Case BriefsHigh Courts

Allahabad High Court: Saurabh Shyam Shamshery, J., while addressing a criminal appeal observed that “Conviction for “Dacoity” of less than five persons is not sustainable in the absence of finding that five or more persons were involved in the crime”. 

Three appellants filed the criminal appeal under Section 374 of the Criminal Procedure Code against the judgment and order dated 11-03-1983, wherein appellants Balbir and Lalaram were convicted under Section 395 of Penal Code, 1860 and Mohar Pal under Sections 395 read with 397 IPC.

Trial Court held that the appellants committed dacoity in the house of Raj Kumar.

Analysis, Law and Decision

Section 395 IPC | Punishment for Dacoity:

Whoever commits dacoity shall be punished with imprisonment for life, or with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine.”

Section 397 | Robbery, or dacoity, with attempt to cause death or grievous hurt:

If, at the time of committing robbery or dacoity, the offender uses any deadly weapon, or causes grievous hurt to any person, or attempts to cause death or grievous hurt to any person, the imprisonment with which such offender shall be punished shall not be less than seven years.

“Dacoity” is defined in Section 391 IPC, which is reproduced as under:

“391. Dacoity.–When five or more persons conjointly commit or attempt to commit a robbery, or where the whole number of persons conjointly committing or attempting to commit a robbery, and persons present and aiding such commission or attempt, amount to five or more, every person so committing, attempting or aiding, is said to commit “dacoity”.

Supreme Court in the decision of Raj Kumar  v. State of Uttaranchal (Now Uttarakhand): (2008) 11 SCC 709, held that 

“…conviction of an offence of robbery, there must be five or more persons. In absence of such finding, an accused cannot be convicted for an offence of dacoity.”

“In a given case, however, it may happen that there may be five or more persons and the factum of five or more persons is either not disputed or is clearly established, but the court may not be able to record a finding as to the identity of all the persons said to have committed dacoity and may not be able to convict them and order their acquittal observing that their identity is not established. In such case, conviction of less than five persons–or even one–can stand. But in absence of such finding, less than five persons cannot be convicted for an offence of dacoity.”

Hence, in view of the above decisions, Court stated it clear that in case there is a conviction of less than five persons under Sections 395/397 IPC, trial court must arrive at a finding that there was the involvement of five or more persons.

In absence of the above-stated finding, no conviction could be made out under the aforestated Sections.

Prosecution completely failed in the present case, either to prove the participation of five or more persons in the commission of the offence or establish their identity.

Hence, Court held that the appellant’s conviction and the sentence are repugnant to the letter and spirit of Sections 391 and 396 IPC, therefore it cannot be sustained and trial court’s decision was set aside in the view of the said reasoning.[Balbir v. State of U.P., 2020 SCC OnLine All 845, decided on 09-07-2020]

Case BriefsHigh Courts

Bombay High Court: Bharati Dangre, J., while addressing a petition with regard to the rape of a minor girl, made an observation that:

“Rape” is just not a forcible intercourse, it means to inhabit and destroy everything.

A minor victim girl registered a complaint based on which offences for Sections 376, 354-D, 506 of Penal Code, 1860 were invoked against the applicant.

Since the complaint was registered by a minor, provisions of Sections 3, 4, 11 and 12 of the Protection of Children from the Sexual Offences Act, 2012 were also invoked.

Victim who was acquainted with the applicant who was a business partner of the victim’s father.

She alleged that from the month of October, 2019, the applicant started texting her on her Whatsapp and expressed his liking towards her and also sought sexual favours from her, which was turned down by the victim girl.

Applicant sent a message to the victim stating that he wanted to discuss an important family matter with her and asked her to meet the next day. Next day, when she was waiting for a bus to arrive the applicant approached her on a two-wheeler and she was asked to accompany him.

She was then taken to a nearby farmhouse and by making an emotional appeal and threatening that she if did not agree, he will commit suicide, she was forced to commit sexual intercourse with him. She was also threatened that she should not disclose the incident to her parents and if she does so, it would adversely affect the partnership business.

