Case BriefsHigh Courts

Jharkhand High Court: Anubha Rawat Chaudhary J., upheld and modified the Judgment given by Trial Court on grounds of the accused being found guilty of the offence under Section 354, 506 and 509 of Penal Code, 1860.

The facts in a nutshell are that the informant was chased by the accused while she used to go for tuitions at a computer center. He used to wait for her at the bus stand and chase her, make illicit comments, ask her to marry him by showing her money, convincing her to be in an illicit relationship with him. The informant refused and asked him to behave himself but to no avail as he still kept doing the same and threatened to kill her.

Later, the informant confided in her family regarding the set of events and the father and brother caught the accused red-handed and registered an FIR against him under Sections 354, 506 and 509 of Penal Code, 1860. He was tried in the trial court and sentenced to imprisonment plus fine. Hence, the instant revision application was filed for the intervention of the High Court and the order of conviction to be set aside.

Counsel for the petitioner Ashish Kumar submitted that no case under Section 354 can be made out as the petitioner never held the informants hand and hence the charges are false and the ingredients of the section are not satisfied and hence the offence cannot be made out in the eyes of law. He further submitted that accused has been convicted based on the examination of two witnesses which is not sufficient for a fair trial as the two witnesses were the informant and her brother who are highly interested witnesses in the present case. The counsel further prayed the court to take a lenient view on the point of conviction as the age of the accused on the date of conviction was 42 years and his present age is 52 years, hence the sentence is liable to be looked into and modified by the court. He has also argued that when the FIR was registered the act of holding hand/ touching the informant was not mentioned which was added later in the prosecution case and therefore the accused has been falsely implicated in the present case.

Counsel, Pankaj Kumar prayed for no interference as there was no inconsistency in the finding of the facts, the examination of the witnesses, or appreciation of the evidence, thereby being no illegality or perversity in the impugned judgment.

The Court after hearing both sides relied on a Judgment of the Supreme Court titled State of Punjab v. Major Singh, AIR 1967 SC 63 held that the act of physical touching in the present case does not affect the order of conviction as other basic ingredients of Sections 354, 506 and 509 of IPC is clearly made out. It also held that the argument that the act of touch was not made out during filing of FIR but later in the prosecution case stands no ground as FIR is not an encyclopedia of the entire prosecution case.

In view of the above, the sentence is modified and criminal revision application disposed off. [Shyam Gupta v. State of Jharkhand, Cr. Revision No. 271 of 2014, decided on 07-08-2020]

Case BriefsHigh Courts

Bombay High Court: A Division Bench of M.G. Sewlikar and T.V. Nalawade, JJ., upheld the decision of the trial court to convict the accused under Section 302 of Penal Code and held that,

“ A person who pours kerosene on someone and sets him on fire has no right to say that he had no knowledge that this act of his would cause death or would cause such bodily injury as is likely to cause death.”

The present appeal was preferred against the conviction under Sections 302, 323 and 506 of Penal Code, 1860.

Facts

Appellant/accused was a liquor addict and one evening when he came to home, the deceased (wife) asked him why he consumed liquor after which the appellant/accused abused her and said that he would get rid of her.

On the night of the above-stated incident, when the deceased and her son went off to sleep, accused/appellant poured kerosene on the deceased and ignited the match stick and threw it at her and ran out of the house. Thereupon, accused/appellant poured water on her and extinguished the fire.

Two dying declarations were recorded wherein the deceased stated the same story as above, after which offences under Sections 307, 323, 504 and 506 of IPC were registered. Offence was converted under Section 302 of Penal Code as the deceased breathed her last.

Analysis

Sessions Judge found that both the dying declarations were voluntary and truthful.

“Principle on which dying declaration is admitted in evidence is based on the legal maxim “Nemo Moriturus Praesumitur Mentire”: i.e. the man will not meet his maker with a lie in his mouth. It is based on the principle that in the face of death, all the worldly aspirations of a man do not exist. It is unlikely that a person who is on death bed would falsely implicate an innocent.”

Principles of governing the dying declaration are enumerated in the case of Paniben v. State of Gujarat, (1992) 2 SCC 474.

