Case BriefsSupreme Court

Supreme Court: Explaining the difference between Sections 34 and 149 of the IPC, the 3-judge bench of NV Ramana, Surya Kant* and Aniruddha Bose, JJ has held that

“Although both Section 34 and 149 of the IPC are modes for apportioning vicarious liability on the individual members of a group, there exist a few important differences between these two provisions. Whereas Section 34 requires active participation and a prior meeting of minds, Section 149 IPC assigns liability merely by membership of the unlawful assembly. In reality, such ‘common intention’ is usually indirectly inferred from conduct of the individuals and only seldom it is done through direct evidence.”

The Court was hearing a case where all the accused had individually inflicted blows on the victim’s body using axes. The appellants made death threats to the complainant on 24.01.1998 if he were to attempt to irrigate his fields and then they used sharp edged weapons the very next day and further declared that they would not rest till they killed the complainant.

Applying the aforementioned principles to the case, the Court noticed that both the common object and the common intention were traced back to the same evidence, i.e., evaluating the conduct of the accused as narrated by the injured and the eye-witness. Further, a perusal of Section 313 CrPC statement showed that the appellants were expressly confronted with their specific role in the offence: that each of them had individually attacked the complainant with a deadly object in furtherance of the common intention of killing him.

The Court, hence, held that the appellants did not suffer any adverse effect when the High Court held the three of them individually guilty for the offence of attempted murder, without the aid of Section 149 IPC.

Noticing that an offence under Section 307 IPC was clearly made out against each of the appellants, the Court held that the medical experts have in their depositions clearly explicated that the weapons used and the injuries inflicted were more than sufficient to cause death in ordinary course of nature. Also, the facts of the case manifest the appellant’s intention to inflict bodily injury knowing fully that such injuries would ordinarily lead to the complainant’s death.

“The gravity of the injuries is beyond doubt. Not only were there seven injuries, some of which were deep cuts on vital parts of the body including on the head (above the ear); but the appellants broke all the bones in the complainant’s feet below the knee. Most appallingly, the injuries have led to amputation of an entire limb, leaving the complainant permanently disabled.”

That apart, even the requirements of Section 34 of IPC are well established as the attack was apparently pre-meditated. The incident was not in a spur-of-the-moment. The appellants had previously threatened the complainant with physical harm if he were to attempt to irrigate his fields.

Noticing that there was nothing on record to suggest that the complainant caused any provocation, the Court held that specific roles have been attributed to each of the appellants by the injured and the solitary eye-witness, establishing their individual active participation in the crime.

On the issue of mitigation of sentence, the Court said that it cannot be oblivious of the fact that the appellants and their deceased co-accused were all armed with deadly weapons.

“They surrounded the complainant and in a brutal attack caused him gruesome injuries and disabled him for life.”

It further noticed that the appellants have not undergone even half of their sentence period.

“Having enjoyed the more productive part of their lives outside jail cannot be, per se, taken as a mitigating factor. Any misplaced sympathy with the appellants is likely to cause injustice to the victim of the crime.”

The Court, hence, refused to show leniency and reduce the sentence.

[Rohtas v. State of Haryana, 2020 SCC OnLine SC 1014, decided on 10.12.2020]

Case BriefsSupreme Court

Supreme Court: In a 20-year-old case relating to rape of a 6-year-old, the 3-judge bench of RF Nariman*, Navin Sinha and KM Joseph, JJ has dismissed the special leave petition filed by the convict, thereby rejecting the contention that since the petitioner has only one hand, it would be physically impossible to have committed an act of rape. The Court said that there is no such impossibility.

Senior Advocate R. Basant had argued before the Court that the case was made out against the convict only under Section 376(1) and not under Section 376(2), however, after perusing the charges framed, the Court noticed that the charge was not only under Section 376(1) IPC, but was under Section 376, which includes Section 376(2).

Further, there was a concurrent finding of the Court below of facts that the victim, who was only 6 years old, was raped by the petitioner. Apart from the victim’s testimony, there was also the testimony of her mother, who was an eye witness to the incident. The petitioner was over 18 years old and was found to be potent. His lungi was recovered and he himself absconded, having been captured after 15 days of the incident.

