Case BriefsHigh Courts

Bombay High Court: While addressing a matter with regard to a husband setting ablaze his wife, the Division Bench of Sadhana S. Jadhav and Milind N. Jadhav, JJ., made an observation with respect to dying declaration that,

It is by itself sufficient to convict an accused for the accusation levelled against him provided the dying declaration is found to be voluntary, truthful and hence, could inspire the confidence of the court.

The appellant was convicted for the offence punishable under Section 302 of the Penal Code, 1860 by the Additional Sessions Judge.

Factual Background


Appellant was married to Manisha and in the year 2009, Manisha was admitted to a hospital with a history of burn injuries.

It was disclosed by Manisha to the Police that her husband used to be always under the influence of alcohol and insisted upon her to pay money for the alcohol and if she refused to oblige, he used to assault and abuse her.

On night, when Manisha refused to give money to her husband for liquor, while sleeping the appellant was dowsing kerosene on her and in order to rescue herself, she tried to flee from the house and at that juncture, her husband lit the matchstick and threw at her, setting her ablaze.

Later she raised a hue and cry, after which her sister-in-law tried to rescue her and her husband who had fled from the house came and pretended to extinguish the flames.

In view of the above, charge sheet was filed for the offence punishable under Section 302 IPC.

Analysis, Law and Decision


High Court observed that the trial court did not refer to the history given by the patient herself.

Further, the history narrated by the patient before the doctor created a doubt in respect of the statement recorded and which was held to be the dying declaration.

“A dying declaration is by itself sufficient to convict an accused for the accusation levelled against him provided the dying declaration is found to be voluntary, truthful and hence, could inspire the confidence of the court. It is not necessary that a dying declaration shall necessarily be recorded in question and answer form or in any particular format.”

The Bench noted that various Supreme Court decisions have held that in case of multiple dying declarations/statements of the deceased there shall be no variance whatsoever.

The disclosure leading to the incident in which the deponent had died shall be consistent, cogent and corroborative. The prosecution has to pass this test by all means, as an onus is cast upon the prosecution to establish the guilt of the accused and authorship of the injury by the accused beyond reasonable doubt.

Reasonable doubt

Reasonable doubt means an explanation or a fact which would appeal to the reason of a prudent mind and a judicially conscious court, since such a statement of a deceased must inspire the confidence of the court.

High Court opined that the appellant was in custody since 2009 and deserves to be acquitted of all the charges levelled against him as the dying declaration would constrain the Court to take another possible view.

Whenever there is another possible view, it would be incumbent upon the court to take a view in favour of the accused, provided there is contemporaneous records which is in the nature of admissible evidence.

 Hence, the appeal was allowed.

Lastly, the Court appreciated the efforts taken by the Advocate Ashish Satpute, appointed to espouse the cause of the appellant. [Satish Mahadeo Kale v. State of Maharashtra, 2022 SCC OnLine Bom 1004, decided on 6-5-2022]


Advocates before the Court:

Mr. Ashish Satpute, advocate appointed for appellant.

Ms. M.M. Deshmukh, APP for State.

Case BriefsHigh Courts

Bombay High Court: The Division Bench of Sadhana S. Jadhav and Prithviraj K. Chavan, JJ., modified the conviction of a husband who in provocation by wife on being subjected to abuses assaulted wife.

On being convicted for the offence punishable under Section 302 of the Penal Code, 1860 the appellant was sentenced and imprisoned for life to pay a fine of Rs 5,000. Aggrieved with the same, the present appeal was filed.

Facts leading to the case

In 2009, Narayan Salunkhe lodged a report alleging that his daughter (deceased) was married to the appellant and due to discordant note, she started residing with her parents. On one occasion she went to visit her sister to another village. On the bus stop the husband of the deceased abused and assaulted her and it was noticed that the deceased had sustained incised wound on her neck due to which she succumbed injuries.

In view of the above, crime was registered for the offence punishable under Section 302 of Penal Code, 1860.

Analysis and Discussion

In the present matter, husband and wife were married for almost more than 15 years and the appellant was the father of three grown-up children.

Almost 4 years prior to the said incident, the couple had parted ways and started living independently. On an unfateful day, upon seeing the accused by chance, the deceased had not just obstructed his way by holding his neck, by pulling his shirt but had started hurling abuses and had levelled scathing remarks by which self-esteem of the accused was not only lowered in his own eyes but in public.

High Court expressed that,

The loud allegations made by the deceased were heard by one and all. It was quite natural for the man to feel ashamed upon being referred as impotent.

Stating that the act was not pre-mediated, Bench added that it was true that the incident of the assault was the outcome of a grave and sudden provocation and the accused was deprived of his self-control and hence, he could not have any restraint upon himself while mounting assault.

Since the accused was on his way to work, he was carrying a sickle in his bag. The offence committed by the accused fell under Exception 4 to Section 300 which reads thus:

“Exception 4 – Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner.”

High Court held that the accused was in custody since 2009 and had almost undergone 12 years imprisonment.

In view of the above discussion, the appellant deserved to be convicted for the offence punishable under Section 304(II) of IPC which would serve the ends of justice.[Nandu Dada Survase v. State of Maharashtra, 2022 SCC OnLine Bom 275, decided on 3-2-2022]


Advocates before the Court:

Ms Shraddha Sawant, Appointed Advocate for the Appellant.

Ms Veera Shinde, APP for the Respondent – State

Case BriefsHigh Courts

Rajasthan High Court: A Division Bench of Sandeep Mehta and Sameer Jain, JJ. allowed the appeal and quashed and set aside the impugned judgment.

The appellant Mohanlal was married to Smt. Jhamka (hereinafter referred to as ‘the deceased’) daughter of Sanwla Ram about 5 years before the incident. Smt. Jhamka was inflicted injuries at her matrimonial home on 05-07-2013 and was taken to the hospital where, she was declared dead. on account of demand of dowry. The accused Mohanlal took a specific plea of insanity in his explanation and stated that he was suffering from a bout of schizophrenia on the date of the incident. The appellant herein has been convicted and sentenced as below vide judgment. Being aggrieved of his conviction and sentences, the appellant has preferred the instant appeal under Section 374(2) Cr.P.C.

Counsel for appellant submitted that the accused was suffering from insanity well before and even on the day of the incident and thus, he is entitled to the benefit of plea of insanity by virtue of Section 84 of the IPC which was corroborated by witnesses and medical expert and thus the benefit of Section 84 IPC be given.

Counsel for respondents submitted that based on the evidence produced before the court especially the blood samples collected from the place of the alleged crime were subjected to Forensic examination and all tested positive for presence of ‘B’ Group human blood which establishes beyond all manner of doubt that the accused appellant was responsible for inflicting the fatal injuries to Smt. Jhamka. He contended that the murder was committed inside the matrimonial home and as the presence of the accused in the house has been established by unimpeachable evidence, by virtue of Section 106 of the Indian Evidence Act, the burden would shift on to the accused.

As per the evidence and by resorting to the reverse burden of proof under Section 106 of the Indian Evidence Act, the Court observed that the appellant inflicted the fatal sharp weapon injuries to his wife. Hence, we have no hesitation in concluding that the trial court was perfectly justified in holding that the appellant herein inflicted the blows by a sharp weapon to Smt. Jhamka thereby causing her death. Thus, the injuries were sufficient in the ordinary course of nature to cause death and hence, the offence punishable under Section 302 IPC is well established from the material placed on record by the prosecution.

The Court further observed that having considered the entirety of material available on the record, the evidence of the medical experts and the prescription slips which have been proved by these experts, there is unimpeachable documentary as well as oral evidence which establishes beyond all manner of doubt that the accused was being provided treatment for the mental ailment since the year 2010 onwards. A Medical Board was constituted to examine the accused under the order of the court in the year 2016, and even at that time, he was found suffering from Psychosis NOS.

What is Psychosis NOS?

Psychosis, Not Otherwise Specified (NOS) is a categorization of symptoms within general diagnosis of Psychosis. Modi’s Medical Jurisprudence and Toxicology grades Psychosis as an acutely severe mental disorder, where the patient loses contact with reality along with absolute lack of empathy and absence of insight.

