Case BriefsForeign Courts

Malaysia Court of Appeal: A Full Bench of Kamardin Hashim, Hanipah Farikullah, Mohamad Zabidin Mohd Diah, JCA dismissed the appeal filed by a person who was convicted for drug trafficking and affirmed the conviction and sentence of the death penalty by High Court.

The appellant was a Thai national female who was found in the possession of drugs and she was trying to hide it by sitting on it. When cops did the body check of appellant then drugs were found. She was charged under Section 39B(1)(a) of the Dangerous Drugs Act, 1952. The learned trial judge invoked the statutory presumption under Section 37(da)(ix) of the Act based on the weight of the drugs which was more than 40 grams of Cocaine, and sentenced her to death penalty. The said order was challenged in this appeal.

The appellant argued that drugs could have been left by the previous guest and also there are chances that police may fabricate evidence against her but there was no reason for police to do that. She also emphasized that her luggage was scanned at the airport and nothing incriminating was found. But the argument was made that there is a possibility she got possession of drugs after she left airport. 

The respondent argued that they got information about drugs so they checked the room acting on that information they checked the room and drugs were found in that room. Drugs found were sent for check which confirmed the presence of cocaine in those things which further affirms the allegation on the appellant. Moreover, there will be no reason to defame a person who had just arrived in a country. 

The Court opined that High Court had analysed all the witness and was satisfied there was no break in chain of evidence to the drugs produced and identified by prosecution witness in court. The High Court Judge had relied on the conduct of appellant in concealing the drugs by sitting on them, which established that she had knowledge about it.

Giving due regard to appreciation of evidence by the High Court and circumstances of this case, the Court held the appellant guilty for trafficking charges without any reasonable doubt. The court also remarked that it is illogical for the person to leave such valuable drugs in the room. It was opined that there was no merit in the appeal and also the arguments made by the appellant. [Napalai Narapattarawong v. Public Prosecutor, 2019 SCC OnLine MYCA 3, decided on 24-09-2019]

Case BriefsHigh Courts

Calcutta High Court: A Division Bench of Abhijit Gangopadhyay and Joymalya Bagchi, JJ. allowed an appeal and set aside the conviction and sentence of a stepfather (hereinafter “appellant”) accused of sexually assaulting his minor daughter.

The appellant had been charged with raping his stepdaughter aged around 13 years twice in duration of 4 weeks. The chargesheet was filed and charges were framed under Section 354 (assault or criminal intent to a woman with intent to outrage her modesty) of the Penal Code, 1860 and under Section 5 and 6 of the Prevention of Children from Sexual Offences Act, 2012. The trial Court convicted the appellant for the offence punishable under Section 5(n) of the POCSO Act and sentenced him to rigorous imprisonment for life and pay a fine of Rs 50,000. Appellant-accused filed an appeal against this order.

The counsels for the appellant  Deep Chaim Kabir and R. Arul Peter argued that the alleged incidents were false as the statements of the victim were highly unreliable and contradictory in nature. The incident of outraging the modesty of the victim was not confirmed by her uncle (prosecution witness) in whose house she allegedly took refuge after the incident. There were a lot of inconsistencies in the statements mentioned by the victim. It was also submitted that seizure of incriminating articles like a used condom and sanitary napkins were from a public place which was accessible to all. No forensic evidence to connect incriminating articles with appellant. 

The learned counsel appearing for the State A.S. Zinu argued that evidence of a minor victim of sexual assault must be treated with due sensitivity and care as the appellant is accused of the heinous crime of rape. Also, he contended that the appellant had fiduciary control over victim and this lead to delay in lodging the FIR. The medical report showed that the victim’s hymen was ruptured which indicated rape. The victim herself pointed out the place where the incident had occurred and incriminating articles were found. Her statements were supported by the testimonies of the witnesses and in view of the statutory presumption under Section 29 of the POCSO Act prosecution’s case was well established.

The Court was of the opinion that the evidence led by the prosecution to establish the primary facts was inconsistent. One part of the prosecution case improbabilities the other part to such an extent that no man of reasonable prudence would accept the version as coming from the witnesses. Hence, the factual matrix of the case did not call for invocation of statutory presumption under POCSO Act to convict the appellant on charges levelled against him. 

In light of the aforesaid discussion, the Court held that conviction and sentence of appellant under Section 5(n) read with Section 6 of Act was liable to be set aside. The appeal was allowed and appellant was directed to be released from custody upon furnishing a bond to the satisfaction of the learned trial court which shall remain in force for a period of six months in terms of Section 437A of the Code of Criminal Procedure, 1973. [Subrata Biswas v. State, 2019 SCC OnLine Cal 1815, decided on 11-06-2019]