murder

Case BriefsForeign Courts

Court of Appeal of the Democratic Socialist Republic of Sri Lanka: The Division Bench of N. Bandula Karunarathna and R. Gurusinghe, JJ. allowed an appeal which was filed assailing the judgment delivered by the Judge of High Court of Homagama by which accused-appellant was convicted and sentenced to 7 years’ rigorous imprisonment for having committed culpable homicide not amounting to murder of an infant.

The accused-appellant had pleaded guilty of committing offence of murder of an infant who was a new born, an offence punishable under Section 296 of the Penal Code but the High Court Judge decided to commence the trial considering that she pleaded not guilty and opted for a non-jury trial. On behalf of the accused-appellant, her willingness to plead guilty to culpable homicide not amounting to murder under Exception 5 to Section 294 of the Penal Code, was indicated. The State Counsel who prosecuted the trial in the High Court conceded the mitigatory circumstances which the appellant relied on, to bring the case against her within the ambit of the said exception. After plea bargaining, the accused pleaded guilty under exception 5 to Section 294 and in her plea, the trial Judge convicted the appellant for the lesser offence of culpable homicide not amounting to murder punishable under Section 297 of the Penal Code.

The appellant had filed this appeal claiming that this sentence is excessive. The counsel for the accused-appellant informed Court on the date this matter was taken up for the argument that he was not challenging the conviction as the accused-appellant had pleaded guilty. The counsel requested to consider the following mitigating factors to reduce the sentence.

The police statement of the appellant’s husband stated that the appellant did not look like she was bearing a child. It was an undisputed fact that the appellant delivered the baby alone, unattended and unassisted. Counsel for the appellant stated that the Trial Judge has not taken into account the unexpected and sudden turn of events which had taken the appellant by complete surprise when she had abruptly delivered a baby at the toilet of the house where she was serving as a domestic aid.

SSC appearing on behalf of the respondent informed the court that she is objecting to the application of the accused-appellant as the said act was a grave offence as the deceased in this case is a one-day-old infant who was found alive, abandoned near a shrub jungle. The accused-appellant had been identified as the biological mother of the deceased infant through DNA analysis and the relevant DNA report. The deceased infant had sustained several injuries identified as animal bites on the knees and face. It was revealed that the injuries found on the face and limbs are consistent with the ante -mortem injuries sustained after the live birth due to animal attack and ant bites.

Counsel for the appellant states that, following this unfortunate incident, her husband deserted her leaving the burden of both her children aged 11 and 14 on her shoulder. The appellant grieved that, if she was incarcerated in the execution of the custodial sentence imposed on her, her daughter would run the risk of her whole life further being disrupted and disorganised.

After hearing both the parties, the Court was of the view that the Trial Judge, in assessing a proper sentence for the appellant, has not duly appreciated the post conduct of the appellant by which she did not attempt to exonerate her. The appellant herself identified the dead body of the baby before Judicial Medical Officer, and confessed to the police. Then she readily surrendered to genus comparison thereby facilitating to truncate of what otherwise would have followed a daunting, prolonging and complex investigation process and demonstrating her remorse from the earliest. The appellant had pleaded guilty to the indictment at the very instance. During the trial, she did not raise any affirmative defence.

The Court held that since she has no previous convictions, the accused-appellant should be given some relief by this court and considering the circumstances of the case the Court decided to impose years of rigorous imprisonment instead of 7 years and suspend it for 10 years from today which would allow the appellant to re-integrate with the society.[Gamwarige Premawathie v. Attorney General, CA/HCC/ 225/2020, decided on 06-05-2022]

Kasun Liyanage AAL for the Accused-Appellant

Maheshika de Silva SSC for the Complainant-Respondent

Suchita Shukla, Editorial Assistant has reported this brief.

Case BriefsSupreme Court

Supreme Court: The 3-judge bench of L. Nageswara Rao, BR Gavai and AS Bopanna, JJ has granted bail to Indrani Mukerjea, accused of murdering her daughter Sheena Bora after noticing that “even if 50% of the remaining witnesses are given up by the prosecution, the trial will not complete soon.”

Indrani is charged of kidnapping her daughter with intention to murder and committing murder after entering into a criminal conspiracy. She is the wife of Pratim @ Peter Balram Mukerjea who is co-accused in the case. She is alleged to have committed murder being annoyed by the live in relationship of her daughter, through her earlier husband Sanjeev Khanna with Rahul Mukerjea who is the son of Peter Balram Mukerjea, through his earlier wife-Shabnam Singh.

Taking into account the fact that Indrani has been in custody for 6½ years and even if 50% of the remaining witnesses are given up by the prosecution, the trial will not complete soon, the Court was of the considered view that she was entitled to be released on bail.

The Court, hence, directed,

  • The petitioner shall surrender her passport to the C.B.I. Court and shall not leave India without permission of the C.B.I. Court.
  • The petitioner shall inform her latest place of residence and contact number immediately after being released and/or change of residence or mobile details, if any, from time to time to the prosecution as well as C.B.I. Court, in writing.
  • The petitioner shall not influence the prosecution witnesses or tamper with the evidence.
  • The petitioner shall regularly attend the trial and shall not seek any adjournment on whatsoever count.
  • The petitioner in any case shall not meet or establish contact with the witnesses till recording of evidence is over.
  • If there are two consecutive defaults in appearing before the trial Court or breach of any of the above conditions, the prosecution will be at liberty to apply for cancellation of petitioner’s bail.

[Indrani Pratim Mukerjea v. CBI, Special Leave to Appeal (Crl.) No(s).1627/2022, order dated 18.05.2022]

Counsels

For Petitioner(s): Sr. Adv. Mukul Rohatgi and Advocates Sana Raees Khan, Sushil Karanjkar, Dhawesh Pahuja and Sandeep Singh

For Respondent(s): ASG Suryaprakash V.Raju and Advocates Sairica Raju, Rajat Nair, Nidhi Banga, Sudarshan. K., Arvind Kumar Sharma, Sachin Patil, Rahul Chitnis, Aaditya A. Pande, Geo Joseph, Adv. Ms. Shewtal Shepal and Risvi Muhammed.

Case BriefsSupreme Court

Supreme Court: In a significant case relating to State’s power of remission under Section 432 of CrPC, the Division Bench of Dr Dhananjaya Y Chandrachud* and Aniruddha Bose, JJ., directed the presiding officer concerned to re-assess the matter— holding that an opinion accompanied by inadequate reasoning would not serve the purpose for which the exercise under Section 432 (2) is to be undertaken, which is to enable the executive to make an informed decision taking into consideration all the relevant factors.

The instant petition was filed by a convict—who was undergoing imprisonment for life upon being convicted u/s 302 read with S. 149 of the Penal Code, 1860—to seek for issuance of a writ directing the State government to grant him pre-mature release.

Evidently, on 25-09-2021, the petitioner completed 16 years of imprisonment without remission and submitted an application for premature release under Rule 358 of the Chhattisgarh Prisons Rule 1968. Pursuant to which opinion of the Special Judge, Durg was sought by the government as mandated u/s 432 of the CrPC on whether the petitioner could be released on remission which was answered in negative. Resultantly, the petitioner’s application for remission was rejected by the government.

Judicial Review vis-à-vis Power of Remission

Though the appropriate government has the absolute discretion to decide whether the application for remission should be allowed, it had been clarified by the Supreme Court in catena of judgments that while the grant of remission is the exclusive prerogative of the executive and the court cannot supplant its view, the Court can direct the authorities to re-consider the representation of the convict. Therefore, the prerogative of the executive is subject to the rule of law and fairness in state action embodied in Article 14 of the Constitution.

Hence, the Court concluded that though the Courts cannot usurp the power of the government and grant remission itself, they can review the decision of the government to determine whether it was arbitrary and ask the government to reconsider the matter.

Duty of the Presiding Judge and Value attached to his Opinion

Sub-section (2) of Section 432 of the CrPC provides that the appropriate government may take the opinion of the presiding judge of the court before or by which the person making an application for remission has been convicted on whether the application should be allowed or rejected, together with the reasons for such opinion.

In Union of India v. Sriharan, (2016) 7 SCC 1, the Constitution Bench had held that the procedure stipulated in Section 432(2) is mandatory and the decision of the government on remission should be guided by the opinion of the presiding officer of the concerned court. Crucially, the Court observed that the opinion of the presiding judge would enable the government to take the ‘right’ decision as to whether or not the sentence should be remitted.

Hence, the Bench opined that it could not be said that the opinion of the presiding judge is only a relevant factor, which does not have any determinative effect on the application for remission. The Bench remarked,

“Section 432 (2) of the CrPC would stand defeated if the opinion of the presiding judge becomes just another factor that may be taken into consideration by the government while deciding the application for remission. It is possible then that the procedure under Section 432 (2) would become a mere formality.”

However, the Bench clarified that the provision does not mean that the appropriate government should mechanically follow the opinion of the presiding judge and held that if the opinion of the presiding judge does not comply with the requirements of Section 432 (2) or if the judge does not consider the relevant factors for grant of remission that had been laid down in Laxman Naskar v. Union of India, (2000) 2 SCC 595, the government may request the presiding judge to consider the matter afresh.

Noticeably, in Laxman Naskar’s case (supra), the Court had laid down following factors to be considered by the presiding officer—assessing (i) whether the offence affects the society at large; (ii) the probability of the crime being repeated; (iii) the potential of the convict to commit crimes in future; (iv) if any fruitful purpose is being served by keeping the convict in prison; and (v) the socio-economic condition of the convict’s family.

Factual Analysis and Conclusion

In the instant case, the Special Judge, Durg had referred to the crime for which the petitioner was convicted and had simply stated that—“in view of the facts and circumstances of the case it would not be appropriate to grant remission.”

Hence, the Bench opined that there was nothing to indicate that the presiding judge took into account the factors laid down in Laxman Naskar’s case (supra), which had rendered the opinion to be in the teeth of the provisions of Section 432 (2) of the CrPC which require that the presiding judge’s opinion must be accompanied by reasons. The Bench stated,

“…an opinion accompanied by inadequate reasoning would not satisfy the requirements of Section 432 (2) of the CrPC. Further, it will not serve the purpose for which the exercise under Section 432 (2) is to be undertaken, which is to enable the executive to make an informed decision taking into consideration all the relevant factors.”

In view of the above, the Bench concluded that the petitioner’s application for remission should be re-considered and directed the Special Judge, Durg to provide an opinion on the application afresh accompanied by adequate reasoning while taking into consideration all the relevant factors that govern the grant of remission as laid down in Laxman Naskar’s case (supra).

Additionally, the Bench directed that the Special Judge, Durg must provide his opinion within a month and the State of Chhattisgarh must take a final decision on the petitioner’s application for remission afresh within a month of receiving the opinion of the Special Judge, Durg.

[Ram Chander v. State of Chhattisgarh, 2022 SCC OnLine SC 500, decided on 22-04-2022]

*Judgment by: Justice Dr Dhananjaya Y Chandrachud

Appearance by:

For the Petitioner: Advocate MD Irshad Hanif

For the State of Chhattisgarh: Advocate Sumeer Sodhi

Kamini Sharma, Editorial Assistant has put this report together

Cases ReportedSupreme Court Cases

In 2022 SCC Volume 2 Part 4, read a very interesting decision, wherein a death row convict subjected a 5-year-old girl to rape, killed her by strangulation, and then disposed of her body, tied in a gunny bag, into a stream and the 3-Judge Bench of the Supreme Court finding hope for reformation and rehabilitation commuted his death sentence to life imprisonment. [Irappa Siddappa Murgannavar v. State of Karnataka, (2022) 2 SCC 801]

Short Notes: 6

Central Educational Institutions (Reservation in Admission) Act, 2006 (5 of 2007) — S. 3 provisos 2(a) & (b) and Ss. 3(i), (ii) & (iii) and Ss. 2(i-a) & (i-b) (as amended in 2012): Manner of interpretation and applicability of special provisions of amended S. 3 provisos 2(a) & (b) excluding general provisions of Ss. 3(i), (ii) & (iii), explained in detail. Amended S. 3 proviso 2 is applicable to University located in State of Manipur which is one of the States of “Specified North-Eastern Region” in terms of S. 2(ia). S. 3 provisos 2(a) & (b) is applicable to “Specified North-Eastern Region” in S. 2(i-a) and not limited only to the tribal States covered by the Sixth Schedule to the Constitution. This became possible after the amendment of S. 3 and insertion of S. 3 provisos 2(a) & (b) by the Central Educational Institutions (Reservation in Admission) Amendment Act, 2012 (Amendment Act). [Kshetrimayum Maheshkumar Singh v. Manipur University, (2022) 2 SCC 704]

