Case BriefsForeign Courts

Kenya High Court, Nyahururu: R.P.V. Wendoh, J. passed a judgment directing acquittal of an accused in the absence of sound circumstantial evidence.

A child was found dead in Nyahururu, Kenya. The reason for the death was found to be strangulation leaving a dark swollen mark around the neck of the deceased child. The police was called and the investigating officer noticed that the younger brother of the deceased child also had the same swollen mark on his neck, however, he never bothered to interrogate that child. The deceased used to live with father, brother and father’s second wife as the mother of the deceased had parted from his father and he was under the custody of the father. Police suspected David Wang’ondu Githiru, father of the deceased for the murder but when they tried arresting him, he started to run with an intention of escaping from the scene.

Learned counsel for the prosecution, Mutembei called upon nine witnesses who testified the death of the deceased and the swollen mark present on his neck. One of the witnesses also testified the presence of the same mark on the neck of the younger brother of the deceased. The testimony of the witnesses created a chain of events which somewhat placed accused as the probable murderer.

Learned counsel for the defendant, Kihoro contended before the Court that the circumstantial pieces of evidence brought before the Court were hollow as it did not answer as to who killed the child. He further argued that when the accused reached his home on that evening, the child informed him that he was sick. However, the accused had no money at that time so he started to arrange money. Around 3:00 a.m. the next day, he was taken to the hospital but he had died by that time.

The Court after hearing both the sides observed that the case turns on purely circumstantial evidence. It was opined that for the Court to rule a conviction on such evidence, events leading to the death of deceased must form a chain so closely knit together without any breakage or interruption. But, the present case did not give a very strong circumstantial evidence whose final outcome could be relied upon. The Court thus reiterated the judgment passed in Sawe v. Republic, (2003) KLR 364 in which it was opined that “Suspicion, however strong, cannot provide basis for inferring guilt which must be proved by evidence beyond reasonable doubt.”

Thus, the Court in absence of the proof beyond reasonable doubt acquitted the accused. [Republic v. David Wang’ondu Githuru, 2018 SCC OnLine Ken 1, decided on 24-10-2018]

Case BriefsHigh Courts

Gauhati High Court: Reiterating that mere likelihood of suspicion cannot be a reason to charge someone for an offence, Rumi Kumari Phukan, J. allowed a criminal petition and quashed the FIR registered against the petitioners under Section 120-B, 32 and 307 IPC.

The matter related to a long pending land dispute between the petitioners on one hand and the injured and the informant on the other hand. The injured was shot from the backside while riding his motorcycle. The informant, the wife of the injured, lodged an FIR against the petitioners on suspicion that the attack was committed by them in response to their land dispute.

J.J. Borbhuiya, I., Mohan, R. Ali and K.H. Choudhary, Advocates, representing the petitioners vehemently submitted that the criminal proceeding could not stand and continue on sheer suspicion. Per contra, T. Sarma and H.K. Sarma, Advocates, for the informant asserted that the proceedings should continue till the end. However, D. Das, Additional Public Prosecutor, submitted that the injured himself could not identify the assailants.

 Perusing the record, the High Court noted that the informant tried to project the case only on suspicion and there was no supporting evidence to suggest the complicity of the petitioners. It was observed: “Criminal prosecution cannot be permitted to continue on the whims and pleasure of the litigants unless cogent, clear and convicting evidence collected in course investigation.” Holding that the same was very much lacking in the present case, the Court was of the view that continuance of the criminal proceeding against the petitioners would cause a miscarriage of justice. Thus, the prayer made by the petitioners was allowed and the impugned FIR was quashed. [Anuradha Gogoi v. State of Assam, 2019 SCC OnLine Gau 2296, decided on 14-05-2019]

Case BriefsHigh Courts

Punjab And Haryana High Court: The Bench of Rajiv Sharma and Kuldip Singh, JJ., dismissed the application filed under Section 378(4) CrPC against the Judgment passed by the Additional Sessions Judge acquitting the accused-respondents of the charges framed against them under Section 302 read with Section 34 IPC and Section 25 of the Arms Act on the ground that it was a case of mere suspicion. 

The facts of the case were that the accused was suspected of the murder of his brother whose body was found lying near the railway track. However, the Additional Sessions Judge acquitted the accused. The Court said that in this case, the prosecution relied upon the confession made by both the accused in their disclosure statements. However, the confession made in the disclosure statement is not admissible in evidence. The prosecution also led evidence to prove the enmity between the accused and the deceased and for this purpose, they have examined the brother of the deceased and the father of the deceased. Their cross-examination showed that both of them had heard about the quarrel between the accused and the deceased on the Diwali day. However, the accused proved that he was away to Delhi on the Diwali day. Therefore, their statements regarding quarrel was discarded as hearsay. 

