippy Sidhu, her answers were found to be deceptive.

Observation and Analysis of this Court:

The Court said “though it was a legitimate expectation from the investigating agency that the crime event becomes solved. However, though for certain reasons best known only to the Investigating Officers concerned, they since the very inception of the crime event, prima facie appears to only for solving the crime event, but without any prima facie tangible evidence rather singularly choosing to inculpate the petitioner in the crime event. The above endeavor appears to be a sequel of the Investigating Agency relegating into the limbo of oblivion all the above referred defects in the investigations as made into the crime event. Therefore, also its prima facie appears that objective and fair investigations have not been carried out into the crime event.

The Court also stated that “the CBI is the prime Investigating Agency and has to live up to its renowned credentials. However, prima facie in the instant case, it has not lived up to its credentials of being the foremost Investigating Agency in the country, from whom it was but expected that the most impartial and objective investigations are made into the crime event, then choosing to only adopt the stand of the aggrieved. Though, the CBI could have taken to seek cooperation from the aggrieved, but only when, prima facie tangible besides credit worthy evidence to support the aggrieved’s stand, did make emergence.”

The Court observed that the untraced report was filed in the year 2020, whereas the investigation was handed over to the CBI in the year 2015. Instead of using the best scientific techniques to inculpate the real offenders, CBI has prima facie chosen to ill indulge in taking the services of tutored and planted witnesses rather merely for solving the crime event through causing the arrest of the present petitioner.

The Court opined that further investigations may ultimately result in all the offenders concerned being brought to inculpation rendering complete justice to the aggrieved and to society at large.

Thus, the Court held that the petitioner is granted regular bail as justice must be done to the aggrieved and also on the basis of lack of thorough investigation by CBI.

[Kalyani Singh v. Central Bureau of Investigation,2022 SCC OnLine P&H 2168, decided on 13-09-2022]


Advocates who appeared in this case :

For the Petitioner: Mr. R.S. Cheema, Senior Advocate

Mr. Sartej Singh Narula, Advocate,

Mr. Sandeep Sharma, Advocate,

Mr. Arshdeep Singh Cheema, Advocate,

Mr. Gurinder Singh, Advocate

Mr. Satish Sharma, Advocate

For the Respondent: Mr. Rajeev Anand, Standing Counsel for respondent-CBI

Mr. R.S. Bains, Senior Advocate

Ms. Aarushi Garg, Advocate

Case BriefsSupreme Court

Supreme Court: The 3-judge bench of UU Lalit, CJ and S. Ravindra Bhat and PS Narasimha, JJ has granted bail to Journalist Sidhique Kappan after considering the length of custody undergone by him ever since he was taken in custody on 06.10.2020. It is important to note that, last month, the Allahabad High Court had rejected his bail plea.

The Kerala journalist was arrested under the Unlawful Activities (Prevention) Act on his way to Hathras, Uttar Pradesh to report on the alleged gang-rape of a Dalit woman, who later died in the Hospital. He has been booked under Sections 153A, 295A, 120B of the Indian Penal Code, Sections 17 and 18 of Unlawful Activities (Prevention) Act, 1967 and sections 65 and 72 of the Information and Technology Act, 2000. While the charge-sheet has already been filed on 02.04.202, the matter has yet not been taken up for consideration whether charges need to be framed or not.

While the Court refrained from dealing with and commenting upon the progress and investigation and material gathered by the prosecution in support of its case as the matter is still to be taken up at the stage of framing of charges, it directed that Kappan be produced before the Trial Court within three days; and that the Trial Court shall release him on bail, subject to such conditions as the Trial Court may deem appropriate to impose to ensure Kappan’s presence and participation in the matter pending before it. Apart from this, Kappan shall either in person or through a lawyer attend the proceedings before the trial court on every single date. He will also deposit his passport if not already deposited with the investigating machinery before his actual release.

The Court also imposed the following conditions on Kappan while releasing him on bail :

  1. For the first six weeks, Kappan has to stay in Delhi and within the jurisdiction of Nizamuddin police Station. He cannot leave Delhi without express permission of the trial court; He also has to record his presence in the concerned police station every Monday in a register maintained for the purpose.
  2. After six weeks, he may go back to his native place and stay at Mallapuram in Kerala but shall report at the local police station on every Monday and mark his presence in the register maintained in that behalf.

[Sidhique Kappan v. State of Uttar Pradesh, Crl.A. No.-001534-001534 / 2022, order dated 09.09.2022]


For Sidhique Kappan: Senior Advocate Kapil Sibal

For State: Senior Advocate Mahesh Jethmalani

Also Read

Charge-sheet and documents adduced prima facie point towards guilt; Allahabad High Court denies bail to journalist Sidhique Kappan [Hathras gang-rape row]

Case BriefsSupreme Court

   

Supreme Court: In an appeal against the Karnataka High Court's reversal of acquittal of 2 out of the 22 accused acquitted by the Sessions Court in a murder case, the bench of V. Ramasubramanian*and Indira Banerjee, JJ has reversed the High Court's verdict observing that there were glaring contradictions between the testimony of the witnesses.

In this case all the 22 accused armed with deadly weapons formed themselves into an unlawful assembly and committed trespass by entering into the house of the deceased and committed his murder, in furtherance of a common object. The Sessions Court acquitted all 22 accused including the appellants, however, the High Court convicted the appellants, by observing that there was consistency in the evidence of eyewitnesses with regard to their participation in the commission of the offence and the Trial Court erroneously acquitted them, when there was sufficient material on record to hold them guilty.

The Court observed that the above findings of the High Court appear to be illogical as the primary charge of the prosecution was that all the 22 accused, formed themselves into an unlawful assembly with the common object of committing the murder of the deceased and that all of them being members of the unlawful assembly were armed with deadly weapons and that they committed the offence of rioting, trespass and murder.

The Court observed that:

“We do not know how, in the facts and circumstances of the case, the conviction of only 2 out of the 22 accused can be sustained and that too only for the offence under Section 302 when the allegation of unlawful assembly, common object, trespass, rioting etc. are held not proved against all of them”.

Moreover, the State has not come up with any appeal against the acquittal of all the other accused nor was there any explanation as to why there were two First Information Reports.

The Court took note of the ruling in Arvind Kumar v. State of Rajasthan, 2021 SCC Online SC 1099 wherein the court held that “the principle that when a witness deposes falsehood, the evidence in its entirety has to be eschewed may not have strict application to the criminal jurisprudence in our country”, and thus viewed that the High Court was right that the evidence of eyewitnesses cannot be rejected by invoking the theory of ‘falsus in uno falsus in omnibus', as this principle may not have unadulterated application to criminal jurisprudence. However, when there are glaring contradictions between the testimony of these two witnesses on the type of material object used and even on the role of one accused, the very foundation of the case of the prosecution stood shaken.

The Court observed that the High Court should have come up with stronger and cogent reasons than what has been recorded as the law on the scope of Section 378 of the Code of Criminal Procedure (CrPC), is too well settled.

Placing reliance on Ravi Sharma v. Government of NCT of Delhi, 2022 SCC Online SC 859 the Court viewed that the impugned judgment of the High Court is not in accordance with the law traced in this decision, hence, the conviction of the appellants cannot be sustained.

[Ramabora v. State of Karnataka, 2022 SCC OnLine SC 996 , decided on 10.08.2022]

*Judgment by: Justice V. Ramasubramanian

Case BriefsSupreme Court

Supreme Court: In a murder case, where the Madhya Pradesh High Court had reduced the sentence to sentence already undergone which was less than imprisonment for life, the bench of MR Shah* and Krishna Murari, JJ has held that such order is contrary to Section 302 IPC as there cannot be any sentence/punishment less than imprisonment for life, if an accused is convicted for the offence punishable under Section 302 IPC.

In the case at hand, though the High Court had maintained the conviction of the accused for the offence under Sections 147, 148, 323 and 302/34 of the IPC, it had reduced the sentence by giving benefit of right to private defence to the accused, to the sentence already undergone by him i.e. approximately seven years and ten months.

The Supreme Court held that such reduction of sentence is impermissible and unsustainable.