While dismissing the Special Leave Petition, the Court said,

“Considering that the State has not filed an appeal and that the incident has taken place 20 years ago, we dismiss the special leave petition, without going into Section 376(2) and whether a case is made out on facts for reducing the minimum punishment of 10 years.”

[Seelan v. Inspector of Police,  2020 SCC OnLine SC 1028, decided on 16.12.2020]


*Justice RF Nariman ahs penned this judgment. Read more about him here.

Case BriefsSupreme Court

Supreme Court: The 3-judge bench of Ashok Bhushan, R. Subhash Reddy and MR Shah*, JJ refused to interfere with the conviction of a man for sexually assaulting a mentally deficient woman.

“A person suffering from mental disorder or mental sickness deserves special care, love and affection. They are not to be exploited. In the present case, the accused has exploited the victim by taking disadvantage of her mental sickness/illness. Therefore, no interference of this Court against the impugned judgment and order passed by the High Court convicting the accused is called for.”

Brief Background

In 2008, the 19-year-old prosecutrix, was sexually assaulted by the accused in the jugle where they both used to go to graze cattle. The accused threatened the prosecutrix not to disclose the incident to anyone and due to fear and due to forgetting the same and further due to mental weakness, she did not disclose about the incident to anyone including her mother. When she was medically examined, it was found that she was 31 weeks pregnant. After she gave birth to a female child, blood samples of the prosecutrix, the baby and the accused were taken for DNA test.  As per report, accused was the biological father of the female child.

The trial Court acquitted the accused mainly on the ground of delay in lodging the FIR and also on the ground that the prosecutrix was not mentally unsound to understand the consequences and what was happening.

However, the Himachal Pradesh High Court sentenced the accused to undergo seven years R.I. with fine of Rs. 10,000/- and in default of payment of fine, further six months R.I. under Section 376 IPC and four years R.I. with fine   of Rs.5,000/- and in default of payment of fine, further three months R.I. under Section 506 IPC.

Analysis

On re-appreciation of evidence by the High Court

The Court held that in the facts and circumstances of the case the High Court is justified and, as such, has not committed any error in reversing the order of acquittal passed by the learned trial Court and convicting the accused for the offences under Sections 376 and 506 IPC. Being the first appellate Court, the High Court was justified in re-appreciating the entire evidence on record and the reasoning given by the learned trial Court.

On the mental condition of the prosecutrix

“Merely because the victim was in a position to do some household works cannot discard the medical evidence that the victim had mild mental retardation and she was not in a position to understand the good and bad aspect of sexual assault.”

Is language material for conducting IQ tests?

In   the   crossexamination, the Medical Expert specifically stated that the language is not material in the tests because these are independent of language. IQ of a person can be known on the basis of the questions, activities and the history of a patient. Therefore, even if there might be some contradictions with respect to language known by the victim, in that case also, it cannot be said to be the major contradictions to disbelieve the entire medical evidence on the mental status of the victim.

On the culpability of the accused

On evidence, it was established and proved that the victim was mentally retarded and her IQ was 62. Holding that the accused had taken disadvantage of the mental illness and low IQ of the victim, the Court noticed

“It is required to be appreciated coupled with the fact that the accused is found to be the biological father of the baby child delivered by the victim. Despite the above, in his 313 statement the case of the accused was of a total denial. It was never the case of the accused that it was a case of consent.”

Therefore, considering the evidence on record, the Court upheld the decision of the High Court wherein it was observed that case would fall under Section 375 IPC. Further, even as per clause fifthly of Section 375 IPC, “a man is said to commit rape”, if with her consent when, at the time of giving such consent, by reason of unsoundness of mind, is unable to understand the nature and consequences of that to which she gives consent.

On reduction of sentence

It was contended on behalf of the accused that he has already undergone four years RI out of seven years RI awarded to him and is married and has two children and therefore a lenient view may be taken. The Court rejected this contention and said

“…as such the High Court has also taken a very lenient view by imposing the minimum sentence of seven years RI.  It is required to be noted that it is a case of sexual assault on a victim whose IQ was 62 and was mentally retarded and that accused has taken undue advantage of the mental sickness/illness of the victim.”

