Case BriefsHigh Courts

Chhattisgarh High Court: Gautam Chourdiya, J., upheld the decision of the trial court in a matter with regard to Section 379 Penal Code, 1860.

The present appeal was filed under Section 374(2) of Criminal Procedure Code, 1973 challenging the legality, validity and propriety of the Judgment passed by the Additional Sessions Judge, whereby the appellant stands convicted under Section 379 of the Penal Code, 1860.

Complainant was working as a Secretary at Gram Panchayat and on the same day after the meeting, he went to the bank and withdrew a sum of Rs 12, 250. Thereafter, while he was returning home, on the way accused and co-accused met him and all of them together went to have mutton and consumed liquor.

From there, they reached the place near nursery where they stopped the motorcycle and both the accused started quarrelling with the complainant and after threatening him of life, assaulted upon him by stone and committed marpeet with him, as a result of which sustained injuries on his body and became unconscious.

After the above incident, accused and co-accused looted the amount of Rs 12,250 from complainant’s possession and fled from there.

Complainant lodged FIR against the accused and co-accused. Accused was arrested and achrge sheet was filed against the accused persons under Sections 307, 394 read with 34 and 397 of IPC.

Trial Court acquitted the co-accused of the said offence and convicted and sentenced the accused.

Counsel for the appellant submitted that the appellant had been falsely implicated in the case. No witness had seen the incident. Complainant lodged the FIR after the delay of 2 days. Hence the impugned judgment of conviction and order of sentence deserves to be set aside and the appellant be acquitted of the charges.

Bench held that in the totality of facts and circumstances of the present case, it stands proved beyond all reasonable doubt that it is the accused who looted complainant’s money. No explanation was given by the accused regarding the seizure of money from him and he did not claim anywhere in his statement that the said amount belonged to him.

It is a well settled principle of law that statements of police officers cannot be discarded or looked with suspicion merely because they are involved in the investigation.

If their statements are found free from the suspicion of falsity and have a ring of truth, they can safely be relied upon.

In the instant case, defence did not allege that the investigating officer was in any way inimical to the accused or was having any ill-will against him.

With regard to the delay in lodging FIR, the same happened due to the complainant was admitted in the hospital in an unconscious condition.

In view of the above-stated, High Court opined that conviction of the appellant under Section 379 IPC awarded by the trial court was just and proper warranting not interference by the Court.

The appeal being without any substance was liable to be dismissed. [Raju v. State of Chhattisgarh, 2020 SCC OnLine Chh 433, decided on 19-10-2020]

Case BriefsForeign Courts

South Africa High Court, Kwazulu-Natal Division: The Division Bench of Lopes and Radebe, JJ. while allowing the appeal reduced the sentence for murder and conviction for robbery was converted into the theft.

In the present case, the appellant, Mthobisi Mtho Mgidi was convicted of one count of robbery with aggravating circumstances and one count of murder and sentenced to 15 years’ imprisonment on the count of robbery, and life imprisonment on the murder count by the Umlazi Regional Court.

The facts surrounding the conviction are as follows: One night, the appellant and his friend Sikhakhane were walking along the road in a drunken state. Along the road, they met the deceased and he was too in a drunken state. While Sikhakhane was ahead of Mgidi, he heard someone calling him and he looked back and saw Mgidi stabbing the deceased with a knife. Sikhakhane then went up to Mgidi and pushed him away from the deceased and saw him covered in blood, and carrying a belt and either shoes or takkies which Sikhakhane stated belonged to the deceased. Sikhakhane and Mgidi’s mother testified where it was found that Sikhakhane had no knowledge of the circumstances under which Mgidi obtained possession of the knife and that Mgidi’s mother also saw his blood-stained clothes and knife.

Mgidi testified that he could not recall what happened that day and he ran away from his home after knowing that the police is looking for him.

The Counsel for the appellant, N.B. Dlamini submitted that the State bore the onus of proving criminal capacity and had failed to discharge that onus. He referred to a Judgment of Supreme Court of Appeal of South Africa, The Director of Public Prosecutions, Kwazulu-Natal v. Ramdass [2019] ZASCA 23 in which the accused was acquitted of both robbery and murder because it was found that the State had not proved that he had the necessary criminal capacity.

Counsel on behalf of the State, N. Dube submitted that Ramdass (accused in the abovementioned case) pertinently raised the defences, whereas in the present matter Mgidi pleaded not-guilty, because he could not recall having committed the offences and the memory of Mgidi was selective, because he remembered things which had taken place shortly before and after the incident. It was further submitted that in S v. Chretien 1981 (1) SA 1097 (A) at 1108C, it was mentioned that the fact that a person cannot remember what they did, does not mean that they were not criminally responsible.

The Court after analyzing the facts and circumstances of the case, observed that the evidence of the State witnesses clearly established that alcohol played a role in the unfolding events, it is clear that Mgidi was of sound enough mind to procure the knife with which he assaulted the deceased. The appellant remembered his interaction with his mother after arriving at home, and his actions in crying and then fleeing, indicate that he must have known what he did. In the circumstances of the present case, there is no evidence that the violence occasioned to Mr Khanyile by Mr Mgidi was instigated with the intention of depriving him of his property. In those circumstances, Mr Mgidi should have only been convicted of the murder of Mr Khanyile and the theft of a belt and a pair of takkies. The murder was neither planned nor premeditated.