“The punishment for murder under Section 302 IPC shall be death or imprisonment for life and fine. Therefore, the minimum sentence provided for the offence punishable under Section 302 IPC would be imprisonment for life and fine. There cannot be any sentence/punishment less than imprisonment for life, if an accused is convicted for the offence punishable under Section 302 IPC. Any punishment less than the imprisonment for life for the offence punishable under Section 302 would be contrary to Section 302 IPC.”

The Court, hence, quashed and set aside the judgment of the High Court and restored the order of the Trial Court and directed the accused to be arrested and to undergo life imprisonment. The Court gave eight weeks’ time to the accused to surrender before the concerned Court/Jail Authority.

[State of Madhya Pradesh v. Nandu, CRIMINAL APPEAL NO. 1356 OF 2022, decided on 02.09.2022]


*Judgment by: Justice MR Shah


For State: Deputy Advocate General Ankita Chaudhary

Madras High Court
Case BriefsHigh Courts

   

Madras High Court: In a case related to a reference made by the Additional District and Sessions Judge under S. 366 Code of Criminal Procedure, 1973 for confirmation of the death sentence awarded to Kattai Raja and the criminal appeal filed by him challenging the conviction and sentence, the division bench of P. N Prakash and R. Hemalatha, JJ. held that this is yet another ‘run-of-the mill case' and not a case falling under the category of ‘rarest of rare cases' for awarding death penalty, thus, modified the punishment to life imprisonment without any remission benefits for 25 years and to pay a fine of Rs.10,000/-, and in default, to undergo rigorous imprisonment for a period of six months.

The Court noted that a horrifying murder was committed by Kattai raja aided by four of his accomplices by repeatedly attacking the victim's head and hands with a bill hook. Further, as per the FIR, the time of the complaint was 3.30 p.m., on 18.06.2013, however, the FIR reached the concerned Magistrate only at 12.30 a.m. on 19.06.2013

The Court by placing reliance on the ruling in Ravinder Kumar v. State of Punjab, (2001) 7 SCC 690, held that delayed FIR even by some hours would not by itself adversely affect the case of the prosecution and in some instances, it may not be treated fatal to the prosecution.

The Court, while taking note of all the evidence, viewed that a brutal nature of the assault has been inflicted on the victim and the wild and bizarre attack and the resultant injuries are heart rending. Further, there have been multiple fractures on the two thighs and the skull, and the neck opened up in the attack exposing the brain, blood vessels and other internal organs.

The Court took note of the ruling in Machhi Singh v. State of Punjab, (1983) 3 SCC 470, wherein the Court laid out specific grounds, like, the way of commission of homicide, crime deserving hatred in society, intensity of the crime and character of casualty of homicide, on the basis of which it can be determined if a case is falling under the umbrella of ‘rarest of rare case’ or not.

It further observed that “there is no straight-jacket formula for the ‘rarest of rare doctrine' and it can be divided into two sub-parts; aggravating circumstances and mitigating circumstances; in the instant case, the aggravating circumstances are evidently disturbing especially with having such a notorious track record and criminal background”.

Moreover, the court was of the view that in cases like the present one, the attempt to drag the legal proceedings to the maximum extent and intimidate people has been the standard modus operandi and it is disturbing to see that in the instant case, the trial commenced nine years after the murder and Kattai raja not only jumped the bail, but also went into hiding for a prolonged period during which also he was very active in committing heinous crime including murder. It also observed that “the ghastly murder in this case exhibited premeditation and meticulous execution and the attack was a calculated one to annihilate the victim”.

The Court, by applying the principles laid down in Bachan Singh v. State of Punjab (1980) 2 SCC 684), viewed that the victim himself had borrowed money from Kattai Raja knowing well his full credentials. Further, murders for disputes involving money, land and women are very common and even though this murder, was shocking, but does not come within the category of “rarest of rare cases” for awarding capital punishment. The Court reduced the punishment to imprisonment for life, with a condition that Kattai raja must not be entitled to any remission benefits for a period of 25 years in the light of the decision in Sahib Hussain Alias Sahib Jan v. State of Rajasthan (2013)9 SCC 778.

[State of Tamil Nadu v Kattai Raja, 2022 SCC OnLine Mad 4353, decided on 30.08.2022]


Advocates who appeared in this case :

For Appellants: Advocate V. Gopinath

For State: Public Prosecutor Hasan Mohamed Jinnah

Additional Public Prosecutor A.Thiruvadi Kumar

Advocate .S.Santhosh

Advocate.J.R.Archana

Delhi High Court
Case BriefsHigh Courts

   

Delhi High Court: In an application filed by the applicant who is a UP Police official, charged under Section 302, 120-B and 34 Penal Code, 1860 (‘IPC') seeking regular bail on the ground that the applicant was granted interim bail and never misused his liberty, Rajnish Bhatnagar J. denied bail clarifying that grant of interim bail and grant of regular bail on merits are two different aspects and simply because the petitioner was on interim bail for a certain period of time does not entitle him to grant of regular bail when the facts of the case speak otherwise. The Court also remarked “at the time of grant of interim bail to the petitioner, the merits of the case were not considered.”

The complainant, Ramesh Chand who is father of the deceased alleged that his son aged 25 years who was working as an LIC agent went to the house of Ajay Singh and his friend Sarvesh (‘bail applicant’) regarding policy on 19-07-2018 and went missing. An FIR was registered under Sections 364 and 34 Penal Code, 1860 (‘IPC'). The investigation was conducted and two were arrested, out of which the petitioner is employed in U.P. Police and his co-accused is employed in Reserve Police Forces (‘RPF'). The charges framed in the charge sheet were under Sections 302, 120-B and 34 IPC.

Thus, instant bail application was filed by the petitioner under Section 439 read with section 482 Criminal Procedure Code (‘CrPC').

Counsel for petitioner contended that the petitioner/accused who is on interim bail can be granted regular bail. The State, however, opposed the application by contending that the petitioner, despite being the member of a disciplined force, he, along with the co-accused have committed a heinous offence.

The Court, on perusing the evidence placed on record and examining the witnesses and their statements, noted that the allegations against the petitioner are grave and serious in nature and according to the prosecution, the petitioner who is employed in UP Police has killed and disposed of the body of deceased Prem Kumar aged around 25 years along with his co-accused one of whom namely Ajay Singh is also a constable in RPF.

The Court further noted that that grant of interim bail and grant of regular bail on merits are two different aspects and simply because the petitioner was on interim bail for a certain period of time does not entitle him to grant of regular bail when the facts of the case speak otherwise.

Placing reliance on Satish Jaggi v. State of Chhattisgarh, (2007) 11 SCC 195, the Court dismissed the bail application in view of the nature and gravity of the offence, its impact on society and severity of the punishment of the offence.

[Sarvesh Singh v. State NCT of Delhi, 2022 SCC OnLine Del 2651, decided on 31-08-2022]


Advocates who appeared in this case :

Mr. Gopal Jha and Mr. Umesh Kumar Yadav, Advocates, for the Petitioner;

Mr. Raghuvinder Varma, APP for the State with Inspector Rahul Raushan, Advocates, for the Respondent.


*Arunima Bose, Editorial Assistant has put this report together.

Madras High Court
Case BriefsHigh Courts

   

Madras High Court: In a case related to allegation of murder and rape of a 12th standard school-girl, G.K.Ilanthiraiyan, J. viewed that there is no evidence to attract the offence under rape and murder and on perusal of the suicidal note of the deceased, it is very clear that the deceased felt difficulties in studies. Therefore, it is a clear case of suicide by her.

The Court observed that:

“It is an unfortunate and sorry state of affairs that the teachers who teach the students are facing threat from their students and their respective parents. It is very unfortunate that the petitioners have now been arrested and under imprisonment for advising the students to study well. Even as per the suicidal note, there is no evidence to show that the petitioners instigated the deceased to commit suicide soon before her death”

In the present case the deceased studied in 12th standard at Sakthi Higher Secondary School as a day scholar. Thereafter, she was boarded in the hostel of the said school. On 13.07.2022, the parents of the victim girl received a phone call from the school and were informed that the victim jumped from the third floor of the hostel. After 30 minutes, the parents received another call and were informed that their daughter died, and her body was kept in the Government Hospital. Thereafter the parents of the deceased verified the place of death and found that there was no evidence to show that the deceased jumped from the building,thus, her parents suspected the school authorities with regards to their daughter's death and lodged a complaint.

