Case BriefsHigh Courts

Gauhati High Court: The Division Bench of Suman Shyam and Mir Alfaz Ali, JJ., heard the instant petition against the judgment and order dated 24-03-2011 rendered by Additional Sessions Judge, whereby, the appellant was convicted under Section 302 Penal Code, 1860 and sentenced to rigorous imprisonment for life.

The case of the prosecution was that on 07-11-2014, a fight took place between the deceased and the accused, both of whom were employees of one Shambu Shil. The appellant had inflicted injuries on the head of the deceased with an iron rod, which caused his death. An FIR was lodged by the employer of the deceased as well as the accused/appellant under Section 302 Penal Code, 1860. According to the doctor, the cause of death was shock and hemorrhage as a result of the injuries sustained. All the injuries were accessed to be ante mortem and homicidal in nature.

Moreover, the appellant had recorded a confession before the Judicial Magistrate, on the basis of which and testimony of the Trial Court had convicted the appellant under Section 302 IPC.

Counsel of the accused, B Bhagawati, Amicus Curiae argued that in the confessional statement, the appellant had stated that both were drunk at the time of the occurrence. Further, the confessional statement of the appellant, which was duly recorded by the Judicial Magistrate, and was corroborated by the eye witness’s accounts made it abundantly clear, that there was quarrel and fight between the appellant and the deceased and in course of the quarrel, the appellant hit the deceased with the iron rod at the heat of passion. Thus, the entirety of the evidence clearly demonstrates that there was no premeditation on the part of the appellant and the assault was made suddenly at the heat of passion in course of quarrel.

The Bench observed that, when the assault was made without premeditation, at the heat of passion in course of sudden quarrel and the appellant also did not take any undue advantage nor acted in cruelty, all the above factors had made the present case come squarely within the sweep of exception (4) to Section 300 IPC. However, said the Bench, having regard to the three injuries on the head and the weapon used, it could not be said that the appellant did not has intention to cause death or to cause such bodily injury as is likely to cause death.

Thus, taking note of the evidence in its entirety, the Bench opined that the conviction of the appellant under Section 302 IPC was not sustainable. Therefore, the impugned order was set aside and the appellant was convicted under Section 304 Part-I instead of 302 IPC. Further observing that the appellant had been in custody for more than 14 years, his sentence was reduced to the period already undergone. Accordingly, the appellant was directed to be released.[Debaru Majhi v. State of Assam,  2021 SCC OnLine Gau 422, decided on 05-03-2021]


Kamini Sharma, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Delhi High Court: Vibhu Bakhru, J., observed that If an HIV positive person is aware of their condition and has unprotected sex, the person can be punished under Section 270 of Penal Code, 1860.

Appellant was convicted by the trial court under Sections 376/313/307 of Penal Code, 1860.

Appellant was found guilty of raping his stepdaughter and since the appellant was found to be infected with Human Immunodeficiency Virus (HIV Positive) and was convicted for an offence punishable under Section 307 of IPC — attempt to murder.

Trial Court also observed that since the appellant was aware that his acts could result in transmitting the potentially lethal disease, he had knowingly committed an act, which if resulted in transmitting of HIV and consequently, the death of the victim from that disease, it would amount to murder.

Analysis, Law and Decision

Conviction for Rape — offence punishable under Section 376 of IPC

Whether there is any doubt that the appellant is guilty of committing an offence punishable under Section 376 IPC?

Considering that the prosecutrix gave varied statements at various points of time and had changed her stand on oath. The testimony of the prosecutrix could not be considered as wholly reliable and the trial court erred in proceeding on the said basis. However, Court also denied accepting that she was a wholly unreliable witness.

Further, in view of the above Court stated that it would be unsafe to rely on the testimony of the prosecutrix without any corroborative evidence and hence solely on her testimony, the appellant cannot be convicted.

Bench made another observation that,

in the instant case, there is unimpeachable corroborative evidence that the petitioner had raped the prosecutrix. The DNA Fingerprints of the Products of Conception and the DNA Fingerprints generated from the blood sample of the petitioner conclusively established that the appellant was the biological father of the abortus.

Repeatedly Raped

It is also material to note that the prosecutrix had in the first instance, when she was brought to the Community Care Centre, reported to the nurse that her stepfather had been repeatedly establishing physical relations with her and had been sexually abusing her in front of her siblings.