Re S. 3 provisos 2(a) & (b) and Ss. 3(i), (ii) & (iii) and Ss. 2(i-a) & (i-b) (as amended in 2012), Central Educational Institutions (Reservation in Admission) Act, 2006 (5 of 2007) manner of interpretation and applicability of special provisions of amended S. 3 provisos 2(a) & (b) excluding general provisions of Ss. 3(i), (ii) & (iii), explained in detail. [Kshetrimayum Maheshkumar Singh v. Manipur University, (2022) 2 SCC 704]

Constitution of India — Sch. X Paras 2(1)(a) and (2) r/w Art. 191(2): Judicial interference with disqualification order issued under by Speaker under the provision, when permissible and warranted, explained. [Kshetrimayum Biren Singh v. Speaker, Manipur Legislative Assembly, (2022) 2 SCC 759]

Re Sch. X Paras 2(1)(a) and (2) r/w Art. 191(2), Constitution of India judicial interference with disqualification order issued under by Speaker under the provision, when permissible and warranted, explained. [Kshetrimayum Biren Singh v. Speaker, Manipur Legislative Assembly, (2022) 2 SCC 759]

Education Law — Professional Colleges/Education — Medical and Dental Colleges — Reservation of seats/Quota/Exemption/Priority in Medical/Dental Institutions — Generally —Postgraduate/Superspeciality courses: State Government providing reservation for in-service doctors in superspeciality courses in final stages of admission for the academic year 2020-2021, held, cannot be permitted. [Prerit Sharma v. Bilu B.S., (2022) 2 SCC 751]

State Government providing reservation for in-service doctors in superspeciality courses in final stages of admission for the academic year 2020-2021 cannot be permitted. [Prerit Sharma v. Bilu B.S., (2022) 2 SCC 751]

Electricity Act, 2003 — S. 9 and S. 2(15) r/w S. 42(4) — Electricity distribution system — Wheeling charges for use of distribution system: Additional surcharge on wheeling charges under S. 42(4), if consumer does not receive supply of electricity from the distribution licensee but uses the system, is not applicable to captive consumers. Ordinary consumers under S. 2(15) to whom S. 42(4) is applicable, clarified. Rationale why such additional surcharge is justified, explained. Rights of captive consumers distinguished from ordinary consumers. Captive consumers, held, do not have an obligation to pay additional surcharge under S. 42(4) even if they are not receiving electricity from the distribution licensee. [Maharashtra State Electricity Distribution Co. Ltd. v. JSW Steel Ltd., (2022) 2 SCC 742]

Re S. 9 and S. 2(15) r/w S. 42(4), Electricity Act, 2003 qua wheeling charges for use of distribution system, captive consumers, do not have an obligation to pay additional surcharge under S. 42(4) even if they are not receiving electricity from distribution licensee. [Maharashtra State Electricity Distribution Co. Ltd. v. JSW Steel Ltd., (2022) 2 SCC 742]

Energy, Power and Electricity — Electricity — Tariff — Exemption provision: Repealing statute withdrawing exemption provided in repealed statute in simple, clear and unambiguous language, said exemption provision, held, needs to be interpreted literally and applied rigorously and strictly. Recourse cannot be had to any other principle of interpretation, when the words are clear and unambiguous. Thus, held, charitable educational institutions registered under the provisions of the Societies Registration Act and/or under the Maharashtra Public Trusts Act, are not entitled to any exemption from levy/payment of electricity duty on or after 8-8-2016 i.e. from the date on which Maharashtra Electricity Duty Act, 2016 (2016 Act) came into effect. [State of Maharashtra v. Shri Vile Parle Kelvani Mandal, (2022) 2 SCC 725]

Repealing statute withdrawing exemption provided in repealed statute in simple, clear and unambiguous language, said exemption provision needs to be interpreted literally and applied rigorously and strictly. Recourse cannot be had to any other principle of interpretation, when words are clear and unambiguous. [State of Maharashtra v. Shri Vile Parle Kelvani Mandal, (2022) 2 SCC 725]

Labour Law — Domestic/Departmental Enquiry — Acquittal in criminal proceedings — Effect: Principles reiterated regarding invocation of cl. (1)(g) of Sch. IV of the MRTU & PULP Act, 1971, for setting aside dismissal order. Applicability of said cl. (1)(g), also explained. [Maharashtra SRTC v. Dilip Uttam Jayabhay, (2022) 2 SCC 696]

Motor Vehicles Act, 1988 — S. 173 — Appeal: Growing number of appeals by claimants, insurers and vehicle owners against award passed by Tribunal are resulting in large pendency of appeals before various High Courts. Idea of “Motor Vehicle Appellate Tribunals” mooted and detailed suggestions given. [Rasmita Biswal v. National Insurance Co. Ltd., (2022) 2 SCC 767]

Penal Code, 1860 — Ss. 302, 376, 364, 366-A and 201 — Rape and murder of 5 yr old girl by strangulation: Low age of victim cannot be considered as only or sufficient factor by Supreme Court for imposing death sentence. Sentences awarded to appellant under Ss. 376, 364, 366-A and 201 IPC, upheld. However, considering mitigating circumstances, death sentence awarded under S. 302, is commuted to life imprisonment with stipulation that appellant shall not be entitled to premature release/remission before undergoing actual imprisonment of 30 yrs. Further held, further sentences awarded shall run concurrently and not consecutively. [Irappa Siddappa Murgannavar v. State of Karnataka, (2022) 2 SCC 801]

Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 — Ss. 24(1)(a), 25(1) and 114(1) & (2) — Acquisition proceedings: Saving of provisions of the Land Acquisition Act, 1894 and retrospectivity of provisions of the 2013 Act, explained in detail. [Maharashtra Vidarbha Irrigation Development Corpn. v. Mahesh, (2022) 2 SCC 772]

Re Ss. 24(1)(a), 25(1) and 114(1) & (2), Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 saving of provisions of Land Acquisition Act, 1894 and retrospectivity of provisions of the 2013 Act, explained in detail. [Maharashtra Vidarbha Irrigation Development Corpn. v. Mahesh, (2022) 2 SCC 772]

Case BriefsSupreme Court

Supreme Court: While addressing the plea of a murder convict seeking remission on the ground of blindness, the Division Bench comprising of Sanjay Kisan Kaul and M. M. Sundresh, JJ., directed him to under go medical assessment under Rule 363 of the M.P. Prison Rules and thereafter approach the Governor under Article 161 of the Constitution.

The appellant herein was convicted along with three others in connection with an incident which caused death of two brothers of the complainant and injuries to his father. At the inception itself, by an Order dated 29-01-2010, in view of a medical certificate produced by the appellant that he is visually impaired and is suffering from 100% blindness, the appellant was granted exemption from surrendering and finally on 18-10-2011 the appellant was granted bail.

Notably, the appellant had already undergone sentence of 9 years 10 months and 6 days including remission (actual period 8 years 1 month and 23 days). While pleading remission of sentence to the sentence already undergone, the appellant submitted that instead of canvassing the appeal on merits, an alternative course might be adopted; i.e. Rule 363 of the M.P. Prison Rules, 1968 which provides that where the Medical Officer of the prison is of the opinion that the convicted prisoner has gone completely and incurably blind not as a result of any voluntary act of the prisoner or that a convict prisoner has become completely decrepit or has become disabled on account of incurable physical informity which incapacitated him from the commission of further crime on his release and as such where the release of such a prisoner is not likely to be attended with mischief or danger, he shall report the case of the prisoner to the Superintendent.

The appellant contended that since he is visually impaired to the extent of suffering permanently from 100% blindness and that was not a result of any voluntary act of the prisoner, the aforementioned provision would come to his aid for consideration of his case for release from serving out the remaining sentence.

Considering the case of State of Haryana v. Raj Kumar, (2021) 9 SCC 292, wherein it was held that the benefit of remission can only be granted by the State Government if a prisoner has undergone a minimum period of imprisonment of 14 years without remission as well as the provisions of 432, 433 & 433A of the CrPC read with Article 161 of the Constitution, the Bench agreed that the State can recommend and the power would have to be exercised by the Governor under Article 161 of the Constitution albeit on the aid and advise of the State.

Accordingly, the Bench directed that the appellant, though on bail, to report to the Medical Officer of the prison and stay in observation for few days if required to enable the authorities concerned to comply with procedure enshrined in Rule 363 of the M.P. Prison Rules, 1968 and assess disability of the appellant. Thereafter, the case of the appellant was directed to be laid before the Government.

Hence, the Bench observed that it is only after compliance of Rule 363 that the case of the appellant could be referred to the Governor for exercise of power under Article 161 of the Constitution. Therefore, the Bench directed that the appellant to invoke Rule 363 of the said rules and make an application with all the relevant material within three weeks and simultaneously apply to the Governor under Article 161 of the Constitution.

Since the Court had not addressed the appeal on merit, the matter was directed to listed for directions on 19-07-2022.

[Banshi v. State of M.P., Criminal Appeal No.1944 of 2011, decided on 02-03-2022]

Kamini Sharma, Editorial Assistant has put this report together

Case BriefsSupreme Court

Supreme Court: In a case where a man had brutally raped and murdered a 7-year-old girl, the 3-judge bench of AM Khanwilkar, Dinesh Maheshwari* and CT Ravikumar, JJ has reversed the concurrent findings of the Courts below and has commuted the death sentence into that of imprisonment for life, with the stipulation that the appellant shall not be entitled to premature release or remission before undergoing actual imprisonment for a period of 30 years.

The Court observed,

“The heinous nature of crime like that of present one, in brutal rape and murder of a seven-year-old girl child, definitely discloses aggravating circumstances, particularly when the manner of its commission shows depravity and shocks the conscience. But, at the same time, it is noticeable that the appellant has no criminal antecedents, comes from a very poor socio-economic background, has a family comprising of wife, children and aged father, and has unblemished jail conduct.”

The Trial Court and the High Court had sentenced the appellant to death for enticing a seven-year-old girl to accompany him on the pretext of picking lychee fruits; having thereafter committed rape upon the child; having caused her death; and having dumped the dead body near a bridge on the riverbank, after having dragged the dead body over a distance of one and one-quarter kilometres.

The Supreme Court, however, noticed that both the Trial Court as also the High Court have taken the abhorrent nature of crime alone to be the decisive factor for awarding death sentence in the present case.

The Trial Court convicted the appellant on 07.12.2016 and on the next day, proceeded to award the sentence. The sentencing order did not indicate if the appellant was extended reasonable opportunity to make out a case of mitigating circumstances by bringing relevant material on record. The sentencing order also failed to satisfy if the Trial Court consciously pondered over the mitigating factors before finding it to be a ‘rarest of rare’ case.

The Trial Court also observed that ‘if such heinous crime is committed by him, it is not justifiable to show any sort of mercy in the punishment.’

The High Court confirmed the order of the Trial Court, with a cursory observation that there were no substantial mitigating factors and the aggravating circumstances were aplenty, after making rather intense comments on the menace of rape and brutal murder of children as also on the society’s abhorrence of such crime.

In such circumstances, the Court observed that the approach of the Trial Court and High Court had been that the accused-appellant was about 33-34 years of age at the time of occurrence and was supposed to be sensible. The Supreme Court, hence, held that the impugned orders awarding and confirming death sentence could only be said to be of assumptive conclusions, where it has been assumed that death sentence has to be awarded because of the ghastly crime and its abhorrent nature.

Disagreeing with the concurrent findings of the Courts below, the Supreme Court held that,

“There is nothing on record to rule out the probability of reformation and rehabilitation of the appellant, in our view, it would be unsafe to treat this case as falling in ‘rarest of rare’ category.”

It observed that when the appellant is not shown to be a person having criminal antecedents and is appellant is not shown to be a person having criminal antecedents and is not a hardened criminal, it cannot be said that there is no probability of him being reformed and rehabilitated. His unblemished jail conduct and having a family of wife, children and aged father would also indicate towards the probability of his reformation.

It was, however, observed that even when the present case is taken to be not falling in the category of ‘rarest of rare’ so as to require termination of the life of the appellant yet, the impact of the offences in question on the conscience of the society as a whole cannot be ignored. Hence, commutation of death sentence to life imprisonment without application of the provisions of premature release/remission before mandatory actual imprisonment, was found to be just and reasonable.

The Court, hence, awarded the punishment of imprisonment for life to the appellant for the offence under Section 302 IPC while providing for actual imprisonment for a minimum period of 30 years. All the substantive sentences to run concurrently.

[Pappu v. State of Uttar Pradesh, 2022 SCC OnLine SC 176, decided on 09.02.22]

*Judgment by: Justice Dinesh Maheshwari

Case BriefsHigh Courts

Bombay High Court: Stating that, in the moment of anger spouses almost forgot about the two children who were hardly three years old at the time of incident, the Division Bench of Sadhana S. Jadhav and Prithiviraj K. Chavan, JJ., found that the case of a husband killing wife with a knife was a case of culpable homicide not amounting to murder.

Court also remarked that,

“The mother died, and the father was thrown to the gallows by his own act.”