The FIR was initially registered under S.174 of the Criminal procedure Code, 1973 and was later altered to the offence under S. 305 of the Penal Code, 1860 and S. 75 of Juvenile Justice (Care and Protection of Children) Act, 2002 and S. 4(B)(ii) of Tamil Nadu Prohibition of Harassment of Women Act, 2002 against five accused persons.

The Court observed that the parents of the deceased compelled her to continue her studies in Residential School and the statements of the classmates of deceased revealed that the deceased felt difficulties in solving equations in Chemistry, further, as per the suicide note also, the deceased felt difficulties in solving the equations in Chemistry. Moreover, she requested the correspondent and Secretary in the suicidal note to return the tuition fees as well as the book fees to her parents. Therefore, it is a clear case of suicide and there is absolutely no evidence to show that the petitioners had instigated the deceased to commit suicide as alleged by the prosecution.

Placing reliance on the autopsy reports and expert opinion, the court observed that “the other injuries found on the body of the deceased are all ante-mortem injuries and there is no iota of evidence for rape and murder of the deceased as per the postmortem reports”. It further observed that the mark found in the right breast of the deceased happened due to gravel injuries, the blood stain in the inner garments is due to the extravasation of blood in the surrounding para vertebral muscles. Further, there is no injuries found on her private parts.

The Court observed that “when the teachers are directing their students to study well and to tell the derivation or equation, it is part and parcel of the teaching, and it would not amount to abetment to commit suicide. Therefore, the offence under S. 305 of Penal Code is not at all attracted as against the petitioners”, hence, bail was granted to all the petitioners.

[Kiruthika Jayaraj v. State of Tamil Nadu, Crl.O.P.Nos.20088,20135 and 20406 of 2022, decided on 26.08.2022]


Advocates who appeared in this case :

S.Prabakaran, Advocate, for the Petitioners;

Public Prosecutor Hassan Mohammed Jinnah and Additional Public Prosecutor A.Damodaran, Advocate, for the Respondent.

laboratory report
Case BriefsSupreme Court

Supreme Court: The Division Bench of Hemant Gupta and Vikram Nath*, JJ., reversed the impugned judgments of the Punjab and Haryana High Court and the Trial Court of convicting the appellant for murder on the basis of circumstantial evidence.

Noting that there were many broken links in the chain of evidence and the prosecution could not prove the case beyond a reasonable doubt. Casting a doubt on the prosecution version, the Court remarked,

“The milk which is said to be adulterated with the poison was taken out from the refrigerator, transferred into a pan for boiling, and thereafter given to the deceased. If it actually had organophosphorus in it the smell would have filled up the room. The deceased being a healthy woman aged 45 years would not have consumed it if the pungent smell was coming from the milk. Even the informant did not sense any foul smell from the milk while boiling it.”

Factual Matrix

The prosecution case was that one Kuldeep Kaur, wife of the informant died after consuming the milk bought from the appellant, Rajbir Singh. The informant submitted that the appellant had borrowed Rs. 1 lakh from him and he and his wife were demanding that money from him. Therefore, on account of a grudge, he poisoned the milk in order to eliminate his family.

The Trial Court held that the prosecution had proved the death was caused by poisoning and that there was a motive to commit the said offence in order to save the appellant from returning the loan of Rs. 1 lakh taken from the informant. The Trial Court noted that the chemical analysis of the boiled milk consumed by the deceased, the unboiled milk, the container 18 in which the milk was kept, and the glass in which the milk was tendered, all contained organophosphorus, the poisonous substance. The second chemical report also reflected that there was the same substance organophosphorus in the parts of the organs (viscera) of the deceased sent for analysis.

Hence, the Trial Court convicted the appellant under Section 302 of Penal Code 1860 and sentenced him to undergo rigorous imprisonment for life and pay a fine of Rs.1,000. In appeal, the Punjab & Haryana High Court upheld the conviction.

Broken Chain of Evidence

The Court noted that the Trial Court proceeded on the premise that the appellant had not denied the execution of the pronote while discussing the motive which was not correct as the appellant in his statement under section 313 CrPC had specifically denied not only borrowing of the money but also that he never executed the pronote.

Further, the Trial Court did not take into consideration the time gap from the alleged time of collecting the milk from the appellant to the time it was administered and further the time the samples were collected. It also did not give any importance to the post-mortem report and the statement of Dr. Avtar Singh who had conducted the autopsy.

Considering the aforementioned, the Court culled out the following factors to rule that both the courts below committed an error in recording conviction:

  • According to the appellant, the amount was due to him from the informant and that he had been falsely implicated to deprive him of recovering the same from the informant. Hence, a case of false implication cannot be ruled out.

  • Reliance placed upon the pronote and the receipt was also not proved as neither the original pronote was produced nor any attesting witness was examined.

  • The time between the collection of milk from the appellant and the time when it was consumed by the deceased was about five hours. Similarly, the time after consumption of milk and when the Investigating Officer recovered and took into possession of the sample of milk and the utensils had a gap of about 24 hours. Hence, the chances of mixing poison during this period cannot be ruled out.

  • The use of compound organophosphorus has a homicidal purpose because of its extremely strong pungent smell which aspect had not received due attention by the Trial Court. Interestingly, this smell could not be sensed by the informant, his son, and also the deceased.

  • Further, Dr. Avtar Singh who had conducted the autopsy had clearly stated that he did not find any smell of organophosphorus coming out of the body; neither did he see any change in the colour of nails as also in the body, which would have been a common symptom in the case of poisoning. This may lead to an inference that death could have been caused by some other reason but not poisoning.

Relying on Sharad Birdhichand Sarda v. State of Maharashtra, (1984) 4 SCC 116, the Court observed that in a case of circumstantial evidence, it is also well settled that suspicion, howsoever strong it may be, cannot replace proof beyond a reasonable doubt.

Manipulation of Forensic Reports

The Court noted a grave discrepancy in the laboratory reports. The prosecution submitted that the sample was received in the laboratory on 22-09-2000, whereas as per the two reports, it was received by the Assistant Chemical Examiner, Dr. Sandeep Kakkar, on 22-11-2000 from one Dr. O.P. Goel after his suspension, not in a sealed form, but as an open case. The Court observed,

“This note ‘This opened case, received by me from Dr. O.P. Goel on 22.11.2000 after his suspension.’ is typed out in both the reports after an overwriting /cutting is made by using alphabet “X” continuously.”

The laboratory report dated 31-01-2001 mentioned that there were three sealed jars in the sealed parcel which contained parts of organs. Whereas as per the post-mortem report and the statement of Dr. Avtar Singh, four sealed packets were sent, three containing parts of organs, and one containing the saline solution. The result referred to presence of the organophosphorus compound in the three sealed jars and it also refers to no poison found in the contents of fourth jar.

Similarly, the other laboratory report dated 05-02-2001 of the Assistant Chemical Examiner, Dr. Sandeep Kakkar, with respect to milk, boiled and unboiled and the utensils also had a similar cutting, and a note attached to that it was received as an open case from Dr. O.P. Goel on 22-11-2000 after his suspension. Hence, the Court pointed out the following:

  • That samples were not handed over to the Assistant Chemical Examiner who had to conduct the analysis in a sealed form.

  • The cutting, and a fresh note regarding parcels being open also creates a doubt.

  • Chances of tampering with the samples could not be ruled out.

Conclusion

In the above backdrop, the Court concluded that the chain of evidence has many missing and weak links, and none of the essential ingredients to record conviction in a case of circumstantial evidence; especially in the poisoning case were made out. The Court remarked,

“The Investigation Officer admits of having made no effort to find out as to whether or not the appellant was in possession of the poisonous substance said to be mixed in the milk. The Courts below have proceeded on the assumption that organophosphorous is available in every household.”