Even the medical report recorded:

“Repeated Rape by HIV positive stepfather after the death of mother suffering from HIV/AIDS in Jan 2011. Patient was overdue by one week in April 2011 when she was given an injection to get back her periods back. She bled with clots and pieces. UPT done showing pregnancy positive result.”

High Court concurred with the decision of the trial court that the evidence obtained in the present case clearly established beyond any reasonable doubt that the appellant had engaged in sexual intercourse with prosecutrix without her consent and had committed an offence punishable under Section 376 IPC.

Conviction for causing miscarriage – offence punishable under Section 313 IPC

Whether it is established that the appellant is guilty of committing an offence punishable under Section 313 of the IPC?

Trial Court had held that the appellant was guilty of causing miscarriage to the prosecutrix by administering her pills. It is relevant to note that though the prosecutrix was in Sneh Sadan when she was allegedly administered pills by the appellant and the same was allegedly informed to doctors immediately, no action was taken by any of the doctors in this regard.

Bench stated that there is no material to indicate as to what pills were administered to the prosecutrix. Although three medical doctors were examined, none of them mentioned that in their opinion the prosecutrix‘s miscarriage was induced by the said pills.

Hence, the Court stated that there was no description of the pills allegedly administered to the prosecutrix. There is nothing on record to remotely indicate as to what was the substance that was allegedly administered to the prosecutrix.

Court was of the view that there was insufficient evidence to conclude that the appellant had committed the offence of causing the prosecutrix‘s miscarriage. Therefore, the appellant‘s conviction for committing an offence under Section 313 of the IPC could not be sustained.

Conviction for an attempt to murder – offence punishable under Section 307 IPC

Bench did not concur with the view that the appellant was guilty of an offence punishable under Section 307 IPC for several reasons.

Firstly, that the import of holding so would also mean that any sexual activity by a person infected by HIV is punishable under Section 307 of the IPC, notwithstanding that his or her partner has consented to such sexual activity. This is because the culpable act under Section 307 of the IPC does not cease to be one if the victim of such an act has also consented to the same.

Secondly, the trial court had drawn support for its conclusion by mentioning that several countries prosecute cases of transmission of HIV and non-disclosure of HIV status. However, the court had not examined the specific provisions or the rationale used in various jurisdictions for prosecuting non-disclosure of HIV positive status as general offences.

In cases of actual transmission where an HIV Negative person acquires the said disease as a result of engaging in any sexual activity with an HIV Positive partner, the offender is prosecuted for causing bodily harm.

In certain cases where an HIV Positive person fails to disclose his status and engages in any sexual activity, he/she may be prosecuted for sexual assault as in such cases, the consent of the other person to engage in sexual intercourse is vitiated and the sexual act can be construed as one without consent.

In cases of sexual assault or rape, it is widely accepted that the HIV Positive status of the offender is an aggravating factor to be considered while sentencing the offender.

Thirdly, on a plain reading of Section 307 of IPC, an offence under Section 307 IPC is not made out.

Section 307 of the IPC punishes any act which is done by a person with such intention or knowledge and under the circumstances that by that act cause death, the persons committing such act would be guilty of murder.

Bench observed that clearly, in the facts of the present case, the appellant had not raped the prosecutrix with an intention of causing her death.

According to the prosecution, the appellant was lonely after the death of his wife and he had sexually preyed on his stepdaughter (as allegedly disclosed by him in his disclosure statement).

It is relevant to note that one of the key ingredients of the second, third and fourth limb of Section 300 of the IPC is that the culpable act is so inherently dangerous as is likely to cause death; or is sufficient in the normal course of nature to cause death; or in all probability, it would cause death.

The assumption that penetrative sexual assault would in all probability lead to transmission of the disease, which in all probability would result in the death of a healthy partner is not established. In the facts of the present case, no evidence whatsoever was led to establish the probability of the prosecutrix being transmitted the said disease.

In the given circumstances, the decision of the Trial Court is largely based on surmises and impressions, without analysis of any scientific data to assume that sexual intercourse by an HIV positive patient would in all probability lead to the demise of his partner.

Fourthly, the appellant was medically examined and there is no evidence to indicate that he was a carrier of Herpes Simplex Virus. Thus, there is no evidence that the appellant would have transmitted the said disease to the prosecutrix.

Lastly, this Court is of the view that the Trial Court had erred in proceeding on the basis that provisions of Section 270 of the IPC would not be applicable.