The Court relied on judgment Devidas Loka Rathod v. State of Maharashtra, AIR 2018 SC 3093 and observed that the burden on the defence to prove the plea of insanity is only to the extent of establishing the same by preponderance of probabilities and such a defence need not be proved beyond all manner of doubt. Thus, the conclusion drawn by the trial court that the defence failed to prove that the accused was affected with such mental ailment, which prevented him from understanding the consequences of his acts, is totally unjustified.

The Court held “In wake of the discussion made herein above, we are persuaded to accept the plea of insanity advanced on behalf of the appellant to overturn his conviction as recorded by the trial court by the impugned Judgment.”

The Court further directed “The appellant is acquitted of the charges. He is in custody. He shall be released from prison forthwith if not wanted in any other case. After his release from prison, the appellant shall be provided care and support befitting his right to life under Article 21 of the Constitution of India.” [Mohan Lal v. State, 2022 SCC OnLine Raj 185, decided on 27-01-2022]


Arunima Bose, Editorial Assistant has reported this brief.


Appearances:

For Appellant(s): Mr. Dinesh Vishnoi.

For Respondent(s): Mr. B.R. Bishnoi

Case BriefsHigh Courts

Bombay High Court: Sandeep K. Shinde, J., explained as to when a charge in the alternative can be framed against an accused and when it is not permissible to do so.

Factual Background

Mehnaz (Deceased) was a 15-year-old girl and her mother had expired when she was 4 months old. Deceased was brought up by her maternal uncle, Yusuf. Salim was the brother of deceased’s maternal uncle. Applicant 1 wife of Yusuf and applicant 2 wife of Salim.

One day, on hearing commotion from the house of the applicants, neighbours rushed to the spot and found the deceased lying in an unconscious state. On enquiry, the inmates of the house informed that the deceased fell in the bathroom and became unconscious. Later the hospital declared her dead before admission.

Prosecution case was, accused used to ill-treat and harass the deceased and in furtherance of criminal conspiracy, the deceased was done to death by strangulation, and they caused the disappearance of evidence.

Analysis, Law and Decision

In the instant case, the trial Judge framed the charge under Section 302 IPC and in alternative under Section 306 IPC.

High Court stated that framing of charge under Section 302 and in alternative under Section 306 is not permissible inasmuch as when there is doubt as to facts, Section 221 of CrPC has no application.

In the Supreme Court decision of Prasoon Gupta v. State of U.P., 2010 SCC OnLine All 1887, Supreme Court held that the question framing of charge in alternative can arise, when there is no doubt about the facts, which can be proved but doubt is as to what offence will be constituted on those facts.

It is not permissible in law, to frame a charge for accused having abetted the suicide and a charge in alternative of murder, as it shows doubt as to facts. The offence under Sections 306 and 302 are diametrically opposed to each other.

In the instant matter, Court noted from the autopsy report that the deceased died by ligature strangulation of the neck.

Bench stated that,

I have no reason to disbelieve surgeons’ opinion at least in these proceedings, which rules out the case of hanging and suicide.

 Adding to the above, it was noted that the applicants (accused) on being medically examined had injuries in nature of scratch and linear on the person of applicant 1 whereas 11 simple injuries in the nature of bruises were found on the person of applicant 2.

Bench expressed that evidence of witness, apparently neither suggests nor leads to infer that deceased had attempted to commit suicide and suffered a suicidal death, and the medical evidence validates the prosecution case under Section 302 IPC.

In Court’s opinion, there was sufficient evidence to frame charges against the applicants under Section 302 IPC.

Thus, the order to the extent framing the charge alternatively under Section 306 of IPC against the accused 1 and 2 is quashed and set aside. Only to this extent, the application was allowed. [Sabirabano Yusuf Sayyad v. State of Maharashtra, 2021 SCC OnLine Bom 4138, decided on 24-11-2021]


Advocates before the Court:

Mr. Rizwan Marchant a/w Mr. Faisal F. Shaikh i/by Mr. Rizwan Marchant and Associates, Advocate for Applicants.

Mr. Y.M. Nakhawa, APP for State.

Mr. Ravindra Wani, P.S.I., Antop Hill Police Station.

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

Case BriefsHigh Courts

Bombay High Court: Convicting a person under Section 304 Part I of Penal Code, 1860 Division Bench of Sadhana S. Jadhav and Sarang V. Kotwal, JJ., held that,

On finding that there was no hope that his beloved wife would return to matrimonial abode, accused got enraged an lost self-control and assaulted his wife with whatever available just nearby.

Appellant was convicted for the offence under Section 302 of the Penal Code, 1860.

Factual Matrix

Appellant was married to the deceased Kamal in 2002, in 2015 PW 4 sister of Kamal lodged a report alleging that her sister had disclosed to her that her husband suspected her chastity and was harassing and ill-treating her.

Later, accused had called upon PW4 and enquired about the whereabout of his wife, however, PW4 had feigned ignorance about the whereabouts of Kamal and then a missing complaint was filed by him.

It was also stated that Kamal had refused to return her matrimonial abode and thereafter, she was assaulted by the accused with pestle.

Analysis, Law and Decision

Bench noted that the present case of the prosecution was that the accused was insisting upon his wife to return to her rightful matrimonial abode with a hope that the crises would be ironed. Though the deceased denied the offer. 

It was as if, there was no hope for the accused that his beloved wife would return with him and being enraged and deprived of self-control, had assaulted his wife with whatever available just nearby.

In view of the above, Court stated that it would be necessary to read the mind of the offender and not consider the offence devoid of emotions.

Therefore, the accused would fall under Section 304 Part I of the Penal Code, 1860 and accused deserved to be acquitted of offence punishable under Section 302 IPC.

Appeal was disposed of accordingly. [Ankush Krishna Chavan v. State of Maharashtra, 2021 SCC OnLine Bom 3022, decided on 22-09-2021]


Advocates before the Court:

Mr Lokesh Zade, Court Appointed advocate for appellant.

Ms G.P. Mulekar, APP for State.

Case BriefsHigh Courts

Allahabad High Court: Sanjay Kumar Singh, J. while addressing a bail application of an accused expressed that,

“A criminal conspiracy is generally hatched in secrecy, and it is difficult to obtain direct evidence.”

Instant bail application was filed to seek bail in a case filed under Sections 302, 201, 120-B and 34 of the Penal Code, 1860 during the pendency of the trial.

Factual Matrix 

Complainant who was the friend of the deceased lodged the FIR against the co-accused Shamshad (husband of present applicant Aysha Khatoon) for the offence under Section 364 of Penal Code, 1860 to the effect that the co-accused who was a Muslim by caste and already married had lured and masquerade the deceased 5 years ago and solemnized second marriage with her.

Thereafter, the deceased and her daughter started residing with him.

Deceased had informed the complainant about the torture and harassment along with the threat that co-accused used to subject her to due to her being aware of the first marriage of the co-accused.

Co-accused had confessed his guilt before the police wherein he confessed that the deceased resided with him under a live-in relationship, and he used to bear all the expenses of both the deceased.

Further, he added that co-accused-Shamshad also stated that the deceased was a very high ambitious lady and also spend a lot of money and was leading a luxurious life and when he tried to stop her from doing so, she started squabbling with him.

On an intervening night, the deceased started quarreling with co-accused and demanded money, then he strangulated the victim to death and also killed her daughter (second deceased) by putting the pillow on her face.

The co-accused even confessed that the dead bodies of both the deceased were hidden by him on the floor of the L.E.D room of his house. Police recovered the skeleton and other parts of the bodies in a decomposed condition.

Analysis, Law and Decision

 High Court noted the fact that it was a brutal and heinous double murder case, in which a helpless mother, who blindly trusted upon the co-accused, Shamshad and living with him for the last 5 years and her little daughter had been flagitiously killed and their dead bodies had been hid by the co-accused Shamshad with the help of his brother-in-law in the floor of the room.

“Deceased would never have imagined that the place where they lived would become their graveyard.”

Bench noted the fact that the dead bodies of both the deceased had been buried by the co-accused to destroy the evidence.

Further, the High Court asserted that it is well settled that a man may tell a lie, but circumstances do not.

Hence, in view of the above background, the innocence of the applicant could not be adjudged at the pre-trial stage.

Therefore, while rejecting the bail application, Bench concluded stating that,

 “…trial court shall be absolutely free to arrive at its independent conclusions on the basis of evidence led uninfluenced by anything expressed in this order.”[Aysha Khatoon v. State of U.P., 2021 SCC OnLine All 548, decided on 16-08-2021]


Advocates before the Court:

Counsel for Applicant:- Yogendra Pal Singh, Avnish Kumar Srivastava

Counsel for Opposite Party:- G.A.