Hence, holding that the prosecution had not established the charge beyond reasonable doubt so as to record conviction under Section 302 of the Penal Code, 1860, the Court extended benefit of doubt to the appellant. The appeal was allowed, the judgments of the High Court and the Trial Court were set aside, and the appellant was acquitted.

[Rajbir Singh v. State of Punjab, 2022 SCC OnLine SC 1090, decided on 24-08-2022]

*Judgment by: Justice Vikram Nath


*Kamini Sharma, Editorial Assistant has put this report together.

Orissa High Court
Case BriefsHigh Courts

   

Orissa High Court: In an appeal filed challenging the Trial court ruling, convicting the accused under Section 302 of Penal Code, 1860 (‘IPC') a Division Bench of S Muralidhar CJ., and R K Pattanaik J. upheld conviction under Section 302 IPC by examining circumstantial evidence in detail and directed cancellation of his bail bonds and surrender forthwith, as the appellant was enlarged on bail during the pendency of the proceedings.

The present Appellant alongwith Bidyadhar Pradhan, were charged with the offence under Section 109 read with Section 302 IPC on the grounds of abetting the murder of Bhagabati Pradhan. After analyzing the evidence, the Trial Court convicted the present Appellant while acquitting the co-accused. Assailing this order, the present appeal was filed.

The Court noted that this is a case of circumstantial evidence. Placing reliance on Sharad Birdhichand Sarda v. State of Maharashtra, (1984) 4 SCC 116 Krishnan v. State, (2008) 15 SCC 430 and G. Parshwanath v. State of Karnataka, (2010) 8 SCC 593, the Court reiterated the conditions to be fulfilled before conviction could be based on circumstantial evidence.

The first circumstance is regarding the quarrel that took place the previous night between the Appellant, the co-accused, on one hand and the deceased and her family on the other. The Court thus noted that no doubt the witnesses are related to the deceased but such relation, by itself, would not result in their testimonies being discarded if they are otherwise truthful and consistent with each other.

It was further noted that based on the evidence of witnesses, it not only supplies the motive for the offence, but also proves the fact that immediately prior to the occurrence on that very evening, the accused had threatened to finish off the deceased. As regards the recovery of evidence, the Court was of the view that it has been more than adequately proved by the IO himself by producing the relevant record. Even, the opinion of the doctor is more than sufficient for the Court to conclude that the death was homicidal in nature.

The Court remarked “the fact that the weapon of offence did not have bloodstains will not matter if all other circumstances form a continuous chain and clearly point to the guilt of the Appellant and no one else.”

The Court held that the evidence is not only consistent with the guilt of the appellant but is also inconsistent with his innocence. Thus, no error can be found in the impugned judgment of the trial Court holding the appellant guilty of the offence punishable under Section 302 IPC.

[Tapan Kumar Pradhan v. State of Orissa, 2022 SCC OnLine Ori 2447, decided on 11-08-2022]


Advocates who appeared in this case :

Mr. Basudev Pujari, Advocate, for the Appellant;

Mr. Pravat Kumar Muduli, Additional Government Advocate, Advocate, for the Respondent.


*Arunima Bose, Editorial Assistant has put this report together.

Calcutta High Court
Case BriefsHigh Courts

Calcutta High Court: Sugato Majumdar, J. allowed a criminal appeal which was assailed against the judgment and order of Additional Sessions Judge whereby the Appellants were convicted of offence under Section 304 of the IPC.

The de-facto complainant who was the mother of the deceased. The deceased was a private tutor of the son of Appellant 2 and 3 and appellant 2 was his close friend. A love-affair developed between Appellant 3 and the deceased. It was alleged that all the Appellants black-mailed the deceased and extorted lump-sum amount from him. On 12-01-2004, the deceased left his residence at 10:30 A.M. for the residence of the Appellants and later that afternoon appellant 1 told complainant that the deceased had consumed poison. On hearing this the de-facto complainant rushed to the doctor’s chamber where he was found lying on a bench. After few hours, victim expired and Hospital report showed that cause of death was poisoning. A complaint was registered.

On conclusion of the investigation, charge sheet was filed under Section 304/34 of the IPC. The Trial Court convicted the accused persons under Section 304/34 of the IPC and sentenced them to suffer rigorous imprisonments of seven years and fine of Rs. 2000/- in default rigorous imprisonment for another six months. Thus, the instant appeal.

During pendency of the appeal, the Appellant 1 expired. So, the appeal abated against him. The Counsel appearing for the appellants submitted that the instant case was a glaring example of aberration of justice. It was contended that the charge was framed for culpable homicide not amounting to murder alleging that the Appellants applied force upon the victim to consume unknown poison. In contrast, the impugned Judgment was delivered convicting the Appellants on the ground that the Appellants caused head and other injuries to the person of the deceased resulting in his death. The Appellants were never informed of or given opportunity to set up defense in respect of the different set of facts allegedly constituting the crime, for which the Appellants were convicted. Neither any question was put, nor any hints was given to the Appellants, in course of their examination under section 313 of the Criminal Procedure Code, 1973 about the different set of facts and circumstances to be considered against them. It was also stressed upon the fact that there is no evidence to the effect that the deceased ever visited the residence of the Appellants. He also contended that the post-mortem report was of some other person.

The Court noted that the Trial Judge based his findings on circumstantial evidence. The court further noted that the Postmortem Report concluded that cause of death was head injury caused by hard blunt instrument. This contradicts the medical papers associated with treatment of the deceased. Postmortem examination might have been conducted on a different dead body other than that of deceased in question. The Court was of the opinion that the Postmortem Examination Report cannot be relied upon for coming to any conclusion on cause of death of the deceased.

Once the postmortem examination report is disregarded, the very basis of conviction becomes nugatory. There remains no basis of the finding that the Appellants assaulted and caused injury to the deceased resulting in his death.

The Court also noted the aspect that except with the Appellant 2, the deceased was not seen with the other Appellants by any of the witnesses. There is no evidence to connect the deceased with the Appellant 1 and the Appellant 3 on the fateful day inviting inference that those Appellants were instrumented to cause his death in whatever manner that may be. The Court also agreed with the view of the Counsel of the appellant that the charges were framed referring to one set of facts which were read over and explained to the Appellants. The Appellants were convicted with reference to another set of facts, as noted above. The Judgment, delivered on the basis of a different set of facts of which the Appellants had hitherto been unaware of, undermines the principle of natural justice.

It is not understandable why the Trial Court, in oblivious of ocular testimonies as well as documentary and other oral evidence solely relied upon the Postmortem Report and developed a story as if to sanctify a wrong report. Inspite of absence of any evidence the Trial Court concluded that the Appellants assaulted and injured the deceased causing his death.

The appeal was allowed, and the impugned order was set aside finding that the impugned order by the Trial Court was based on surmise and conjecture, was opposed to any reason, rationality, principles of evidence and natural justice. The impugned judgment is anathema to all rationality and reasoning. Such perverse findings should be seriously looked into.

Appellant 2 and the Appellant 3 were set at liberty, and they were also released from their bail bonds.

[Anil Das v. State of West Bengal, 2022 SCC OnLine Cal 2347, decided on 18-08-2022]


Advocates who appeared in this case :

Subir Ganguly, Sumanta Ganguly, Advocates, for the Appellants;

Faria Hossain, Anand Keshri, Mamta Jana, Advocates, for the State.


*Suchita Shukla, Editorial Assistant has reported this brief.

Case BriefsSupreme Court

Supreme Court: While determining the powers of the Courts under Section 311 CrPC, the Division Bench of Dhananjaya Y Chandrachud* and AS Bopanna, JJ., held that the Court is vested with broad and wholesome power to summon and examine or recall and re-examine any material witness at any stage and the closing of prosecution evidence is not an absolute bar. 

Background 

The instant appeal was filed by the appellant—the spouse of an advocate who was brutally murdered outside his office on 18-11-2015—to assail the impugned orders of the M.P. High Court rejecting an application under Section 311 CrPC seeking to summon the nodal officers of certain cellular entities along with the decoding register to trace the mobile location of the accused persons.  