In Supreme Court’s decision of Mr ‘X’ v. Hospital ‘Z’: (1998) 8 SCC 296, a case was considered where the respondent hospital had disclosed that the appellant was HIV positive to his fiancé. As a result of such disclosure, the appellant‘s marriage to his fiancé was called off. Appellant instituted an action to recover damages on the ground that the information regarding his HIV positive status was required to be kept secret under medical ethics and was disclosed illegally. The appellant pleaded that since the hospital had breached its duty to maintain confidentiality, they were liable to pay damages to the appellant.

“…the reasoning that unprotected sexual engagement by an HIV positive person, who is aware of the nature of his disease, can be termed as a negligent act, which he knows is likely to spread the infection of a disease that endangers life and is thus, liable to be punished under Section 270 of the IPC is persuasive and cannot be faulted.”

Court opined that even if the Trial Court was of the view that it would not be apposite to frame charges under Section 270 of the IPC, the same did not necessarily warrant that charges be framed under Section 307 of IPC.

In view of the above, the impugned judgment to the extent that it convicts the appellant for committing an offence punishable under Section 376 of the IPC was upheld.

Punishment for offences under Sections 313 and 307 of IPC was set aside. [Sabhajeet Maurya v. State (NCT of Delhi), 2020 SCC OnLine Del 1525, decided on 26-11-2020]

Case BriefsHigh Courts

Bombay High Court: A Division Bench of Sunil P. Deshmukh and B.U. Debadwar, JJ., upheld the decision of the Additional Sessions Judge and discussed the credibility and competency of a child witness.

Present appeal was filed under Section 374 of the Code of Criminal Procedure, 1973 against the judgment of the lower court, whereunder the appellant has been convicted of offences punishable under Section 302 and 309 of Penal Code, 1860.

Fidelity

Appellant since the start of his marriage used to ill-treat his wife i.e. deceased raising doubt about her fidelity.

On a fateful day, appellant assaulted on person of the deceased by giving blows of pestle and blade o her neck and other vital organs of the body.

Attempt to Commit Suicide

After causing the death of the deceased, the appellant tried to commit suicide by inflicting injuries on the neck and both hands by a sharp-edged object.

FIR

First Informant lodged FIR against the appellant for the offence under Sections 302 and 309 of the Penal Code, 1860. Thereafter trial was conducted wherein the appellant was held guilty.

Petitioners’ Counsel P. S. Paranjape argued that the Additional Sessions Judge failed to appreciate that PW-4 a child witness was fully tutored by PW-2 (first informant).

According to the appellant’s counsel, the aged act of moving inside and outside the house after allegedly committing the crime in the naked condition is not a normal act.

No sane person would move after committing such a serious crime in naked condition in a locality where his house situates.

Decision and Analysis

Bench on perusal of the facts and circumstances of the case stated that the prosecution case is based on circumstantial evidence.

Court observed that the issue of the homicidal death of the deceased was not disputed in the present matter.

Child Witness

Further, the bench noted that before recording the evidence Additional Sessions Judge ascertained as to whether master Krishna Akhade is a competent witness and whether oath can be administered to him by putting certain preliminary questions.

Considering the tender age of the child, the Lower Court Judge decided no to administer the oath to him.

High Court stated that,

Merely for the reason that, master Krishna Akhade (PW-4) was in the custody of Sonawane (PW-2) prior to his entering into the witness box, inference cannot be drawn that, Mangesh Sonawane (PW-2) had tutored him before coming to the court for giving evidence.

The aspect of competency and credibility of child witness under Section 115 of the Indian Evidence Act, 1872 was dealt with in the Supreme Court decision of Dattu Ramrao Sakhare v. State of Maharashtra, (1997) 5 SCC 341.

Court relying on the above-stated decision held that the evidence of master Krishna Akhade is reliable and there is no likelihood of him being tutored.

Section 106 of the Indian Evidence Act, 1872 provides that, ‘when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him’.

When tests of reliability and free from tutoring are satisfied, merely for the reason that oath was not administered to master Krishna Akhade (PW-4), his evidence cannot be kept out of consideration under Section 118 of the Indian Evidence Act, 1872.