In the present matter, appellant was convicted under Section 302 of the Penal Code, 1860 and sentenced to life imprisonment and a fine of Rs 1,000 by the lower Court. On being aggrieved with the same, present appeal was filed.

Background

Pravin Khimji Chavan had visited Police Station with blood-stained clothes on his person and informed PW2 that he suspected the character of his wife and on that count due to quarrel he killed his wife by assaulting her with a knife.

The informant led the police to his house and upon entering the house they saw the dead body of his wife in a pool of blood with injuries all over the body.

It was submitted that the accused has seen a stranger leaving his house hurriedly on 23-4-2011 and on inquiring about the same, his wife lost temper and started abusing him. Later she started creating ruckus and brought a knife while directing it towards his husband. Handing over the knife to husband, she started challenging him to show as to whether he had the courage to assault her and that was the juncture when the husband lost his mental balance resulting into mounting assault with the knife.

After the above episode, he went to the police station and informed them of the said incident.

Analysis, Law and Decision

High Court noted that the present matter was a case of custodial death.

Open and Shut Case

The Bench found that at the time of the incident, the accused, as well as the deceased, had consumed alcohol. It was true that the Police had not investigated the statement of accused, as if to say that it was an open and shut case.

In the accused’s view, he maintained his cool for quite sometime, however, he lost it when she brought the knife from the kitchen and provoked him to hurt her if he could.

The Court stated that “Probably the chauvinism in him had risen.”

Further, the deceased wife expressed disgust and abhorrence at his very manliness and had forgotten for a moment that he was the father of their two daughters.

The Bench stated that it is rightly said that,

“If you are patient in one moment of anger, you will escape hundred days of sorrow.”

High Court remarked that, 

“The statement of the accused recorded by the police would show that he was left with a feeling of mortification. According to him, he was left with a wounded pride, which resulted in the brutal death of his wife.”

Elaborating further, the Court expressed that in a very alternative case wherein murder of the wife at the hands of the husband was the subject, it was in a moment of the grave and sudden provocation by the wife resulting in husband violently attacking the wife.

“There is physical violence, there is sexual violence, however, this sort of physical violence is less seen amongst women even in a moment of anger and in all probabilities, it is the mother in a woman which supersedes her element of physical violence.”

In view of the facts and circumstances of the case, High Court expressed that the Indian Penal Code would define the above act not as murder but as culpable homicide not amounting to murder, as the offence was committed in a heat of passion, but the accused had acted in a cruel and unusual manner.

Therefore, appeal was partly allowed and the conviction of the appellant for the offence punishable under Section 302 IPC was quashed and set aside and the appellant was convicted for the offence punishable under Section 304(I) of the IPC with imprisonment for 10 years. [Pravin Khimji Chauhan v. State of Maharashtra, 2022 SCC OnLine Bom 309, decided on 15-2-2022]

Advocates before the Court:

Ms. Farhana Shah, Advocate for the Appellant.

Mr. Arfan Sait, APP for the Respondent – State.

Case BriefsSupreme Court

Supreme Court: In a case relating to murder versus culpable homicide legal controversy, the Division Bench of M.R. Shah* and B.V. Nagarathna, JJ., held that the Uttaranchal High Court had erred in observing that the case would fall under Fourth exception to Section 300 IPC and had failed to properly appreciate the multiple injuries sustained by the deceased. The Bench expressed,

“…exception Fourth to Section 300 IPC ought not to have been applied by the High Court at all considering the fact that the main second incident had taken place subsequently at 12:00 in the night, much after the first incident of altercation was over in the mehendi ceremony. The impugned judgment and order passed by the High Court is unsustainable both, on facts as well as on law.”

The instant appeal was filed by the State to assail the order of the Uttranchal High Court by which the High Court had held that culpable homicide in the instant case was not murder and consequently converted the sentence from life imprisonment to ten years rigorous imprisonment.

Noticeably, some altercations took place between the deceased Virendra Singh and the accused Sachendra Singh Rawat but due to intervention of the villagers, the matter did not proceed further. Thereafter, at about 12:00 in the night, the accused attacked the deceased by giving him blows by a “Phakadiyat”–a rough piece of wood.  The deceased sustained multiple injuries on the head leading to skull fracture which ultimately caused death of the deceased after a few days.

The trial Court held that the culpable homicide was murder and thereby convicted the accused for the offence punishable under Section 302 IPC and imposed the sentence of life imprisonment. However, in appeal the High Court opined that since it was not a cold blooded murder; rather a sudden fight which ensued in the heat of passion between the two; as a result of a sudden quarrel in the marriage ceremony and that the weapon used was “Phakadiyat” which was a rough piece of wood, therefore it could not be said that there was any intention on the part of the accused to kill the deceased. Accordingly, opining that the case would fall under the Fourth exception to Section 300 IPC making it a case of culpable homicide instead of murder, the High Court converted the sentence from life imprisonment to ten years rigorous imprisonment.

Noticeably, the incident took place in two places. The first incident of altercation between the accused and the deceased was at the place of mehendi ceremony, thereafter at about 12:00 in the night, which could be said to be the actual incident which happened when the accused attacked the deceased by “Phakadiyat” and gave several blows to the deceased. The Bench opined,

“The second incident cannot be said to be a result of sudden fight in the heat of passion upon a sudden quarrel. The accused chased the deceased at about 12:00 in the mid night and even after the deceased reached his house, he was beaten by the accused in front of his house which is witnessed by his wife, PW1.”

Therefore, the Bench held that the High Court had erred in observing that the incident had taken place due to a sudden fight in the heat of passion upon a sudden quarrel in the mehendi ceremony. The main cause of death was injuries sustained by the deceased on his head since the accused used the “Phakadiyat” with such a force that it resulted in skull fracture at the frontal wound on the left side; stitched wounds with 34 stitches with left side of the skull. The Bench remarked,

“…having caused the grievous injuries with such a force, how can the accused get the benefit of fourth exception to Section 300 IPC. The case would certainly fall under Clauses Thirdly and/or Fourthly to Section 300 IPC.”

Applying the law as laid down in Virsa Singh v. State of Punjab, AIR 1958 SC 465, that the question is not whether the prisoner intended to inflict a serious injury or a trivial one but whether he intended to inflict the injury that is proved to be present, the Bench held that the High Court had committed a grave error in observing that culpable homicide did not amount to murder, by applying exception Fourth to Section 300 IPC.

In the light of the above, the Bench set aside the impugned order and restored the findings of the Trial Court. The accused was held guilty for the offence under Section 302 IPC and was sentenced to undergo life imprisonment.

[State of Uttarakhand v. Sachendra Singh Rawat, 2022 SCC OnLine SC 146, decided on 04-02-2022]

*Judgment by: Justice M.R. Shah

Appearance by:

For the State: Virendra Rawat, Advocate

For the Respondent: Neha Sharma, Advocate

Kamini Sharma, Editorial Assistant has put this report together

 

Case BriefsHigh Courts

Bombay High Court: The Division Bench of Sadhana S. Jadhav and Prithviraj K. Chavan, JJ., modified the conviction of a husband who in provocation by wife on being subjected to abuses assaulted wife.

On being convicted for the offence punishable under Section 302 of the Penal Code, 1860 the appellant was sentenced and imprisoned for life to pay a fine of Rs 5,000. Aggrieved with the same, the present appeal was filed.

Facts leading to the case

In 2009, Narayan Salunkhe lodged a report alleging that his daughter (deceased) was married to the appellant and due to discordant note, she started residing with her parents. On one occasion she went to visit her sister to another village. On the bus stop the husband of the deceased abused and assaulted her and it was noticed that the deceased had sustained incised wound on her neck due to which she succumbed injuries.

In view of the above, crime was registered for the offence punishable under Section 302 of Penal Code, 1860.

Analysis and Discussion

In the present matter, husband and wife were married for almost more than 15 years and the appellant was the father of three grown-up children.

Almost 4 years prior to the said incident, the couple had parted ways and started living independently. On an unfateful day, upon seeing the accused by chance, the deceased had not just obstructed his way by holding his neck, by pulling his shirt but had started hurling abuses and had levelled scathing remarks by which self-esteem of the accused was not only lowered in his own eyes but in public.

High Court expressed that,

The loud allegations made by the deceased were heard by one and all. It was quite natural for the man to feel ashamed upon being referred as impotent.

Stating that the act was not pre-mediated, Bench added that it was true that the incident of the assault was the outcome of a grave and sudden provocation and the accused was deprived of his self-control and hence, he could not have any restraint upon himself while mounting assault.

Since the accused was on his way to work, he was carrying a sickle in his bag. The offence committed by the accused fell under Exception 4 to Section 300 which reads thus:

“Exception 4 – Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner.”

High Court held that the accused was in custody since 2009 and had almost undergone 12 years imprisonment.

In view of the above discussion, the appellant deserved to be convicted for the offence punishable under Section 304(II) of IPC which would serve the ends of justice.[Nandu Dada Survase v. State of Maharashtra, 2022 SCC OnLine Bom 275, decided on 3-2-2022]

Advocates before the Court:

Ms Shraddha Sawant, Appointed Advocate for the Appellant.

Ms Veera Shinde, APP for the Respondent – State

Case BriefsSupreme Court

Supreme Court: The Division Bench of M.R. Shah B.V. Nagarathna*, JJ., cancelled the bail order of the High Court against the person accused of killing a person with 54% disability by pinning him to the ground and throttling his neck. Finding the order of the High Court cryptic and casual, de hors coherent reasoning, the Bench invoked the latin maxim “cessante ratione legis cessat ipsa lex” to hold that “reason is the soul of the law, and when the reason of any particular law ceases, so does the law itself”.

Factual Matrix

The appellant, son of the deceased had assailed the impugned order of the High Court, whereby the respondent-accused was granted bail. The said order was impugned by the appellant on the following grounds:

  1. a) The allegation against the respondent-accused was under section 302 of the IPC with regard to the murder of the deceased Ram Swaroop Khokhar, the father of the informant-appellant who was a disabled person. Thus, the offence alleged against the respondent-accused was of a grave nature.
  2. b) The deceased had been elected in 2015 as the Deputy Sarpanch of Mandha Bhopawaspachar village despite opposition from the accused and his family. Therefore, owing to such political enmity, the accused overpowered the deceased who was suffering from 54% permanent physical impairment of both his legs, pinned him to the ground, sat on him and throttled his neck. As per the post-mortem report, the cause of death was ante-mortem strangulation.
  3. c) That the respondent-accused was a person exercising significant political influence due to which there was great difficulty in registering the FIR against him. Moreover, the accused was arrested only following a protest outside a police station demanding his arrest. Thus, the possibility of the accused threatening or otherwise influencing the witnesses, if on bail, could not be ruled out.
  4. d) That the respondent-accused had earlier preferred applications seeking bail, under section 437 of the CrPC on two occasions and again under section 439 of the CrPC but the same were rejected having regard to the gravity of the offences alleged against the accused.

The appellant alleged that the High Court in a very cryptic order, de hors any reasoning had granted bail to the respondent-accused which deserved to be set aside.

Reasoning given by the High Court

At the outset, the extracted portions were the only portions forming part of the “reasoning” of the High court while granting bail, which read as under:

“I have considered the submissions and perused the challan papers and the post-mortem report, but without expressing any opinion on the merits and demerits of the case, I deem it appropriate to enlarge the accused-petitioner on bail…”

Analysis and Conclusion

Though it is not necessary for a Court to give elaborate reasons while granting bail particularly when the case is at the initial stage and the allegations of the offences by the accused would not have been crystalised as such, however, the Court deciding a bail application cannot completely divorce its decision from material aspects of the case such as the allegations made against the accused; severity of the punishment if the allegations are proved beyond reasonable doubt and would result in a conviction; reasonable apprehension of the witnesses being influenced by the accused; tampering of the evidence; the frivolity in the case of the prosecution; criminal antecedents of the accused; and a prima facie satisfaction of the Court in support of the charge against the accused.

Ultimately, the Bench held that the Court considering an application for bail has to exercise discretion in a judicious manner and in accordance with the settled principles of law having regard to the crime alleged to be committed by the accused on the one hand and ensuring purity of the trial of the case on the other. As an order de hors reasoning or bereft of the relevant reasons cannot result in grant of bail. In such a case the prosecution or the informant has a right to assail the order before a higher forum.

Considering the factum of the case along with the established legal principles, the Bench concluded that the High Court had lost sight of the aforesaid material aspects of the case and had, by a very cryptic and casual order, de hors coherent reasoning, granted bail to the accused.

Accordingly, the appeal was allowed, the bail order of the respondent accused was declared cancelled and the respondent was directed to surrender before the concerned jail authorities within a period of two weeks.