An FIR was filed regarding the incident dated 18-11-2015 for an offence punishable under Section 302 read with Section 34 of the Penal Code 1860. The investigation was initiated. The post mortem report indicated that the homicide was caused due to a firearm injury and following persons were arrested during the course of the investigation: Vikas, Sawan, Mangilal, Suresh and Raju.  

Among the enclosures to the supplementary charge-sheet were certificates of the nodal officers of certain cellular companies, namely Airtel, Reliance, Idea, and Vodafone. Upon the commencement of the recording of evidence at the trial, the nodal officers were examined.  

The Impugned Order 

The genesis of the issue was that an application was filed by the prosecution under Section 311 CrPC to summon the nodal officer of Idea and under Section 91 to produce the call data records of two mobile numbers. A similar application was filed under Section 311 seeking to call for the production of the decoding register.  

The aforesaid applications were dismissed by the Trial Court on the ground that the document which the prosecution desired to summon did not form a part of the investigation; and that the document had not been obtained during the course of the investigation. In appeal, the High Court, while affirming the order of the Trial Court held:   

  • The decoding registers are not part of the case diary or the charge-sheet;  
  • The prosecution has closed its evidence; and  
  • The application has been filed at a belated stage without collecting all the relevant information (for instance, whether the decoding register is available with the service provider or not). 

Analysis and Findings  

Rejecting the contention of the defendant that it was not open for the appellant, wife of the deceased to pursue the proceedings owing to the bar in Section 301 of the CrPC, the Court observed that in the case at hand, the application for the summoning of witness and for production of the decoding register was submitted by the State. Hence, the bar contained in Section 301 does not stand in the way.  

Power of Court under Section 311 CrPC 

Examining the Statutory interpretation of Section 311, the Court observed the following: 

  • The power can be exercised at any stage of any inquiry, trial, or proceeding; 
  • The power of the court is not constrained by the closure of evidence. The broad powers under Section 311 are to be governed by the requirement of justice;  
  • The power must be exercised wherever the court finds that any evidence is essential for the just decision of the case. 

The Court expressed, 

“Essentiality of the evidence of the person who is to be examined coupled with the need for the just decision of the case constitutes the touchstone which must guide the decision of the Court. The first part of the statutory provision is discretionary while the latter part is obligatory.” 

Considering the above, the Court observed the following reasons to allow the application of the appellant:  

  • The decoding registers are sought to be produced through the representatives of the cellular companies in whose custody or possession they are found.  
  • The decoding registers are a relevant piece of evidence to establish the co-relationship between the location of the accused and the cell phone tower.  
  • The reasons which weighed with the High Court and the Trial Court in dismissing the application are extraneous to the power which is conferred under Section 91 on the one hand and Section 311 on the other.  
  • The summons to produce a document or other thing under Section 91 can be issued where the Court finds that the production of the document or thing ―is necessary or desirable for the purpose of any investigation, trial or other proceedings under CrPC.  
  • The effort of the prosecution to produce the decoding register which is a crucial and vital piece of evidence ought not to have been obstructed. 
  • The summoning of the witness for the purpose of producing the decoding register was essential for the just decision of the case.  

Regarding the objection that the application should not be allowed as it will lead to filling in the lacunae of the prosecution‘s case, the Court opined that the said reason cannot be an absolute bar to allowing an application under Section 311. Relying on Zahira Habibullah Sheikh (5) v. State of Gujarat, (2006) 3 SCC 374, and Godrej Pacific Tech. Ltd. v. Computer Joint India Ltd., (2008) 11 SCC 108, the Court observed that the resultant filling of loopholes on account of allowing an application under Section 311 is merely a subsidiary factor and the Court‘s determination of the application should only be based on the test of the essentiality of the evidence. 

Hence, the Court held that the decoding registers merely being additional documents required to appreciate the existing evidence in form of the call details which are already on record—but use codes to signify the location of accused, a crucial detail—the production of the decoding registers fit into the requirement of being relevant material which was not brought on record due to inadvertence and production of the registers would not prejudice the accused persons’ right to fair trial. 

Whether the Application was filed after the Closure of Evidence? 

Rejecting the contention that the application was filed after the closure of the evidence of the prosecution as manifestly erroneous, the Court observed that the closure of the evidence of the prosecution took place after the application for the production of the decoding register and for summoning of the witness under Section 311 was dismissed. The Court noted that though the dismissal of the application and the closure of the prosecution evidence both took place the same date, the application by the prosecution had been filed nearly eight months earlier.  

Further, the Court held that the Court is vested with a broad and wholesome power, in terms of Section 311 of the CrPC, to summon and examine or recall and re-examine any material witness at any stage and the closing of prosecution evidence is not an absolute bar. 

Conclusion 

In the backdrop of above, the impugned decision of the High Court, as well as that of the Trial Court, were set aside. The application filed by the prosecution for the production of the decoding registers and for the summoning of the witnesses of the cellular companies for that purpose was allowed. 

[Varsha Garg v. State of M.P., 2022 SCC OnLine SC 986, decided on 08-08-2022]  


*Judgment by: Justice Dhananjaya Y Chandrachud 


Appearance:  

For the Appellant: Ramakrishnan Viraraghavan, Senior Counsel 

For the State of M.P.: Shreeyash U Lalit, Counsel 

For Respondents 2nd, 3rd, 6th: SK Gangele, Senior Counsel  

For Respondents 4th and 5th: Bansuri Swaraj, Counsel  


Kamini Sharma, Editorial Assistant has put this report together. 

Allahabad High Court
Case BriefsHigh Courts

Allahabad High Court: Krishan Pahal, J. dismissed the bail application of Sidhique Kappan, the journalist who was arrested along with three others in October 2020 while on his way to Hathras, Uttar Pradesh allegedly to report on the gang-rape and murder of a 19-year-old Dalit girl noting that he had no work being in Hathras and that there were reasonable grounds to believe that the accusations against such person are prima facie true.

The FIR alleged that the applicant and other co-accused persons were heading to Hathras where the ill-fated incident had been committed with an intention to create caste struggle and to incite riots. The said persons were said to have been collecting funds and running a website ‘Carrd.com’. There was another website operated by the laptop which had the heading ‘Justice For Hathras’. It was also found that the incident of mob lynching, exodus of labourers and the Kashmir issues were also highlighted through the same website. The website also imparts training pertaining to concealing one’s identity during demonstrations and to ways to incite violence. The matter was registered under Sections 153-A, 295-A, 120-B Penal Code, 1860, Sections 17, 18 of Unlawful Activities (Prevention) Act, 1967 and Sections 65 and 72 of Information Technology Act, 2000.

Senior Counsel for the applicant contended that no pamphlets or printing papers were being carried out by the applicant or other co-accused persons in the car and that the applicant was unaware of any website with the name of ‘Carrd.com’ and ‘Justice For Hathras’. It was submitted that the applicant was going to Hathras to discharge his duty as a professional journalist and was illegally detained by Police in violation of his fundamental rights. It was further submitted that the applicant is an honest journalist and does not post any biased reports on the basis of his political leanings. The applicant has written several journalistic reports on the plights of dalits and minorities, but none of them promotes any sort of rivalry between the communities.

State has vehemently opposed the bail application on the ground that the applicant is a resident of Kerala and has nothing to do with the incident of Hathras and had deliberately with malafide intent come with the co-accused persons and was arrested at Mathura. It was further stated that the co-accused persons had collected funds from foreign national mediums which was utilized by co-accused persons for illegal activities. The applicant was in regular touch with co-accused persons and there were call detail records (CDRs) to corroborate the same. It was submitted that during the search of the house of the applicant at New Delhi 47 papers in Malyalam language were recovered pertaining to Students’ Islamic Movement of India (SIMI). Two AK-47 guns were also shown in the said documents, which also contained the popular slogan of SIMI ‘Welcome Mohammad Gajni’.

The Court noted that after the investigation it came up that the applicant had no work in Hathras. The Court believed that the State machinery was at tenterhooks owing to the tension prevailing due to various types of information being viral across all forums of media including the internet and the sojourn of the applicant with co-accused persons who did not belong to media fraternity was a crucial circumstance going against him.