Law on the dying declaration is that if the Court is satisfied that the dying declaration is true and made voluntarily by the deceased, conviction can be based solely on it, without any further corroboration. When the dying declaration suffers from some infirmity, it cannot alone form the basis of conviction.

Dying declaration is enshrined in Section 32 of the Evidence Act as an exception to the general rule contained in Section 60 of the Evidence Act.

Court noted that the dying declaration was recorded and signed by the victim when the doctor declared her to be in a fit state to do so. Thus, both the dying declarations appear to be truthful and voluntary.

Bench observed that, accused had failed to explain the circumstances in which the incident occurred. Prosecution proved both the dying declarations. It also proved the presence of the accused at the time of incident and also proved that kerosene was detected on the clothes of the accused.

Having regard to the above, trial court did not commit any error in placing reliance on both the dying declarations and recording the conviction against the accused under Section 302 of IPC.

Counsel Shri Chatterji for the accused had contended that the accused had no intention of doing the said act i.e. the intention to murder as he had poured water on the person of the deceased soon after she was engulfed by fire.

For the above argument, Court stated that,

The act is so inherently dangerous that a man of ordinary intelligence can also contemplate that setting a person on fire would entail death or would cause such bodily injury as is likely to cause death.

Thus, the High Court on noting the above held that the prosecution has proved that the death is homicidal. Bench also cited the Supreme Court’ decision in Suraj Jagannath Jadhav v. State of Maharashtra, 2019 SCC OnLine SC 1608, wherein it was held that,

“Even assuming that the accused had no intention to cause the death of the deceased, the act of the accused falls under clause Fourthly of Section 300 IPC that is the act of causing injury so imminently dangerous where it will in all probability cause death.”

Hence, in view of the above, appeal is dismissed. [Navin Bhimrao Bansode v. State of Maharashtra, 2020 SCC OnLine Bom 284, decided on 17-02-2020]

Case BriefsHigh Courts

Rajasthan High Court: Arun Bhansali J., quashed and set aside the order of the trial court since the trial court erred in rejecting the petition seeking to implead them as a party to the suit.

The present writ petition was filed by the petitioners being aggrieved against the order passed by the Civil Judge. The respondent-plaintiff had filed a suit for declaration of easementary rights and permanent injunction in relation to the right of way and sought permanent injunction by impleading the State as well as the Tehsildar as party defendants to the suit. They had filed an application with the submission that the land in question was a cremation ground and various mausoleums of their ancestors were situated therein and thus they are seeking to be impleaded as party defendants to the suit. The Trial Court after hearing the parties came to the conclusion that the land in question belongs to the State and therefore there were no necessity of applicants being impleaded as party defendants.

The advocate representing the petitioner, Teja Ram submitted that the trial court was not justified in rejecting the application filed by the petitioners, inasmuch as admittedly the land in question was Gair Mumkin Samshan and was being used by the petitioners as the cremation ground.

The advocate representing the respondents, Roshan Lal contended that the trial court was justified in rejecting the application.

The Court upon perusal of the materials available on record stated that the trial court was not justified in rejecting the application on the ground that the land did not belong to the petitioner since the residents of the area had an interest in that land. The Court opined that the trial court should have taken a comprehensive view of the matter and observed that “…the suit was being contested on part of the defendants also was an indicator towards the nature of interest being taken by the State in defending the suit and, therefore, the rejection of application was not justified.” [Hansa Ram v. Moda, 2020 SCC OnLine Raj 276, decided on 17-02-2020]

Case BriefsHigh Courts

Delhi High Court: Vibhu Bakhru, J., while dismissing the present appeal upheld the decision of the trial court for offences charged under Section 4 of POCSO Act and Sections 342/363/376 of Penal Code, 1860.

In the present appeal filed by the appellant was convicted by the trial court for the under the above-stated Sections. Appellant contended that the impugned judgment ought to be set aside, since it does not extend the benefit of doubt to the appellant in view of inconsistencies in the testimonies of various witnesses.

Further, he contends that MLC of the victim stated that her hymen was normal and the doctor, who was examined for the prosecution had confirmed that the hymen could be ruptured for other reasons as well. Adding to his contentions, he also states that the victim was actually raped by PW-7 and not by the appellant.