[Manoj Kumar Khokhar v. State of Rajasthan, 2022 SCC OnLine SC 30, decided on 11-01-2022]

*Judgment by: Justice B.V. Nagarathna

Appearance by:

For the Appellant: Basant R., Senior Counsel

For the Respondent: Aditya Kumar Choudhary, Advocate

Kamini Sharma, Editorial Assistant has put this report together

 

Case BriefsHigh Courts

Allahabad High Court: While expressing that “Caste system in our society is deeply rooted, we boast ourselves as educated society, but we live our lives with double standards” Rahul Chaturvedi, J., granted bail to an accused of cold-blooded murder in an alleged honour killing case.

A criminal appeal under Section 14 A (2) of Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act, 1989 was filed for setting aside the impugned order passed by the Special Judge, SC/ST Act/Additional Session Judge arising out of a case registered under Sections 302, 307, 506, 120B IPC and Section 3(2)(V) of SC/ST Act.

Background

Informant’s younger brother was Gram Panchayat Adhikari who belonged to the scheduled caste community. During his training period, he had developed some amount of intimacy with his course-mate. Both of them performed registered marriage and started residing as husband and wife.

The above-said marriage raised eyebrows of all family members of the girl, and they all got infuriated and started waiting for the time to eliminate the deceased. After hatching conspiracy in July 2021, the deceased was ambushed by two motorcycle riders and was assaulted with a sharp-edged weapon and making his uncle who accompanied whim seriously injured.

Informant alleged that applicants on account of their previous enmity had actively participated in the said offence and thus facilitated them to commit the said cold-blooded, day light murder.

Analysis and Discussion

Caste system in our society is deep rooted, we boast ourselves as educated society, but we live our lives with double standards. Even after 75 years of Independence we are not able to get out with this social menace. This is pitiable and tragic. It is the moral duty of those sane person, who are well-off, to protect the under-privileged and downtrodden, so that they feel themselves safe, secure and comfortable. Simultaneously, the other group also feel that they are the integral and inseparable part of the society, and it is in the larger interest of the country and high time for the introspection for everyone to give serious thought over the matter.

High Court while expressing the above, stated that it is mind-boggling that the informant’s counsel complained that the widow of the deceased and his other family members were at sun and wanted to have safe shelter.

Bench prima facie found the submission of appellant’s counsel appealing and convincing with regard to the applicant being rank outsiders and having no concern whatsoever in the commission of an offence. Neither from applicant nor his pointing out had recovered any incriminating material.

The Court directed that S.S.P. Gorakhpur would provide necessary security to the family members of the deceased and thereafter have periodical assessment deploy the requisite security during the trial and take stringent action against every person who wants to the law in his hands.

Taking into consideration the above, Bench opined that the appellant made out a case for bail.

Following were the bail conditions:

  1. Appellant would fully cooperate in the conclusion of trial within 1 year and any tampering or willing tactics on the part of the appellant to delay the trial would warrant the automatic cancellation of bail.
  2. Appellant shall file an undertaking to the effect that he shall not seek any adjournment on the date fixed or evidence when the witnesses are present in court. In case of default of the said condition, it shall be open for the trial court to treat it as abuse of liberty of bail and pass orders in accordance with law.
  3. Appellant shall remain present before the trial court on each date fixed, either personally or through his counsel. In case of his absence, without sufficient cause, the trial court may proceed against him under Section 229-A IPC.
  4. In case the appellant misuse the liberty of bail during trial and in order to secure his presence proclamation under Section 82 CrPC, may be issued and if appellant fails to appear before the Court on the date fixed in such proclamation, then the trial court shall initiate proceedings against him, in accordance with law under Section 174-A IPC.
  5. Appellant shall remain present in-person before the trial court on dates fixed for:

(i) opening of the case

(ii) framing of charge and

(iii)recording of statement under Section 313 CrPC

If in the opinion of the trial court absence of the appellant was deliberate or without sufficient cause, then it shall be open for the trial court to treat such default as abuse of liberty of bail and proceed against him in accordance with law.

In view of the above, the impugned order passed by Special Judge, SC/ST Act/Additional Session Judge, Gorakhpur was set aside. [Sanni Singh v. State of U.P., 2022 SCC OnLine All 44, decided on 20-1-2022]

Advocates before the Court:

Counsel for Appellant: – Manish Gupta, Vinay Kumar

Counsel for Respondent: – G.A., Arvind Kumar, Rahul Chaudhary

Case BriefsForeign Courts

Court of Appeal of the Democratic Socialist Republic of Sri Lanka: The Division Bench of K Priyantha Fernando and Sampath B Abayakoon, JJ., dismissed the appeal against the conviction order of the High Court of Hambanthota and upheld the conviction  for committing the murder of one Hettiarachchige Thilaka and causing grievous hurt on one M.B. Himali Asanka punishable in terms of sections 296 and 316 of the Penal Code respectively.

In the case, the deceased mother had gone to close the gate in front of the house when the appellant had broken the kadulla, come inside their garden and the appellant had hit the deceased on her head with a katty knife and upon succumbed to injuries upon admission to injuries. The appellant said he did not have any intention to kill anyone but swerved the club in his self defence.

The Counsel for the appellant submitted that the words the deceased used mocking at him provoked the appellant. The Counsel for the respondent submitted that the said mocking happened had been at about 6.30 pm and the incident of assault has taken place at about 8.30-9.00pm. Thus, it cannot be a sudden provocation.

The Court referred to the exception 1 to section 294 of the Penal Code which provides;

“Culpable homicide is not murder if the offender whilst deprived of the power of self-control by grave and sudden provocation, cause the death of the person who gave the provocation or causes the death of any other person by mistake or accident” and observed that the assault had taken place at about 8.30-9.00pm. Thus, the appellant cannot rely on sudden provocation.

Further, the Court observed that the medical evidence showed that the cut injury to the top of the head could not have been caused by swerving the katty as testified by the appellant as it had been a hard cut injury caused intentionally on top of the head.[Loku Baduge Dhammika Priyantha Jayasuriya v. Attorney General, Court of Appeal Case No. HCC/0112 of 2019, decided on 17-12-2021]

Suchita Shukla, Editorial Assistant has reported this brief.

COUNSEL :

For Appellant:  Nihara Randeniya

For Respondent:  R. Bary

Case BriefsSupreme Court

Supreme Court: Upholding the concurrent findings of High Court as well as Sessions Court and Juvenile Justice Board, the Division Bench comprising of Dhananjaya Y Chandrachud and B.V. Nagarathna*, JJ., passed a detailed verdict to guide determination of juvenility. Rejecting the contention of the appellant that the signatures of respondent on the admission forms of class 1 and class 8 (on the basis of which DoB was recorded for admission in matriculation) were identical and it could not be so on the admission form of class 1 as the respondent was only four and half years old when he was admitted to class 1, the Bench stated,

“Even if the documents seeking admission to class 1 and class 8 were discredited or eschewed, the fact remained that the mark-sheet pertaining to the matriculation supported the presumption that the respondent was less than 16 years of age on the date of incident.”

The respondent, one Nishant Solanki along with other accused was alleged to have attacked upon the appellant and his family causing serious injuries as well as death of appellant’s father and uncle. It had been stated that the accused were carrying a Farsa (battle-axe), lathi and balkaties (caneknives) and attacked the complainant/appellant and the members of his family. The respondent prayed before the Juvenile Justice Board, Baghpat to be declared as a juvenile delinquent, which was allowed by the Board.

The grievance of the appellant was that the respondent had been accused of committing grave offences under sections 147, 148, 149, 323, 307, 302 and 34 of the IPC along with other co-accused, but his claim of juvenility was erroneously allowed by the Board which was later on sustained by the appellate court as well as the Allahabad High Court.

Presumption for determining Juvenility

An application claiming juvenility could be made either before the Court or the JJ Board. When the issue of juvenility arises before a Court, it would be under sub-section (2) and (3) of section 9 of the JJ Act, 2015 but when a person is brought before a Committee or JJ Board, section 94 of the JJ Act, 2015 applies. Under Section 94 of JJ Act, if the JJ Board has reasonable grounds for doubt regarding whether the person brought before it is a child or not, the Board shall undertake the process of age determination by seeking evidence and the age recorded by the JJ Board to be the age of the person so brought before it shall, for the purpose of the JJ Act, 2015, be deemed to be true age of that person. Hence

“The degree of proof required in such a proceeding before the JJ Board, when an application is filed seeking a claim of juvenility when the trial is before the concerned criminal court, is higher than when an inquiry is made by a court before which the case regarding the commission of the offence is pending (vide section 9 of the JJ Act, 2015).”

On the basis of the documents mentioned section 94 of JJ Act, 2015 a presumption of juvenility may be raised.  The said presumption is however not conclusive proof of the age of juvenility and the same may be rebutted by contra evidence let in by the opposite side, and if two views are possible on the same evidence, the court should lean in favour of holding the accused to be a juvenile in borderline cases. This is in order to ensure that the benefit of the JJ Act, 2015 is made applicable to the juvenile in conflict with law. At the same time, the Court should ensure that the JJ Act, 2015 is not misused by persons to escape punishment after having committed serious offences. The Bench added,

“Ossification Test cannot be the sole criterion for age determination and a mechanical view regarding the age of a person cannot be adopted solely on the basis of medical opinion by radiological examination. Such evidence is not conclusive evidence but only a very useful guiding factor to be considered in the absence of documents mentioned in Section 94(2) of the JJ Act, 2015.”

Further, when the determination of age is on the basis of evidence such as school records, it is necessary that the same would have to be considered as per Section 35 of the Evidence Act, 1882 inasmuch as any public or official document maintained in the discharge of official duty would have greater credibility than private documents.

Determination of Age by the JJ Board

The Certificate-cum-Marks Sheet of the High School issued by the Board of High School and Intermediate Examination U.P., was produced stating that the date of birth of respondent as 25-09-2004. Noticeably, when the respondent sought admission in class 1 no document in respect of birth was given and the date of birth was mentioned orally. The respondent continued his education there till class 8th and the transfer certificate recorded his date of birth as 25-09-2004 and the same was entered in the school records of class 9th. The Principal of the school first attended by the respondent stated that the respondent was a little above four years of age at the time of admission in class 1.

According to the JJ Board, it is only in the absence of the matriculation certificate that determination of age had to be by ossification test or any other latest medical age determination test. The date of the incident was 05-05-2020. Hence, as per the date of birth recorded in matriculation certificate, the respondent was 15 years and 8 months of age as on the date of the incident.

Observations and Findings

Rejecting the contention raised by the appellant that the signatures of respondent on the admission forms of class 1 and class 8 were identical and it could not be so on the admission form of class 1 as the respondent  was only four and half years old when he was admitted to class 1, the Bench stated that in the absence of any rebuttal evidence, even if the documents seeking admission to class 1 and class 8 were discredited or eschewed, the fact remained that the mark-sheet pertaining to the matriculation supported the presumption that the respondent was less than 16 years of age on the date of incident.

Differentiating the instant case from the case of Sanjeev Kumar Gupta v. State of Uttar Pradesh, (2019) 12 SCC 370, wherein it was observed that that the date of birth reflected in the matriculation certificate could not be accepted as authentic or credible, the Bench observed that in the Sanjeev Kumar’s case the records maintained by the CBSE were purely on the basis of the final list of the students forwarded by the Senior Secondary School where the second respondent therein had studied from class 5 to 10, while there was clear and unimpeachable evidence of date of birth recorded by the school attended by the respondent till class 4 and which was supported by voluntary disclosure made by the accused therein while obtaining both, Aadhaar Card and driving license. Therefore, the Bench stated that in Sanjeev Kumar’s case, there was clear and unimpeachable evidence of date of birth which had been recorded in the records of the school which the respondent therein had attended till class 4, however, in the instant case in the absence of there being any evidence to negate the date of birth recorded in matriculation certificate same, the criminal revision deserved to be dismissed.

Conclusion

Considering the absence of any other document indicating the date of birth of the respondent contrary to what had been indicated in the matriculation certificate, therefore the Bench denied to differ from the order of the High court which sustained the judgment of the District & Sessions Court as well as of the JJ Board.

[Rishipal Singh Solanki v. State Of Uttar Pradesh, 2021 SCC OnLine SC 1079, decided on 18-11-2021]

Kamini Sharma, Editorial Assistant has put this report together

Appearance by:

For the Appellant: Anupam Dwivedi, counsel

For the State of U.P.: Sharan Thakur, Additional Advocate General

For the Respondents: Saurabh Trivedi, counsel

*Judgment by: Justice B.V. Nagarathna

Case BriefsSupreme Court

Supreme Court: In a big relief for three death row convicts, the 3-judge bench of L. Nageswara Rao, BR Gavai* and BV Nagarathna, JJ has acquitted all of them of charges of killing 6 members of their family after it was found that the prosecution had failed to prove the case beyond reasonable doubt.