The Court nullified the defence made by the applicant of him being a journalist and visiting Hathras for work by the claims made by the prosecution in the charge sheet and stated that tainted money being used by the applicant and his colleagues cannot be ruled out.

The Court considered the case of NIA v. Zahoor Ahmad Shah Watali, (2019) 5 SCC 1 where the Supreme Court while overturning the High Court’s order of granting bail to the accused, had stated that Section 43(D)(5) prohibits a Court from granting bail to accused if on a perusal of a final report filed under Section 173 Cr.P.C., the Court is of the opinion that there are reasonable grounds to believe that the accusations against such person are prima facie true.

The bail application was dismissed considering the facts and circumstances of the case, nature of offence, evidence on record, complicity of accused, severity of punishment and the settled law propounded by the Supreme Court in the case of NIA v. Zahoor Ahmad Shah Watali, (2019) 5 SCC 1.

[Sidhique Kappan v. State of U.P., 2022 SCC OnLine All 511, decided on 02-08-2022]


Advocates who appeared in this case :

Mr I.B. Singh, Mr Ishan Baghel, Mr Avinash Singh Vishen, Advocates, Counsel for the Applicant;

Mr Vinod Kumar Shahi, Mr Shivnath Tilahari, Advocates, Counsel for the Opposite Party.


*Suchita Shukla, Editorial Assistant has reported this brief.

Case BriefsSupreme Court

Supreme Court: In an interesting case, where a man was convicted for murder of his younger brother, the bench of Sanjiv Khanna* and Bela M. Trivedi, JJ has converted the conviction from Section 302 to Part I of Section 304 of the IPC after holding that to discharge the burden the accused may rely upon the case of the prosecution and the evidence adduced by the prosecution in the court.

In the case at hand, the appellant was convicted for killing his younger brother. He had then himself went to the police station and confessed the crime, albeit, the confession is inadmissible as proof of confession is prohibited under Section 25 of the Evidence Act, 1872. The weapon i.e. the pick-axe and the blood stained shirt of the appellant were recovered based on the appellant’s disclosure.

According to the testimonies of various family members and the neighbours, the deceased was an alcoholic who barely interacted with the family, and used to torment, abuse and threaten the appellant. This fact was relied upon by the prosecution to establish the motive. On the night of the occurrence, the deceased had consumed alcohol and had told the appellant to leave the house and if not, he would kill the appellant. The appellant had also tried to commit suicide.

In is in the light of these facts, that the Supreme Court explained that,

“The prosecution must prove the guilt of the accused, that is, it must establish all ingredients of the offence with which the accused is charged, but this burden should not be mixed with the burden on the accused of proving that the case falls within an exception. However, to discharge this burden the accused may rely upon the case of the prosecution and the evidence adduced by the prosecution in the court.”

Hence, applying the prosecution version in the appellant’s defence, it was noticed that there was sudden loss of self-control on account of a ‘slow burn’ reaction followed by the final and immediate provocation. There was temporary loss of self-control as the appellant had tried to kill himself by holding live electrical wires. Therefore, it was held that the acts of provocation on the basis of which the appellant caused the death of his brother, were both sudden and grave and that there was loss of self-control.

Applying the provocation exception, the Court converted the conviction of the appellant from Section 302 to Part I of Section 304 of the IPC. Further, considering that the appellant has already suffered incarceration for over 10 years, as he has been in custody since 27th September, 2011, the Court modified the sentence of imprisonment to the period already undergone. In addition, the appellant would have to pay a fine of Rs. 1,000/- and in default, will undergo simple imprisonment for a period of six months. On payment of fine or default imprisonment, the appellant will be released forthwith, if not required to be detained for any other case

[Dauvaram Nirmalkar v. State of Chhattissgarh, 2022 SCC OnLine SC 955, decided on 02.08.2022]


*Judgment by: Justice Sanjiv Khanna

Tripura High Court
Case BriefsHigh Courts

   

Tripura High Court: The Division Bench of Amarnath Goud and Arindam Lodh, JJ. allowed an appeal which was filed against the judgment of Sessions Judge convicting the appellant under Section 302 of the Penal Code, 1860 (IPC).

Marriage ceremony was solemnized in between the deceased Sima and the accused s. The complainant, father of the deceased alleged that since for the last ten years after marriage, the petitioner's daughter (wife of accused) was subjected to cruelty both physically and mentally. On 07-04-2017, the complainant came to know from his son that his daughter was no more alive. Accordingly, the complainant along with others visited the rented house of his deceased daughter and found his daughter in hanging condition with some blood stain on her face and nose. He alleged that the accused murdered his daughter and after murder, he hung her body and committed this heinous offence due to the abatement of his brother. On receipt of the said complaint, FIR under section 498-A, 302, 109 of IPC was registered.

The Trial Court had found that though the prosecution was able to prove their case against accused but the evidence on record was not sufficient to come to a conclusion that accused was instigated by the brother and thereby, committed any offence as charged against him. Thus, the instant appeal.

Senior counsel appearing for the appellant emphasized that it is a case of suicide but it is not the case of homicide. Addl. P.P. appearing for the state stated that the medical evidence is not a conclusive proof in the present case but it has been corroborated by the statement of the land lady and the minor daughter that the accused was present in the hut. He has further submitted that the corroboration, the last seen together, the special knowledge is the case of the prosecution.

The Court noted that PW-21 who had conducted the postmortem examination was inexperienced and had no special knowledge in forensic segments and even the medical evidence had not been categorically confirmed with regard to the death of the deceased. The Court thus observed that mere presence of the accused persons and the last seen of offence along with the child in the hut with the deceased woman (wife) in a hanging position cannot draw an inference and the circumstantial evidence cannot be connected that the husband had killed the wife.

The Court allowed the appeal holding that the prosecution failed to prove his case beyond reasonable doubt against the accused person.

[Akhil Das v. State of Tripura, CRL.A.(J)57 of 2020, decided on 20-07-2022]


Advocates who appeared in this case :

Mr P.K. Biswas, Advocate, for the Appellant(s);

Mr P. Majumder, Mr S. Ghosh, Addl. P.P., Mr J. Majumder, Advocate, for the Respondent(s).


*Suchita Shukla, Editorial Assistant has reported this brief.

Madhya Pradesh High Court
Case BriefsHigh Courts

Madhya Pradesh High Court: The Division Bench of Rohit Arya and Milind Ramesh Phadke, JJ. took strong exception to the functioning of the Police force in the State while lambasting the authorities for blatant callousness and failure in tracing an 11-year-old missing minor girl.

The writ petition was filed by an unfortunate father in the year 2017 with the pious hope that this Court in exercise of its extraordinary constitutional jurisdiction shall come to his rescue for tracing her missing minor girl aged about 11 years.

Counsel for the petitioner complained that at some point of time, though there was a breakthrough situation during investigation with the incriminating material found, still the investigation was put to a standstill. It further appeared that despite three SITs constituted to search for the missing corpus, the corpus so far has not been found out. It shows incompetence of such police officials, who were members of the SITs. There was a disclosure of the fact by a person of having raped, killed and buried the body of the missing corpus, but so far no action has been taken against him. The photographs of the minor girl on record reflect how ruthlessly she was beaten black and blue, smashed her face and the whole body looked totally mutilated.

The Court pointed that despite repeated orders callousness on the part of the police force is well evident. The Court while lambasting police officials stated that the height of absurdity on the part of the Police officials is writ large, as despite the said knowledge of demise of the corpus, subsequent reports are being submitted that the missing corpus is being searched.

Affidavit submitted by the DGP was called merely a lip service as no substantial steps have been taken for action against such assailant, who was alleged to have stated about the rape and murder of the deceased missing corpus.

The Court was further surprised to note that so far, no FIR has been lodged to start the investigation on aforesaid disclosure of the fact of the death of the deceased corpus.

We are constrained to observe so, despite repeated orders by this Court, DG Police Madhya Pradesh since the year 2020 has maintained blissful silence for the reasons best known to him. We take strong exception to the functioning of the Police force in the State particularly, in the Guna district relevant to the facts of this case.

The Court observed that Safety and protection of public at large against invasion on their personal liberty and property appears to be seriously jeopardized quoting “There is no one to Police the Police Man in this State”.

