Case BriefsForeign Courts

South Africa High Court, Free State Division, Bloemfontein: A Division Bench of Mathebula and Chesiwe, JJ. dismissed the present appeal against convictions and sentences.

On 23-11-2012, the deceased and his friends arrived at Mahlomola’s Tavern, Welkom to have drinks but they were not allowed entry. After persuading the in-charge they bought beers. The moment they started to leave, an altercation erupted and the second appellant stabbed at the back of the deceased, Mokhele Thys Thebeladi. This led to the other two appellants also stabbing the deceased.

Counsel for the appellants, L. Tshabalala and P.P. Mile denied any involvement with the events leading to the death of the deceased. All the three had their own defenses; the first left the tavern before the fight started, the second saw him lying on the ground and the third neither participated nor saw anything.

The trial court (Regional Magistrate, Welkom) convicted all the appellants with murder under Section 51(2) of Act 105 of 1997 and sentenced to fifteen years imprisonment. The second appellant was convicted with a further charge of assault with intent to do grievous bodily harm and a further sentence of three years.

Aggrieved with both conviction and sentence the appellant appealed.

The Court observed that the findings of a trial court are credible and anyone even a Court of Appeal with a contrary opinion should support with sufficient reasons. S. v. Chabalala, 2003 (1) SACR 134 (SCA) a case based on ‘guilt to be proved beyond reasonable doubt’ was cited. It laid down that “The correct approach is to weigh up all elements which point towards the guilt of the accused against all those which are indicative of his innocence… to decide whether the balance weighs so heavily in favour of the State as to exclude reasonable doubt about the accused’s guilt.”

In addition, according to the post-mortem report, the deceased sustained multiple stab wounds, caused by the three appellants. The trial court took the right approach as stated in the case and concluded rightly that this was an attack. The trial court has not faulted in any way whatsoever. Therefore, the convictions and sentences are not to be altered.[Andile Cofa v. State, Case number: A132/2017, decided on 22-03-2019]

Case BriefsSupreme Court

Supreme Court: A Bench comprising of Rohinton F. Nariman and Navin Sinha, JJ. allowed criminal appeal filed against the judgment of Gauhati High Court whereby trial court’s decision convicting the appellant under Section 302 IPC was upheld.

The appellant was accused of murdering her husband. She was convicted by the trial court which was affirmed by the High Court holding that the present was a case of circumstantial evidence. The last seen theory established the presence of the appellant with the deceased at night. She was assailant of the deceased. Aggrieved by the judgment of the High Court, the instant appeal was filed.

The Supreme Court observed that mere invocation of the last seen theory, sans the facts and evidence in a case, will not suffice to shift the onus upon the accused under Section 106 of the Evidence Act, 1872 unless the prosecution first establishes a prima facie case. It was noticed that the courts below did not notice defence of the appellant under Section 313 CrPC. It was observed that Section 313 cannot be seen simply as part of audi alteram partem. It confers a valuable right upon an accused to establish his innocence and can well be considered beyond a statutory right as a constitutional right to a fair trial under Article 21 of the Constitution, even if it is not to be considered as a piece of substantive evidence, not being on oath under Section 313 (2). If the accused takes a defence after the prosecution evidence is closed, under Section 313 (1)(b) the Court is duty bound under Section 313(4) to consider the same. It was held that unfortunately in the instant case, complete non-consideration of the appellant’s defence caused prejudice to her. In facts and circumstances, the Court held that the guilt of the appellant was proved beyond reasonable doubt. Therefore, the appeal was allowed and the appellant was acquitted. [Reena Hazarika v. State of Assam,2018 SCC OnLine SC 2281, decided on 31-10-2018]

Case BriefsForeign Courts

Supreme Court of Pakistan: A Three-Judge Bench comprising of Mian Saqib Nisar, Asif Saeed Khan Khosa and Mazhar Alam Khan Miankhel, JJ. while hearing an appeal against conviction on charges of blasphemy, ruled in favour of the accused holding that the prosecution could not prove its case beyond reasonable doubt.

This matter has its genesis in a criminal case filed by one Qari Muhammad Salaam against the appellant – a Christian – who allegedly uttered derogatory remarks against Prophet Muhammad while plucking berries with around 25 other Muslim ladies. In a public meeting, appellant confessed her guilt and an FIR was registered against her. The trial court convicted the appellant under Section 295-C of the Pakistan Penal Code, 1860 and sentenced her to death. Her death sentence was confirmed by the High Court. The instant appeal was filed challenging the order of conviction.

The appellant contended that she had been wrongly implicated owing to a heated altercation between her and the complainant. Further, her confession was coerced in front of a gathering that threatened to kill her.