The Prosecution story

It was Prosecution’s case that, on 23rd January, 2014, at around 8.30 p.m., Momin Khan, with his wife Nazra, along with Jaikam Khan (first cousin) and Sajid (Jaikam Khan’s son) came armed with knives and assaulted Mausam Khan   (father – 85 years), Asgari (mother – 80 years), Shaukeen Khan (brother), Shanno (sister-in¬law- 30 years), Samad (nephew – 8 years) and Muskan (niece-15 years) and killed them brutally.

The verdicts by the Trial Court and the Allahabad High Court

Vide judgment and order dated 2nd January, 2016, the Trial Court convicted all the four accused for the offence punishable under Section 302/34 of the IPC and sentenced them to death vide order dated 11th January, 2016. Momin, Jaikam and Sajid were also convicted for the offence punishable under Section 25/4 of the Arms Act and awarded rigorous imprisonment for a term of three years with a fine of Rupees Five Thousand and in case of default, they were to undergo additional imprisonment for a term of three months.

While the conviction and sentence imposed on Momin, Jaikam and Sajid was affirmed, Nazra was acquitted by the High Court.

The inconsistencies and lacunae in the prosecution case

  • The two witnesses were found to be interested witnesses and their testimony was found ‘neither wholly reliable nor wholly unreliable’ as though they could have witnessed the assault two victims, it was difficult to believe that they could have witnessed the assault on the other four deceased persons as allegedly the accused had murdered six deceased at different places of the house.
  • As per the prosecution version, the main motive behind the crime was the dispute over the management of the brick¬kiln between the accused Momin Khan on one hand and deceased Mausam Khan, deceased Shaukeen Khan and P.W.1-Ali Sher Khan on the other hand. However, as per the
  • P.W.1 ­Ali Sher Khan(Shaukeen Khan’s brother) and P.W.2 ­Jaan Mohammad (Ali Sher Khan’s brother-in-law) had admitted that Jaikam Khan and Sajid had nothing to do with the brick kiln business of deceased Mausam Khan nor was there any dispute between them. Hence, with regard to Jaikam Khan and Sajid, the prosecution has utterly failed to prove any motive and has also failed to prove any strong motive insofar as Momin Khan is concerned.
  • According to P.W.1¬Ali Sher Khan and P.W.2¬ Jaan Mohammad, a large number of villagers had gathered at the spot after the incident. However, none of the independent witnesses have been examined by the prosecution. Since the witnesses examined on behalf of the prosecution were interested witnesses, non¬examination of independent witnesses, though available, made the prosecution version doubtful.
  • Though fingerprints were taken at the spot, the fingerprint expert’s report was not placed on record.
  • Though the IO had come to the spot with the dog squad, report of the dog squad was also not placed on record.
  • The assertion of P.W.1¬Ali Sher Khan and P.W.2-Jaan Mohammad that they together had gone to the police station to lodge the report, was also contradicted by the evidence of the Constable Clerk at the police station. Further, not informing the Police on phone, despite having mobile phones, also casts a serious doubt with regard to the genuineness of the prosecution case.

“Shocked” and “amazed” at the findings of the Trial Court and the High Court

Referring to a paragraph of the Trial Court’s judgment, the Court said it was “shocked” at the finding and that,

“The narration makes for an interesting reading as a story. However, all the observations are nothing but conjectures and surmises, without there being any evidentiary support to them. It is really surprising, as to how the Additional Sessions Judge could have dealt with the present case in such a casual manner when he was considering the question of life and death of four accused.”

The Court was also “amazed” by the manner in which the High court has dealt with the present matter as it had attempted to put a burden on the accused, which, as per the well settled law, does not shift unless prosecution has proved the case beyond reasonable doubt.

The Court observed,

“While coming to the conclusion that the prosecution has failed to bring home the guilt of the accused beyond reasonable doubt, we are at pains to observe the manner in which the present case has been dealt with by the trial court as well as by the High Court, particularly, when the trial court awarded death penalty to the accused and the High Court confirmed it. The trial court and the High Court were expected to exercise a greater degree of scrutiny, care and circumspection while directing the accused to be hanged till death.”

All death row convicts walk free

Finding that the prosecution had utterly failed to prove the case beyond reasonable doubt, the Court held that the conviction and death sentence imposed on the accused was totally unsustainable in law. The Court, hence, acquitted all three convicts of the charges and ordered their release.

[Jaikam Khan v. State of Uttar Pradesh, 2021 SCC OnLine SC 1256, decided on 15.12.2021]

Counsels

For appellants: Senior Advocate Nitya Ramakrishnan, Advocate Dama Seshadri Naidu,

For P.W.1­: Advocate Anant Agarwal

For State: Additional Advocate General Vinod Diwakar

*Judgment by: Justice BR Gavai 

Case BriefsHigh Courts

Bombay High Court:  Division Bench of V.K. Jadhav and Shrikant D. Kulkarni, JJ., addressed a case of ‘Honour Killing’ by a brother of his own real sister and upheld the sentence of the death penalty.

Appellant Accused’s sister who was married had a love affair with another person prior to her marriage.

In 2017, she had left her matrimonial home without informing anyone and later her husband lodged a missing report. Since the accused-appellant was aware of the love affair he had a suspicion about the whereabouts of his sister.

Pooja could not forget her love. Consequently, she had not only left her matrimonial home without informing anyone, however, she had called deceased Govind on his mobile. Against the advice of the brother-in-law PW 5 Shankar Gade, deceased Govind had given his address to deceased Pooja.

Deceased Pooja went to village Kharbala at the house of PW 5 Shankar Gade and joined the company of the deceased Govind. Meanwhile, appellant-accused Digambar was searching for deceased Pooja and Govind. He was suspecting that both of them are together.

Appellant-accused reached the village Kharbala at the house of PW-5 and made a statement before all of them including deceased Pooja and deceased Govind that he will perform their marriage, though PW5 had told appellant-accused Digambar that marriage was not possible because Pooja was already married. Digambar, however, told PW 5 that deceased Govind was his childhood friend and even deceased Pooja made a statement that she had faith in her brother accused that he would perform her marriage with the deceased.

In view of the above said, appellant-accused Digambar, appellant-accused Mohan, deceased Pooja and deceased Govind left that place on one motorcycle being driven by appellant-accused Mohan.

Analysis, Law and Decision

Territorial Jurisdiction Issue

High Court agreed with the observations recorded by the trial court that the inspection notes, the defence evidence and the spot panchanama, if considered, then the spot where the dead body of deceased Pooja was lying comes under the jurisdiction of Telangana State. However, the spot where the actual incident of murder was committed was situated in the river towards southern side of Mahagaon-Palaj river confluence (sangam) which comes under the jurisdiction of Maharashtra State.

Circumstantial Evidence

Bench opined that the entire case rested upon circumstantial evidence and there was no direct evidence in this case.

The prosecution established a link as to how even after marriage, deceased Pooja could not forget her love with deceased Govind and in consequence thereof, within one month and twelve days of her marriage with Jethiba Varshewar, she left her matrimonial home and went to the house of PW 5 to meet deceased Govind. Deceased Pooja left her matrimonial home with a determination to join the company of the deceased Govind.

Prosecution witness 5 and 6 revealed that the appellants accused had been to village Kharbala in exercise of the conspiracy hatched by them to eliminate Pooja and Govind.

Court noted that the manner in which the throats of both the deceased persons were slit, also indicated and gave a message that if the honour of the family is lowered down, the guilty thereof, are liable to be punished.

Hence, prosecution established the motive.

With regard to blood on weapon sickle, prosecution proved another link of circumstantial evidence that the blood on the clothes of appellant-accused Digambar and on the weapon was blood group “A”. There was no explanation from the appellant-accused about the same.

In the absence of proof of other circumstances, the only circumstance of last seen together and absence of satisfactory explanation cannot be made the basis of conviction.

In the present matter, Bench stated that the last seen theory was acceptable as the time gap between the point of time when the appellants-accused and both the deceased were last seen alive and both the deceased found dead is so small that the possibility of any other person than the accused being the author of the crime becomes impossible.

It was noted that both the appellants accused took deceased Pooja with them by giving her false assurance of her marriage with the deceased Govind and also took deceased Govind with them. Both the appellants-accused along with deceased Pooja and Govind left the house of PW 5 Shankar situated at village Kharbala, taluka Mudhol on one motorcycle being driven by appellant-accused no.2 Mohan leaving no chance for both the deceased persons to find out any other way of escape in case emergency so arises.

High Court added that, there was positive evidence about homicidal death, motive, so also the connecting evidence in the form of blood group of deceased appearing on the weapon and also on the cloths of the appellant-accused Digambar and thus, the circumstance of last seen together and the absence of satisfactory explanation on the part of the appellant-accused completed the chain of circumstantial evidence. 

There was no possibility of any other person meeting or approaching the deceased at the place of incident or before commission of crime in the intervening period.

 FIR given by accused

It is well settled that where the accused himself gives the first information report, the fact of his giving the information is admissible against him as evidence of his conduct under Section 8 of the Evidence Act.

Trial Court rightly observed that the said circumstance of confessional FIR was considered to the extent of the conduct of the appellant-accused Digambar under Section 8 of the Evidence Act.

High Court opined that there was sufficient positive evidence of homicidal death. The prosecution had established the chain of circumstantial evidence along with the motive on part of the appellant to commit murder.

Both the appellants failed to give a satisfactory explanation about the death of both the deceased persons when they were seen alive lastly in their company while leaving village Kharbala. Therefore, the death sentence of the accused person was confirmed for offence punishable under Sections 302, 201 read with 34 of Penal Code 1860 and Section 120-B IPC.

Capital Punishment and Mitigating Circumstances

Bench noted the fact that the incident in the present matter did not occur on the spur of the moment or a crime of passion, but craftily planned and meticulously executed.

The present crime is so grave as to shock the conscience of the society and would amount to the rarest of the rare.

 In the Supreme Court decision of Vasanta Sampat Dupare v. State of Maharashtra, (2015) 1 SCC 253, it was held that,

‘it is rarest of rare case and fit for imposition of death sentence. There are no mitigating circumstances. It is an act of taking advantage of absolute innocence. It is not only betrayal of individual trust but also betrayal of social trust. The act is an anathema to social balance. The act of the appellant shocks judicial conscience, conscience of the society and has a menacing effect on the society. His conduct and criminal antecedents reveal that he is and will be a menace to the society and cannot be reformed. Thus, there are no mitigating circumstances’.

In Bhagwan Dass v. State (NCT) of Delhi, (2011) 6 SCC 396, Supreme Court considered as to whether the death punishment can be awarded when the prosecution case rests on circumstantial evidence and particularly dealt with the issue of honour killing.

Court declined to accept the submission that the offence had been committed under the influence of extreme mental and emotional disturbance.

“We are shocked to see the manner in which deceased Pooja and deceased Govind were subjected to death.”

Elaborating its observation further, Bench stated that,

It was done not only with the sole intention to protect the honour of the family, and it was done by hatching conspiracy to punish both of them. The manner in which the throats were slit indicate the same. It was done with an intention to punish them so also to make it as a lesson for those who could dare to disobey the family.

The trial Judge had observed that the face of the accused was expressionless when the Court declared him guilty and there was no repentance at all.

Therefore, in view of the above, Court declined to consider the young age of the appellant-accused 1 and the possibility of his reformation.

High Court while reaching the conclusion expressed that the appellant accused could have cut off the social relations with Pooja and Govind, instead they opted to commit cold-blooded murder in a pre-planned and calculated manner.

In view of the above stated, Bench was not inclined to convert the death punishment of appellant-accused into life imprisonment. [State of Maharashtra v. Digambar, 2021 SCC OnLine Bom 5485, decided on 13-12-2021]

Case BriefsSupreme Court

Supreme Court:  Reminding the Courts of the importance of hierarchy of Courts, the bench of Sanjay Kishan Kaul and MM Sundresh*, JJ has held that the Appellate Court shall not expect the trial court to act in a particular way depending upon the sensitivity of the case. Rather it should be appreciated if a trial court decides a case on its own merit despite its sensitivity.

“Every case has its own journey towards the truth and it is the Court’s role undertake. Truth has to be found on the basis of evidence available before it. There is no room for subjectivity nor the nature of offence affects its performance.”

Factual Background

In the present case, it was alleged that both the accused carried three weapons, waylaid the deceased at a signal in a main road at about 5 p.m. and after the initial attack, dragged him to the pavement, and thereafter inflicted multiple injuries.

PW-1, who saw the occurrence from a fair distance, was known to the deceased and the deceased, who had his intestine coming out, told him the story implicating the accused.

The Deceased was taken to a hospital run by PW-25, a doctor very well known to PW-1. This hospital which was about two kilometres from the place of occurrence, while another nursing home was in existence at about 50 meters.

PW-25 gave treatment to the deceased at about 5.05 p.m. He died of multiple injuries caused by haemorrhage at about 5.45 p.m. About 40 days thereafter, at the request of the police, PW-25 gave another certificate introducing adequate material to indicate that there was a dying declaration.