Case BriefsSupreme Court

Supreme Court: A Division Bench comprising of Hemant Gupta and A.S. Bopanna, JJ. reversed the conviction of the accussed−appellant who was convicted for the murder of her husband’s first wife and their children. The Supreme Court held that the chain of circumstantial evidence was not complete, and gave her benefit of doubt.

The Scene

The appellant was married to one Gulab, who was already married to Mandabai (deceased). Gulab and Mandabai had two children, one son and a daughter. The appellant, her husband, the deceased, the children, appellant’s parents-in-law, and their servant, all lived together in one house. The prosecution’s case was that on the intervening night of 2nd and 3rd August 2006, at about 2:30 to 3:00 am, an incident of fire occurred at their house and it was engulfed into flames. The appellant who was also in the house, came out unscathed. Mandabai and her daughter rushed out of the house with burn injuries, while her son burnt to death inside the house. Appellant’s husband and mother-in-law were not present, while her father-in-law was sleeping outside the house who woke up in confusion, instructed the servant to call a jeep, and shifted Mandabai and her daughter to hospital. Unfortunately, both Mandabai and her daughter died on the next day due to burn injuries.

Conviction and Appeal

Appellant’s father-in-law lodged a complaint and implicated her. She was then prosecuted. The Sessions Court found her guilty and convicted her under Sections 302 (Punishment for murder) and 436 (Mischief by fire) IPC. On appeal preferred by the appellant, the Bombay High Court reappreciated the evidence and discarded the alleged extra-judicial confession made by the appellant to her father-in-law and further disbelieved the evidence of the father-in-law which was relied on by the Sessions Court. However, in the ultimate analysis, the High Court concluded that the appellant was guilty and her appeal was accordingly dismissed. Aggrieved, the appellant approached the Supreme Court.

Discussion and Observations          

The Supreme Court was of the opinion that there is no doubt that if the incident that occurred, if caused by someone with intention to cause death, is certainly gruesome and unpardonable. However, in the instant case where the appellant was proceeded against mainly based on extra-judicial confession alleged to have been made to her father-in-law, and the said evidence of the father-in-law having been disbelieved by the High Court as not trustworthy, the issue would be as to whether the chain of circumstances to convict the appellant was complete.

The Supreme Court extracted the reasons assigned by the High Court and found that it held the appellant guilty more on preponderance of probability rather than reaching a conclusion beyond reasonable doubt. The High Court’s reasoning was based on conjectures and surmises. The sole circumstance noted by the High Court was that the burnt frock of the deceased daughter of Mandabai was sent for chemical analysis and kerosene residue were detected on it. In that circumstance, the High Court held that kerosene was used for setting Madabai’s daughter on fire.

The Supreme Court was of the view that even if the such chemical report is accepted, there was nothing on record to connect that the appellant was responsible for sprinkling kerosene or for kerosene to have come in contact with the frock of Mandabai’s daughter. Further, in her declaration to the police after the incident, Mandabai herself disclosed there was a kerosene lantern in the house. Evidence indicated that diesel used for tractor was also kept in the house. Therefore, it could not be said beyond doubt that it was not an accident but the appellant had set fire by sprinkling kerosene. Following the law laid down in Sharad Birdhichand Sarda v. State of Maharashtra, (1984) 4 SCC 116, the Court reiterated that:

“The position of law is well settled that the links in the chain of circumstances is necessary to be established for conviction on the basis of circumstantial evidence.”

The Court further observed that mere suspicion would not be sufficient, unless the circumstantial evidence tendered by the prosecution leads to the conclusion that it “must be true” and not “may be true”. Reliance was placed on Devilal v. State of Rajasthan, (2019) 19 SCC 447.

The Court found that the Session’s Court as well as the High Court had made suspicion the reason for convicting the appellant without there being any strong basis. It was reiterated that:

“The suspicion, however strong, cannot take place of proof.”

It was noted that there were equal circumstances which raise a doubt whether the appellant could be held guilty only because she was not injured in the incident. The Court said that natural human conduct is that when there is any incident or accident, the immediate reaction is to get away from the scene and save oneself. The Court was of the view that if in the middle of the night, for whatever reason, there was fire and if the appellant had woken up and noticed it a little earlier, the natural conduct was to run out of the house instead of going into the house which was burning, to check on the other inmates. It was observed:

“It takes a person a lot of courage or be overdriven with compassion to get back into the house to save somebody else and not doing so may be considered morally wrong for not coming to aid of fellow human being in distress, but cannot be a circumstance to hold a person guilty of a crime which is as serious as murder unless the other circumstances in the chain point to the accused so as to lead to an irresistible conclusion of being guilty.”

The Court also noted that Mandabai who came out alive and lived for a day did not blame or suspect anybody including the appellant. Her declaration was clear that the house caught fire and she and her children were caught in the fire. She did not state that the fire set on her spread to the house. Further, it was an admitted fact that the servant also lived in the same house, but he too was not injured. Hence, the Court held:

“Therefore, not being injured alone cannot be held as a circumstance to hold one guilty of having set fire to the house.”

Next, according to the High Court, appellant’s motive behind the crime was that her husband executed a document of maintenance out of certain property in favour of Mandabai a day before his second marriage with the appellant. The Supreme Court found itself unable to accept this. The marriage between the appellant and his husband had been registered after an arrangement for maintenance for the first wife, Mandabai, which is a normal thing in such circumstances and it could not be held as a strong motive for the alleged crime.

Lastly, on the point of appellant’s failure to explain the reason for eruption of fire in view of the obligation to explain under Section 106 (Burden of proving fact especially within knowledge) of the Evidence Act, 1872, the Court held that appellant’s obligation to explain would have arisen only if there was any other evidence to the effect that the appellant was already awake and was outside even before the fire erupted.

Thus, in totality of facts and circumstances of the case, the Court was of the opinion that the appellant was entitled to be acquitted as the benefit of doubt weighs in her favour. Accordingly, the judgment of the High Court affirming conviction and sentence ordered by the Sessions Court was set aside. [Parubai v. State of Maharashtra, 2021 SCC OnLine SC 566, decided on 10-8-2021]


Tejaswi Pandit, Senior Editorial Assistant has reported this brief.

Uttarakhand High Court
Case BriefsHigh Courts

Uttaranchal High Court: Ravindra Maithani, J., decided on a petition which was filed seeking transfer of investigation in the case arising out from FIR No. 261 of 2021, under Section 302 Penal Code, 1860, Police Station Haldwani, District Nainital from Police to Central Bureau of Investigation (“CBI”).

The petitioner, on 03-03-2021, had lodged a report under Sections 323, 504, 345 IPC and Section 9 read with 10 of the Protection of Children from Sexual Offences Act, 2012 (POCSO) against her husband and pursuant to which he was arrested and lodged at Police Station. He was remanded to judicial custody on 05-03-2021 by the court of Additional District Judge/FTC/Special Judge, POCSO. On 06-03-2021, in the hospital of Sub-Jail, Haldwani, in its OPD register an entry was made that he suddenly fell down on the ground and he was referred to Base Hospital and later it was recorded that he was brought dead. His post mortem report suggested that there were ten injuries on his body which was not the case when he was taken into custody.

The petitioner was informed about the death but the reason for injury was not explained to her.

Petitioner thereafter moved an application to the Secretary, District Legal Services Authority (for short, “DLSA”), Nainital giving details as to how her husband died in judicial custody, who killed him and how the petitioner came to know about it. The Secretary, DLSA forwarded the application to SSP for taking necessary action at the earliest. Instead of lodging an FIR, the SSP, Nainital got an inquiry conducted by Circle Officer Police, Haldwani and thereafter, informed the Secretary, DLSA that since Magisterial inquiry is underway, any further action may be taken only after the perusal of the Magisterial inquiry.

The petitioner again approached the Magistrate of competent jurisdiction under Section 156 (3) of the Code of Criminal Procedure, 1973 and an order was passed, thereafter, FIR under Section 302 IPC at Police Station has been lodged against four named Guards of Sub-Jail, Haldwani. In this case, the petitioner seeks transfer of the investigation to CBI.