Again after the above incident, the applicant forced the victim in a similar manner and indulged with her physically.

After a few days of the second incident, the victim disclosed it to her parents and after due deliberation, the report was lodged.

Bench on perusal of the above stated that it is not very unlikely that a young girl aged 17 years became disquieted after the act of ravage and did not gather the courage to speak to her parents about the said incident.

The victim girl was also conscious of the fact that the applicant was a business partner of her father.

The whole episode of the applicant indulging with a minor girl, a daughter of his business partner itself speak of his intention.

FIDUCIARY RELATIONSHIP

Court further observed that the applicant took advantage of the fiduciary relationship, which he shared with the victim girl and put her in a vulnerable situation.

CONSENT

Assuming but not accepting that the victim girl consented for maintaining the physical relationship, her consent is not free consent.

Further, adding to the above, penal code does not recognise the consent by a minor girl to be consent in the eyes of law and in the present case, in the backdrop of narration by the victim, her consent can naturally be said to be induced by a fiduciary relationship which she shared and on that count also, it is not free consent.

“Offence of rape as defined in Section 375 of the IPC, made punishable under Section 376, is attracted when a man commits an act of rape without the consent of the girl or when such consent is obtained by putting her in fear of death or of hurt. The hurt may be physical or mental.”

The consent of the victim girl under 18 years of age is also of no legal consequences when it comes to an offence of rape punishable under Section 376 IPC.

In view of the above observations, High Court did not release the applicant on bail and rejected the bail application. [Amit Raosao Patil v. State of Maharashtra, 2020 SCC OnLine Bom 917, decided on 09-09-2020]

Case BriefsHigh Courts

Allahabad High Court: While deliberating over a matter concerning quashing of a non-bailable order issued by a subordinate court, Rahul Chaturvedi, J., issued directions for speedy completion of the trial and set a timeline for disposal of bail application in the present matter.

The applicant has prayed for the quashing of the impugned order dated 04-12-2019 and 29-01-2020 passed by the subordinate court of Addl. Civil Judge, Meerut in connection with the FIR registered for offences committed under Sections 457, 380 and 311 of the Penal Code, 1860. Counsel for the applicant, Sanjay Kr. Srivastava has contended that the applicant had obtained bail earlier but post the submission of charge-sheet, the applicant remained oblivious to the same. Consequently, a non-bailable warrant has been issued against the applicant via the aforementioned orders. Further, the applicant has expressed his willingness to appear before the Court.

The Court after perusal of the facts, circumstances and the arguments advanced observed that considering what has transpired in the present matter, it would only be appropriate for the subordinate court to extend the benefit of interim bail if it deems fit in accordance with the merits. As it is a well-settled position in law, if the applicant surrenders within 45 (forty-five) days before the court and subsequently if his bail application is filed then the same would be adjudicated and decided by the court with a speaking and reasoned order. The Court relied heavily on the judgment of the Supreme Court in the case of Hussain v. Union of India, (2017) 5 SCC 702, the relevant paragraphs of which have been quoted below for reference-

“Judicial service as well as legal service are not like any other services. They are missions for serving the society. The mission is not achieved if the litigant who is waiting in the queue does not get his turn for a long time”……. “Decision of cases of under-trials in custody is one of the priority areas. There are obstructions at every level in enforcement of right of speedy trial; vested interests or unscrupulous elements try to delay the proceedings”……. “In spite of all odds, determined efforts are required at every level for success of the mission”….. “The Presiding Officer of a court cannot rest in a state of helplessness. This is the constitutional responsibility of the State to provide necessary infrastructure and of the High Courts to monitor the functioning of subordinate courts to ensure timely disposal of cases.”

 In light of the above, the Court has issued the following instructions in the present matter-

(i) Bail applications be disposed of normally within one week,

(ii) Magisterial trials, where accused are in custody, be normally concluded within six months and sessions trials where accused are in custody be normally concluded within two years.