[Chaman Lal v. State of Himachal Pradesh, 2020 SCC OnLine SC 988, decided on 03.12.2020]


*Justice MR Shah has penned this judgment

For Appellant: Advocate Radhika Gautam, learned Advocate has appeared for

For State: Advocate Sarthak Ghonkrokta

Case BriefsHigh Courts

Delhi High Court: A Single Judge Bench of the High Court upheld the sentence of the accused under Section 307 of the Penal Code, 1860 and Section 25 of the Arms Act, while reducing the sentence.

The appellant was convicted for stabbing the victim over a dispute over money. The appellant appealed the High Court, not against the conviction but to plead for reduction of his sentence. The appellant stated that he was deeply regretful for the incident, and that it was committed in the heat of the moment. He also stated that he was the sole bread earner of his family, while also emphasizing that this was the sole criminal proceeding in existence against him.

The Court carefully considered the appellant’s statements and opined that it would meet the interests of justice if the sentence was reduced to five years. The fine of Rs. 25,000 was not reduced, however, the period to be undergone by the appellant in default of payment of fine was reduced from an year to three months. [Kamender v. State of Delhi, 2017 SCC OnLine Del 11270, decided on 30.08.2017]

Case BriefsHigh Courts

Punjab and Haryana High Court: The Court in this case dealt with a revision petition under S. 401 CrPC challenging the judgment of the trial court, Chandigarh convicting and sentencing him rigorous imprisonment for 2 years for substantive offences under Sections 420, 467, 468, 471 IPC.

Learned counsel for the petitioner argued that a few material witnesses were not examined in the case. The Court noted that the counsel for the revisionist-petitioner has raised various other arguments like material discrepancies in the statements of PWs, non-joining of independent witnesses etc. However, H. S. Madaan, J. mentioned clearly in the judgment that such type of contentions do not cut much ice and were not of much concern. The Court observed after hearing the arguments by the petitioner as well as on examining the records of the lower court that the trial court has by giving proper reasoning, has arrived at the conclusion that his non-examination does not make much difference, when the case is otherwise established on the file and it agreed to it.

The Court went on to explain the scope of revision petition before the High Court stating that revisional jurisdiction is somewhat limited in nature and while exercising the same it is to be seen whether the order passed is manifestly illegal or would result in gross miscarriage of justice and therefore, the instant case would not fall within four corners of S. 401 CrPC.

However, the Court considered that the petitioner was 65 years old and had already spent 8 months in jail and in lieu of this, directed that the petitioner be treated leniently. Also keeping in mind that there was no previous conviction against the petitioner, it held that the ends of justice would still be met if the sentence is reduced from two years to one-and-a-half years. [Rajinder Singh v. Union Territory, Chandigarh, 2017 SCC OnLine P&H 1717, decided on 18.07.2017]

Case BriefsSupreme Court

Supreme Court: In the case where the refusal to marriage proposal by a girl resulted into a house trespass by the accused carrying an acid bottle and pouring it over the head of the girl and the Hyderabad High Court had reduced the sentence of one year imposed by the Trail Court to the imprisonment already undergone by the accused i.e. 1 month,  the Court said that when a substantive sentence of thirty days is imposed, in the crime of present nature, that is, acid attack on a young girl, the sense of justice is not only ostracized, but also is unceremoniously sent to “Vanaprastha”.

The Court said that the case at hand is an example of uncivilized and heartless crime committed by the accused. It is completely unacceptable that concept of leniency can be conceived of in such a crime. A crime of this nature does not deserve any kind of clemency as it is individually as well as collectively intolerable. When there is medical evidence that there was an acid attack on the young girl and the circumstances having brought home by cogent evidence and the conviction is given the stamp of approval, there was no justification to reduce the sentence to the period already undergone. The bench said that it unfathomable whether the High Court has been guided by some unknown notion of mercy absolutely ignoring the plight and the pain of the victim; a young girl who had sustained an acid attack, a horrendous assault on the physical autonomy of an individual that gets more accentuated when the victim is a young woman or remaining oblivious of the precedents relating to sentence or for that matter, not careful about the expectation of the collective from the court, for the society at large eagerly waits for justice to be done in accordance with law.