Though, the FSL report supported the case of the prosecution that the victim had suffered sexual assault by the accused.

While recording his statement under Section 313 of CrPC, accused also stated that 3-4 days prior to the incident, a quarrel had broken out between him and the mother of the victim due to which, he had been falsely implicated in the case.

Petitioner’s counsel also submitted that since the physical evidence did not corroborate the charges levelled against the appellant, he ought to be acquitted.

Court’s Decision

High Court stated that no contention was advanced on behalf of the appellant was found to be persuasive. Evidence obtained in this case clearly establishes that the appellant is guilty of the offences for which he was charged.

Court stated that, there is overwhelming evidence to establish that the prosecutrix was recovered from the factory premises of the appellant and the same was closed from outside. Mother of the prosecutrix testified to the aforesaid effect. All the other witnesses in the case corroborated the said fact.

Insofar as the MLC was concerned, Dr Anuradha Tyagi was examined, wherein she stated that it was correct that the hymen of the victim appeared to be normal (externally) and as per P/R examination, no tear or bleeding was found. However, she reiterated that the hymen of the prosecutrix was not found to be intact.

Thus, the Court held that testimonies of witnesses were all consistent and there is little room for entertaining any doubt whether the appellant had committed the offences for which he was charged. Forensic evidence fully establishes the case of the prosecution beyond any pale of doubt.

Hence the present appeal is unmerited and dismissed. [Chhedi Paswan v. State, 2020 SCC OnLine Del 464, decided on 17-02-2020]

Hot Off The PressNews

The Trial Court at Saket, New Delhi has sentenced 19 accused, namely (i) Brajesh Thakur, owner of the NGO Sewa Sankalp Evam Vikas Samiti to undergo Life Imprisonment with total fine of Rs 32.20 lakh; (ii) Indu Kumari, Superintendent of Children Home for Girls to undergo three years Rigorous Imprisonment with fine of Rs 10,000/-; (iii) Minu Devi, House Mother, Children Home for Girls to undergo Life Imprisonment with fine of Rs 80,000/- ;(iv) Manju Devi, Counselor, Children Home for Girls to undergo ten years Rigorous Imprisonment with fine of Rs 40,000/- ;(v) Chanda Devi, House Mother, Children Home for Girls to undergo ten years Rigorous Imprisonment with fine of Rs 60,000/-; (vi) Neha Kumari, Nurse, Children Home for Girls to undergo ten years Rigorous Imprisonment with fine of Rs 40,000/-; (vii) Hema Masih, Probation Officer, Children Home for Girls to undergo ten years Rigorous Imprisonment with fine of Rs 60,000/-; (viii) Kiran Kumari, Helper, Children Home for Girls to undergo Life Imprisonment with fine of Rs 80,000/-; (ix) Ravi Kumar Roshan, the then Child Protection Officer, Muzaffarpur to undergo Life Imprisonment with total fine of Rs 3.25 lakh; (x) Vikas Kumar, the then Member, Child Welfare Committee, Muzaffarpur to undergo Life Imprisonment with total fine of Rs 14.50 lakh; (xi) Dilip Kumar Verma, the then Chairman, Child Welfare Committee, Muzaffarpur to undergo Life Imprisonment with total fine of Rs 2 lakh; (xii) Vijay Kumar Tiwari, driver of Brajesh Thakur to undergo Life Imprisonment with total fine of Rs 75,000/-; (xiii) Guddu Kumar Patel @ Guddu, employee of Brajesh Thakur to undergo Life Imprisonment with total fine of Rs 85,000/-; (xiv) Krishan Kumar Ram @ Krishna @ Kishan, employee of Brajesh Thakur to undergo Life Imprisonment with fine of Rs 50,000/-; (xv) Rosy Rani, the then Assistant Director, District Child Protection Unit, Muzaffarpur to undergo six months Rigorous Imprisonment; (xvi) Ramanuj Thakur @Mamu, uncle of Brajesh Thakur to undergo Life Imprisonment with fine of Rs 60,000/-; (xvii) Ramashankar Singh @ Master Saheb @ Masterji, employee of Brajesh Thakur to undergo ten years Rigorous Imprisonment with fine of Rs 60,000/-; (xviii) Dr. Aswini @ Asmani, employee of Sewa Sankalp Evam Vikas Samiti to undergo ten years Rigorous Imprisonment with fine of Rs 30,000/- and (xix) Saista Praveen @ Madhu, employee of Sewa Sankalp Evam Vikas Samiti to undergo Life Imprisonment with fine of Rs 4.10 lakh.