The Court held that this was a case of circumstantial evidence. The entire chain was not complete to point out that the accused were the only persons who could commit the crime. It was merely a suspicion. It is established law that suspicion, however strong, cannot take place of the positive proof and cannot be made the basis of conviction. The prosecution could not prove its case against the accused beyond a reasonable shadow of doubt. The Court thus did not find any illegality in the impugned Judgment. Accordingly, application under Section 378(4) CrPC. for grant of leave to appeal was dismissed. [Abdul Rahman v. State of Haryana, 2019 SCC OnLine P&H 351, decided on 01-04-2019]

Case BriefsHigh Courts

Delhi High Court: Sanjeev Sachdeva, J. dismissed a petition filed against the judgment of Revisional Court whereby petitioner’s / complainant’s in-laws were discharged of the offences under  Sections 498-A and 34 IPC.

In 2013, petitioner had filed an FIR against her husband and in-laws alleging harassment. It was alleged that her husband used to come late and beat the petitioner and when she complained to her in-laws, they behaved in the same manner. She was thrown out of the matrimonial house and was threatened not to enter again.

Anuj Kr Ranjan, Advocate for the petitioner submitted that there was sufficient material on record to substantiate framing of charge under Section 498-A. Per contra, Kishan N. Rana, Advocate for in-laws submitted that allegations against them were bald and even the investigation did not ravel any incriminating material.

After perusing the FIR, it was noted by the High Court that “in one breath, the petitioner named all the family members without specific role ascribed to any one of them.”Though instances were mentioned vis-a-vis her mother-in-law and brother of father-in-law, however, no specifics about date, time or place were given. Omnibus allegations were made which according to the Court did not justify framing a charge under Section 498-A as “for a change to be framed, the evidence gathered by the prosecution should not only give rise to suspicion but there should be grave suspicion that the accused have committed the offence.” Consequently, the petition was dismissed. It may be noted that in the present case, a charge was framed against the husband who was facing trial. [Anju v. State (NCT of Delhi), 2019 SCC OnLine Del 6865, dated 04-02-2019]

Case BriefsHigh Courts

Patna High Court: A Single Judge Bench comprising of Anil Kumar Upadhyay, J. quashed an office order denying payment of salary to the aggrieved petitioner whose appointment was disputed.

In the present matter, appointment of the petitioner as a teacher and his counseling by the District Teachers Employment Appellate Authority was under cloud. The Appellate Authority, on consideration of the entire facts, directed employment unit to take steps to ensure counseling of the petitioner. However, petitioner’s claim for payment of his salary was rejected on the ground that legality and validity of his appointment was under dispute. Hence, the instant petition.

The Court observed that as the petitioner was regularly working for respondent and they were taking benefit of his work, therefore he was entitled to his full salary. At the highest, on the basis of Appellate Authority’s observations, respondents might take an appropriate decision; but without taking any such decision against the petitioner, denial of his salary was impermissible. It was noted that there was no finding as to the invalidity of petitioner’s appointment. In view thereof, the petition was allowed directing the respondents to pay arrears of salary to the petitioner for the period that he had actually worked until a further decision as to the validity of his appointment is was reached. [Akhilesh Pandey v. State of Bihar, 2018 SCC OnLine Pat 2160, decided on 03-12-2018]

Case BriefsTribunals/Commissions/Regulatory Bodies

Securities and Exchange Board of India (SEBI), Mumbai: The whole-time Member of SEBI, Madhabi Puri Buch addressed the issue of whether there was any prima facie suspicion or evidence of financial misrepresentation and misuse of books of accounts by the company in question.

Parsvnath Developers Ltd. (PDL) mentioned themselves as one of the largest real estate development companies in Northern India involved in development and construction of real estate projects. SEBI, on the basis of a letter by Ministry of Corporate Affairs where list of shell companies were provided, viewed these shell companies as potentially involved in misrepresentation and misuse of books of account. PDL was also in that list.

The Board asked for various documents as an evidence of work taken up by the company and saw a possible violation of SEBI (Listing Obligation and Disclosure Requirements) Regulation, 2015. Board noted that PDL had failed to show commencement certificates for any work of contract and sub-contract carried by it which suggested that the revenue of the company has been overstated as no evidence to show completion of work was provided. Company also failed to provide evidence of execution of contracts undertaken by the company or given to other companies.

Therefore, the board was of the view that in the interest of investors, the company’s finances should be independently audited. Under Sections 11, 11(4), 11-A and 11-B read with Section 19 of the Securities and Exchange Board of India Act, 1992, the Board directed the exchange to appoint an independent forensic auditor. Board concluded that the company was on suspicion of misusing the books of accounts and misrepresentation of financials/business of the Company. [Parsvnath Developers Ltd. In Re, 2018 SCC OnLine SEBI 154, order dated 08-08-2018]

Case BriefsHigh Courts

Bombay High Court: A Division Bench comprising of B.R. Gavai and Sarang V. Kotwal JJ., addressed a Criminal Appeal by setting aside the order of conviction and sentence in view of considering the matter in the purview of ‘benefit of doubt’.

