Case BriefsHigh Courts

Calcutta High Court: Rajarshi Bhardwaj, J., addressed an appeal arising out of a judgment and order of conviction passed by the Additional District and Sessions Judge sentencing the appellant to suffer rigorous imprisonment and fine along with the payment of compensation to the victim for commission of offence punishable under Sections 376 and 511 of Penal Code, 1860.

The present matter pertains to the contentions and facts that the victim during school hours went to use the toilet and at that time the appellant entered into the toilet and committed rape upon the victim girl.

A complaint was filed in regard to the stated prosecution case after which the officer-in-charge initiated the case under Section 376 (2) of the Penal Code, 1860. The accused was arrested and produced before the Court. Charges were framed against the accused under Sections 376 and 511 of the Penal Code.

Tapan Dutta Gupta, Counsel appearing on behalf of the appellant submitted that the case was concocted out of political rivalry and was established by the defence.

Advocate for the State submitted that the version of the victim has been corroborated by other witnesses, the appeal is liable to be dismissed. Some of the statements of the prosecution witnesses are mentioned below in order to understand the victim’s stand better:

  • PW-1, father of the victim stated that on returning from school, victim girl told him that in the school she had gone to attend her nature’s call and that was the time when the accused entered into the latrine and forcibly committed rape upon her.
  • PW-2, Victim herself stated that on the fateful day she went to the latrine of the school accompanied by her elder sister. She forgot to lock the room of the toilet from inside and at that time the accused entered into the toilet room and pressed his penis in her private part and when she started crying, the accused fled away from the spot.
  • PW-5, the Medical officer, stated that the victim girl did not face any intercourse, though, during the examination, swelling was found over both vulva present and reddish discolouration inside labia minora. Such type of injury may be caused if any person tries to insert his penis in the vagina of a girl aged about 6 years.

Therefore, it appears from the evidence on record that the victim girl was a minor on the date of incident.

High Court stated that, although it has been desperately argued that the appellant was not present at the time of the incident, no such plea was raised nor any evidence led to probabilise, such plea of alibi on behalf of the appellant during the trial.

Hence, in view of the above discussion, appellant is found guilty of the offence punishable under Sections 376 and 511 of the penal Code, 1860 and further sentenced to suffer rigorous imprisonment for 5 years and to pay fine of Rs 4,000 only, in default to suffer simple imprisonment for 6 months is modified to the extent that the appellant was sentenced to suffer rigorous imprisonment of 5 years and fine of Rs 4,000 in default to suffer simple imprisonment for another 1 month.

Accordingly, the appeal is dismissed.[Pratap Dolai v. State of West Bengal, 2019 SCC OnLine Cal 2306, decided on 06-09-2019]

Case BriefsHigh Courts

Bombay High Court: A Division Bench of B.P. Dharmadhikari and Prakash D. Naik, JJ. allowed an appeal by a convict who was convicted for murder and voluntary throwing acid by a trial court under Sections 302 and 326-B of Penal Code, 1860 (herein ‘IPC’), and commuted his death sentence holding that the possibility of reformation, rehabilitation and social reintegration of young age convicts into society could not be neglected.

The victim was selected as Nursing Officer in Military Nursing Services and was supposed to join Naval office at Colaba, Mumbai. The accused-appellant, who had proposed to the victim, was rebuffed by her; and thus he threw sulphuric acid on her at Bandra railway station and fled from there. The victim succumbed to her injuries. A Special Women’s Court convicted the appellant for the offence of murder and sentenced him to death.  Appellant was also convicted for the offence of voluntary throwing acid and sentenced to suffer rigorous imprisonment for five years and to pay fine of Rs 5,000, in default to suffer rigorous imprisonment for six months. This was the first such case where an accused convicted for the acid attack was given the death penalty. Accused-appellant filed an appeal against this order.

The counsels for the appellant, Trideep Pais, Vijay Hiremath, Anshu Raj Singh and Sanya Kumar, argued that the evidence of eyewitnesses was not consistent with each other. The counsels also asserted that the incident occurred in few seconds as stated by the witnesses who saw the appellant momentarily raising doubt about their ability to identify as the identification test was conducted after eight months from the date of the alleged incident. The prosecution claimed that CCTV footage was collected but the same was not relied upon or exhibited on the ground that footage was not clear. However, nothing was put on record to prove that CCTV footage was unclear. CCTV footage was not sent to Forensic Science laboratory (herein ‘FSL’) nor played in the Court. He also argued that the alibi of the appellant was not considered. The benefit of doubt ought to have been given to the appellant as no evidence was established to show the presence of the appellant on the train boarded by the victim. Moreover, assuming that charges of murder were proved, the trial court should not have awarded the capital punishment as the case cannot be termed as rarest of rare case. Therefore, he asserted that sentencing exercise undertaken by the trial court was improper and against the mandate. Further arguing against the death sentence, it was contended that the appellant had no intention of murdering victim but only wanted to injure her.