The Court called for the presence of the Inspector General of Police on 08-07-2022 for further hearing.

[Ganjendra Singh Chandel v. State of Madhya Pradesh, 2022 SCC OnLine MP 1599, decided on 05-07-2022]


Advocates who appeared in this case :

Shri Anil Kumar Shrivastava, Advocate, for the Petitioner;

Shri M.P.S. Raghuvanshi, Additional Advocate General, for the respondent-State.


*Suchita Shukla, Editorial Assistant has reported this brief.

 

Bombay High Court
Case BriefsHigh Courts

Bombay High Court: A.S. Chandurkar and Urmila Joshi-Phalke, JJ. allowed a writ petition which was filed by a minor victim of sexual abuse requesting to terminate her pregnancy.

The petitioner contended that she is in custody of Observation Home, Amravati as she had committed offence under Section 302 of the Penal Code, 1860. A crime was also registered as petitioner was not traceable on the basis of report lodged by her mother under Section 363 of the IPC. During the investigation it was revealed to the Investigating Officer that petitioner is pregnant and, therefore, offence was registered under Section 376 read with Section 4 of the Protection of Children from Sexual Offences Act, 2012. She is also victim of sexual assault and, therefore, another crime was registered on the basis of report lodged by her mother.

It was further contended that she is from economically weak section and, therefore, she is unable to up-bring the child. Due to said incident she had suffered and is suffering because of sexual abuse. She has undergone the agony and she will go through the same in future also. She sought permission from the Court to direct respondent 2 to terminate her pregnancy which is of 12 weeks.

The Court noted that in the present case the petitioner is unmarried and she is not only a victim of sexual abuse but also lodged in a Observation Home. The Court opined that she has already undergone the trauma due to the sexual assault on her and she is also suffering mentally as she is also charged for the offence punishable under Section 302 of the IPC. The Court agreed that she cannot be forced to give birth to a child. The Supreme Court has also observed several times that it is the right of woman to have reproductive choice. She has a choice to give birth to the child or not.

The Medical Board also opined that the pregnancy could be terminated if petitioner is a minor girl. She is subjected for sexual assault. It is difficult for her to carry said pregnancy under above circumstances.

The Court was of the view that declining such permission to the petitioner would be tantamount to compelling her to continue with her pregnancy which in the circumstances will not only be a burden on her, but it would also cause grave injury to her mental health. The petition was allowed with several directions.

[A v. State of Maharashtra, 2022 SCC OnLine Bom 1361, decided on 27-06-2022]

Advocates who appeared in this case :

Ms S.H. Bhatia, Advocate, for the Petitioner;

Ms N.P. Mehta, Asstt. Government Pleader, for the Respondent/State.

*Suchita Shukla, Editorial Assistant has reported this brief.

Case BriefsSupreme Court

Supreme Court: The 3-judge bench of AM Khanwilkar, Dinesh Maheshwari* and CT Ravikumar, JJ has refused to commute the death sentence to life imprisonment of a man convicted for brutal rape and murder of a 7-year-old physically and mentally challenged girl. The Court noticed that it is unlikely that the appellant, if given an absolution, would not be capable of and would not be inclined to commit such a crime again.

The facts of the case are such that the Supreme Court was left with no choice but to confirm his death sentence, even though in several cases, the Courts have refrained from awarding or approving death sentence even in the cases of gruesome killings, essentially on the premise that even a semblance of probability of reformation of the convict ought to be given a chance, rather than awarding capital punishment, which is of irretrievable nature.

The Crime(s)

The appellant kidnapped the victim girl, who was only 7½ years of age, who was even otherwise a mentally and physically challenged child, with betrayal of trust when the victim girl got lured with confectionary items given by him. He then brutally raped the victim girl and eventually mercilessly killed the girl by causing horrid injuries on her head. All these crimes were committed by using a stolen motorcycle.

The appellant, who was about 28 years of age and was having the family of wife, a daughter who was also about 8 years of age and aged parents, was continuously involved in criminal activities even prior to this crime ranging from Section 3 of Prevention of Damage to Public Property Act, 1984, Section 379 IPC and even 307 IPC.

It is important to note that the appellant’s criminal acts did not stop even after his conviction for this beastly crime. Even while in jail, the appellant’s conduct has not been free from blemish where, apart from quarrelling with other inmate and earning 7 days’ punishment, the appellant had been accused and convicted of the offence of yet another murder, this time of a co-inmate, a Pakistani National, while joining hands with three other inmates.

Aggravation/Mitigating Circumstances

The appellant has a family with wife and minor daughter and aged father and the crime was committed when he was only 28 years of age. However, these mitigating factors are pitted against following factors pertaining to the appellant himself.

  1. Contiuously involved in criminal activities prior to commission of the crime in question.
  2. The crime itself was carried out with the aid of a stolen motorcycle.
  3. Postconviction he not only earned 7 days’ punishment in jail for quarrelling with a co-inmate but he has been convicted of the offence of murder of another jail inmate.

When an attempt was made before the Court to suggest on behalf of the appellant that his overall conduct in prison is without any blemish except the allegation of his involvement in a case of murder, it observed,

“We could only wonder what more of criminal activity would qualify as blemish, if not the involvement and conviction in a case of murder of a fellow jail inmate! This is apart from the other 7 days’ punishment earned by the appellant for quarrelling with another jail inmate.”

Hence, the Court observed that read as a whole, the fact-sheet concerning the appellant leads only the logical deduction that there is no possibility that he would not relapse again in this crime if given any indulgence.

The Court confirmed the conviction of the appellant of offences under Sections 363, 365, 376(2)(f), 302 of the Penal Code, 1860 and Section 6 of the Protection of Children from Sexual Offences Act, 2012; and the sentences awarded to the appellant, including the death sentence for the offence under Section 302 of the Penal Code, 1860.

[Manoj Pratap Singh v. State of Rajasthan, 2022 SCC OnLine SC 768, decided on 24.06.2022]


*Judgment by: Justice Dinesh Maheshwari

Counsels

For appellant: Senior Advocate A. Sirajudeen

For State: Dr. Manish Singhvi

Allahabad High Court
Case BriefsHigh Courts

Allahabad High Court: While dismissing the bail application in case registered under Section 302, 120-B Penal Code, 1860, Sameer Jain, J. held that parity cannot become the sole criteria to grant bail.

Applicant is the cousin brother of the deceased. FIR was lodged against the applicant and his parents with the allegation that applicant along with his parents ablazed the sister of informant by pouring kerosene oil and during the course of treatment she succumbed to her injuries. The dying declaration of the deceased was recorded by the Additional City Magistrate-III on the date of incident in the hospital in which she stated that applicant, his parents and brother of applicant dragged her in their home and after pouring kerosine oil ablazed her.

Counsel for the applicant submitted that entire allegation made in the FIR and in the dying declaration of the deceased was totally false and baseless and initially, during investigation, the accusation made against the applicant and his parents were found false. He vehemently submitted that co-accused have already been enlarged on bail by the co-ordinate Bench of this Court and as per dying declaration the allegation against the applicant is also at par with those accused persons, who have been enlarged on bail, therefore, on the ground of parity applicant should also be released on bail.

AGA submitted that there is specific allegation against the applicant in the dying declaration of the deceased recorded by the Additional City Magistrate-III and while granting bail to co-accused the dying declaration of the deceased could not be discussed, therefore, on the ground of parity applicant should not be released on bail.

The Court noted that the informant was not the eye-witness but Additional City Magistrate- III recorded the dying declaration of the deceased and from its perusal there is specific allegation against the applicant and co-accused. The Court from the perusal of the bail orders of other co-accused found that they were given bail without assigning any reasons. They were released on bail merely on the basis of argument advanced by counsel for the co-accused persons.

The Court reiterated the recent Supreme Court case of Birjmani Devi v. Pappu Kumar, (2022) 4 SCC 497 where the Court deprecated the practice to allow bail application without assigning any reason observing,

“38. Thus, while elaborating reasons may not be assigned for grant of bail, at the same time an order de hors reasoning or bereft of the relevant reasons cannot result in grant of bail. It would be only a non speaking order which is an instance of violation of principles of natural justice. In such a case the prosecution or the informant has a right to assail the order before a higher forum.”