CBI had registered the case on 28.07.2018 and taken over the investigation of the case, earlier registered at Mahila Police Station, Muzaffarpur (Bihar). After thorough investigation, CBI filed a chargesheet on 18.12.2018 against 21 accused before the Designated Court, Muzaffarpur. The Supreme Court vide Order dated 07.02.2019 transferred the trial to Saket Court at New Delhi. The charges in the case were framed on 30.03.2019 against 20 accused persons under the provisions of IPC, POCSO Act and JJ Act for commission of physical and sexual assault, including rape of the victims. Prosecution evidence commenced on 06.04.2019 which continued on a day-to-day basis. The trial was concluded within six months time as stipulated by the Supreme Court of India.

On conclusion of the trial, the Court held 19 accused persons guilty on 20.01.2020 for having committed the offences of rape, gang rape, aggravated penetrative sexual assault and abetment of the said offences in the Muzaffarpur Shelter Home case (Bihar) and acquitted one person.


Central Bureau of Investigation

[Press Release dt. 11-02-2020]

Case BriefsHigh Courts

Madras High Court: V. Bharathidasan, J., dismissed a revision petition filed against the order of the trial court whereby the application filed by the petitioner-defendant to convert the original summary suit filed by the respondent-plaintiff under Order 37 CPC into a regular suit was dismissed.

The respondent had filed a suit for the recovery of money against the petitioner. In that suit, while serving the summons, the copy of the plaint and the enclosures were not served on the petitioner. Hence, the petitioner filed an application stating that as there is a mandatory violation of Order 37 Rule 2 CPC, the suit is not maintainable and the same has to be converted into a regular suit. The trial court dismissed the said application. Challenging the same, the instant revision was filed.

P. Sureshbabu, counsel appearing for the petitioner, contended that under Order 37 Rule 2 CPC, the plaintiff has to necessarily serve summons along with a copy of the plaint and the enclosures to the defendant. But in the instant case, a copy of the plaint and enclosure were not served on the defendant. Hence, as there is mandatory violation he cannot maintain the suit under Order 37 CPC and it should be treated as a regular suit.

The High Court considered the record and noted that according to the trial court, along with the summons, a copy of the plaint and documents were sent to the defendant and as he was not available, the summons was returned and hence it could not be stated as a mandatory violation of Order 37 CPC. That apart, as copies could not be served on the defendant, on that ground alone a summary suit could not be converted into a regular suit. In the above circumstances, the trial court dismissed the said application.

Affirming the findings and observations of the trial court, the High Court held that there was no merit in the instant revision petition and, therefore, it was dismissed. The trial court was directed to serve a copy of the plaint and the documents enclosed along with the plaint to the defendant within a period of one week. [D. Elangovan v. Shrenik Kumar, 2020 SCC OnLine Mad 367, decided on 06-02-2020]

Case BriefsHigh Courts

Bombay High Court: A Division Bench of P.N. Deshmukh and Pushpa V. Ganediwala, JJ., allowed a criminal appeal filed against the order of the trial court whereby the appellant was convicted for committing the offence of murder punishable under Section 302 IPC and for the offence of cruelty to women punishable under Section 498-A IPC. 

The appellant was convicted for the murder of his wife. It was alleged by the prosecution that the appellant used to ill-treat and harass the deceased after consuming liquor. The deceased died as a result of a hundred percent burn injuries. The conviction of the appellant was based on the dying declaration of the deceased recorded in the hospital. Aggrieved by his conviction, the appellant filed the instant appeal. 

The High Court considered the submissions made by R.M. Daga, Advocate appearing for the appellant, and S.P. Deshpande, Additional Public Prosecutor representing the State. 