The Court also directed that no coercive action be taken against the applicant for a period of 45 days starting from the date of this order. Considering Supreme Court’s judgment in the case of Brahm Singh v. State of U.P., (1972) 3 SCC 388, the Court ruled that the concerned subordinate court(s) has to necessarily abide by the guidelines laid down in the aforementioned cases of Brahm Singh and Hussain.

With the following instructions, the present application has been disposed of by the Court.[Bittu v. State of Uttar Pradesh, 2020 SCC OnLine All 975, decided on 01-09-2020]

Case BriefsHigh Courts

Uttaranchal High Court: R.C. Khulbe, J., partly allowed an appeal that was filed aggrieved by the Judgment and order passed by Addl. Sessions Judge whereby he had convicted the appellant-Resham Singh under Section 224, Penal Code, 1860 and sentenced him to undergo two years’ R.I. with a fine of Rs 5,000. Appellant Beero Bai was convicted under Section 147, 332/149 and 225/149, Penal Code and she was sentenced to undergo one year’s R.I. in each of these three offences, with a fine of Rs 1,000 under each offence.

Written information was given by S.I., M.C. Srivastava on 01-12-1997 at P.S. Ramnagar. Accordingly, Chick FIR Ex.Ka-9 was lodged at 06:50 A.M. After investigation, Charge-sheet Ex.Ka-15 was submitted against the accused, and accordingly, the cognizance was taken.

The Court while partly allowing the petition stated that the testimony of the witnesses was trustworthy and they had been subjected to lengthy cross-examination but nothing had come out in their evidence which may create any reasonable doubt in their testimony and thus the Trial Court has rightly held that the prosecution has successfully proved the charges against the appellant-Beero Bai beyond a reasonable doubt. The Court relying on the decision of Commandant, 20th Battalion, ITB Police v. Sanjay Binjola, 2001 SCC (Cri) 897 quoted that

“Probation of Offenders Act has been enacted in view of the increasing emphasis on the reformation and rehabilitation of the offenders as useful and self-reliant members of society without subjecting them to the deleterious effect of jail life. The Act empowers the Court to release on probation, in all suitable cases, an offender found guilty of having committed an offence not punishable with death or imprisonment for life or for the description mentioned in Sections 3 and 4 of the said Act.”

The Court further stated that the appellant was the first-time offender and the incident seemed to have taken place 23 years ago thus considering the provisions of the Probation of Offenders Act, 1958, no useful purpose would be served to send the appellant to jail to serve out the remaining sentence instead she should be released on probation in order to reform herself.[Resham Singh v. State of Uttarakhand, 2020 SCC OnLine Utt 504, 27-08-2020]


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Case BriefsForeign Courts

Court of Appeal of the Democratic Socialist Republic of Sri Lanka: A Division Bench of K.K. Wickremasinghe and Devika Abeyratne, JJ., allowed a Revision Application which was filed in order to set aside the order of the High Court Judge of Kandy and impose an appropriate sentence.

The prosecutrix was aged 12 years at the time of the commission of the alleged offence committed by her biological father and he was booked under two charges first one being Section 364 (3) of the Penal Code amended by Act no. 22 of 1995 and secondly under Section 365 B (2) b of the Penal Code amended by Act No. 22 of 1995. When the charges were being read out the accused-respondent had pleaded not guilty and later before the conclusion of evidence he had pleaded guilty to both charges. Accordingly, the High court had imposed 1-year rigorous imprisonment suspended for 20 years and a fine of Rs 10,000 for both the charges each. He was also ordered to give Rs 2,00,000 to the prosecutrix as compensation.

The Counsel for the petitioner, Chathuri Wijesuriya had submitted various grounds as exceptional circumstances which warranted exercising revisionary jurisdiction the Court which included Lawful sentence to be imposed as per the amended Penal Code, Applicability of SC Appeal No. 17 of 2013 and factors to be considered while determining a sentence.