Advocate General argues that there is no provision of law that authorizes SSP to get an enquiry conducted by C.O. Haldwani. He further argued that investigation in accordance with law is underway, therefore, the Court should be slow in interfering at this stage and after the outcome of the investigation, if occasion arises, the matter may be considered.

The Court observed that the FIR in the instant case was lodged after directions under Section 156 (3) of the Code on 26.05.2021. More than 45 days after death of a person in judicial custody. How can a fair investigation be ensured?

Fair investigation and fair trial are necessary ingredients of right to life. It is true that a party may not choose investigating agency at the drop of a hat.

The Court in this aspect relied on the Supreme Court rulings of State of M.P. v. Shyamsunder Trivedi, (1995) 4 SCC 262, D.K. Basu v. State of West Bengal, (2015) 8 SCC 744, Sube Singh v. State of Haryana, (2006) 3 SCC 178, Lalita Kumari v. Government of Uttar Pradesh, (2014) 2 SCC 1 and Mehboob Batcha v. State, (2011) 7 SCC 45.

The Court stressed that it was needless to say that incidences of custodian violence and deaths have come up again and again for adjudication before the higher Courts.  The Court quoted the part of judgment in the case of Inhuman Conditions in 1382 Prisons, In Re., (2017) 10 SCC 658.

“Like most societies, we are not strangers to custodial violence and unnatural deaths but our vibrant democracy permits us to debate and discuss these issues with rational arguments. However, right sounding noises critical of custodial violence (in any form) cannot achieve any useful purpose unless persons in authority hear the voices of the victims or the silence of the dead and act on them by taking remedial steps. There must be a greater degree of sensitivity among those in authority with regard to persons in custody and it has been the endeavour of the constitutional courts in our country, over several decades, to consistently flag this issue.”

The Court relying on Dr Naresh Kumar Mangla v. Anita Agarwal, 2020 SCC OnLine SC 1031 stated that the power which is vested in the superior court to transfer the investigation to another agency, such as the CBI, must be wielded with caution.

The Court finally opined that the instant case was not an ordinary case. Allegations were of custodial death. Having considered the manner in which police proceeded in the case, the Court found that it is a case in which definitely investigation should be transferred to CBI. The Court further issued some directions:

  • Investigation in FIR No.261 of 2021 under Section 302 IPC, Police Station Haldwani, District Nainital be immediately transferred to S.P., Central Bureau of Investigation, Dehradun.
  • The Investigating Officer shall ensure that all the documents relating to investigation are handed over to S.P., CBI, Dehradun within a period of three days.
  • The named accused Devendra Prasad Yadav – Head Guard, Kriti Nainwal – Guard, Devendra Rawat – Guard, Harish Rawat – Guard, at Sub-Jail Haldwani be immediately transferred from Sub-Jail Haldwani to some place outside the district, so as to ensure fair investigation otherwise within those four walls of Sub-Jail Haldwani perhaps nobody would dare to speak the truth and only witness would be those stone walls which unfortunately cannot speak as to what had happened on 06.03.2021, which resulted in the death of deceased Pravesh Kumar.
  • SSP Nainital and CO Police Haldwani be considered for their transfer immediately from district Nainital.
  • Departmental action, as may be deemed appropriate, be considered to be taken against SSP Nainital who despite under legal obligation to lodge an FIR promptly did not lodge FIR and also without any authority under law directed an enquiry by CO Haldwani in a case of ‘custodial death’.

[Bharti v. State of Uttarakhand, 2021 SCC OnLine Utt 767, decided on 22-07-2021]


Suchita Shukla, Editorial Assistant has reported this brief.


Advocates before the Court:

Advocate for the petitioner: Mr Sanjay Kumar

Advocate for the respondent: Mr S.N. Babulkar, Advocate General

Case BriefsHigh Courts

Allahabad High Court: The Division Bench of Ramesh Sinha and Rajeev Singh, JJ., upheld the capital punishment of a man who murdered his wife and four minor daughters.

Appellant was charged for offence punishable under Section 302 of Penal Code, 1860.

Aggrieved by conviction and sentence, the accused preferred a Criminal Appeal from Jail. Also, the trial court made a reference for confirmation of the death sentence awarded to the accused.

Instant case was based on circumstantial evidence and the appellant had been convicted and sentenced to death by the trial Court for murdering his wife and children vide impugned judgment.

In respect to convict the person in a case of circumstantial evidence, the Supreme Court in the celebrated case of Sharad Birdhichand Sarda v. State of Maharashtra, (1984) 3 SCC 116, laid down the conditions to be fulfilled before a case against an accused can be said to be fully established.

Hence, while dealing with circumstantial evidence, the onus is on the prosecution to prove that the chain is complete and the infirmity of lacuna in prosecution cannot be cured by false defence or plea.

In a case of circumstantial evidence, conditions precedent before conviction could be placed on circumstantial evidence, must be fully established such as:

(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned ”must’ or ”should’ and not ”may be’ established;

(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;

(3) the circumstances should be of a conclusive nature and tendency;

(4) they should exclude every possible hypothesis except the one to be proved; and

(5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.

In the present case, as is apparent from the evidence on record that there appears to be a motive for the appellant to commit the murder of his wife Sangeeta along with her children, which is established from the evidence of PW2-Chatra Pal Raidas, who is the real brother of deceased Sangeeta. PW2, in his deposition before the trial Court, stated that his sister Sangeeta, who used to come to his house and stayed there for about 1-2 months, had made a complaint to him about the illicit relationship of the appellant with Manju; Manju had become pregnant from the appellant; and the appellant wanted to marry with Manju, which was objected by his sister Sangeeta; and the appellant was adamant to marry with Manju, on account of which, the appellant committed the murder of his wife deceased Sangeeta along with four minor children, who was living along with the appellant in his house. P.W.2-Chatra Pal Raidas further stated that when Sangeeta had come to his house, she told about the aforesaid fact. He also stated, in his evidence, that ten days prior to the incident, the deceased Sangeeta had come to his house and in the presence of his neighbours, namely, Chailbihari and Balgovind, had also disclosed about the illicit relationship of the appellant with Manju. Thus, the motive to commit the murder of the deceased Sangeeta along with her children stood proved from the evidence of PW2 and there is no reason for him to depose falsely against the appellant.

It would also be pertinent to mention that another motive of the appellant to commit the murder of his wife and his children, as has been apparent from the evidence of P.W.1 and P.W.2, that the appellant, on taking advantage of the murder of his wife and children, wanted to get compensation from the State Government as earlier also the appellant had taken the compensation for the murder of his real brother Siyaram, which was paid by the State Government to the tune of Rs 4-5 Lakhs, and which was, in fact, given to the daughter of deceased Siyaram, namely, Gudiya but he managed to take the said compensation from Gudiya, who died on account of illness.

Prosecution proved beyond doubt that the appellant had a motive to commit the murder of his wife and his 4 minor children.

Bench stated that it would be apt to state the principles which would make an extra-judicial confession an admissible piece of evidence capable of forming the basis of conviction of an accused. These precepts would guide the judicial mind while dealing with the veracity of cases where the prosecution heavily relies upon an extra-judicial confession alleged to have been made by the accused.

The principles that come out are as follows:

  • The extra-judicial confession is a weak evidence by itself. It has to be examined by the court with greater care and caution;
  • It should be made voluntarily and should be truthful;
  • It should inspire confidence;
  • An extra-judicial confession attains greater credibility and evidentiary value, if it is supported by a chain of cogent circumstances and is further corroborated by other prosecution evidence;
  • For an extra-judicial confession to be the basis of conviction, it should not suffer from any material discrepancies and inherent improbabilities; and
  • Such statement essentially has to be proved like any other fact and in accordance with law.

Bench stated that the accused had strong motive to commit the murder of his wife at the time of the incident, the appellant and the five deceased were the only occupants in the house, in which they were living together; after the arrest of the appellant at his pointing out the weapon of murder and his blood stained clothes were recovered which he had concealed; soon after the incident, the appellant made an extra judicial confession before PW3 and PW 4 admitting his guilt.

From the totality of circumstances and entire evidence on record, it was proved that no one else but the appellant alone committed the murder of his wife and four minor daughters.

Hence, trial court’s order was upheld.

‘Death Sentence’ awarded under Section 302 of IPC

It is true that capital punishment has been the subject-matter of great social and judicial discussion and catechism.