Before the trial court, the prosecution examined as many as 28 witnesses. Most of the witnesses pertaining to conspiracy, occurrence, recovery and extraordinary judicial confession turned hostile.

On behalf of the defence, a doctor was examined to show that considering the nature of the injuries suffered, the death must have been instantaneous.

The Court of Sessions without exception, threadbare considered all the materials including the witnesses who turned hostile. After due scrutiny, benefit of doubt was extended in favour of the appellants.

The Karnataka High Court, however, did not consider the entire evidence as discussed by the trial court and the judgment of the trial court was reversed and conviction was rendered sentencing the appellants for life.

Duty of appellate Courts

It is pertinent to note that Section 378 CrPC enables the State to prefer an appeal against an order of acquittal. Section 384 CrPC speaks of the powers that can be exercised by the Appellate Court. When the trial court renders its decision by acquitting the accused, presumption of innocence gathers strength before the Appellate Court. As a consequence, the onus on the prosecution becomes more burdensome as there is a double presumption of innocence.

However, at times, courts do have their constraints. Sometimes different decisions are being made by different courts, namely, trial court on the one hand and the Appellate Courts on the other.

Certainly, the court of first instance has its own advantages in delivering its verdict, which is to see the witnesses in person while they depose. However, the Appellate Court is expected to involve itself in a deeper, studied scrutiny of not only the evidence before it, but is duty bound to satisfy itself whether the decision of the trial court is both possible and plausible view. When two views are possible, the one taken by the trial court in a case of acquittal is to be followed on the touchstone of liberty along with the advantage of having seen the witnesses. The Appellate Court shall remind itself of the role required to play, while dealing with a case of an acquittal.

“The district judiciary is expected to be the foundational court, and therefore, should have the freedom of mind to decide a case on its own merit or else it might become a stereotyped one rendering conviction on a moral platform.”

Hence, indictment and condemnation over a decision rendered, on considering all the materials placed before it, should be avoided. The Appellate Court is expected to maintain a degree of caution before making any remark.

Ruling

The Supreme Court found it unnecessary on the part of the High Court to make strong comments on the judgment written by the trial court.

It noticed that,

  • The trial court took enormous pains in considering the evidence of all the witnesses one by one and gave exhaustive reasoning for its ultimate conclusion.
  • The dying declaration was put forth by the prosecution through the mouth of PWs 1, 2 and 25. When the evidence let in by them was found to not be trustworthy, there cannot be any dying declaration either in fact or in law.

The evidence of PW-25 had no existence of dying declaration in it. He had deposed that he did not remember whether the deceased told him that the accused attacked him and caused injuries. He later testified that he had given put forth the dying declaration due to the persistence of the police.

“It rendered a conviction on mere surmise, even though an inference can never be the basis of a conviction when the testimony of a witness is not believed on cogent reasoning.”

  • The alleged occurrence was said to have happened at about 5 p.m. on a busy road with heavy traffic and even the evidence of PW-1 and PW2 suggests that there were about 1000 persons.
  • The defence also examined a Government doctor, an expert in the field of surgery, who had clearly deposed that it would be impossible for the deceased to be conscious after suffering injuries such as intestines coming out.

The Court wondered how the various reasons given by the trial court were found unacceptable by the High Court especially when it did not consider the evidence of the other witnesses.

It was, hence, held that the High Court did not undertake the exercise as mandated under Section 378 read with Section 384 CrPC in reversing the reasoned decision rendered by the trial court. Consequently, the orders of conviction passed by the High Court was set aside.

[Mohan v. State of Karnataka, 2021 SCC OnLine SC 1233, decided on 13.12.2021]

*Judgment by: Justice MM Sundresh

Case BriefsSupreme Court

Supreme Court: The bench of Ajay Rastogi and Abhay S. Oka*, JJ has held that once the prosecution establishes the existence of the three ingredients forming a part of “thirdly” in Section 300, it is irrelevant whether there was an intention on the part of the accused to cause death. Further, it does not matter that there was no intention even to cause the injury of a kind that is sufficient to cause death in ordinary course of nature. Even the knowledge that an act of that kind is likely to cause death is not necessary to attract “thirdly”.

Factual background

One Vijay Singh, along with deceased Balveer Singh were forcibly taken in a vehicle. When the vehicle reached unmetalled road, it was stopped. Thereafter, the accused banged deceased Balveer Singh flat on the ground. While the accused no.1 was holding Balveer Singh, the accused nos.4 and 5 started assaulting deceased Balveer Singh. There was no scope for Balveer Singh to resist. Thus, he was taken out of the vehicle and was forced to lie down on the ground. Thereafter, the accused started assaulting him. Apart from the injuries on non-vital parts, there was a fracture of 6th to 10th ribs on the right side and the right lung was ruptured. Even the windpipe and food pipe were ruptured. There was an injury to liver. The cause of death as certified by the Board was excessive bleeding due to injuries on vital parts like right lung as well as liver and the resultant shock.

Analysis

The Court took note of the ruling in Virsa Singh v.  State of Punjab[1], wherein the Court had explained the facts that the prosecution must prove to bring a case under Section 300 “thirdly”.

“12. To put it shortly, the prosecution must prove the following facts before it can bring a case under S. 300, “Thirdly”;

First, it must establish, quite objectively, that a bodily injury is present;

Secondly, the nature of the injury must be proved; These are purely objective investigations.

Thirdly, it must be proved that there was an intention to inflict that particular bodily injury, that is to say, that it was not accidental or unintentional, or that some other kind of injury was intended. Once these three elements are proved to be present, the enquiry proceeds further and,

Fourthly, it must be proved that the injury of the type just described made up of the three elements set out above is sufficient to cause death in the ordinary course of nature. This part of the enquiry is purely objective and inferential and has nothing to do with the intention of the offender.

13. Once these four elements are established by the prosecution (and, of course, the burden is on the prosecution throughout) the offence is murder under S. 300, “Thirdly. It does not matter that there was no intention to cause death. It does not matter that there was no intention even to cause an injury of a kind that is sufficient to cause death in the ordinary course of nature (not that there is any real distinction between the two). It does not even matter that there is no knowledge that an act of that kind will be likely to cause death. Once the intention to cause the bodily injury actually found to be present is proved, the rest of the enquiry is purely objective and the only question is whether, as a matter of purely objective inference, the injury is sufficient in the ordinary course of nature to cause death. No one has a licence to run around inflicting injuries that are sufficient to cause death in the ordinary course of nature and claim that they are not guilty of murder. If they inflict injuries of that kind, they must face the consequences; and they can only escape if it can be shown, or reasonably deduced that the injury was accidental or otherwise unintentional.”

Hence, in the facts of the case, the Court held that it is impossible to say that the injuries on the chest which resulted into fracture of 5 ribs and rupture of right lung were accidental or un-intentional. From the medical evidence, it was clear that the injuries on the vital parts like right lung and liver which resulted into bleeding and shock were sufficient to cause the death in the ordinary cause of nature.

The Court noticed that the factum of bodily injuries, its nature and the intention to inflict the particular bodily injuries have been established in the case at hand.

[Vinod Kumar v. Amritpal, 2021 SCC OnLine SC 1150, decided on 30.11.2021]

Counsels

For appellant: Advocate Manish K. Bishnoi

For accused: Advocate Gp. Capt. Karan Singh Bhati

*Judgment by: Abhay S. Oka

[1] 1958 SCR 1495

Case BriefsSupreme Court

Supreme Court: In a case where the trial court had convicted the accused and imposed death penalty on the very same day, the 3-judge bench of L. Nageswara Rao, BR Gavai* and BV Nagarathna, JJ has converted the death sentence to life imprisonment after noticing that the trial court as well as the High Court has only taken into consideration the crime but have not taken into consideration the criminal, his state of mind, his socioeconomic background etc.

Factual Background

In the present case, a property dispute led to the accused brutally killing two of his siblings and one nephew. One of the deceased brother’s wife she saw the appellant armed with an axe getting out of her house in the early morning of 11th October 2015. When she entered the house, she saw her brother-in-law lying dead smeared with blood and his neck was detached from the body. In the courtyard, she also found her son lying dead. Her husband had gone to his field in the night so as to guard the crops and suspecting something might be done to him as well, when she rushed towards the field, she saw the accused assaulting her husband with an axe.

The trial judge had awarded death sentence to the appellant for the offences punishable under Section 302 of the IPC (3 counts) and 7 years’ rigorous imprisonment each for the offences punishable under Sections 201 and 506¬B of the IPC respectively. The Madhya Pradesh High Court confirmed the death penalty.

Analysis

While the Supreme Court found no fault with the conviction of the accused, it took exception to the death sentence awarded by the Trial Court on the very day of conviction.

The Court noticed that from the judgment of the trial court, it does not appear that the appellant was given a meaningful time and a real opportunity of hearing on the question of sentence. Nor did the Courts draw a balance sheet of mitigating and aggravating circumstances.

“The trial court as well as the High Court has only taken into consideration the crime but have not taken into consideration the criminal, his state of mind, his socioeconomic background etc.”

Noticing that it is Court’s bounden duty to take into consideration the probability of the accused being reformed and rehabilitated and also take into consideration not only the crime but also the criminal, his state of mind and his socio-economic conditions, the Court observed that,

“The appellant comes from a rural and economically poor background. There are no criminal antecedents. The appellant cannot be said to be a hardened criminal. This is the first offence committed by the appellant, no doubt, a heinous one. The certificate issued by the Jail Superintendent shows that the conduct of the appellant during incarceration has been satisfactory.”

It was hence held that it cannot, therefore, be said that there was no possibility of the appellant being reformed and rehabilitated foreclosing the alternative option of a lesser sentence and making imposition of death sentence imperative.

The Court, hence, converted the sentence imposed on the appellant from death to life.  However, taking  into consideration the gruesome murder of two of his siblings and one nephew, the Court held that the accused deserved rigorous imprisonment of 30 years.

[Bhagchandra v. State of Madhya Pradesh, 2021 SCC OnLine SC 1209, decided on 09.12.2021]

Counsels

For appellant: Senior Advocate N. Hariharan

For State: Assistant Advocate General Swarupama Chaturvedi

*Judgment by: Justice BR Gavai

Case BriefsHigh Courts

Bombay High Court: The Division Bench of Sadhana S. Jadhav and Prithviraj K. Chavan, JJ., while addressing an alleged rape and murder case of two rag pickers, held that,

“…prosecution has utterly failed in connecting the dots and bringing home the guilt of the accused.”

Prosecution Case

The instant case was a sordid story of two poor, helpless and hapless victims who had not only been raped but one of them had been brutally murdered.

Victims were friends and rag pickers which was their only source of livelihood.

It was stated that Survivor-Y did not know the accused previously, however, deceased-X knew accused 1. On the fateful day, survivor-Y and deceased-X were both standing near a garden infront of railway station and at that time both the accused came over and said that they would arrange for some job, both survivor-Y and deceased-X decided to go along with the accused.

Accused offered liquor and took both survivor-Y and deceased-X below the tunnel of a bridge and raped them, on resistance, both the accused assaulted them with hacksaw blade and a knife.

Deceased-X and survivor-Y sustained multiple injuries on the vital parts of their body. However, survivor-Y escaped from the clutches of the accused and ran away from the spot. While running away, she fell down below the bridge and sustained a head injury. She became unconscious, however, deceased-X died on the spot due to the multiple injuries.

On the basis of information given by survivor-Y, an FIR came to be recorded, crime came to be registered under Sections 302, 376(2) read with Section 34 of the Penal Code, 1860.

Reference under Section 366 (1) of the CrPC had already been made by the Additional Sessions Judge for confirmation of the death sentence.

Analysis, Law and Decision

Whether the testimony of survivor-Y who herself is an injured witness can be fully accepted as a truthful version of the entire episode sans corroboration, which is significant in light of the fact that it has been held by catena of decisions that corroboration as a condition for judicial reliance on the testimony of a prosecutrix is not a matter of law but a guidance of prudence under given circumstances.

High Court stated that normally, evidence of an injured eye witness cannot be discarded in toto, particularly when the evidence is tested in the light of broad probabilities, it can be concluded that he or she was a natural eye witness and had no reason to concoct a case against the accused.

Court added that,

Merely because, she is an injured eye witness, her evidence cannot be mechanically accepted though her testimony holds more credence.

 Bench while elaborating further, stated that,

Looking to the report of the Psychiatrist coupled with the fact that survivor-Y was under the influence of liquor at the time of the incident, it would not be safe to accept her testimony as a truthful version of the incident in respect of the alleged assault by the accused.

 It was expressed that, in a criminal trial, the burden of proving the guilt of the accused beyond all reasonable doubts always rests upon the prosecution and on its failure, it cannot fall back upon the evidence.

Well Settled Principle of Law:

Corroboration is not a sine qua non for a conviction in a rape case.

Refusal to act on the testimony of a victim of sexual assault in the absence of corroboration as a rule, is adding insult to injury.