The Court relied on a number of landmark Judgments as of The Attorney General v. H.N. de Silva, 57 NLR 121; Attorney General v. Jinak Sri Uluwaduge, [1995] 1 Sri LR 157; The Attorney General v. Mendis, [1995] 1 Sri LR 138 and concluded that the accused-respondent should have been given deterrent punishment. The Court while allowing the Revision Application stated that the Respondent had committed the grave crime with proper pre-planning to his own daughter thus the sentence imposed by the High Court was grossly inadequate. The Court further modified the sentence making the imprisonment of 15 years in the first charge and 7 years in the second charge respectively. [Attorney General v. Hewaduragedara Nilantha Dilruksha Kumara, CA (PHC) APN: 01 of 2017, decided on 26-08-2020]


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Case BriefsForeign Courts

Supreme Court of the Democratic Socialist Republic of Sri Lanka: A Bench of Buwaneka Aluwihare, LTB Dehideniya and P Padman Surasena, JJ., dismissed an appeal filed aggrieved by the decision of the Provincial High Court of Western Province holden at Panadura which had set aside the judgment of the learned Magistrate and ordered a retrial to be conducted against the Appellant. Thus, the instant appeal was filed.

The Accused-Appellant was charged in the Magistrate’s Court under Section 314, Section 314 read with 102, Section 333, Section 343, Section 380 read with Section 102 and Section 409 read with Section 102 of the Penal Code. Magistrate at the conclusion of the trial acquitted the Appellant from all of the above charges. Being aggrieved the Respondent had appealed to the Provincial High Court which had set aside the judgment of the Magistrate and ordered a retrial to be conducted against the Appellant.

The Court while dismissing the appeal affirmed the judgment of the High Court stating that after considering the facts and having perused all the evidence it was clear that the Magistrate had not taken into consideration the evidence adduced by the defence before he came to the conclusion that the prosecution has not proved its case. Moreover, it also appeared that the Magistrate had failed to assess, evaluate and appreciate the evidence adduced in the trial as a whole. They based their conclusion on the following quotation from the Indian case of State of U.P. v. M.K. Anthony, (1985) 1 SCC 505 where the Supreme Court of India had held that

“while appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the court to scrutinize the evidence more particularly keeping in view of the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief. Minor discrepancies of trivial matters not touching the core of the case, hyper-technical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole.”

[Dehigaspe Patabandige Nishantha Nanayakkara v. Kyoko Kyuma, SC Appeal No. 123 of 2012, decided on 07-08-2020]


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Case BriefsHigh Courts

Kerala High Court: P.V. Kunhikrishnan, J., dismissed a bail application of a woman who was involved in six murder cases.

Petitioner was accused of offences punishable under Sections 110, 120(B), 201, 302, read with Section 34 of the Penal Code, 1860 and under Section 2 read with  6(2) of the Poison Act.

For the above-stated offences, the petitioner has been arrested and is in judicial custody since 2019.

Prosecution Case

Petitioner who is also the 1st accused with an intention to kill the minor daughter of her second husband poisoned the child through food and killed the said child by administering cyanide which was procured with the aid and assistance of the accused 2 and 3.

For the ulterior intention and motive to marry Shaju Sakhariyas, who is a teacher and having a fixed and regular government salary, the 1st accused plotted a plan to do away with the little daughter of Shaju.

The child was calculated as a burden in the future by the petitioner.

After about 1.5 years of the above incident, 1st accused killed the first wife of the said Shaju by administering cyanide and thereafter married Shaju within a short span of time.

Petitioner approached this Court with a bail application.

Petitioner’s Counsel submitted that the petitioner being a woman is entitled the benefit of proviso to Section 437(1) CrPC. The said proviso states that,

‘the Court may direct that a person referred to in Clause(i) or Clause (ii) be released on bail if such person is under the age of sixteen years or is a woman or is sick or infirm’.

Court stated that the word ‘may’ used in proviso itself shows that its the discretion of the Court to either grant bail or not.

Hence, simply because the petitioner is a woman, she is not entitled to bail and in the present matter, allegations against the petitioner are very serious.

Court further considered the contention of the Public Prosecutor that the petitioner had attempted to commit suicide inside the jail and releasing the petitioner at this stage would be dangerous.

Bench stated that the petitioner is involved in 6 murder cases and the modus operandi of the petitioner is almost the same in all the cases.