The ratio laid down by the Supreme Court in Bachan Singh v. State of Punjab, (1980) 2 SCC 684 and Machhi Singh v. State of Punjab, (1983) 3 SCC 470 continue to serve as the foundation-stone of contemporary sentencing jurisprudence though they have been expounded or distinguished for the purpose of commuting death sentence, mostly in the cases of

  • conviction based on circumstantial evidence alone;
  • failure of the prosecution to discharge its onus re: reformation;
  • a case of residual doubts;
  • where the other peculiar ”mitigating circumstances outweighed the ”aggravating circumstances.

In the instant case, the accused/convict Ramanand has committed the murder of his wife and four minor innocent daughters aged about 7 years, 5 years, 3 years and the youngest one aged about one and a half month. It transpires from the evidence on record that the criminal act of the accused/convict was actuated to pave a way to marry one lady, namely, Manju, who was already married. It was the deceased Sangeeta (wife of the appellant), who opposed his marriage with Manju but the accused/convict was adamant to marry with Manju at any cost and in order to marry with Manju, accused/convict murdered not only murder his own wife but also his own four innocent minor daughters aged between one and half month to eight years in a most brutal and barbaric manner without their no-fault and without any rhyme or reason. Before murdering the deceased, the accused/convict had also chopped off various parts of their bodies and inflicted severe incised wounds as is evident from the post-mortem report.

Further, the Court added that the special reasons assigned by the trial Court for awarding extreme penalty of death were that the murder was horrifying as the accused-appellant was in a dominant position; victim was helpless being children aged about 7, 5, 3 years and the youngest one was just one and a half-month-old and the murder was premeditated and pre-planned one with a motive and committed in a cruel, grotesque and diabolical manner. The accused is a menace to the Society and, therefore, imposition of lesser sentence than that of death sentence, would not be adequate and appropriate.

Hence, the Court agreed with trial court and the instant case rightly falls in the category of ‘rarest of rare case’ warranting capital punishment.

Bench confirmed the appellant’ sentence under Section 302 IPC.[State of U.P. v. Ramanand, 2021 SCC OnLine All 451, decided on 9-07-2021]


Advocates before the Court:

Counsel for Appellant: – Govt. Advocate, Amicus Curaie, Rajesh Kumar Dwivedi

Counsel for Appellant: – Jail Appeal, Rajesh Kumar Dwivedi

Counsel for Respondent : – Govt. Advocate

Case BriefsHigh Courts

Orissa High Court: A Division Bench of S.K Mishra and Savitri Ratho JJ. dismissed the appeal and directed to adjudication application for remission within 60 days of the receipt of the application.

The facts of the case are the deceased-Urmila had married the appellant-accused in 1994 during which a sum of Rs 20, 000 gold chain, ring etc., were given as per the demand made from the side of the appellant. After the marriage, the appellant further demanded a sum of Rs 10, 000 and he used to assault Urmila and force her to bring the said amount as dowry. The matter was settled by village heads on many different occasions until one night, on 07-07-2003 appellant set Urmila on fire after forcibly opening the door while she was sleeping with her son. Urmila had sustained extensive burn injuries and succumbed to death after recording her dying declaration before Basanta Kumar Jena, Officer-in-charge of Binjharpur P.S. where the FIR was lodged. All the circumstantial articles were collected for forensic examination and investigation. The Additional Sessions Judge convicted the appellant based on upon the dying declaration of the deceased which has been established beyond all reasonable doubt as there was no eye witness to prove the contrary. Aggrieved by the conviction, the appellant-accused has filed the instant appeal assailing the said conviction under Section 302 of the Penal Code, 1860 for acquittal or remission of sentence.

Counsel for the appellants Ramani Kanta Pattnaik and Savitri Ratho disputed the veracity of the dying declaration as the F.I.R. lodged implicates six persons including the appellant but in the dying declaration no such implication has been made out against five other persons, who happen to be the relations of the appellant. It was further submitted that no medical examination was conducted before the drying declaration was recorded to the effect that the deceased was in the right mental state to have recorded the same. It was further submitted that there is no independent corroboration of the dying declaration; it cannot be the sole basis of conviction and hence it is liable to be rejected.

Counsel for the respondents Subir Kumar Pallit submitted that if the dying declaration is accepted to be true and voluntary, conviction can be upheld on the basis of the uncorroborated testimony and uncorroborated dying declaration of the deceased. It was also submitted that it is a mere rule of prudence and not the ultimate test as to whether or not the dying declaration was truthful or voluntary. It was also argued that no format has been prescribed for recording a dying declaration.

The main issue in the instant case is whether the judgment of conviction recorded by the Additional Sessions Judge only on the basis of the dying declaration stands scrutiny or not.

The court relied on judgments Khushal Rao v. State of Bombay; [1958] S.C.R. 552 and Paniben v. State of Gujarat (1992) 2 SCC 474 wherein it was held that

“Though a dying declaration is entitled to great weight, it is worthwhile to note that the accused has no power of cross-examination. Such a power is essential for eliciting the truth as an obligation of oath could be. This is the reason the Court also insists that the dying declaration should be of such a nature as to inspire full confidence of the Court in its correctness. The Court has to be on guard that the statement of deceased was not as a result of tutoring, prompting or a product of imagination. The Court must be further satisfied that the deceased was in a fit state of mind after a clear opportunity to observe and identify the assailants. Once the Court is satisfied that the declaration was true and voluntary, undoubtedly, it can base its conviction without any further corroboration. It cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated. The rule requiring corroboration is merely a rule of prudence”

 Comprehensive principles regarding dying declaration are  

  • There is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration. [Mannu Raja v. State of M.P; (1976) 3 SCC 104
  • If the Court is satisfied that the dying declaration is true and voluntary it can base conviction on it, without corroboration. [State of U. P. v. Ram Sagar Yadav; (1985) 1 SCC 552] 
  • The Court has to scrutinize the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination. The deceased had opportunity to observe and identify the assailants and was in a fit state to make the declaration. [Ram Chandra Reddy v. Public Prosecutor; (1976) 3 SCC 618]
  • Where dying declaration is suspicious it should not be acted upon without corroborative evidence. [Rasheed Beg v. Sate of M P; (1974) 4 SCC 264]
  • Where the deceased was unconscious and could never make any dying declaration the evidence with regard to it is to be rejected. [Kake Singh v. State of M. P.; 1981 Supp SCC 25] 
  • A dying declaration which suffers from infirmity cannot form the basis of conviction. [Ram Manorath v. State of U.P.; (1981) 2 SCC 654]
  • Merely because a dying declaration does not contain the details as to the occurrence, it is not to be rejected. [State of Maharashtra v. Krishnamurthi Laxmipati Naidu; 1980 Supp SCC 455] 
  • Equally, merely because it is a brief statement, it is not be discarded. On the contrary, the shortness of the statement itself guarantees truth. [Surajdeo Ojha v. State of Bihar; 1980 Supp SCC 769] 
  • Normally the court in order to satisfy whether deceased was in a fit mental condition to make the dying declaration look up to the medical opinion. But where the eye witness has said that the deceased was in a fit and conscious state to make this dying declaration, the medical opinion cannot prevail. [Nanahau Ram v. State of M.P.; AIR 1988 SC 912]
  • Where the prosecution version differs from the version as given in the dying declaration, the said declaration cannot be acted upon. [State of U.P. v. Madan Mohan; (1989) 3 SCC 390]

Issue 1: Dying Declaration

The Court thus observed based on the examination of the deceased and her statements and other documents available on record that the all the evidence read together leaves no doubt in the mind of the Court that the dying declaration is true and voluntary.

The Court thus held that dying declaration was relied upon by the Additional Sessions Judge, who had the opportunity of observing the demeanor of the witnesses when the evidence was recorded and therefore, this is not a case where the dying declaration should be viewed with suspicious and hence the impugned judgment with respect to conviction must prevail.

Issue 2: Remission of Sentence

The Court observed that Remission consists of two types, one where remission is earned by a prisoner under the Prison Rules or other relevant rules based on his/her good behaviour or such other stipulations prescribed therein. The other remission is the grant of it by the appropriate Government in exercise of its power under Section 432 of the Criminal Procedure Code. The Court further relied on judgment Swamy Sraddananda v. State of Karnataka; (2008) 13 SCC 767  and observed that the only right of the convict i.e. recognized is a right to apply to the competent authority and have his case considered in a fair and reasonable manner.