Apart from setting aside the order of the High Court and restoring the sentence imposed by the Trial Court, the Court directed the accused to pay a compensation of Rs.50,000/- and the State to pay a compensation of Rs. 3 lakhs. It was further directed that if the accused fails to pay the compensation amount within six months, he shall suffer further rigorous imprisonment of six months, in addition to what has been imposed by the trial court. [Ravad Sasikala v. State of Andhra Pradesh, 2017 SCC OnLine SC 175, decided on 27.02.2017]

Case BriefsSupreme Court

Supreme Court: In the review petition seeking modification of sentence awarded to  Sushil Ansal and Gopal Ansal, convicted in the Uphaar Tragedy, the Court refused to reduce the sentence of Gopal Ansal but reduced Sushil Ansal’s sentence of imprisonment to the period undergone owing to the old age and the fact that of the one year period imposed by the Delhi High Court, he has already undergone around nine months including remission. Both will, however, be paying the fine of Rs. 30 Crores each.

Justice Ranjan Gogoi and Kurian Joseph, JJ said that having regard to the fact that the High Court and this Court, in appeal, had limited the imprisonment to one year, the punishment which would serve deterrence and public purpose by both imprisonment and exemplary fine, would be an appropriate punishment in a case like this. They were of the opinion that imposition of expiatory fine in addition to incarceration would serve the penalogical purpose of deterrence having regard also to recidivism.

However, A.K. Goel, J on the other hand said that there is neither any illegality nor any impropriety warranting review of said order passed by this Court. He said that Order of the Court has to be seen as a whole and cannot be split into different sentences. The operative part of the order shows that the Court has tried to balance the interest of justice and while holding that sentence was required to be enhanced, it was added that in lieu of additional period of enhanced sentence, substantial amount of fine was required to be imposed and the fine was to be utilized for setting up of or upgrading the trauma centres of hospitals managed by the Government of Delhi.

On 13.06.1997, there was a fire in Uphaar Cinema, Delhi wherein 59 persons lost their life and about 100 persons were injured. On charge of criminal negligence, apart from others, Sushil Ansal the licencee for running the cinema and his brother Gopal Ansal who was in fact conducting the business of cinema, were convicted under Sections 304-A, 337, 338 read with Section 36, IPC. The Trial Court sentenced them to undergo imprisonment upto two years which was reduced by the High Court to one year. [Association of Victims of Uphaar Tragedy v. Sushil Ansal, 2017 SCC OnLine SC 108, decided on 09.02.2017]

Case BriefsHigh Courts

Delhi High Court:  Disposing of an appeal challenging the conviction and sentence under Sections 363, 366 and 376 of the Penal Code, 1860, the Court observed that “From the evidence on record, the prosecution has proved beyond reasonable doubt that the prosecutrix was of 13 years 9 months of age at the time of incident and Raju having allured and enticed the prosecutrix. Thus, her consent was immaterial for the reason she was a minor.”

In response to the appellant’s contention that since from the letters of the prosecutrix it is apparent that she was a consenting party having an affair with the appellant, the sentence of the appellant be reduced, the Court observed that “Section 376 IPC prior to the amendment carried out w.e.f. February 03, 2013, provided that the offence of rape of a woman under 16 years of age with or without her consent was punishable with imprisonment of not less than seven years but which may extend for life or for a term which may extend to ten years and payment of fine, provided, the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than seven years”.

The Court held that “Since the consent of a girl below the age of 16 years is immaterial, the same cannot be treated as a mitigating circumstance so as to award a sentence lesser than 7 years rigorous imprisonment however on the facts and circumstances of the case, the sentence of rigorous imprisonment for 10 years for offence punishable under Section 376 IPC and rigorous imprisonment for 7 years each for offences punishable under Sections 363 and 366 IPC is on the higher side.”

The Court observed that as per Section 376 IPC, the minimum sentence prescribed for the offence of rape of a minor below 16 years is 7 years and hence the sentence of the appellant cannot be reduced to the period already undergone. The appellant’s sentence was modified to 7 years’ RI for the offence punishable under Section 376 IPC with a fine of Rs 10,000 and in default of payment of fine to undergo simple imprisonment for one month,; 4 years’ RI for the offences under Sections 363 and 366 IPC with fine of Rs 2000, and in default of payment of fine to undergo simple imprisonment for one week on both counts. [Raju Kumar Verma @ Raju v. State (Govt. of NCT) of Delhi, 2016 SCC OnLine Del 2993, decided on May 17, 2016]