Appellant – accused has not brought on record any material fact either from the cross-examination of witnesses examined by the prosecution or by producing any defence witness on the basis of which inference can be drawn either that during the fateful morning at the instance of Sangita quarrel broke out and in that quarrel, Sangita had attacked appellant and while defending himself he assaulted Sangita or that some third person either for committing theft or for other reason had entered into the house and assaulted Sangita and appellant, both.

On perusal of the evidence and material on record, the case of the prosecution is squarely covered by clause three of Section 300 IPC.

Defence of insanity is not correct in the present matter and is a mere afterthought.

Witnesses examined by the prosecution are neither interested nor inimical in the present matter. 

While the incident took place inside the house, front and rear doors which are entry points were locked and closed from inside. There was no scope for the third person to enter and at the time of the incident, except appellant-accused, Sangita and their tender aged two children, nobody was present in their house.

Appellant failed to explain as to how the said incident took place.

Attempt to Suicide

Bench held that the chain leading to the conclusion that, none other than the appellant is the assailant and after committing the murder of wife had attempted to commit suicide.

Court upheld the decision of Additional Sessions Judge and dismissed the present criminal appeal. [Bhatu v. State of Maharashtra, 2020 SCC OnLine Bom 868, decided on 21-08-2020]

Case BriefsHigh Courts

Andhra Pradesh High Court: M. Venkata Ramana, J. while pronouncing the grant of bail to certain persons from the management of LG Polymer in the Styrene Gas Leakage Matter, quoted the following:

‘Life’s Good’. It is always so, on this beautiful planet, the Earth.

In Visakhapatnam, an unfortunate incident occurred due to styrene vapour release in an uncontrolled manner affecting flora, fauna including water bodies, etc.

A complaint was filed with regard to the incident for offences under Sections 278, 284, 285, 337, 338 and 304-II, Penal Code, 1860.

Petitioner were arrested in connection with this incident.

Point for determination in the present matter is, whether the petitioners are entitled for bail?

Question of knowledge either with reference to last clause in Section 299 IPC and clause fourthly in Section 300 IPC is largely based on probable consequences of an alleged criminal act attributed against the accused and do not connote any intention at all.

Bench also observed that except Section 304-II IPC, other offences complained of against all these accused are bailable.

Whether the said offences and Section 304-II IPC could go together or not is again a question not open for consideration at this stage in these petitions. All these questions relate to realm of trial.

Incident stated had an enormous impact and was of great magnitude. Yet, there are circumstances, in favour of the accused to to dilute the gravity of the instance in relation to their role if, as a whole responsible.

Externally forced events like shut down of the plant due to lockdown and the effort of the company to air its apprehension of lurking danger due to bulk storage of Styrene monomer in its tanks to the authorities concerned in vain.

Factors sated positively stand in favour of the accused.

Hence, if the request of the accused of bail is considered, Court stated that it is unlikely that the investigation would suffer or get stalled.

With certain conditions, the bail application was accepted.[PPC Mohan Rao v. State of Andhra Pradesh, 2020 SCC OnLine AP 550, decided on 04-08-2020]


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Case BriefsHigh Courts

Orissa High Court: A Division Bench of Pramath Patnaik and Dr A. K. Mishra JJ. modified the conviction given by the trial court and convicted the accused under Section 304 Part-I Penal Code, 1860. 

The brief facts of the case are that the accused was charged under Section 302 IPC for having given a single blow to deceased mother. 

As per prosecution case, the accused and his wife quarreled and when mother intervened, the accused left the spot only to return later with a knife dealt a blow which struck to the right ear and the mother succumbed to her injuries. On investigation, accused was arrested, post mortem conducted and charge-sheet under Section 302 IPC submitted and consequently the accused faced trial by the Court of Session. 

Defence took the plea of denial simplicitor and examined none. The trial court appreciated the evidence of doctor and eyewitnesses and found the death of deceased to be homicidal in nature convicted and sentenced the accused. Aggrieved by the impugned judgment has filed the instant petition.

The counsel for the appellant, Ambika Prasad Ray, submitted that the manner in which the knife blow was inflicted to the mother is nothing but without premeditation and due to heat of passion, out of sudden quarrel and not in a cruel manner for which exception 4 of Section 300 IPC is attracted. 

He further requested the Court to convert the conviction to Section 304 Part-I of IPC. 

The counsel for the respondent, Zafarullah, did not dispute the factum of quarrel but stated that no such plea was taken before the Trial Court. 