The Court held that it is open for appellant to make an application to the proper authority in the State of Odisha, the Principal Secretary, Department of Home, Government of Odisha. So, we give liberty to the appellant to make an application to that effect to the concerned authority for remission of his sentence to the period already undergone.

In view of the above, appeal was dismissed.[Shyam Sundar Jena v. State of Orissa, 2020 SCC OnLine Ori 934, decided on 16-12-2020]


Arunima Bose, Editorial Assistant has put this story together

Case BriefsHigh Courts

Chhattisgarh High Court: Sanjay K Agrawal J., set aside the impugned order having no substantial reason for rejecting parole of a female convict having committed offence under Section 302 of Penal Code, 1860.

The factual matrix of the case is that petitioner’s application for grant of leave on parole under Rules 4 and 6 of the Chhattisgarh Prisoners Leave Rules, 1989  was rejected by the District Magistrate vide the impugned order only on the ground that the Superintendent of Police has objected on petitioner’s release on parole and the offence which she has committed under Section 302 IPC is a serious offence and except that, no such reason has been assigned and hence the impugned order is under challenge in the present petition.

Counsel for the petitioner submitted that no substantial reason has been assigned by the District Magistrate for rejecting the parole application and hence the impugned order is liable to be set aside.

Counsel for the State submitted that District Magistrate has clearly recorded a finding that petitioner’s release on parole would be detrimental to the public interest as she has murdered her husband which is a very serious crime, therefore, she is not entitled to be released on parole.

High Court relied on Rakesh Shende v. State of Chhattisgarh, Writ Petition (Cr) No. 29 of 2016 decided on 18-11-2016 wherein it was held that Rule 4 of the Chhattisgarh Prisoners Leave Rules, 1989 provides for conditions of leave. Rule 6 provides for Sanctioning Authority for first leave and a Note has also been appended to it. Rules 4 and 6 of the Rules of 1989 state as under:

“…4. Conditions of Leave. The prisoners shall be granted leave under subsection (1) of Section 31A of the Act on the following conditions, namely:

(a) He fulfills the conditions laid down in Section 31A of the Act;

(b) He has not committed any offences in jail between the date of application for leave and receipt of the order of such leave;

(c) The releasing authority must be satisfied that the leave may be granted without detriment to the public interest;

(d) He gives in writing to the Releasing Authority the place or places which he intends to visit during the period of his leave and undertake not to visit any other place during such period without obtaining prior permission of the Releasing Authority in that behalf; and

(e) He should furnish security to the satisfaction of the Releasing Authority if such security is demanded by the Releasing Authority.

 6. Sanctioning Authority for first leave. (a) If the District Magistrate, after making such enquiry as he may consider necessary, is satisfied that the request for grant of leave can be granted without detriment to public interest, he shall issue to the Superintendent a duly signed and sealed warrant in Form ‘A’ to the prisoner. The District Magistrate shall enter in the warrant the number of days that will be required for the journeys by the shortest practicable route to and from the place at which during his leave the prisoner proposes to reside or if he proposes to visit more than one place, the fartherest place from the Jail which he proposed to visit.

Note: The District Magistrate is responsible for the proper carrying out of these instructions. He may of course, consult the District Superintendent of Police on the advisability of granting the leave. The Superintendent of Police should also obtain the opinion of the Gram Panchayat of the village, where the prisoner resided before conviction and send to the District Magistrate along with his report. But the responsibility for the action is that of the District Magistrate. He should use his discretion and should refuse to grant leave only in cases in which he is satisfied that release is fraught with danger to the public safety….”

The Court observed that petitioner’s application for grant of leave on parole was rejected on the ground that the offence committed under Section 302 of the IPC is a serious offence and the Superintendent of Police and the concerned Gram Panchayat have objected to petitioner’s release on parole.

The Court held that the offence committed by the petitioner though is a serious offence yet as per the law, if her release is not detrimental to the public interest and it fulfils the requirement for the grant of parole, she is entitled to be released on parole as she is in jail for more than three years and ten months and her conduct is shown to be good. In light of the aforesaid observations, parole was granted.

In view of the above, impugned order set aside and petition disposed off.[Sarita Rajwade v. State of Chhattisgarh, 2020 SCC OnLine Chh 481, decided on 29-10-2020]


Arunima Bose, Editorial Assistant has put this story together

Case BriefsHigh Courts

Madras High Court: A Division Bench of N. Kirubakaran and V. Velumani, JJ., while addressing the present petition observed that,

“Indian Democracy should not be tainted by criminals.”

“…it is seen that some of the criminal elements are floating political parties on their own with the support of their religion or communities and the same is required to be prohibited.”

The instant petition has been filed by the wife of the detenu against the detention order passed against her husband as he got about 19 cases pending registered against him for various offences.

Amongst the 19 pending cases, one has been registered under Section 102 of Penal Code, 1860, another for the offence under Section 307 of IPC, three cases for the offence of dacoity and 1 under NDPS Act and so on.

In view of the above-stated facts, Court questioned the respondent as to why the investigation has not been properly done and charge sheets are not filed even for the case pending from the year 2009 and directed to file a report regarding the stages of investigation in the cases registered against the detenu as well as the details of pending trial cases.

Respondents stated that out of the 19 cases, detenu has been acquitted only in one case.

Criminal Elements in Puducherry |Political Parties

The media reports make it evident that criminal elements in Puducherry have a close connection and support of political parties.

Political parties are having criminals as their members and also office-bearers.

It is brought to the notice of this Court that many cases are relating to inter-gang rivalries and country-made bombs are used to murder the opposite gang members. In total 5 cases, country-made bombs were hurled by the detenu and his associated.

Further, the court noted that charge sheets have been filed only in two cases in which offences under the Explosives Substances Act, 1908 have been invoked.

The case wherein double-barrel country made gun was used, no charge sheet has been filed.

Detenu and his associates are said to have used country-made bombs for murdering “Velazhagan” on 19-04-2017 and a case was registered under Section 302 IPC and 3 of Explosive Substances Act, 1908 and thereafter the case was transferred to CBCID, Puducherry.

The case for the above-said offence was registered in the year 2017, the sanction for prosecution under the Explosives Substances Act was not granted by the Government.  Only after this Court questioned the attitude of the respondents, the government had granted the sanction last week.

In view of the above-stated position, Court is justified to observe that three years delay in granting sanction for the case registered in the year 2017 is only due to political support enjoyed by the accused.

Even in the 2015 case, the investigation has not gotten over for the past 5 years.

Clout with Political Parties

The above stated would speak about the accused’s clout with political parties, especially ruling parties and police.

Lethargic attitude of the Police

Not filing charge sheet would only show how the police has been lethargic even in the cases involving heinous criminals that too murders by using country-made bombs.

It is reported in media that even some of the Ministers and Legislators are being given security by rowdy gangs.

Safety of people jeopardised

There seems to be a syndicate between the police force, political leaders and rowdy gangs and hence, the safety and security of the people are jeopardised.

Decriminalization of Politics

It has also been reported by media that persons with criminal background are becoming policymakers and the same has to be prevented alongwith cleansing of the system.

The leaders should have a vision for decriminalization of politics.

In view of the above-stated vision, Central Government should come out with comprehensive legislation to prohibit persons with criminal background from contesting elections to Parliament, State legislature and Local Bodies as was observed by the Supreme Court’s Constitution Bench in Public Interest Foundation v. Union of India,(2019) 3 SCC 224.

In view of the above, the High Court directed the respondent to answer the following queries:

  • How many rowdy gangs are active in Puducherry as well as in other States?
  • How many persons with criminal background are accommodated by various political parties as top office bearers and District Secretaries and the details of the criminal cases registered against those persons and their position in the respective political party?
  • How many History sheets have been opened for the past ten years in Puducherry?
  • How many murders have been committed by Rowdy Gangs in Puducherry as well as in other states?
  • How many cases have been registered so far against the rowdies and what are all the stages of the said cases in Puducherry?
  • Whether witnesses in the said cases are threatened to turn hostile so as to get an acquittal in Puducherry?
  • How many years does it take for a criminal case, especially a murder case to get disposed of in Puducherry?
  • How many persons have been so far detained under the Goondas Act for the past ten years in Puducherry?
  • Whether Rowdy gangs are using illegal arms like Pistols etc., apart from using Explosive Substances?
  • Why not the Central Government enacted a law to prohibit candidates with criminal background contesting the elections to the Parliament as well as State legislatures as suggested by the Constitution Bench of the Supreme Court?
  • Why not the Puducherry Government enact a law like Maharashtra Control of Organized Crime Act, 1999 to control the criminal activities in Puducherry?