Learned Special Public Prosecutor A.M. Chimalkar, with Siddharth Jagushte and Tusshar Nirbhavne submitted that the prosecution had established the charges under Sections 302 and 326-B of IPC beyond all reasonable doubt. There was sufficient evidence to prove the guilt of the appellant. The trial court had analyzed the evidence in detail and had given findings of involvement of the appellant in the crime. The eyewitnesses gave an ocular account of the incident and there was no doubt to discard their evidence. The appellant was identified by the witnesses. Furthermore, he argued that the medical evidence supported the case of the prosecution. Learned Special Public Prosecutor submitted that the trial court was right to award death penalty. According to him, the evidence adduced indicate aggravating circumstances justifying no other punishment except the death penalty. The crime was brutal. The trial court examined the reasons for awarding death to the appellant and gave strong reasons for convicting the appellant and interference in the decision was not warranted.

The Court observed that prosecution had established its case beyond reasonable doubt and there was nothing to doubt the authenticity of the evidence and the witnesses examined. Reliance was laid upon S.K. Hasan v. State of Maharashtra, 2003 SCC OnLine Bom 1167 to state that when the appellant had taken a specific plea of alibi, the burden was on him to establish the same. The appellant had not led any evidence to substantiate his plea of alibi. So in the absence of establishing the plea of alibi for cogent evidence, a necessary consequence of adverse inference had to be drawn. The documentary evidence adduced by the prosecution formed a significant part of the case and proved his involvement in the crime.

However, it was opined that the age of the appellant was 23 years at the time of the commission of a crime and that there was a possibility to reform. The Court took note of the ruling in Bachan Singh v. State of Punjab, (1980) 2 SCC 684 to hold that a death sentence can be awarded only in the rarest of rare cases, only if an alternative option was unquestionably foreclosed and only after full consideration of all factors keeping in mind that a sentence of death was irrevocable and irretrievable upon execution. The Court remarked, “It should always be remembered that while the crime is important, the criminal is equally important insofar as the sentencing process is concerned.” It took into consideration the material on record including overall personality, subsequent events to commute the sentence of death awarded to the appellant and directed that he should not be released from custody for rest of his normal life. Furthermore, the Court held that trial court relied on collective conscience to hold that the appellant deserved death penalty but ignored the fact that the appellant was of young age at the time of commission of offence and there was nothing to indicate that the appellant was beyond reformation and rehabilitation, as mandated in the case of Bachan Singh. Although the conviction of the appellant was confirmed, the death sentence was commuted to imprisonment for life. Hence, the appeal was partly allowed.[State of Maharashtra v. Ankur Narayanlal Panwar, 2019 SCC OnLine Bom 968, decided on 12-06-2019]

Case BriefsHigh Courts

Tripura High Court: A Bench of S. Talapatra and Arindam Lodh, JJ. allowed an appeal filed against the Judgment of the trial court whereby the appellant was convicted for an offence of murder punishable under Section 302 IPC.

The appellant was alleged to have committed the murder of his wife. The trial court had observed that the appellant was found on the previous day of the incident as well as on a fateful evening in his rented house by the witnesses, and he alone committed his wife’s murder and none else. The plea of alibi taken as defence by the appellant was not accepted.

Explaining the law regarding the plea of alibi and burden of proof thereof, the High Court stated:

  “Latin word ‘alibi’ means ‘elsewhere’ and that word is used for convenience when an accused takes recourse to a defence line that when the occurrence took place he was so far away from the place of occurrence that it is extremely improbable that he would have participated in the crime. It is basic law that in a criminal case, in which the accused is alleged to have inflicted physical injury to another person, the burden is on the prosecution to prove that the accused was present at the scene and has participated in the crime. The burden would not be lessened by the mere fact that the accused has adopted the defence of alibi. The plea of the accused in such cases need be considered only when the burden has been discharged by the prosecution satisfactorily.”

Explaining further:

  “When the presence of the accused at the scene of occurrence is established satisfactorily by the prosecution through reliable evidence, normally the court would be slow to believe any counter-narrative to the effect that he was elsewhere when the occurrence happened. But if the evidence adduced by the accused is of such a quality and of such a standard that the court may entertain some reasonable doubt regarding his presence at the scene when the occurrence took place, the accused would, no doubt, be entitled to the benefit of reasonable doubt. For that purpose, it would be a sound proposition that in such circumstances, the burden on the accused is rather heavy. It follows, therefore, that strict proof is required for establishing the plea of alibi.”

In the present case, the prosecution had failed to prove appellant’s presence at the scene of the crime. Thus, there was no occasion to consider whether his plea of alibi could be considered or not. Accordingly, the impugned order was set aside and the appellant was set at liberty on the benefit of doubt. [Suman Nama v. State of Tripura, Crl. A. (J) No. 33 of 2015, decided on 03-05-2019]