In the present matter, the Appellant was convicted under Sections 376 (f) and 302 IPC for committing the rape of a 6-year-old child and murder thereafter. In accordance to the FIR lodged by the victim’s father. The appellant was found to be sleeping beside the deceased. The deceased was found with blood and injuries to her private parts.

While noting the facts of the case, the High Court found that the post-mortem report states the final cause of death as ‘death due to shock due to vaginal and anal tear with multiple injuries over body’. Also, the fact to be noted that was found on during the medical examination of the Appellant was that he had no injuries on his person with no blood or semen on any of the clothing of the appellant. There was no evidence of semen or vaginal fluid been taken off by washing from the private parts of the appellant.

Therefore, the case of prosecution lied only in the arena of ‘suspicion’ and the chain of circumstances against the appellant seemed to be incomplete, which awarded the appellant ‘benefit of doubt’ by acquitting the appellant in the present matter. [Sandip Ramesh Gaikwad v. State of Maharashtra,2018 SCC OnLine Bom 2067, dated 06-07-2018]

Case BriefsHigh Courts

Chhattisgarh High Court: An appeal against the order of acquittal filed by the State was decided by a Division Bench comprising of Prashant Kumar Mishra and Ram Prasanna Sharma, JJ., wherein acquittal of the respondents as ordered by the Sessions Judge was upheld.

The respondents were accused in a criminal case under Section 302 read with Section 32  IPC for the murder of one Tushkumar and his wife. The prosecution while trying to prove its case submitted that the relation between the respondents and the deceased were strained and they had threatened to kill him; corroborative piece of seizure of deadly weapons from the respondents was an incriminating circumstance against them. However, the trial court acquitted the respondents of the charges above-mentioned. Aggrieved thus, the State filed the instant appeal.

The High Court perused the record and found that there was no eyewitness to the incident; the case of the prosecution was based on circumstantial evidence. And even the chain of circumstances was not unbroken so as to link the respondents with the crime. The statements of prosecution witness at best created suspicion against the respondents. The case of the prosecution was entirely based on suspicion. The Court observed that however strong the suspicion may be, it can not take place of proof. The High Court was of the opinion that the view taken by the trial court was correct and did not warrant interference. The appeal filed by the State was accordingly dismissed. [State of Chhattisgarh v. Nabbu @ Bafataddin, ACQA No. 137 of 2010, order dated 13-02-2018]

Case BriefsSupreme Court

Supreme Court: The bench of Dipak Misra, CJ and AM Khanwilkar, J dismissed Teesta Setalvad’s plea seeking de-freezing of her accounts that have been seized in the matter relating to collection of huge funds as donation to 2 trusts in the name of providing legal assistance to the 2002 Gujarat Riot Victims.

The Court said that since the investigation was still in progress, the suspicion entertained by the investigating agency as to how the appellants appropriated huge funds, which in fact were meant to be disbursed to the unfortunate victims of 2002 riots will have to be explained by the appellants and they can apply for de-freezing of accounts only after completion of the investigation.

The major circumstances that create a strong suspicion against the appellants are:

  • donations received by the two Trusts had never reached the victims i.e. the members of the Gulberg Society.
  • final account did not tally with the accounts and the appellants did not offer credible explanation for the same.
  • appellants provided incorrect information and suppressed material facts i.e. that they have opened new accounts and transferred huge sums of money after knowing that stated bank accounts of the appellants were seized on 21.01.2014 by the investigating agency.

Hence, regarding the power of the investigation officer to seize the accounts of appellants under Section 102 of the Code of Criminal Procedure, 1973, the Court said:

“the Investigating Officer was in possession of materials pointing out circumstances which create suspicion of the commission of an offence, in particular, the one under investigation and he, having exercised powers under Section 102 of the Code, which he could, in law, therefore, could legitimately seize the bank accounts of the appellants after following the procedure prescribed in sub-Section (2) and sub-Section (3) of the same provision.”

The Court, however, said that once the investigation is complete and police report is submitted to the concerned Court, it would be open to the appellants to apply for de-freezing of the bank accounts and persuade the concerned Court that the said bank accounts are no more necessary for the purpose of investigation, as provided in subsection (3) of Section 102 of the Code. It will be open to the concerned Court to consider that request in accordance with law after hearing the investigating agency, including to impose conditions as may be warranted in the fact situation of the case.