The matter is to be listed in 2 weeks. [Jamuna v. Government of India, 2020 SCC OnLine Mad 1828, decided on 13-08-2020]


Also Read:

Candidates with criminal antecedents| Parliament has exclusive jurisdiction to lay down disqualification for membership; Court cannot legislate: SC

Case BriefsHigh Courts

Karnataka High Court: A Division Bench of B.A. Patil and Hanchate Sanjeevkumar, JJ., upheld the decision of the trial court with regard to dowry death.

By the instant criminal appeal, the decision of the Additional Sessions Judge, Gulbarga has been challenged.

Counsel for the appellant-accused: Iswaraj S. Chowdapur and Additional State Public Prosecutor for respondent – State: Prakash Yeli.

Dowry | Cruelty

Parents of Dattamma at the time of the marriage had given one tola of gold as dowry. After one year of when the dowry was given, the accused started subjecting Dattamma to cruelty contending that she doesn’t know how to cook and used to ask her to bring cash and gold from her parent’s house.

The said fact of cruelty was conveyed by Dattamma to her parents who along with some elderly persons visited the accused and paid a sum of Rs 5000, but he continued to subject Dattamma to mental and physical cruelty.

Later the accused poured kerosene and lit fire on Dattamma with the intention to commit murder. Afterwhich, she was taken to the hospital and sustained burn injuries.

In view of the above-stated offence, the trial court had convicted the accused.

Analysis and Decision

Bench while analysing the set of circumstances and submission placed stated that,

When the prosecution establishes its case with regard to ill-treatment and harassment said to have been caused by the accused and admittedly the death of the decased has also taken place within 7 years after the marriage, under such circumsatnces, a duty cast upon the Court to draw a presumption under Section 113 A of the Evidence Act that is dowry death.

Demand of Dowry

In the present matter, Court relying on the proposition laid down in the decision of C.M. Girish Babu v. CBI, (2009) 3 SCC 779, held that the prosecution has established that there was ill-treatment and harassment caused by the accused for the demand of dowry.

Trial Court has rightly convicted the accused for the offences punishable under Section 498-A and 302 IPC and also under Section 3 of the Dowry Prohibition Act.

Accused’s Counsel contended that the imprisonment itself is harsh and severe punishment under such circumstances the imposition of a heavy fine to a poor agriculturist is not justifiable and it is excessive fine which ought not to have been imposed.

In view of the above stated, Court modified the fine imposed on the accused.

The sentence imposed by the trial court for the offences punishable under Sections 498A and 302 of IPC and under Section 3 of the Dowry Prohibition Act was confirmed. [Baswaraj v. State of Karnataka, Criminal Appeal No. 354 of 2013, decided on 10-08-2020]


Also Read:

Cruelty to Women [S. 498-A IPC and allied sections]

Case BriefsHigh Courts

Bombay High Court: A Division Bench of R.D. Dhanuka and Surendra P. Tavade, JJ., upheld the trial court’s decision based on circumstantial evidence of a woman murdering her newly born female child.

Appellant has filed the present appeal against the judgment passed by the Additional Sessions Judge by which she was convicted for the offence punishable under Section 302 of Penal Code, 1860. Appellant has been acquitted for Section 317 IPC — Exposure and abandonment of child under twelve yearsby parent or person having care of it.

Facts of the Case

Informant while going to attend his duty saw a newly born female child lying beside the road, alive and lodged a complaint regarding this at the Uran police station.

PW11 in the meanwhile reached the spot and took the child to his house wherein his mother PW-6 bathed the child and later reported the matter to the police.

Later the police made enquiry with Hirabai who informed that she saw the appellant as pregnant, therefore police called the appellant.

Police took the child, appellant and Hirabai to the hospital wherein the child and appellant were allotted Cot No. 4. After a few hours, nurse found out that the child was movementless and on examining the child it was found that the child was dead.

In the postmortem report, it was found that the child died due to strangulation. Hence, crime no. 89 of 1993 was registered against the appellant.

Appellant was put under arrest and charge sheet was filed under Sections 317 and 302 IPC.

Trial Court on going through the evidence of record acquitted the appellant under Section 317 IPC but convicted her for the offence punishable under Section 302 IPC.

Circumstantial Evidence

When the case is based on circumstantial evidence, the motive plays a vital role. Generally, motive remains in the mind of the culprit, so it is difficult to prove it. The motive can be proved by circumstances of the case and the acts of the culprit.

In view of the circumstances of the present matter, it is clear that the custody of the child was with the appellant at the time of the death of the child.

The crucial circumstance against the appellant/accused is that she was having custody of the child in the hospital and ultimately child found dead on Cot No.4; so the effect of an acquittal of the appellant/accused under Section 317 of the Indian Penal Code would not come in the way of the prosecution to hold her guilty under Section 302 of the IPC.

It would have been a shame for the appellant/accused and the delivery of child would have affected her character since she was a widow for 8 years. Hence, the appellant/accused had a motive to done away with the life of the child

Homicidal Death

Prosecution has proved all the circumstances namely the abandonment of child, the good physical condition of the child prior to the death, the child was in possession of appellant/accused since the child was referred to the Rural Hospital, Uran. The prosecution has proved the homicidal death of the child.

Hence the Court concluded that chain of circumstances against the appellant was also proved beyond the shadow of reasonable doubt.

“There was nobody else except the appellant to commit murder of the said child.”

In view of the above circumstances, the appeal was dismissed. [Kamlabai Tukaram Gharat v. State of Maharashtra, 2020 SCC OnLine Bom 850, decided on 11-08-2020]

Case BriefsHigh Courts

Himachal Pradesh High Court: Ajay Mohan Goel, J., allowed a bail petition to the petitioner who was in custody since 2014 in consonance with the FIR No. 59 of 2014, dated 20-05-2014, registered under Sections 498A, 302 and 201 of the Penal Code, 1860.

The accusation against the petitioner was that he was guilty of murdering Ms Vandana in the month of February, 2010, whom he had married in the month of February, 2009.

The Counsel for the petitioner, N.S. Chandel and Vinod Kumar Gupta, argued that the trial was at the stage of final arguments which presently stands deferred on account of COVID-19, as the statement of the petitioner under Section 313 CrPC stands recorded and that no purpose shall be served by detaining the petitioner at that point as he has already suffered a lot on account of his being in custody for almost six years. They further submitted that the evidence that had come on record demonstrated that the petitioner was not guilty of the offence alleged against him and there was every possibility of him being acquitted on merit. The Counsel for the respondent opposed the bail petition stating the gravity of the alleged offence and contended that the evidence that had come up during the course of trial, duly establishes the guilt of the petitioner and it would be desirable if the petition be dismissed.

The Court while allowing the petition explained that there was no doubt that the petitioner was facing trial under Sections 498A, 302 and 201 of the Penal Code, yet it remains a fact that he was in police custody since the year 2014 and that the contention of the counsel of petitioner that the custody of the petitioner now would not be serving any purpose as statement of the petitioner had also been recorded under Section 313 CrPC has merit and thus the petitioner should be enlarged on bail. [Ashok Rana v. State of Himachal Pradesh, 2020 SCC OnLine HP 1113 , decided on 31-07-2020]

Case BriefsHigh Courts

Calcutta High Court: A Division Bench of Sahidulla Munshi and Subhasis Dasgupta, JJ., upheld the conviction of accused-husband under Section 498-A IPC for the offence of cruelty to woman and under Section 302 for the murder of his wife. At the same time, the Court acquitted the accused-mother-in-law of the charge under Section 302 for murder while maintaining her conviction under Section 498-A IPC.

Present appeal was filed against the judgment and order of conviction and sentence passed by Additional Sessions Judge wherein accused/ appellants were convicted under Sections 498 A, 302, 34 of Penal Code, 1860.

Factual Scenario

Deceased in the present matter being the second daughter of the de-facto complainant/father was put to suffer death in her in-laws’s house by hanging.

After visiting to her in-law’s house, deceased victim was put to suffer cruelty, oppression and ill-treatment by her in-law’s members, including her accused husband for her black complexion.