The Supreme Court appreciated the facts and evidence on record and noted the following:

  • The entire prosecution case revolved around an allegation of two Muslim ladies who did not even appear before the court to support the prosecution case. It was strange that none of the other Muslim co-workers heard appellant’s purported blasphemous statements.
  • There was an inordinate delay of five days in lodging the FIR which casted a serious doubt about the probity of witnesses. As per the law laid down in Zeeshan @ Shani v State, 2012 SCMR 428, absence of any plausible explanation regarding delay in lodging of FIR is fatal to prosecution story and extends benefit of doubt to the accused.
  • There were several inconsistencies in statements of the prosecution witnesses which casted a doubt on prosecution’s story, entitling the appellant to right of benefit of doubt. The court relied on decision in Ayub Masih v State, PLD 2002 SC 1048 to hold that even a single circumstance creating doubt about guilt of accused, entitles him to benefit of doubt as a matter of right.
  • The Court relied on Nasir Javaid v State, 2016 SCC OnLine Pak SC 11 to observe that evidence of extra-judicial confession is a fragile piece of evidence which must always be looked at with doubt and suspicion due to ease with which it may be concocted.
  • Furthermore, as per Article 37 of the Qanun-e-Shahadat Order, 1984, a confession of accused caused by inducement, threat or promise is irrelevant in a criminal proceeding.
  • Lastly, the court stated that it was a well-settled principle of law that onus to prove the guilt of the accused beyond reasonable doubt lay on the prosecution. Concepts of ‘proof beyond reasonable doubt’ and ‘presumption of innocence’ are closely linked – if the presumption of innocence is a golden thread to criminal jurisprudence, then proof beyond reasonable doubt is silver, and these two threads are forever intertwined in the fabric of criminal justice system. As such, where there is any doubt in the prosecution story, the benefit should be given to the accused.

In view of the above, the appeal was allowed, impugned orders of the trial court and High Court were set aside and appellant was directed to be released from jail. [Asia Bibi v. State,2018 SCC OnLine Pak SC 2, decided on 08-10-2018]

Case BriefsHigh Courts

Gauhati High Court: A Single Judge Bench comprising Mir Alfaz Ali, J., allowed an appeal as it was unable to persuade itself to sustain the conviction and sentence of the appellant.

The petition was filed by the appellant who was charged under Section 376 of Indian Penal Code, 1860 for rape of the respondent.

The respondent’s claim that she was tied and raped in the same room where the other family members were also sleeping appeared to be absurd and unbelievable. Also, there were discrepancies in the oral testimony of the respondent’s family which further failed to secure their claim.

What was evident from the two medical documents submitted was that they were contradictory, as the first issued at the time of discharge of the victim did not disclose any injury on the private part whereas the subsequent report explained the reason of injuries to be a self-inflicted one with no marks of violence in addition to the fact that the clothing of the respondent was intact at the time of medical examination.

The Court highlighted that when the offence alleged to have been committed by the appellant was serious and grave one, providing for severe punishment, prosecution must provide greater assurance to the court by the strictest degree of proof that the case has been proved beyond all reasonable doubt.

Hence the conviction and sentence of the appellant were set aside.[Ganesh Das v. State of Assam, 2018 SCC OnLine Gau 949, order dated 16-08-2018]

Case BriefsHigh Courts

Himachal Pradesh High Court: A Single Judge Bench comprising of Chander Bhusan Barowalia, J., decided a criminal appeal filed by the State under Section 378 of CrPC challenging the order of acquittal of the accused persons passed by the trial court, wherein the said order was upheld holding that the prosecution failed to prove the case beyond reasonable doubt.

The accused persons were alleged to have grievously injured the complainant. They were tried for the offences punishable under Sections 341, 323, 325 along with Section 34 IPC. However, the trial court acquitted all the accused persons.

The High Court perused the record as well as submissions made on behalf of the parties. After considering the witness statements, the Court was of the view that the prosecution evidence was not sufficient to prove the case against the accused persons beyond reasonable doubt. There were material contradictions in the statements of the complainant himself. Also, there was un-explained delay of more than fifty five hours in lodging the complaint. Nothing material came out from the statements of the witnesses and the evidence collected and produced by the prosecution was weak. The Court observed that when the judgment of the trial court was neither perverse, nor suffered from any infirmity or based on misappreciation of evidence; reversal thereof by the High Court was not justified. The High Court held that the trial court rightly acquitted the accused persons on proper appreciation of evidence on record.

Accordingly, the judgment impugned in the instant appeal was upheld and the appeal was dismissed. [State of H.P. v. Gopal Singh, 2018 SCC OnLine HP 355, dated 2.4.2018]