Case BriefsHigh Courts

Orissa High Court: A Division Bench of Dr A.K. Mishra and S.K. Mishra, JJ. set aside the conviction of accused under Section 302 Penal Code, 1860 and instead, punished him under Section 304 Part-I of Penal Code, 1860.

The appellant had challenged his conviction under Section 302 of the Penal Code, 1860. As per the prosecution’s case, the accused had come to the house of the deceased and asked him to pay money by mortgaging a bi-cycle. After the deceased refused to lend money, he threatened him and left. Next day, the accused came to his house and asked the deceased for more liquor. After he was refused again, the accused threatened to get the deceased arrested on charges of illegally distilling liquor. Soon after, he picked up the knife kept on the wall of the house of the deceased and charged. There was a struggle between them and in the course of struggle, the accused sustained cut injury on his hand. Thereafter, the accused threw a curry stone (Shila) on the chest of the deceased and trampled over it. Accused also struck a brick on the head of the deceased and urinated on his face. The wife, daughter and son of the deceased requested the accused to stop, but he did not listen and killed the deceased and then fled away from the spot.

Post investigation, the accused was tried under Section 302 of Penal Code, 1860. The accused pleaded right to private defence to his life. The Additional Sessions Judge relied on the eye-witnesses in this case and recorded that the death of the deceased was homicidal in nature. He did not accept the plea of right to private defence as probable as the accused not only put curry stone on the chest of deceased and trampled over it, but also expressed his intention to ensure death by urinating on the face.

In the appeal to this case, the appellant contested that he too sustained an injury in course of the struggle with the deceased and he, therefore, had a reasonable apprehension of danger to his life, due to which he threw the curry stone. Further, he too sustained an injury on his right hand which could not have been self-inflicted as per a doctor.

The High Court was of the view that there was a discrepancy in the statements of the eyewitnesses due to which the appellant was entitled to be given benefit of doubt. The Court held that the trial court had committed no mistake in ignoring the right to private defence plea as accused threw curry stone when deceased was lying on the ground and had no weapon on his hand. The accused had no premeditation and the way he acted in a sudden fight in course of quarrelling and struggling, the offence under Section 304 Part-I of Penal Code, 1860 was found to have been committed and appellant was held to be liable for culpable homicide not amounting to murder. Accordingly, the conviction of accused under Section 302 of the Penal Code, 1860 was set aside. Instead, he was found guilty under Section 304 Part-I of the Penal Code, 1860 and was sentenced to undergo rigorous imprisonment for a period of ten years.[Bulu Khandia v. State of Orissa, 2019 SCC OnLine Ori 288, decided on 19-08-2019]

Case BriefsHigh Courts

Punjab and Haryana High Court: A Division Bench of Rajiv Sharma and Harinder Singh Sidhu, JJ. dismissed an appeal initiated against the judgment of trial court whereby appellant herein was convicted of murder under Section 302 of Penal Code,1860 (hereinafter ‘IPC’) and sentenced to life imprisonment, holding that prosecution had proved the case against the appellant beyond any reasonable doubt. In doing so, the Court issued detailed directions for witness protection.

The facts of the instant case were that one of the official witnesses was standing with two of his friends inside the Court complex when a car pulled up and three to four unidentified men came out of it, all armed with pistols. These men began abusing one of the witness’ friends and opened fire at him. A bullet hit him in the head and he died. Another person was injured due to the firing and his statement was recorded. The prosecution examined the witnesses and statements of the accused were recorded, following which the appellant and his co-accused were convicted and sentenced.

Anmol Rattan Sidhu, the learned counsel for the appellant, along with Pratham Sethi contended that the prosecution had failed to prove the case against the appellant.

S.P.S. Tinna and Harbir Sandhu, the learned counsels appearing on behalf of the State, supported the prosecution’s case.

The Court held that the prosecution had proved the case against the appellant beyond a reasonable doubt. It, however, observed that the three official witnesses had not supported the case of the prosecution and were instead pronounced hostile. The Court opined that the likelihood of a witness turning hostile was alarming as it was expected that the principle witnesses in a case would support the case of the prosecution. It further added that “the trial Court instead of resorting to conclude the trial on a day-to-day basis, has given an inordinate period of six months for recording cross-examination of PW-1 Balwinder Kumar. The result was that he was won over along with PW-2 Sukhwinder Singh”. State of Punjab was asked ‘to initiate disciplinary proceedings against PW-10 HC Jagjit Singh, PW-11 HC Gurjit Singh, PW-12 HC Sunil Kumar within three months, for dereliction of their duties for not supporting the case of prosecution though they were on the spot’.

Witnesses turning hostile

The Court considered the case of Ramesh v. State of Haryana, (2017) 1 SCC 529 where it was observed that act of witnesses turning hostile may be described as “culture of compromise”. It relied on Bablu Kumar v. State of Bihar, (2015) 8 SCC 787 and opined that “The Court cannot be a silent spectator or mute observer when it presides over the trial. It is the duty of Court to see that neither prosecution nor accused play truancy with criminal trial or corrode sanctity of the proceedings. The law does not countenance a ‘mock trial’.”

Fairness of trial – for accused as well as the victim

It was opined that fairness of trial should not only be from point of view of accused, but also from point of view of victim and society. Reliance in this regard was placed on State (NCT of Delhi) v. Shiv Kumar Yadav, (2016) 2 SCC 402.