Additional Sessions Judge appeared to have fallen into grave error in not recording the evidence of prosecution witnesses in Marathi which is the language of the District Courts in the State of Maharashtra.

In Court’s opinion, due to such a lapse on the part of the Additional Sessions Judge, a failure of justice has been occasioned and the proceedings stand vitiated.

High Court while taking into consideration the totality of circumstances in the case at hand as well as failure on the part of the trial Court in not promptly furnishing translated copies of English deposition to juvenile-in-conflict-with-law may vitiate the trial and it cannot be said to be a fair and impartial trial, especially when capital punishment is sought to be inflicted upon the accused.

Merely because the crime is heinous and brutal, it would not be just to get carried away sans any legal proof required to substantiate the charge of murder and rape.

Present matter at the most be a case of strong suspicious and no more.

It was apparent that the murder was neither pre-planned nor premeditated and evidence was neither clear, cogent nor credible.

Hence, there was absolutely no question of awarding death sentence to the accused, rather, it was a case wherein the accused must be given a benefit of doubt, nay, it would be a travesty of justice.

“…trial was conducted in a casual manner without ascertaining whether the legal aid provided to the accused was competent and whether the trial was just and fair in a capital punishment case. The quality and credibility of the evidence adduced is not even upto the mark.”

Since the prosecution miserably failed to bring home the guilt of the accused, there was no question of considering whether the case falls under the rarest of rare category wherein the question of award of capital punishment or otherwise would arise.

High Court opined that the decision of the Additional Sessions Judge was full of surmises and conjectures. The entire approach of the trial Court in dealing with the evidence was patently illegal and the conclusions arrived at by it were wholly untenable.

Therefore, Bench acquitted the accused of the offences punishable under Section 376 (2) (g), 302 and 326 of the Penal Code, 1860 in view of Section 368 (c) of the Criminal Procedure Code. [State of Maharashtra v. Rahimuddin Mohfuz Shaikh, Confirmation Case No. 1 of 2017, decided on 25-11-2021]

Advocates before the Court:

Ms. M.M. Deshmukh A.P.P for Appellant-State.

Ms. Rebecca Gonsalvez i/b Dr. Yug Chaudhry, appointed Advocate for Respondents.

High Court Round UpLegal RoundUp

Allahabad High Court

POCSO

Putting penis into mouth will fall under which category – Aggravated Sexual Assault or Penetrative Sexual Assault?

 Anil Kumar Ojha, J., while addressing a matter of child sexual assault, expressed that,

Putting penis into the mouth does not fall in the category of aggravated sexual assault or sexual assault. It comes into the category of penetrative sexual assault which is punishable under Section 4 of POCSO Act.

Read more…

Workman

Can workman who was employed for particular project be considered employee of the company and given permanent status after project is over?

Siddhartha Verma, J. reiterated the law laid down by the Supreme Court in Lal Mohammad v. Indian Railway Construction Co. Ltd., (2007) 2 SCC 513, wherein it was decided that when a workman is employed for a particular project then the services of that employee came to an end as soon as the project was over and he could not be given permanent status. It was also held that shortfall of period of notice or compensation, after completion of the project would not render the termination bad on that count.

Read more…

Arbitration

If arbitrator becomes functus officio, can provisions under Ss. 14 and 15 of the A&C Act to appoint substitute arbitrator be invoked?

Noting the significance of Sections 14 and 15 of the Arbitration and Conciliation Act, 1996, Jayant Banerji, J., expressed that,

If the arbitrator had been rendered functus officio, there existed no occasion to invoke the provisions of Sections 14 and 15 of the Act for appointing a substitute arbitrator.

Read more…

 Guardianship Rights v. Welfare of Minor 

What is more significant: Competing rights of guardianship or Welfare of minor?

Dr Y.K. Srivastava, J., expressed that, in a matter of custody of a minor child, the paramount consideration is the “welfare of the minor” and not rights of the parents or relatives under a statute which are in force.

A claim for guardianship or custody, in a writ of habeas corpus, may not be held to be an absolute right, and would yield to what would appear to be in the interest of the child. In such cases, it is not a question of liberty but of nurture and care. 

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Auction

Property of dead person sold in auction: Is it bad in law?

Siddhartha Varma, J., while deciding a matter with regard to the auction of the property of a dead person held that the proceeding conducted against a dead person is bad in law.

Read more…

Bombay High Court

 NDPS

Whether the blotter paper forms an integral part of the LSD drug when put on a blotter paper for consumption?

Addressing a very crucial question having relevance with the Narcotics Drugs and Psychotropic Substances cases, Revati Mohite Dere, J., decided whether blotter paper forms an integral part of the LSD Drug when put on blotter paper for consumption.

Read more…

Did Aryan Khan with other two accused hatch a conspiracy to commit offence under NDPS Act?

Merely because of Applicants were travelling on the cruise, that by itself cannot be termed as satisfying foundation for invoking provisions of Section 29 against the Applicants.

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Documents

Does accused has right to demand production of documents withheld by investigator at framing of charge? Does S. 91 CrPC include witness statement?

Sandeep K. Shinde, J., expressed that it is settled law that at the stage of framing the charge, the trial court is required to consider whether there are sufficient grounds to proceed against the accused and at that time, trial court is required to consider only police report referred to under Section 173 of the Code and documents sent with.  

Read more…

Rape & Murder

‘Hang by neck till dead’: Bom HC confirms death sentence in a rarest of rare cases for committing rape and murder of a 3-years 9-months old child

 While confirming the death sentence in this rarest of rare cases, the High Court observed:    

“The act of the accused is gruesome and is committed in a diabolic manner. It is a heinous offence. It is unimaginable that a cheerful, frolicking child enjoying with her pet would provoke the feelings of lust in a man who is a father of two daughters and a son. The perversity in the mind of the accused is apparent and therefore, we are of the opinion that the aggravating circumstances in the present case outweigh the mitigating circumstances placed before the court in the course of hearing of the appeal.”

Read more…

Abetment of Suicide

Is it possible to frame a charge against accused for abetment of suicide and in the alternative for committing murder?

Sandeep K. Shinde, J., explained as to when a charge in the alternative can be framed against an accused and when it is not permissible to do so.

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Bail

Bom HC discusses law where accused already granted bail but further non-bailable offences are added by prosecution

Sandeep K. Shinde, J., reiterated the law laid down by the Supreme Court in the case of Pradip Ram v. State of Jharkhand, (2019) 17 SCC 326 wherein it was held:

“where the accused is bailed out under orders of the Court and new offences are added including the offences of serious nature, it is not necessary that in all cases earlier bail should be cancelled by the Court before granting permission to arrest an accused on the basis of new offences. The Powers under Sections 437(5) and 439(2) are wide powers granted to the Courts by the legislature under which Court can permit an accused to be arrested and commit him to custody without even cancelling the bail with regard to the earlier offences.”

Read more…

Calcutta High Court

 Anticipatory Bail

‘Citizens must refrain from taking law in their own hands’: Cal HC observes while granting anticipatory bail to petitioners apprehending arrest for rioting, vandalism, etc.

 Expressing that, “Time has come that every dutiful citizen of the country must realize their duties and accountability to the society and must refrain from taking the law in their own hands”, Division Bench of Harish Tandon and Rabindranath Samanta, JJ., held that,

Destruction of public property has a ramification on society and the taxpayers are burdened for no fault on their part. The charging sections would evince that not only the Public Officers but the public properties have also been destroyed.

Read more…

Rape

Court explains “Intelligible testimony” and “reverse burden of proof”; dismisses appeal of accused charged for raping 3 year old girl under S. 6, POCSO Act

The Division Bench of Soumen Sen and Rabindranath Samanta, JJ., dismissed a criminal appeal which was filed against the judgment and order of conviction and sentence passed by Additional Sessions Judge–cum-Special Judge under POCSO Act, 2012 whereby the appellant had been convicted for commission of offence punishable under Section 6 of the Protection of Children from Sexual Offences Act, 2012 read with Section 376 (2) (i), Indian Penal Code and sentenced to suffer rigorous imprisonment for life without remission and to pay a fine of Rs. 2,000,00.

Read more…

Fundamental Rights

Festival of lights would spread joy, but few are deprived of basic necessities: Is Aadhaar the only criteria for identification of beneficiaries under National Food Security Act?

The Division Bench of Prasanna B. Varale and Madhav J. Jamdar, JJ., while addressing a petition expressed that,

It is disheartening situation for us when we the fortunates are eagerly awaiting as the festive season is approaching and the festival of lights would spread joy and happiness in the society throughout the State or the whole nation, here are the few petitioners who are the members of the marginalised section in general and tribals in particular who have approached this Court on a grievance that they are deprived of the basic requirement of human life, i.e., food, only on account that the State machinery is not technically equipped to give them the benefits flowing from the scheme formulated and floated by the Union of India and to be implemented and executed by the respective States.

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State Machinery 

13-years of long fight, yet State’s investigation unsatisfactory: Whether exemplary costs to a wife fighting for a decade to secure her missing husband’s presence would be granted or not?

 While noting the failure of State Machinery in securing the presence of a person for 13 years, Division Bench of V.K. Jadhav and Shrikant D. Kulkarni, JJ., expressed that,

Article 21 of the Constitution of India guarantees that no person shall be deprived of his life or personal liberty except according to a procedure established by law. Right to life and personal liberty is the primordial right which every human being everywhere at all times ought to have it.

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Delhi High Court

 Contempt of Court

Husband stubbornly and obstinately refused to comply with the orders of the Court; No full disclosure of income

While addressing an issue of non-compliance of Court’s order with regard to paying maintenance to wife, Division Bench of Vipin Sanghi and Jasmeet Singh, JJ., held that,

The actions/ omissions of the Respondent in choosing to show complete disregard to the orders of the Court cannot be countenanced. If such action is permitted, it will lead to anarchy and the Rule of Law would become a casualty. The orders of the Courts would be taken lightly and breached at the own sweet will of the individual concerned.

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Role of Advocate 

An advocate engaged by a client, can he also act as his power of attorney in the proceedings and verify pleadings?

Prathiba M. Singh, J., observed that an advocate who is engaged by a client has to play only one role, either of the advocate in the proceedings or the power of attorney holder.

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Kalkaji Temple

Del HC issues directions for removal of unauthorized shopkeepers, Sanitation facilities, Potable Drinking Water, Garbage Disposal, etc.

The shopkeepers or their families also cannot reside in the Mandir complex. The same is impermissible and is nothing but unauthorized encroachment and trespass into the Mandir’s premises.

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Right to demand Respect & Inter Cadre Transfers

Significance of ‘cogent reason’ while declining inter-cadre transfer

Addressing a grievance with regard to the denial of inter-cadre transfer Division Bench of Rajiv Shakdher and Talwant Singh, JJ., held that, denial with no cogent reasons impinges upon such person’s right to demand respect for her/his family life.

Read more…

Territorial Jurisdiction

Where can a petition under S. 125 CrPC be filed?

Subramonium Prasad, J., reiterated the law relating to the territorial jurisdiction of the court to entertain a petition under Section 125 CrPC.

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Section 125 CrPC

Can wife claim maintenance under S. 125 CrPC where she as well as husband had spouses living at the time of alleged marriage?

A second wife whose marriage is void on account of survival of the first marriage would not be a legally wedded wife, and therefore would not be entitled to maintenance under this provision.

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Maintenance can be claimed under DV Act even if already granted under S. 125 CrPC: Del HC reiterates

Amit Bansal, J., reversed the order of the trial court as it dismissed the application filed by the petitioner under Section 26 of the Protection of Women from Domestic Violence Act only on the basis that it had been filed towards execution of maintenance already granted.

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Cruelty

Wife made serious criminal allegations against husband and his parents but couldn’t prove: Would this amount to cruelty against husband to grant divorce?

While addressing a matrimonial matter wherein a wife caused cruelty to husband, Division Bench of Vipin Sanghi and Jasmeet Singh, JJ., expressed that,

For a man to see his parents to be taken into custody and being incarcerated even for a single day would have caused immense and untold pain and agony to him.

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Can allegations of demand of dowry and alcohol consumption made by wife amount to ‘cruelty’?

Expressing that, allegations made by the wife with regard to the husband demanding dowry and indulging in alcohol consumption, do not tantamount to making serious allegations impinging on the character of the husband, to such an extent, that they would be the cause of immense mental agony and cruelty, Division Bench of Vipin Sanghi and Jasmeet Singh, JJ., dismissed the petition.

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INX Media Case

Can accused be allowed to inspect documents kept in “malkhana”?

Mukta Gupta, J., expressed that,

“…while passing an order of inspection of unrelied upon documents, the Court is bound to strike a balance between the competing interest of ensuring a fair trial to the accused as also maintaining the sanctity of further investigation, in case further investigation is to be carried on.”

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Arbitration

What happens if parties fail to agree on arbitrator within 30 days from receipt of request by one party?