Therefore, considering the facts and circumstances, the petitioner is not entitled to bail under Section 439 CrPC.  [Jollyamma Joseph v. State of Kerala, 2020 SCC OnLine Ker 3265, decided on 14-08-2020]

Case BriefsHigh Courts

Himachal Pradesh High Court: Chander Bhusan Barowalia J. granted bail to the bail accused of facts and averments presented before him.

The facts of the case are that the prosecutrix made a written complaint wherein she alleged that one day while she was in the jungle grazing the cattle, one Dharmendra Kumar, i. e. accused committed rape and threatened her with life. After she made the complaint the accused was arrested under Section 376, 504, 506 and 354-D(2), Penal Code, 1860 and is behind bars since then. Hence the instant bail petition was filed.

Counsel for the petitioners, Ravi Tanta and Azad Kaith submitted that the accused is 26 years old and is a permanent resident of a nearby village hence he is not in a position to tamper with the evidence or flee from justice hence to keep him in custody for an unlimited period will not be justified.

Counsel for the respondents, S.C. Sharma, P.K. Bhatti and Kamal Kishore submitted that the accused is charged under a serious offence and hence is not liable to be released on bail.

After hearing both sides, the Court found it unfair to keep the accused behind the bars when he will be available for investigation and being a permanent residence of the place is not in a position to tamper with the evidence or flee from justice.

In view of the above, the bail is granted and petition disposed of.[Dharmendra Kumar v. State of H.P, 2020 SCC OnLine HP 1227, decided on 19-08-2020]


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Case BriefsHigh Courts

Bombay High Court: Bharati Dangre, J., rejected the bail application in view of the offence of gang rape against the applicant.

Applicant was punishable for offences under Section 376 of Penal Code, 1860 and Sections 3, 4, 5(G), 5(J)(II), 6, 8 and 12 of the Protection of Children from Sexual Offences Act, 2012.

Applicant’s Counsel Subhash with Samarth Karmarkar, Supriyanka Maurya, Yashpal Purohit submitted that the applicant had been roped into the charge under Section 376(d) IPC without any rhyme and reason.

DNA Report of the child born out of the alleged act of sexual assault did not trace the applicant as the father of the baby girl.

Hence the case for grant of bail was made out according to the applicant.

According to the prosecutrix, she was made to visit the applicant by her friends and then taken to the applicant’s house.

Later, prosecutrix was left alone in the company of applicant, thereafter the applicant and his two friends in a pre-planned manner arrived in his house with some drinking and eating stuff. Prosecutrix on consuming some drink felt dizzy and went off to sleep.

Applicant asked the prosecutrix to rest in bed-room, after which she was raped by applicant and his two friends.

On fearing the outcome of the act, prosecutrix did not reveal the incident or the fact that she was pregnant, to her mother. Prosecutrix was below 18 yrs of age at the time when the incident took place. She delivered a baby girl which has been forwarded to an orphanage and is leading her life there.

Bench took into consideration the fact that the charge against the applicant is serious one of committing gang-rape and taking advantage o a situation of a poor helpless victim girl. He has indulged with two other people into an act of rape.

“Mere fact that the DNA report do not support the paternity is not ground to release the applicant at this stage.”

Court notes that fact that the applicant might pressurize the victim girl on being released, hence no case for his release on bail is made out. [Vaibhav Bhanudas Ubale v. State of Maharashtra, 2020 SCC OnLine Bom 835, decided on 24-07-2020]

Case BriefsHigh Courts

Punjab and Haryana High Court: Hari Pal Verma, J. dismissed the appeal application against the judgment passed by the Additional Sessions judge.

An application was filed by the State for the grant of leave to appeal against the judgment passed by the Additional Session Judge whereby the respondent-accused was acquitted of the charges leveled under Section 3(1)(xi) of the Scheduled Caste and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 but was convicted and sentenced under Sections 341, 354-A, 354-D and 506 of the Penal Code.

