Case BriefsHigh Courts

Delhi High Court: While upholding the decision of Trial Court, Division Bench of Vipin Sanghi and Jasmeet Singh, JJ., reiterated that dying declaration of a person by itself, maybe sufficient to find the accused guilty and if the statement is reliable and credible, it does not even need corroboration.

Convict preferred the present appeal against the decision of lower court arising out of an FIR registered under Sections 302, 304B, 498A, 34, 174A of Penal Code, 1860 against the four accused, namely Rohtash, Santosh, Sumit and Jitender.

Appellant Sumit – accused 3 was found guilty of commission of offence of murder under Section 302 IPC. Other accused persons were acquitted of the offence for which they were charged.

Factual Background

Deceased and her sister were married to both sons of the accused Rohtash and few days after the marriage, father-in-law, mother-in-law, brother-in- law and the husband of the deceased started abusing and beating both the sisters and even damaged the articles given in the marriage. Later both the sisters were beaten and removed from the matrimonial house and the child aged 15-16 days was also snatched from the deceased. Though the child was given back to the mother after police intervention.

After a few days, the accused and other relatives settled the matter and took the sisters to the matrimonial home, where they were both beaten again. After a few days, while the accused Sumit was quarrelling with and beating the deceased, he poured kerosene on her, and she was set on fire. Later the neighbours doused the fire and took her to the hospital.

To the Executive Magistrate, deceased in her statement alleged that she was tortured for the demand of car and two fridges by all the accused persons and her husband had set her ablaze in the presence of other accused persons.

In view of the above-stated background,

Charges were framed against the accused persons, but they all pleaded ‘not guilty’.

Eye Witness (PW-3) sister of the deceased deposed about the incident and about the physical and mental torture to which the deceased was subjected by the accused persons.

Detailed Analysis

High Court stated that the trial court had acquitted the accused including the appellant in relation to the offence under Section 398A and 304B of the Penal Code, 1860.

In Court’s opinion, the testimony of the deceased’s sister was corroborated by the Dying Declaration of the deceased.

Supreme Court in the decision of Khushal Rao v. State of Bombay, AIR 1958 SC 22, held that the dying declaration of a person by itself, may be sufficient to find the accused guilty and if the statement is reliable and credible, it does not even need corroboration.

Bench found that the dying declaration of the deceased was very clear in the present matter.

What did she state?

She stated that yesterday i.e. 14.09.2012, in the night at about 10/10:30 P.M., her husband Sumit @ Vicky, her father in law – Rohtash, her mother in law – Santosh and brother in law – Jitender @ Tinku were all at home and her husband Sumit caught held of her hand and took her to the terrace and her husband poured kerosene oil on her and lit the matchstick in the presence of the other persons/ accused and put her on fire. Her elder sister was also on the terrace at that time, and she was shouting “bachao bachao”. However, nobody came to help her and they all went down. That is when her elder brother in law – Pradeep came to the terrace and with his help and the help of the neighbours, her brother in law Pradeep took her to the hospital. She stated that the accused used to demand dowry and harassed her for the same. They had demanded a car and two fridges in dowry and after her marriage she was being harassed for dowry. She stated that her husband – Sumit, mother in law – Santosh, father in law – Rohtash, and brother in law – Jitender @ Tinku were responsible for her condition.

Deceased’s statement on the aspect of the manner and cause of her death inspired the confidence of its voluntariness, truthfulness and correctness, and was also sufficiently corroborated by testimony of PW-3 and other evidence brought on record.

Conclusion

Hence, Trial Court’s decision was upheld as the finding of the appellant’s guilt in the commission of the offence under Section 300 IPC and was correctly convicted under Section 302 IPC.

Appeal was dismissed in view of the above decision. [Sumit v. State, 2021 SCC OnLine Del 4551, decided on 30-9-2021]


Advocates before the Court:

For the Appellant: Siddharth Yadav, Advocate

For the Respondent: APP for the State

Op EdsOP. ED.

Introduction

The issue whether active euthanasia, suicide and assisted suicide should be legalised or not has been largely debated. Those who speak in favour of legalising them are those who believe in principle of autonomy. They believe that it should be person’s autonomous decision to decide on his death as it is the most intimate and fundamental part of life.[1] But those who are against it believe in principle of sanctity of life which is basically that every human life is valuable to only person himself but also to society and State. Therefore, they say that the State cannot make laws to legalise to allow anyone to take his own death or with the help of others.[2]

The Penal Code, 1860 (IPC) also prohibits these acts and provides punishment for them. The act of death by consent, which covers both voluntary euthanasia and assisted suicide, is carved out as an exception to murder in Exception 5 to Section 3003 IPC. This means that the offence of murder is reduced to culpable homicide not amounting to murder through this exception. There is not much development in the understanding and application of this exception. The reason can be that this is not used much by the defendants as this exception only helps to extenuate the culpability but does not exonerate them from the crime. Although this exception has not been analysed much by the courts, I believe it is important to visit this exception since there are problems which persist with regard to its application.