The Court also clarified that if at any stage or upon completion of the investigation, the Investigating Officer is satisfied with the explanation offered by the appellants and is of the opinion that continuance of the seizure of the stated bank accounts or any one of them is not necessary, he will be well advised to issue instruction in that behalf. [Teesta Atul Setalvad v. State of Gujarat, 2017 SCC OnLine SC 1490, decided on 15.12.2017]

Case BriefsHigh Courts

Chhattisgarh High Court: In an appeal before the High Court, the appellants challenged their conviction by Sessions Judge in murder case of wife of one of the appellants under Sections 302 read with Section 34 IPC. In the present case, the deceased Basanti Bai died in the intervening night in 2006 at their village. During investigation, statements of the witnesses were recorded. The trial court after considering the material available on record by the impugned judgment convicted and sentenced the accused-appellants to imprisonment for life.

After going through the facts of the case, the Court heard the counsel for the appellant who pleaded that firstly, the cause of the death of deceased had yet not been established as the doctor in her post-mortem report had mentioned that she died due to asphyxia that may also be caused due to any general disease and thus, death cannot be called homicidal. Secondly, he told the Court that the witnesses adduced by the prosecution are hearsay witnesses, which is not legally admissible. Thirdly, he pleaded that there had been not even a single witness from the village where the incident took place, thus weakening the stand of the prosecution to a great extent.

The Court considered the fact that all the evidences taken into consideration by the trial court are the evidence of relatives of deceased and whatever had ever been spoken by the deceased during visit of their house had been reproduced by them before the Court thus, failing to be legal as per Section 60 of Evidence Act which states that oral evidence must always be direct to be admissible. To support its observation, the Court cited Kalyan Kumar Gogoi v. Ashutosh Agnihotri (2011) 2 SCC 532 in which the Supreme Court had explained reasons as to why hearsay witnesses were not admitted like truth comes in diluted and diminished form this way and the witness in such cases will not have any responsibility on him and so on.

The Court went on to say that as the evidence upon which the inference of trial court is based is admissible, the other aspects of the matter needed to be examined in depth. The Court noticed that none of the 13 witnesses examined belonged to the village where deceased died. The Court observed that in such cases of hearsay evidence, Section 106 of the Evidence Act may be attracted if a reasonable inference can be drawn regarding the existence of certain other facts, unless the accused by virtue of special knowledge regarding such facts failed to offer any explanation which might drive the court to draw a different inference and its purpose is not to relieve the prosecution to prove the burden of guilt. But in the present case, out of all the witnesses, no one stated that the appellant was inside the house at the time of the incident.

The Bench of Ram Prasanna Sharma, J. on minute scrutiny of the facts and examined witnesses said that that suspicion however grave cannot take the place of proof and that the prosecution just in order to succeed on a criminal charge cannot afford to lodge its case only on the basis of “may be true” but has to essentially elevate it to the grade of “must be true”. [Shankarlal v. State of Chattisgarh, 2017 SCC OnLine Chh 1138, decided on 6-10-2017]

Case BriefsSupreme Court

Supreme Court: Stating that extra-marital relationship, per se, or as such would not come within the ambit of Section 498-A IPC, the Court held that it would be an illegal or immoral act, but other ingredients are to be brought home so that it would constitute a criminal offence. It was further said that solely because the husband is involved in an extra-marital relationship and there is some suspicion in the mind of wife that cannot be regarded as mental cruelty which would attract mental cruelty for satisfying the ingredients of Section 306 IPC.

In the present case, the deceased had committed suicide due to the alleged extra-marital affair of her husband with a girl named Deepa, who later committed suicide not being able to digest the humiliation. The Couet said that the present case had the potentiality to shock a sensitive mind and a sincere heart, for the materials brought on record show how “suspicion” can corrode the rational perception of value of life and cloud the thought of a wife to such an extent, that would persuade her to commit suicide which entail more deaths, that is, of the alleged paramour, her mother and brother who being not able to emotionally cope up with the social humiliation, extinguish their life-spark.

Explaining the concept of ‘cruelty’, the Court said that coercive harassment can have the attributes of cruelty that would meet the criterion as conceived of under Section 498-A of the IPC. Thus, the emphasis is on any wilful conduct which is of such a nature that is likely to drive the woman to commit suicide.

The bench of Dipak Misra and Amitava Roy, JJ said that in such a situation, it is extremely difficult to hold that the prosecution has established the charge under Section 498A IPC and the fact that the said cruelty induced the wife to commit suicide. The Court said that the wife was guided by the rumour that aggravated her suspicion which has no boundary but such an event will not constitute the offence or establish the guilt of the accused-appellant under Section 306 of the IPC. It was held that if the husband gets involved in an extra-marital affair that may not in all circumstances invite conviction under Section 306 of the IPC but definitely that can be a ground for divorce or other reliefs in a matrimonial dispute under other enactments [K.V. Prakash Babu v. State of Karnataka, 2016 SCC OnLine SC 1363,  decided on 22.11.2016]