The conviction for robbery was set aside, and replaced with a conviction on one count of theft and sentenced to undergo two years’ imprisonment on the conviction of theft. The appeal against conviction on the murder charge was dismissed and its sentence succeeded and a sentence of twelve years’ imprisonment was imposed. [Mthobisi Mtho Mgidi v. State, Case No. AR212 of 2017, decided on 31-05-2019]

Case BriefsHigh Courts

Madhya Pradesh High Court: A Division Bench of Sheel Nagu and G.S. Ahluwalia, JJ. entertained a writ by the way of PIL where the litigant sought, CBI investigation into the matter related to the theft of Electronic Voting Machines which were to be used in Lok Sabha elections of 2019.

The petitioner U.K. Bohare contended the matter in person, where he accused the officers of the Election Commission of theft and criminal breach of trust of EVMs. The petitioner sought to punish such officers involved and to seek the cost of lost EVMs from the Central Government. According to the petitioner the EVMs which were stolen were used in Gwalior and Chambal illegally and hence, CBI investigation was vehemently pleaded.

The Court, observed that it was evident that the public cause sought to be raised herein was in respect of an alleged incident of missing 19 Lakhs EVM (Electronic Voter Machine) during the parliamentary election of 2019. The Court further stated that though it was a serious matter, which had to be looked into, information gathered by petitioner was based on unconfirmed, uncorroborated and unreliable newspaper reports. Petitioner preferred representation to the Election Commission of India related to his aforesaid grievance. The court held, “court is of the considered view that pleadings herein lack bare essential material to impel this court to initiate the process of adjudication of the alleged public cause and therefore, this court declines interference.” Hence, the petition was dismissed giving liberty to the petitioner to represent his case before the Election Commission of India.[Umesh Kumar Bohare v. Union of India, 2019 SCC OnLine MP 928, decided on 27-05-2019]

Case BriefsHigh Courts

Orissa High Court: A petition was filed before Dr A.K. Rath, J., challenging the order passed in an Arbitration Proceeding, whereby the application filed by the petitioner-respondent under Section 27 of the Arbitration and Conciliation Act, 1996 to accord approval to the respondent to apply to the court for assistance in taking evidence was rejected.

The facts of the case were that the petitioner had issued notice inviting tender for electrical works for an Alumina Refinery. The bid of the opposite party was accepted. An agreement was entered into between the parties, in furtherance of which the petitioner filed an application under Section 27 of the Act to accord approval of the Tribunal to apply to the Court for assistance in taking evidence of the then Manager (material), who had lodged the claim before the Insurance Company for loss of property by theft. He had expressed his inability to examine in the proceeding unless he received notice from the Tribunal. The Tribunal rejected the petition holding that at an earlier occasion, the examination and non-availability of the concerned witness was not indicated. Despite the opportunity, the affidavit evidence was not filed. Himanshu Sekhar Mishra, Advocate for the opposite party submitted that the petitioner had not assigned any reason as to how the examination of the concerned witness was essential for adjudication of the case and thus the petition should be dismissed.

The Court held that merely because, the petitioner had filed the list of witnesses, the same did not preclude the Arbitral Tribunal to accord approval for taking evidence under Section 27 of the Act if the party assigned sufficient reasons. In the application under Section 27 of the Act, the petitioner had clearly mentioned the reasons for according approval of the Tribunal to apply to the Court for assistance in taking evidence of the concerned witness. The petition was thus allowed. [National Aluminium Company Ltd. v. Indo Power Projects Ltd., 2019 SCC OnLine Ori 197, decided on 01-05-2019]

Case BriefsHigh Courts

Madras High Court: While setting aside the FIR registered against the officials of the Bank for an offence under Section 379 Penal Code, a bench of S. Vaidyanathan J ruled that no criminal action could be taken against the financier/ financial institution for repossessing the goods hypothecated with them in case of default in repayment of loan.

In the instant case, a loan agreement was signed between the petitioner and the 2nd respondent for a sum of Rs.9,00,000/- for purchase of a car. The petitioner seized the car on default in the repayment of loan and kept it in their custody. The 2nd respondent filed a case against the officials of the Bank for an offence under Section 379 IPC. After registering the case, the 1st respondent Police sent a communication to the bank, asking them to surrender the vehicle, as the same is required for investigation as well as for production before the Court. Aggrieved by the same, the petitioner filed the present petition under Section 482 of CrPC to quash the FIR pending on the file of the 1st respondent Police.

The Court referred K.A. Mathai  v. Kora Bibikutty, (1996) 7 SCC 212 where it was held that in case of default to make payment of installments financier had a right to resume possession even if the hire purchase agreement does not contain a clause of resumption of possession for the reason that such a condition is to be read in the Agreement. The Court also referred Anup Sarmah vs. Bhola Nath Sharma, (2013) 1 SCC 400 where it was held that in an Agreement of hire purchase, the purchaser remains merely a trustee/bailee on behalf of the financier / financial institution and ownership remains with the latter. Accordingly, the Court made it clear that in case vehicle is seized by the financier, no criminal action can be taken against him as he is repossessing the goods owned by him, and in such an eventuality, it cannot be held that the financier had committed an offence of theft and that too, with the requisite mens rea and requisite dishonest intention. [HDFC Bank Limited v. State, 2015 SCC Online Mad 10573, decided on 21.12.2015]