In this article, by looking at the ingredients and intention of the drafters of Exception 5, I will see how the courts have applied the exception in cases. I argue that the courts erred on the application of basic tenets this exception which is in assessment of “valid consent” and “pious motives” of the killer. I also suggest ways by which the application of Exception 5 can be bettered.

Ingredients of Exception 5

As per Section 300 IPC, Exception 5 has the following ingredients—

  1. The person whose death is caused should be above 18.
  2. That death should be caused by his own consent.

This simply means that the defendant who wants to take benefit of this section would require to prove that the deceased person was above 18 when he consented to his own death. Although this will not exempt the defendant party from punishment but there will certainly be reduction in the culpability of crime. The agreement between persons on killing is called “suicide pact”. Although there can be more than two persons in the suicide pact, usually there are two persons who have mutually agreed upon to end their lives. The defendant is the surviving party, who although killed the other party, was unable to kill himself for some reasons or circumstances that occur before or after such killing.

Drafter’s intention

It is important for us to understand the intention of drafters behind making such exception of murder to get nuanced understanding. The drafters paid much attention to the “motives” of the killer in these cases which according to them are “far more respectable” than in the usual murder case.4 Another justification that drafters give is that these cases “do not produce much evil and insecurity” in the society as the normal commission of murder does. These are the reasons why they found it inappropriate to term cases which fall under Exception 5 as murder.5  But since death of a human being causes “anxiety and alarm” in the society, they did not completely exonerate the offender.6 The drafters kept in mind that people in India commit suicide believing it as their religious duty or sometimes as a strong sense of honour. In such cases, the person assisting them to commit suicide cannot be imposed with same level of culpability as to a murderer. So, they found it appropriate to consider such cases as culpable homicide not amounting to murder.7

Application of Exception 5 in case laws and their analysis

As said before, there is not much development in interpretation and understanding of Exception 5 simply because it is not invoked much by the defendants. But there are few cases in which Exception 5 helped defendants to get their culpability reduced. While reading those cases, we need to give special attention on how courts ascertain the ingredient of consent as the other ingredient of age is a matter of fact.

There was an early case of Dasrath Paswan v. State of Bihar8 where accused was a student of Class 10 who had repeatedly failed at examination. He was upset with his results to the extent that he decided to end his life. When he conveyed his decision to his wife, she asked him to first kill her then kill himself. One fine morning when nobody was at home, accused killed his wife in pursuance of the suicide pact and after that he ran out of his house to kill himself. Before he could end his life, he was found by other villagers and later he confessed that he killed his wife. The matter was brought before Patna High Court and defence argued that they should be given benefit under Exception 5. There was no doubt regarding the age of the deceased as she was above 18 at the time of her death. For the assessment of consent, the Court found it significant that the body of the deceased was lying down and she did not make attempts to prevent assault. Looking at these circumstances, the Court found it appropriate to bring this case under Exception 5.

Another case, a more recent one is Narendra v. State of Rajasthan9 where the deceased was a married woman Nathi who left her home and residing in her parent’s home. There she developed intimacy with the accused Narendra and both wanted to marry. The villagers were against their wish of marriage because they belonged to same gotra. Both of them were very upset due to their love being not accepted by the villagers, therefore they agreed to commit suicide. One day the accused was seen inflicting injuries on deceased by other villagers but the victim had already died before they could rescue her. There were also stab wounds in the abdomen of accused but he was prevented from killing himself. The High Court found no material-on-record to show that there was free and voluntary consent of the deceased. Later this case reached in the Supreme Court where judges placed significance to facts like deceased did not raise alarm, there were also injuries on accused and he did not carry any weapon when he entered the house. Keeping these factual circumstances in mind, the Court ruled in favour of the deceased by giving him benefit under Exception 5.

I contend that the Court’s reasoning in both these cases falters on two very important limbs of this exception. First is ascertaining the “consent” of the victim. Second is looking at the “motives” of the killer.

The first contention is regarding assessment of “valid consent” of the deceased. Courts in both the above given cases reasoned ‘no resistance’ from the deceased side as one of the parameters to conclude that she had consented for her death. But how does the Court reach to the conclusion that there was “no resistance” in both the above given cases? Courts used the same standard to check presence of consent as they mostly use in rape cases — that the deceased did not shout, that there was no attempt to prevent herself from assault. Application of same kind of assessment standard in Exception 5 cases is problematic on two grounds. The first ground is that homicide cases are different from rape cases. Courts in rape cases look at medical reports to see if physical injuries are sustained by the victim. If there is no presence of injury marks that they believe that there was no resistance and conclude that there was consent of the victim.10 But this same enquiry cannot be done here because there is greater chance of presence of injuries in homicide cases as it because of these injuries that the victim has died. The courts in these cases did not expand much on of their reasoning as to how they reached this conclusion on “no resistance” hence consent even when there is definite presence of injuries on deceased. The second ground is that this standard of ascertaining consent by taking “shout” and “resistance” into consideration is criticised by many feminist scholars.11 The social and economic capital is often used by man to silent woman while committing crimes and it might not be always possible for her to shout and resist in such situations.12 Therefore, there is need to change the standard used by the courts and make sure that there was valid consent of the deceased in these cases.