The allegations made against the accused were that when complainant alighted from the bus, the respondent intercepted her and started harassing her sexually. However, when the complainant screamed, many persons gathered there on the spot and the complainant was rescued from his clutches. The complainant was frightened and when she was proceeding towards her office, the accused suddenly appeared and extended threat to her life and the family members of the complainant. He also threatened to kill her child after the kidnapping.

The counsel argued that respondent extended threat to the complainant to kill her child after kidnapping attracts offence under Section 506 IPC for which a maximum sentence of 7 years is provided.

The Court opined that the offence under Section 506 of the Penal Code, 1860 had to be read in totality as it was in one incident that the accused had allegedly threatened the complainant, no extended punishment can be provided for the same. With regard to punishment under Scheduled Caste and the Scheduled Tribes (Prevention of Atrocities) Act, 1989, as no proper evidence was given, the order of acquittal was lawful. Thus the application was dismissed as being devoid of merit. [State of Haryana v. Ankit, 2019 SCC OnLine P&H 1044, decided on 03-07-2019]

Case BriefsHigh Courts

Gujarat High Court: The Bench of A.P. Thaker, J., allowed the petition filed under Section 482 of the Criminal Procedure Code for quashing and setting aside the FIR filed under Sections 304(A) read with Section 114 of the Penal Code, Sections 3(1)(j), 3(2)(v) of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Amendment Act, 2015 and Sections 5, 6, 7 and 9 of the Prohibition of Employment as Manual Scavengers and their Rehabilitation Act, 2013.

The brief facts of the case were that the complainant was a member of a scheduled caste who on the date of the incident received a message that his father died when he went to clean drainage in the society of the petitioners. He went there and found his father dead. The petitioners contended that the deceased never entered into said side drainage and he died due to heart problem and not by any negligence on the part of the petitioners. Further, they stated that the complainant had filed the complaint because he wanted compensation from the government. It was also contended that they had never called the deceased for any work nor were they present at the time of the alleged incident. Mr. Manish Patel, advocate for the petitioners, stated that the cause of death as revealed from the postmortem report was natural death due to cardiac-respiratory failure.

The Court while deciding the case emphasized on the settled law that for considering the petition under Section 482 of the Code, it was necessary to consider as to whether the allegations in the complaint prima facie make out a case or not and the Court was not to scrutinize the allegations for the purpose of deciding whether such allegations were likely to be upheld in trial. It was held that a criminal proceeding could be quashed where the allegations made in the complaint did not disclose the commission of an offence under the Penal Code. The complaint must be examined as a whole, without evaluating the merits of the allegations. Though the law does not require that the complaint reproduce the legal ingredients of the offence verbatim, the complaint must contain the basic facts necessary for making out an offence under the Penal Code. It was further stated that a Court exercising its inherent jurisdiction must examine if, on its face, the averments made in the complaint constitute the ingredients necessary for the offence. The FIR was registered on the basis of hearsay and relying on the postmortem report the application was allowed. [Jaykarbhai Kiritbhai Agnihotri v. State Of Gujarat, 2019 SCC OnLine Guj 761, Order dated 25-04-2019]

Case BriefsHigh Courts

Bombay High Court: A Single Judge Bench comprising of Sarang V. Kotwal, J., dismissed an appeal concerning the aspect of cruelty being taken on a mere submission that the deceased was ill-treated as the deceased failed to cook properly.

The present case deals with a very interesting factual matrix and submissions being made by the prosecution. The accused in the present case was charged under Sections 498A and 306 read with Section 34 of IPC, for which the learned judge had acquitted all the accused persons but further the State of Maharashtra had preferred an appeal against the same.

The submissions of the prosecution had two primary folds, which were: Accused being in an illicit relationship with his sister-in-law and deceased facing ill treatment due to failure to cook properly; and based on these grounds Nanda, i.e. the deceased had consumed poison.