Deceased was frequently abused and threatened by her in-laws .

The in-law’s members while causing ill-treatment upon victim made her understand just three days after her marriage for staying in a cow shed, expressing their dissatisfaction on the ground of her black complexion.

Deceased victim reported everything to her parents about the torture and cruelty, she received in her in-law’s house, when she visited her paternal house on several occasions.

Deceased’s father after persuading her to withstand such torture inflicted upon her, for her future benefit upon realisation of weak financial condition of her father.

Later, de-facto complainant/father of the deceased was informed by his on in law that the victim daughter had been put to suffer death by hanging.

Decision & Analysis

Court observed that the cause of inflicting torture was the black complexion of deceased victim which lead the in-law’s members of the victim including her accused husband to cause physical cruelty upon her.

Victim received threat from in-law’s members for her husband’s second marriage after driving her out from matrimonial home. So long victim remained alive and visited her paternal house, she expressed her extent of torture and cruelty inflicted upon her by her in- law’s members, and all the times the de-facto complainant persuaded his daughter to return to her in-law’s house for her future prospect, keeping in view the poor condition of de-facto complainant/father.

On observing the above, Court stated that causing cruelty to deceased victim for her black complexion even after her marriage by the in-law’s members would definitely attract Section 498 A/ 34 IPC against the in law’s members including husband.

Whether the victim suffered homicidal or suicidal death?

Autopsy Surgeon stated categorically in his evidence that if any person is pressed by telephone chord on his throat, then there could be ligature mark, as he found in the instant case, which might have caused the death of deceased victim.

Thus, noticing such continuous ligature mark Autopsy Surgeon opined in absence of poison in the viscera of deceased that it was a case of homicidal death, and ante-mortem in nature.

Whether non-production of weapon in a murder trial will lead to rejection of testimony of autopsy surgeon or not?

Court on noting the facts and circumstances along with the evidence stated that it is an established fact that there was an unnatural death of deceased in the in-laws’s house of the deceased victim after 7 months of her marriage.

Sufficient evidence was placed to show that the victim received oppression, ill- treatment, torture, cruelty in her in-law’s house by her in-law’s members for her black complexion.

Accused husband having failed to offer any explanation for the injuries caused to his wife, the failure would lead to the conclusion that the death of the deceased had occurred in the custody of accused husband as they both shared the same room after marriage.

Non-production of offending weapon in the absence of any explanation may be an error or latches on the part of prosecuting agency, but such error or omission would not itself discard the testimony of Autopsy Surgeon.

Hence, facts and circumstances would thus unerringly point to the guilt of accused husband/appellant for causing homicidal death to deceased/wife by strangulation for his non-satisfaction over the black complexion of his wife, which led to give birth his motive to cause death of his wife.

Commission of cruelty upon the deceased though proved against the mother-in-law under Section 498A read with Section 34IPC, but she should not have been held convicted for causing homicidal death of deceased victim under the behest of Section 302/34 IPC. on the simple ground that death of the victim was held in her matrimonial home.

Bench modified the conviction and sentence of accused mother-in-law under Section 498 A/34 IPC and deserves to be favoured with an order of acquittal for offence under Section 302/34 IPC.

Thus, the appeal was dismissed and accused mother-in-law be set free from correctional authority forthwith upon completion of sentence awarded against her under Section 498A/34 IPC.[Mazidul Miah v. State of W.B., 2020 SCC OnLine Cal 1077 , decided on 25-06-2020]

Jharkhand High Court
Case BriefsHigh Courts

Jharkhand High Court: A Division Bench of Shree Chandrashekhar and Ratnaker Bhengra, JJ. acquitted the accused-appellant of the charge under Section 302 of the Penal Code, 1860 on the ground that the prosecution has failed to prove by leading cogent and reliable evidence that the appellant has committed the crime.

The brief facts of the case are that the sole appellant, namely, Ratanu has been charged under Section 302 of the Penal Code, 1860 and convicted and sentenced to R.I. for life. Initially, five accused persons were sent up for trial, however, other accused persons were acquitted on the ground that the informant has not named them as accused in her fardbeyan. The prosecution has examined six witnesses; the informant Anjela Dhanwaris PW-1, the uncle of the informant, Kushal Topno PW-3 and Nelem Topno PW-2, the wife of PW-3. The witness, namely, Uday Purty PW-4 was declared hostile. Dr Sukanta Sheet PW-5, conducted the post-mortem examination and found major injuries on Prabodh Dhanwar which were ante-mortem in nature caused by sharp and blunt objects. Aggrieved by the impugned judgment, the present appeal was filed. 

The counsel Kripa Shankar Nanda for the appellant has submitted that PW-1 is not reliable and trustworthy, there is no independent corroboration to the evidence of PW-1, the crime weapon and the blood-stained soil collected from the place of occurrence were not produced in the court, and other prosecution witnesses have turned hostile which causes serious doubt has clouded the prosecution’s case. It further relied on the judgment titled Bhimapa Chandappa Hosamani v. State of Karnataka, (2006) 11 SCC 323, the Supreme Court observed that before conviction of an accused is recorded on the basis of testimony of a single witness it must be found that testimony of such a witness is of such sterling quality that it leaves no doubt about the complicity and involvement of the accused in the crime. 

The prosecution has projected Anjela Dhanwar, daughter of the deceased, as an eye witness whose conduct during the incident makes her testimony suspicious.

The Court relying on the Supreme Court decision in Gopal Singh v. State of M.P., (2010) 6 SCC 407, held the testimony not trustworthy and reliable and, therefore conviction of the appellant under Section 302 of the Penal Code cannot be recorded. [Ratanu v. State of Jharkhand,  2019 SCC OnLine Jhar 2485, decided on 23-10-2019]

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

Bombay High Court: A Division Bench of S.M. Gavhane and T.V. Nalawade, JJ., while partially allowing the appeal, held that,

“…with regard to offence under Section 498-A IPC, prosecuton has to prove that the accused in furtherance of their common intention caused cruelty within the meaning of cruelty given under explanation A and B of Section 498-A IPC.”

The present appeal was filed to challenge the judgment and order of Sessions Judge that had passed conviction and sentence for offence punishable under Section 498-A read with Section 34 of Penal Code, 1860, along with punishment under Section 302 read with 34 IPC.

Facts of the case were that the deceased was married to accused 1 about five months before the incident. While the deceased and accused 1 were cohabiting, the deceased sustained 86% burn injuries on 17-11-2007.

Later, dying declarations were recorded in which it was stated that since the marriage accused were harassing the deceased and asking her to bring Rs 10,000 from her parents. On account of the same, the deceased was assaulted and harassed.

On 16-11-2007, accused had beaten her by fist and kick blows and stick and on the morning of 17-11-2007, her father-in-law and mother-in-law caught hold her and her husband poured kerosene on her person and set her on fire by lighting the match stick and thus attempted to commit her murder.

Advocate for the appellants/accused 1 submitted that when both the dying declarations were recorded the deceased was not in a position to make a statement due to 86% burns suffered by her. Further, he stated that both the written dying declaration are not voluntary and trustworthy.

APP submitted that there was no material to show that dying declarations were the result of the product of imagination, tutoring or prompting.

Analysis & Decision of the Court

High Court stated that the death of the accused was not natural.

Looking to the defence of the accused and case of the prosecution it is to be seen whether the death of the deceased is homicidal, suicidal or accidental and if the death of deceased is homicidal whether the accused are responsible for causing burns to the deceased and to her death.

Nothing was found in favour of the accused in the cross-examination of medical officer. Court also noted that the contents of the dying declarations were not specifically put to the accused in the statement under Section 313 CrPC and as such no opportunity was given to the accused to explain the circumstances appearing against them in both the dying declarations.

Further Court found that kerosene residues were present on the burnt clothes of the deceased. If the deceased would have caught fire accidentally no kerosene would have been found on the clothes on her person. Evidence of the defence witness is not believable and sufficient to state that the deceased sustained burns accidentally.

Thus, accused 1 was responsible for causing burn injuries to the deceased and ultimately to cause her death.

Findings of the trial court that the prosecution has proved offence under Section 302 IPC against accused 2 & 3 father-in-law and mother-in-law of deceased is not correct and sustainable.

Hence in the above view, the appeal was partly allowed. [Dadarao v. State of Maharashtra, 2020 SCC OnLine Bom 346, decided on 03-03-2020]