My second contention is regarding the “motives” of the surviving party that the Court needs to ensure that they were “respectable” as were intended by the drafters. This can be done by looking at the intention of the killer in such cases — whether it was genuine or bogus when he agreed the suicide pact with deceased. If he did not want to kill himself but is entering into such pact just for killing the other person would completely obliterate the purpose of this exception. Another possibility arises if there is subsequent change of mind of killer after killing the deceased. These possibilities were contemplated by the drafters of Section 4 of the Homicide Act, 1957 in English Law and they can be summed up as follows—

  1. That the mere presence of suicide pact does not make it a genuine one, it may so happen that one party (deceased) honestly believed in the pact while agreeing while the other party just want to use it as a device as to bring about the death.13
  2. That both the parties have genuine intention to agree upon a suicide pact, there is a subsequent change of mind of the surviving party that they do not even attempt to commit suicide.14

Basically, the enquiry is to find out that that there were best motives of the killer when he entered into the suicide pact. In both of these possibilities, the offender does not fulfil the conditions as was agreed upon in the suicide pact. The drafters of this exception placed so much significance to the “pious motives” of the killer in these cases but there is clear absence of such motives if any of these two possibilities are present. Also, it is not just about the motives of the killer, the consent of the deceased is also vitiated if there is presence of these possibilities. Section 9015 IPC provides that the consent should be given without fear and misconception of fact. In these cases, the deceased party gives its consent to be killed believing that the other party also has genuine intention of committing suicide and would definitely kill himself. But if it so happens that the surviving party had no genuine intention to kill itself since the inception of suicide pact, as is contemplated in possibility 1 above, or if they change their mind, as contemplated in possibility 2, then such consent should be regarded to be given under misconception of fact. The fact based on which deceased gave consent was not untrue and hence that consent should be considered as vitiated under Section 90.

Section 4(3) of the Homicide Act makes it clear that the survivor needs to show that he had settled intention of dying.16 The same standard should be applied by Indian courts as well where it is for the defendant to show that he clearly had settled intention of dying in pursuance of suicide pact. It should be made onus on the party seeking benefit of this exception to prove there was absence of both above given possibilities. Therefore, I believe that if the Court finds presence of any of these possibilities, then that act should not be considered under Exception 5. The reason behind such rejection being, one, the drafters never wanted to give benefit if there are ill-motives of the surviving party and, two, because the consent of the deceased is vitiated.

Conclusion

It is understood that the understanding, application and assessment of Exception 5 in murder involves various aspects which the Court has failed to take into account while reasoning out. The challenging part to ascertain in Exception 5 cases is to ascertain the free and voluntary consent of the deceased. The courts have not been able to provide set standards on how to assess consent, especially when the victim is a woman. The courts should keep into mind the socio-economic capital that man holds which they can use to silent or influence woman. Therefore, the standard that there was no resistance hence woman consented should be done away. Also, the very reason why intention of the drafters reduced the culpability in such cases is because there are “pious motives” of killer so the courts should also do reasonable enquiry as suggested in this article. This would ensure that the benefit of Exception 5 is given with no injustice done to the victim and drafter’s intention.


3rd year law student at National Law School of India University, Bangalore, e-mail: <tusharagarwalswm@gmail.com>. I express my gratitude to Prof. Mrinal Satish (Professor of Law at NLSIU Bangalore) for his valuable inputs and feedback.

[1] Lawrence O. Gostin, The Constitutional Right to Die: Ethical Considerations, St. John’s Journal of Legal Commentary, Vol. 12, (1977): 602-603, accessed on 10-6-2021.

[2] Richard A. McCormick, The Quality of Life, the Sanctity of Life, The Hastings Center Report 8, No. 1 (1978): 30-36, accessed on 14-6-2021.

3 <http://www.scconline.com/DocumentLink/f7pL9l49>.

4 Reports from the Commissioners: Volume 28 Great Britain. Parliament. House of Commons (Jan 1848), pp. 53-54; para 282.

5 Ibid.

6 Ibid.

7 K.D. Gaur, Textbook on Indian Penal Code, Universal Law Publishing, LexisNexis, sixth edition, p. 585.

8 1957 SCC OnLine Pat 129 : AIR 1958 Pat 190.

9 (2014) 10 SCC 248.

10 See Tukaram v. State of Maharashtra(1979) 2 SCC 143 : AIR 1979 SC 185 to look at assessment of court of consent.

11 Upendra Baxi, Lotika Sarkar, Vasudha Dhagamwar and Raghunath Kelkar, An Open Letter to the Chief Justice of India, (1979) 4 SCC J-17.

12 G.S. Bajpai and Raghav Mendiratta, Gender Notions in Judgments of Rape Cases: Facing the Disturbing Reality, Supreme Court Cases (Journal) 60 JILI (2018) 298.

13 Maximilian Koessler, Comparative Aspects of the English Homicide Act of 1957, 25 Missouri Law Review 107 (1960), p. 142.

14 Ibid.

15 <http://www.scconline.com/DocumentLink/tfBf1vh5>.

16 S. 4(3), the Homicide Act, 1957.

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]