Role of the State in witness protection

The Court further relied on Zahira Habibulla H. Sheikh v. State of Gujarat, (2004) 4 SCC 158 where it was held that crimes are public wrongs, in breach and violation of public rights and duties, which affect the whole community as a community and are harmful to society in general. Thus, the State has an important role in witness protection, and there are a pressing and urgent need for legislative measures to protect witnesses. Relying on Himanshu Singh Sabharwal v. State of M.P, (2008) 3 SCC 602, it was observed that the State must ensure that during a trial, witnesses can safely depose truth without any fear of being haunted by those against whom he has deposed.

Witness Protection Scheme, 2018

The Court heavily relied on Mahender Chawla v. Union of India, 2018 SCC OnLine SC 2679 where the Supreme Court directed the Union of India as well as States and Union Territories to enforce the Witness Protection Scheme, 2018 in letter and spirit.

Directions for witness protection

Accordingly, this Court issued the following mandatory directions to ensure fair and expeditious enquiry, investigation, trials and to prevent the witnesses from turning hostile:

  1. All trial courts, of the State of Punjab, should examine eyewitnesses on a continuous basis and grant adjournments for next day only after recording cogent, convincing and special reasons.
  2. State of Punjab was directed to make suitable amendments in IPC and the Code of Criminal Procedure, 1973 (hereinafter ‘CrPC’) to punish the persons inducing, threatening and pressurizing any witness to give a false statement, within three months.
  3. State of Punjab was directed to provide reasonable traveling allowance to the witnesses. If the hearing got continued to next day, then boarding and lodging should also be provided by the State Government through the State Exchequer.
  4. State of Punjab was also directed to ensure the material witnesses in ‘heinous and sensitive matters’ on a short term or long term basis to enable them to fearlessly testify before the Court and also protect their identity, change their identity and relocate the witnesses.
  5. State of Punjab should install security devices in the witnesses’ home, including security doors, CCTV cameras, alarms and fencing, etc.
  6. Police should possess the emergency contact numbers of witnesses, close protection for the witnesses, regular patrolling around the witness’s house, escort to the Court and from the Court to their home with provision of government vehicle or a State-funded conveyance on the date of hearing.
  7. All the investigating officers in the State of Punjab must record statement under Section 161 CrPC by audio, video and electronic means.

The Home Secretary, State of Punjab was held to be personally responsible to implement the aforestated directions issued.[Abhijeet Singh v. State of Punjab, 2019 SCC OnLine P&H 1118, decided on 28-05-2019]

Case BriefsHigh Courts

Karnataka High Court: Sunil Dutt Yadav, J. granted regular bail on the ground that the case of the commission of offence with pre-meditation was yet to be proved during trial.

A bail application was filed with respect to the offence of murder punishable under Section 302 of the Penal Code, 1860.

The facts of the case were that a complaint was lodged by the complainant against her husband, mother-in-law and sister-in-law for harassing the complainant for about two months. It was further submitted that the complainant had gone back to her parent’s house after the altercation with her husband, but thereafter husband came to the parents’ place and started a quarrel, the mother tried to pacify but the petitioner stabbed the complainant’s mother with a knife, who succumbed to the injuries and died. Thus, the case was registered and the accused was arrested.

Tejas N., counsel for the petitioner stated that the petitioner himself had suffered injuries in altercation according to the statement of the witness. It was further submitted that the context in which altercation took place the reaction of the petitioner was in the nature of reaction to the grave and sudden provocation. Thus, prayed for the grant of bail.

The Court opined that the Sessions Judge had dismissed the application of the petitioner stating that prima facie materials were made out against the petitioner with regard to commission of offence but the court held that petitioner was entitled to bail on the ground that context of the altercation including injuries was, matter to be explained and proved in trial. Hence, application for the bail was allowed.[Syed Raheem v. State of Karnataka, 2019 SCC OnLine Kar 565, decided on 03-06-2019]

Case BriefsHigh Courts

Jharkhand High Court: The Bench of H.C. Mishra and Sanjay Kumar Dwivedi, JJ. allowed the appeals while setting aside the judgment of conviction and order of sentence convicting and sentencing the appellants.

In the pertinent case, the dispute was over land and its illegal possession wherein the accused were held guilty of murder under Section 302 of the Penal Code and the Trial Court even sentenced the accused accordingly. The Court was approached because there were discrepancies in the FIR and the statements provided by the prosecution witnesses, where they first stated that the occurrence had taken place in the hut and they could not see which accused was armed with what weapon. Subsequently, in evidence, the place was changed to the land in question and improvements were made on the details as to which accused was armed with what weapon and the person who assaulted. Also, the Investigation Officer (IO) was not examined because of which the necessary implications could not be taken from the IO. Even the Doctor conducting the post-mortem examination was not examined in the case.

The Court in the interest of justice looked into the case diary with the help of the learned senior counsel, Mr V.P. Singh, where it became apparent that the non-examination of the IO has vitally prejudiced the defence in the case and even the place of occurrence has not been properly proved in the case. The Court further believed that, the benefit of doubt should be extended to the appellants in the absence of the evidence of the IO and the Doctor. Therefore, the Court set aside the conviction and sentence ordered by the 1st Additional Sessions Judge and discharged the appellants from their respective liabilities.[Manik Singh v. State of Jharkhand, 2019 SCC OnLine Jhar 244, Order dated 11-03-2019]