After carefully perusing the evidence on record and hearing all the witnesses from both sides, the Court observed that the accused son had no animosity with the deceased mother, rather the incident had the genesis of quarreling between accused and his wife for which it could be said that there was no premeditation and no motive. The Court further observed that the trial Court has committed error in not appreciating the law in the right perspective whereas the material in abundance proves that the offence committed is culpable homicide not amounting to murder as defined under Exception 4 of Section 300 IPC and for that the accused is to be convicted under Section 304 Part-I IPC instead of Section 302 IPC. 

In view of the above, the appeal was allowed and sent back. [Santosh Toppo v. State of Odisha, 2020 SCC OnLine Ori 59, decided on 29-02-2020]

Case BriefsHigh Courts

Kerala High Court: A Division Bench comprising of A. Hariprasad and A.Anil Kumar, JJ., released the appellant as no intention to commit murder was established and he had already undergone more detention than imposed by the law.

The prosecution alleges that the deceased and the accused-appellant used to sleep in the veranda or close shop rooms and in bus waiting sheds. It is pertinent to note that both were in the habit of drinking. The appellant had enmity towards the deceased and physically assaulted him by kicking and hitting on vital body parts with an intention to commit murder. The deceased was taken to the hospital where he was declared dead on arrival.

Renjith B. Marar, counsel representing the appellant, argued that the name of the deceased was noted at the hospital. Due to a botched up investigation, the chance of someone else assaulting the deceased with a mistaken identity cannot be ruled out. There is no case that the accused had any weapon which could have been used for causing injuries mentioned in the post-mortem report. He further argued that even if the prosecution case is accepted, the offence under Section 300 of the Penal Code, 1860 is not made out. The counsel submitted that the opposite counsel failed to prove mens rea on the part of the appellant that caused the death of the deceased. 

Alex H. Thombra, counsel for the respondent, argued that on the evening previous to the incident due to a scuffle between the accused and the deceased; the accused was made to apologise to the victim and thus he developed hostility towards him. PW1 confirmed witnessing the accused assaulting the deceased.

The High Court upon perusal of the facts and circumstances of the case held that the appellant and the deceased were known to each other prior to the incident, the appellant was aware of the deceased’s weak physical conditions. Thus the Court held that the appellant had knowledge that by incessantly assaulting the deceased it will likely cause his death and there is the absence of intention to commit murder, thus the appellant has committed an offence under Section 299, Penal Code, 1860 and is liable under Section 304 of the Penal Code, 1860. The Court sentenced him to 7 years of rigorous imprisonment and on finding that he has been undergoing detention for about 10 years directed that authorities release him. [Jomon Kava v. State of Kerala, CRL.A.No. 1276 of 2016 decided on 31-10-2019]

Case BriefsHigh Courts

Delhi High Court: A Division Bench comprising of S. Muralidhar and Vinod Goel, JJ., dismissed the appeal filed against the order of the trial court whereby the appellant was convicted for the offence punishable under Section 300 IPC.

The appellant was accused of murdering the deceased by repeatedly stabbing him with a knife. The trial court convicted the appellant for murder under Section 302. The said order of conviction was challenged by the appellant in the instant appeal. Counsel for the appellant submitted that the incident was not premeditated; it was a result of a sudden fight in the heat of passion upon a sudden quarrel between the appellant and the deceased. Based on such submission, counsel for the appellant contended that Exception 4 to Section 300 (culpable homicide not amounting to murder)  stood attracted to the case.

The High Court referred to Surinder Kumar v. State (UT of Chandigarh), (1989) 2 SCC 217 and Ghapoo Yadav v. State of M.P., (2003) 3 SCC 528. It was observed that to attract Exception 4 to Section 300, not only must the defence be able to show that the offence was committed without pre-meditation in a sudden fight in the heat of passion upon a sudden quarrel, but more importantly, it must be shown that the offender ‘did not take undue advantage and did not act in a cruel or unusual manner’. However, in the present case, on the facts and circumstances, the Court was of the view that the exception did not get attracted to the case. The testimony of witnesses as also the post-mortem report clearly showed that whatever may have been the provocation, the act of brutally stabbing the deceased with repeated knife blows, was an act done in a cruel and unusual manner which was disproportionate to the provocation. The appeal was accordingly dismissed. [Rajesh Bansal v. State,2018 SCC OnLine Del 10563, dated 14-8-2018]