Sanjeev Narula, J., allowed an arbitration petition by appointing a sole arbitrator to adjudicate the disputes between the contesting parties.

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What is the remedy against an order allowing application under S. 8 of Arbitration Act, where existence of arbitration clause is not disputed?

Amit Bansal, J., dismissed a petition challenging the order passed by the lower court whereby respondent’s application under Section 8 of Arbitration and Conciliation Act, 1996 was admitted.

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Assault by Policemen

Law does not permit people to be beaten-up in police custody or during interrogation

While addressing a very unfortunate incident of police assault, Najmi Waziri, J., expressed that

Let no one have to repeat the tragic last words like George Perry Floyd, Jr.: “I can’t breathe”.

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Law on Offences against property

While committing the act of robbery, if revolver is brandished, would that be an offence under S. 397 IPC?

Subramonium Prasad, J., addressed a very pertinent question of whether brandishing a revolver during the act of robbery be covered under Section 397 of Penal Code, 1860.

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Dissolution of Marriage

Materialistic attitude of husband considering wife as cash cow: Is it a ground to dissolve marriage?

The Division Bench of Vipin Sanghi and Jasmeet Singh, JJ., noted in a matrimonial matter that the wife was being viewed as a cash cow and the husband became interested in her only after she got a job with Delhi Police.

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Jammu and Kashmir and Ladakh High Court

Preventive Detention

“No Court should tune out terrorist activities”; HC refuses to interfere with preventive detention of man involved in Pulwama conspiracy

While dismissing the petition seeking release from preventive detention to the detenu involved in Pulwama conspiracy, Tashi Rabstan, J., remarked,

“Acts or activities of individual or a group of individuals, prejudicial to the security of the State or public order, has magnitude of across-the boarder disfigurement of societies. No court should tune out such activities, being swayed by passion of mercy.”

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Selection

“Neither irrational, unreasonable nor arbitrary”; HC holds higher qualification than the maximum qualification prescribed is not suitable qualification

The Division Bench of Ali Mohammad Magrey, Sanjay Dhar, JJ., held that in case of appointments to Class-IV posts, higher qualification than the prescribed 10+2 may not be suitable for many reasons.

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Run Away Couple

“No law or religion gives a license to a father to harass his daughter”

“No law or religion gives a license to a father to harass or intimidate his major daughter just because she does not accede to wishes of her father to marry a particular person.”

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Jharkhand High Court

Specific ingredients must clearly asserted in the notice so that the noticee has an opportunity to explain and defend himself in accordance with S. 74 of JGST Act, 2007

A Division Bench of Aparesh Kumar Singh and Anubha Rawat Choudhary, JJ., allowed the petition and directed the respondents to initiate fresh proceedings from the same stage in accordance with law.

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“Petitioner cannot be treated as a consumer of bulk supply of electricity”; Term “bulk supply” is confined to energy supplied to industrial units and consumers engaged in mining only

A Division Bench of Aparesh Kumar Singh and Anubha Rawat Choudhary, JJ., allowed the petition and sets aside the impugned assessment orders as well as demand notices arising therefrom, which has been passed by treating the petitioner as a consumer of bulk supply of electricity.

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Karnataka High Court

Value Added Tax

‘Common parlance test, ‘Marketability test’ are tools for interpretation to arrive at a decision on proper classification of a tariff entry

A Division Bench of S. Sujatha and Ravi V Hosmani, JJ., allowed the revision petition and set aside the impugned judgment by the Tribunal.

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Kerala High Court

Rape

Being in love isn’t synonymous to consent for sexual intercourse; HC upholds conviction for rape

While clarifying the difference between consent and submission, the Bench expressed,

“Merely for the reason that the victim was in love with the accused, it cannot be presumed that she had given consent for sexual intercourse.”

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Duty of Police Officer

“Mere abusive, humiliating or defamative words by itself cannot attract an offence of obscenity under Section 294 (b) of IPC”; HC quashes proceedings against person who allegedly harassed the Police

Rejecting the allegation of obscenity against the petitioner for abusing and using humiliating words against the Police officer, the Bench clarified,

“It is to be noted that the test of obscenity under Section 294 (b) of the Indian Penal Code is whether the tendency of the matter charged as obscenity is to deprave and corrupt those whose minds are open to such immoral influences.”

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Kidney Transplant

Swap Kidney Transplantation between non-relatives; HC removes legal hurdles

Nagaresh, J., allowed swap kidney transplant between non-relatives. Opining that any law prescribing procedure for organ transplantation should satisfy the test of reasonableness, the Bench remarked,

“When Section 9(3) permits transplant of organs to persons not being a near relative, with the prior approval of the Authorisation Committee, there is no logic or rationale to say that swap transaction will not be allowed when members of each pair are not near relatives, even if the Authorisation Committee approves such transaction.”

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Influence of Alcohol

Presence at a Police Station while being under influence of alcohol; will it attract any offence?

Sophy Thomas, J., quashed proceedings against the petitioner who was charge sheeted for being under the influence of alcohol during his visit to police station for identifying an accused. The Bench stated,

“Consuming liquor in a private place without causing nuisance or annoyance to anybody will not attract any offence”

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Child Molestation

“Child molestation is a shame on society; but if the allegations are false, it is lethal to the life of the accused”

The Division Bench of K.Vinod Chandran and C. Jayachandran, JJ., acquitted the father accused of raping his own minor daughter. Considering the contention that the allegation was raised due to instigation by the stepmother, observing discrepancies in statements of victim and her stepmother and failure to prove age of the victim by the prosecution, the Bench remarked,

“Forensic and semantics apart, child molestation is a shame on society; but if the allegations are false, it is lethal to the life of the accused, more so if the accused is a parent; even if he is eventually acquitted.”

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Public Space

Ensure no new flag masts and posts be permitted to be brought on to the roads and public spaces; HC directs Kerala government

“This is an extremely unfortunate situation and it prevents a complete breakdown of law, because there can be no doubt that any such installation can be made on any public space or road only after obtaining necessary permission from the Local Self Government Institution or such other competent Authority.”

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Interim Orders

No appeals will lie against ad interim orders in a pending case

P.B. Suresh Kumar and C.S. Sudha, JJ., held that ad interim orders cannot be impugned in an appeal under Section 5(i) of the Act. The Bench stated,

 “If appeals against such orders are entertained, the appellate court would be usurping the original jurisdiction of the Court under Article 226 of the Constitution.”

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Animal Rights

“Illegal and Unconstitutional”; HC declares stipulations prohibiting residents from keeping pets void and unenforceable

The High Court of Kerala has once again advocated for animal rights and welfare as the Division Bench of A. K. Jayasankaran Nambiar and Gopinath P. JJ., held that stipulations in resident agreements prohibiting the residents from keeping pets of their choice in their individual apartments are unreasonable and unconstitutional. The Bench remarked,

“We believe the time has indeed come to nudge our citizenry into respecting the claims of other living beings that too have rights in our shared ecosystem. Compassion and empathy are the very essence of civilization and we must strive to preserve these values as part of our culture.”

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Madhya Pradesh High Court

Minor Wife

Does physical relationship with a minor wife come within the category of rape?

G.S. Ahluwalia J., rejected a bail application under Section 439 of CrPC. The appellant was arrested on 31-01-2021 in connection for offence under Sections 363, 376, 366 of IPC and Section 5/6 of POCSO Act.

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Contempt

“To err is human and to forgive is divine”; Court directs advocate to plant and take care of 20 saplings as punishment for contempt of female judge after unconditional apology

The Division Bench of Sheel Nagu and Anand Pathak, JJ., decided upon a petition which was in reference under Section 15(2) of The Contempt of Courts Act, 1971 sent by Judicial Magistrate First Class, Datia in respect of the conduct of respondent.

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Meghalaya High Court

Bail

“Bail and not Jail” Court grants bail to accused charge sheeted for raping own mother

Diengdoh, J., allowed a bail application which was filed under Section 439 CrPC with a prayer for grant of bail wherein the petitioner was accused of raping his own mother.

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Public Interest Litigation

Court allows PIL highlighting delay in establishing comprehensive and modern cancer care facilities in the State

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Orissa High Court

Termination of Pregnancy

Infringement of fundamental right to life of the victim heavily outweighs the right to life of the child in womb; Ori HC refuses to terminate 24+ week pregnancy of a rape victim

K. Panigrahi, J. disposed of the petition and refused to terminate 24+ week pregnancy of a rape victim.

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Government Health Facilities

Ori HC issued directions regarding doctors being attached to Government Health Facilities and carrying on private practice without attending their duties at the Government Health Facilities

A Division Bench of S. Muralidhar, CJ and A. K Mohapatra, J., issued directions regarding Doctors being attached to Government Health Facilities and carrying on private practice without attending to their duties at the Government Health Facilities.

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Firecrackers

Burst only ‘green fireworks’, for 2 hrs only on Diwali

The Division Bench of Dr S. Muralidhar, CJ and B.P. Routray, J. disposed of a writ petition while noting with approval the directions issued by Special Relief Commissioner relating to bursting of green fireworks for a limited period on Diwali day.

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Patna High Court

Breach of Trust and Misappropriation of Client’s money; HC denies bail to Advocate booked for enchasing compensation granted to his client by Railway Claims Tribunal

Rajeev Ranjan Prasad, J., denied bail to the advocate booked for allegedly misappropriating his client’s money and committing breach of trust being an attorney. The Bench stated,

“Despite repeated caution made to learned counsel for the appellant that the appellant being an Advocate must come out with a fair stand even at this stage, there is no change of stand.”

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Punjab and Haryana High Court

Child Marriage

Marriage with a minor is valid if no attempt is made to declare it invalid once the child turns major

The Division Bench of Ritu Bahri and Arun Monga, JJ., held that marriage with minor is valid if no attempt is made to declare the same invalid once the child turns 18.

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NDPS

Challan filled without FSL report is not a complete challan under NDPS Act; HC grants bail to the man in alleged possession of 1.6 kg ganja

Anupinder Singh Grewal, J., granted bail to the person accused of carrying 1.6 kg of ganja on the ground that the challan filled without FSL report would not be a complete challan.

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Rajasthan High Court

Encroachment

Raj HC issued directions to provide a pan-Rajasthan solution for persisting problem of encroachment on the land of public way, johar paitan, river bed etc.

A Division Bench of Vinit Kumar Mathur and Sangeet Lodha, JJ., disposed of the petition and issued directions to the respondents to remove encroachments made over the land in question.

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Sikkim High Court

Rape

Prosecution not able to establish beyond a reasonable doubt that the Appellant was the perpetrator of rape of the minor; acquits accused

The Division Bench of Meenakshi Madan Rai and Bhaskar Raj Pradhan, JJ., allowed an appeal which was filed in order for the Court to determine as to whether the Appellant was the perpetrator of the offence of rape.

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Telangana High Court

Education Institution

Educational Institution: Is it an ‘establishment’ under Telangana Shops and Establishments Act?

The Division Bench of Satish Chandra Sharma, CJ and B. Vijaysen Reddy, J. decides whether an educational institution is covered within the meaning and definition ‘establishment’ under the Telangana Shops and Establishments Act, 1988.

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Influence of Alcohol

Know the 9 directions that Police Officers have to follow on finding vehicle being driven under influence of alcohol

Lakshman, J., while addressing a very pertinent issue expressed that,

Intention of the Legislature is to reduce the accidents and deaths that may be caused due to driving of vehicles in intoxicated condition, and it is not the intention to harass the owners of the vehicles by detaining the vehicles for days together.

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Uttaranchal High Court

Judicial Order

Judicial order necessarily has to be a reasoned one; Court finds reasoning by the Single Judge cryptic, remands the case back

The Division Bench of Raghvendra Singh Chauhan, CJ. and Narayan Singh Dhanik, J. decided on a petition which was filed challenging the validity of the order passed by the Single Judge whereby the respondent-writ petitioner, M/s Kohli Enterprises, was not only blacklisted, but even its registration was cancelled by the appellants.

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Arbitration Agreement

Relief under S. 9 of the Arbitration and Conciliation Act: Can it be granted to a party who is not party to arbitration agreement?

Emphasizing on the purpose and object of Section 9 of the Arbitration and Conciliation Act, 1996, Division bench of Raghvendra Singh Chauhan, CJ and Alok Kumar Verma, J., held that,

A person not a party to an arbitration agreement cannot invoke jurisdiction of the Court for interim relief under Section 9 of the Act, 1996.

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Arrears

State directed to release the arrears of the deceased-in harness in the favour of the family along with interest

The Division Bench of Raghvendra Singh Chauhan, CJ. and Sanjaya Kumar Mishra, J., allowed a petition which was filed by the widowed wife of Mr. Babu Ram, who had died-in harness on 26-08-2020 for the release of gratuity, leave encashment, arrears of ACPs’, and the arrears of the 7th Pay Commission of her late husband in her favour.

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