The Court dismissed the bail application stating that parity cannot become the sole criteria to grant bail and if the bail granted to similarly placed co-accused persons without assigning any reasons then on the basis of such bail orders merely on the ground of parity, the bail application should not be allowed and parity can only be persuasive in nature and cannot be binding.

[Manish v. State of U.P., 2022 SCC OnLine All 429, decided on 22-06-2022]


Advocates who appeared in this case :

Mr Kapil Tyagi, Advocate, for the Applicant;

Mr Arvind Kumar, Advocate, for the Opposite Party.


*Suchita Shukla, Editorial Assistant has reported this brief.

Case BriefsSupreme Court

Supreme Court: Explaining the law on “last seen together”, the bench of Dr. DY Chandrachud and Bela M. Trivedi*, JJ has held that in order to convict an accused under Section 302 IPC the first and foremost aspect to be proved by prosecution is the factum of homicidal death. If the evidence of prosecution falls short of proof of homicidal death of the deceased, and if the possibility of suicidal death could not be ruled out, the accused cannot be convicted merely on the basis of the theory of “Last seen together”.

The suspicion howsoever strong cannot take place of proof.”

The Court was deciding the case where a young couple belonging to different castes were found hanging from a tree after having gone missing for days. The love affair of Brinda and Kanhaiya did not sit well with Brinda’s father and uncle. While Brinda and Kanhaiya went missing on 02.12.1994, no missing report was lodged. Their decomposed bodies were found hanging from a cashew tree in a cashew nursery on 11.12.1994. It was alleged that Brinda’s uncle had killed both of them and had kept the bodies in the house upto 04.12.1994, after which he had taken the bodies to the cashew nursery and had hung them on a cashew tree to give it the shape of them having committed suicide.

A witness had allegedly last seen Kanhaiya with the accused 10 days prior to the date on which the bodies were found. The witness had stated that the accused had called Kanhaiya and took him to his house where he, along with four co-accused, allegedly in furtherance of common intention pressed his neck and committed his murder. Thereafter, the two co-accused committed the murder of Brinda. One of the co-accused Videshi had also made an extra-judicial confession pointing towards the guilt of the accused.

It was argued by the counsel of the accused that the testimony of the witness who had allegedly last seen Kanhaiya, having been called by the accused, was recorded after 4 months of the incident. Even as per the case of the prosecution, the said incident of calling Kanhaiya by the appellant was 10 days prior to the date on which the dead bodies were found in the Cashew Nursery, and there being long time gap between the day the deceased was allegedly last seen with the appellant and the day when his dead body was found, it was very risky to convict the accused solely on such evidence. He further submitted that the doctor who had performed the postmortem had also opined that the cause of death was asphyxia as a result of hanging and the nature was suicidal. Thus, in absence of any clear or cogent evidence against the appellant, both the courts had committed gross error in convicting the appellant.

The Court took note of the following rulings on the ‘last seen together’ theory:

Bodhraj v. State of Jammu and Kashmir, (2002) 8 SCC 45: The last-seen theory comes into play where 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 possibility of any person other than the accused being the author of the crime becomes impossible.

Arjun Marik v. State of Bihar, 1994 Supp (2) SCC 372: The only circumstance of last seen will not complete the chain of circumstances to record the finding that it is consistent only with the hypothesis of the guilt of the accused, and therefore no conviction on that basis alone can be founded.

Hence, having regard to the totality of evidence on record, the Court held that the High Court had committed gross error in convicting the accused for the alleged charge of 302 read with 34 of IPC, relying upon a very weak kind of evidence of extra judicial confession allegedly made by the co-accused Videshi, and the theory of “Last seen together” propounded by the prime witness.

The Court observed that no evidence worth the name as to how and by whom the deceased Brinda was allegedly murdered was produced by the prosecution. Under the circumstances, it was held that the prosecution had miserably failed to bring home the charges levelled against the accused beyond reasonable doubt. The Court, hence, acquitted the accused of all the charges levelled against him.

[Chandrapal v. State of Chhattisgarh, 2022 SCC OnLine SC 705, decided on 27.05.2022]


*Judgment by: Justice Bela M. Trivedi


Counsels

For appellant-accused: AOR Akshat Shrivastava, Adv Pooja Shrivastava,

For Respondent(s): Dy AG Sourav Roy, Advocates Mahesh Kumar, Kaushal Sharma, Devika Khanna, V D Khanna, VMZ Chambers

Bombay High Court
Case BriefsHigh Courts

Bombay High Court: The Division Bench of Sadhana S. Jadhav and Milind N. Jadhav, JJ., allowed an appeal which was filed against the conviction of the appellant for the offence punishable under section 302 of Penal code, 1860 wherein he was sentenced to suffer R.I. for life and fine of Rs.5,000.

On 18-10-2010, a report was lodged by Laxman Daji Bhoye (witness 1)  alleging therein that one person from Sawarpada informed him that on 17-10-2010 Suresh Bhagat had killed his wife. He went to the spot to verify the same and saw Suresh Bhagat (‘the present appellant’) seated besides the dead body of his wife who was lying in a pool of blood. On enquiry he disclosed that when he returned home from the house of his relatives after watching television, he knocked on the door but there was no response so he entered the house through the window. He noticed that his wife was in deep sleep. He assaulted on her head and back and thereafter, paid no attention to her. In the morning, at about 6.00 am, he realized that his wife has passed away. According to the prosecution, there is an extra-judicial confession by the accused. The prosecution had examined five witnesses to bring home the guilt of the accused amongst which witnesses 1, 2 and 3 were declared hostile.

The question before the Court was as to what is the evidence as against the accused which would lead to a necessary inference that the accused is the author of the injuries sustained by the deceased.

An accused can be convicted only in the eventuality that the investigation places on record such material which could be converted into admissible evidence and can be read in evidence.

The Court believed that in the present case, in view of the nature of the evidence adduced by the prosecution, it would be difficult to act upon the supposition that the fact of homicidal death at the hands of the accused is proved.

Counsel for the appellant submitted that this was a case of no evidence in the eyes of law and hence, the accused deserved to be acquitted of the charge levelled against him.

APP submitted that it was incumbent upon the accused to offer an explanation as contemplated under section 106 of the Indian Evidence Act and the very fact that the dead body was found in the house of the accused and he had not put forth any plausible explanation was sufficient to convict the accused for an offence punishable under section 302 of IPC. It was further submitted that there was an extra-judicial confession before Witness 1 which goes to the root of the matter and pointed towards the culpability of the accused.

The Court explained that it is a settled principle of criminal jurisprudence that an accused has a right to maintain silence and it is for the prosecution to prove its case beyond reasonable doubt. As far as extra-judicial confession was concerned, the Court reiterated that the same was not reliable for the simple reason that the person to whom the purported extra-judicial confession was made had resiled from his earlier statement and had been declared hostile by the prosecution.

Placing reliance on State of Rajasthan v. Raja Ram, (2003) 8 SCC 180 where it was held that “an extra-judicial confession, if voluntary and true and made in a fit state of mind, can be relied upon by the Court. The confession will have to be proved like any other fact. The value of the evidence as to confession, like any other evidence, depends upon the veracity of the witness to whom it has made. The value of the evidence depends on the reliability of the witness who gives the evidence.” the Court stated that an extra-judicial confession is a weak piece of evidence and can be relied upon provided, it is voluntary and is made in a fit state of mind.

The Court while allowing the appeal held that this could be a case of no evidence and thus, falls in the category of disproved. Judgment and order of conviction was quashed and set aside and the appellant was acquitted of the offence punishable under section 302 of the IPC.

[Suresh Ladak Bhagat v. State of Maharashtra, Criminal Appeal No.9 of 2014, decided on 19-04-2022]


Mr Samir Arunkumar Vaidya, Mr Hare Krishna Mishra: Advocates for the Appellant.

Ms M.M. Deshmukh: APP for the Respondent – State.


*Suchita Shukla, Editorial Assistant has reported this brief.