Therefore, the High Court while concluding its judgment stated that the prosecution failed to prove the illicit relationship of the accused by placing no evidence on record. Also for the other allegation of ‘not cooking-properly’, the Court stated that “Telling to cook properly or to do household work properly, by itself, would not mean that a person was ill-treated.” No further evidence was placed to show ill-treatment which inclined the Court to not dismiss the Appeal. [State of Maharashtra v. Vijay Dhondiram Shinde,2018 SCC OnLine Bom 2047, decided on 01-08-2018]

Case BriefsHigh Courts

Bombay High Court: A Single Judge Bench comprising of Prakash D. Naik, J. answered a reference made by the Additional Chief Metropolitan Magistrate in a case where the co-accused, who were not public servants, were tried under the provisions of Prevention of Corruption Act 1988 (PC Act) even after the death of main accused, a public servant.

The main accused (now deceased) was a postman in the Post office, and thus a public servant. He was alleged to have misappropriated to his own use, along with other co-accused, several shares of a private company which he was to deliver in furtherance of his official duty. The main accused died before framing of charges and hence criminal proceedings against him stood abated. The remaining co-accused (not public servants) were however tried by the Sessions Judge for the charges framed under PC Act along with charges under Penal Code. The main issue inter alia contended by the respondents was that since the main accused was dead, the Sessions Court was divested of the powers of the trial of the co-accused under PC Act.

The High Court referred to various decisions of the Supreme Court and other High Courts and finally reached a conclusion that there was no infirmity in the trial of the co-accused under the Act even after the death of the main accused who was the public servant. The Court perused Section 4(3) of the PC Act which provides that a Sessions Judge was vested with powers of trying non-public servants for charges under the Act along with charges framed under other statutes. The Court noted the fact that none of the co-accused being tried under PC Act was a public servant and the main accused who was the only public servant was dead. However, having noted thus, the Court observed that death of the main accused does not result in abatement of trial as regards the other co-accused. While answering the reference in affirmative, the Court directed the learned Sessions Judge to proceed with the case in accordance with the law. [State of Maharashtra, In re, 2018 SCC OnLine Bom 1125, dated 04-06-2018]

Case BriefsHigh Courts

Bombay High Court: Before the Aurangabad Bench of Bombay High Court, a woman convicted by trial court for murdering her husband by setting him on fire appealed against the conviction. The accused got married to the deceased husband and had a son out of the wedlock and since the day of marriage, the quarrels between the couple were common. There was a quarrel between both on 31st March, 2011 over some issue and on the same night at around 3:30 am, the accused set the deceased ablaze by pouring kerosene over him.

The two brothers of accused who lived in the same house heard their brother screaming and saw the accused on fire and the accused running away. He was taken to civil hospital where his dying declaration was recorded and henceforth, the accused was charged under Section 302 IPC. In her statement under Section 313 CrPC before trial court, she denied the evidence and witnesses of prosecution saying that the deceased might have committed suicide out of frustration from family quarrels.

In dying declaration, deceased stated that due to quarrel took place during the night, on 1st April 2011 at about 3.00 to 3.30 a.m., his wife accused poured kerosene on his person and set him ablaze in heat of anger, as a result he sustained burn injuries. In another dying declaration, recorded by Executive Magistrate in question answer form, he stated that the accused in a heat of anger, poured kerosene on his person and set him on fire. On the other hand, the accused contended that the FIR was lodged after 5 hours of the incident and the dying declarations were result of tutoring.

In appeal, the Court observed that the dying declarations were proved by the prosecution beyond reasonable doubt and came to the conclusion that the Appellant did commit the offence, as alleged by the prosecution. The Court further observed the dying declarations carefully and said that it appeared that the accused-Rani, in a heat of anger, due to quarrel took place in the night, poured kerosene on the person of Vaijinath and set him on fire. The Court elucidated that it was abundantly clear that, neither there was premeditation on the part of the accused, nor there was preparation for such commission of offence and the offence was the result of a sudden anger and quarrel on a trifle issue. The Court decided to take into account these mitigating circumstances noticed by it, it held that the offence committed by appellant would fall under Exception 4 of Section 300 IPC. The Division Bench accordingly set aside the conviction under Section 302 and convicted the appellant under Section 300 IPC and sentenced a rigorous imprisonment of 7 years. [Rani @ Anjali v.  State of Maharashtra, 2017 SCC OnLine Bom 175, decided on 17.02.2017]