Perusing the order of the trial court, the high court noted that the order convicting the appellant was based only on the dying declaration of the deceased. Considering the post mortem report, the Court found that the deceased died of hundred percent burn injuries.  In such circumstances, the Court was of the opinion that a bare perusal of the dying declaration would reveal the deceased’s thumb impression thereon with clear ridges, which creates a doubt in the case of the prosecution. 

Moreover, no medical officer was examined by the prosecution to bring on record the fact of the physical and mental state of the deceased before and after recording the statement, nor there is anything on record to establish that in spite of any attempts made by the prosecution, no presence of concerned medical officer could be obtained. Reliance was placed on the decision of the Supreme Court in State of H.P. v. Jai Lal, (1999) 7 SCC 280. wherein it was held that the report of an expert witness cannot be accepted as it is unless the expert witness has been examined and in the absence of examination of the medical expert, the certificate given by him cannot be read into evidence. It was also held that medical witness is an expert witness and his evidence stands on a different pedestal than an ordinary witness.    

In such view of the matter, the High Court allowed the appeal and set aside the order of the trial court conviction the appellant. [Pravin v. State of Maharashtra, 2020 SCC OnLine Bom 95,  decided on 07-01-2020]

Case BriefsHigh Courts

Madhya Pradesh High Court: Vishnu Pratap Singh Chauhan, J. while allowing the appeal set aside the order passed by the Trial Court.

The present appeal was filed against the order of the Special Judge under Section 14-A(2) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 for dismissing the bail application filed by the appellant under Section 439 CrPC. 

The appellant was in jail for commission of offence punishable under Sections 341, 354, 354-B and 323 IPC, under Sections 7 and 8 of the POCSO Act and under Section 3(1)(w) & 3(2) (v-a) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989.

The prosecution had submitted that on 28-01-2019 appellant appeared when prosecutrix went to answer call of nature, tried to drag her to some other place by holding her hand. On resisting this appellant started assaulting her by fisticuffs. 

Counsel for the Respondent/State, S.B. Agnihotri had vehemently opposed this bail application.

The Court after going through the case diary noticed that prosecutrix at the time of the incident was more than 17 years. Moreover, the investigation is already over and the charge-sheet had been filed and the trial will take considerable time. Therefore, after considering facts and circumstances of the case, the Court observed that Trial Court erred in dismissing the application filed by the appellant under Section 439 CrPC. [Gulab Pal v. State of Madhya Pradesh, 2019 SCC OnLine MP 3677, decided on 13-11-2019]

Case BriefsHigh Courts

Patna High Court: Rajendra Kumar Mishra, J. disposed of the writ petition saying that the final decision regarding the petitioner’s claim rested with the respondent authorities.

A special leave application was filed on behalf of the appellant under Section 378(4) of the Code of Criminal Procedure, seeking leave to file an appeal against the judgment passed by the Additional Chief Judicial Magistrate wherein he had acquitted the respondent from the charges under Sections 323 and 420 of the Penal Code, 1860.

The mother of the appellant had filed a complaint case in the Court of SDJM., Sheohar at Sitamarhi. The mother of the appellant, aged about 85 years used to live with her son Daya Shankar Mishra (Appellant) and her other son, Ashutosh Mishra (Respondent) used to live separately. In absence of Daya Shankar Mishra, the respondent took her to Sheohar for treatment on 25-01-2008 and 28-01-2008, but in the garb of such treatment, he managed to take her thumb impression and signature on papers saying that her thumb impression and signature were required for her treatment. The respondent got the property transferred to his name by way of the thumb impression and signatures that he had obtained, and when he was questioned by the appellant he threatened her in return.

The learned ACJM, Sheohar at Sitamarhi acquitted the respondent on the grounds that the prosecution failed to prove the charges under Sections 323 and 420 of the Penal Code.

The Panchnama clearly indicated that the said plot of land was transferred in the name of the respondent and the trial Court committed an error in not considering the evidence.

The Court held that the Trial Court concluded that neither the complainant had filed any suit for cancellation of the sale deed nor any competent jurisdiction has declared the sale deed null and void and that the complainant had not denied giving the thumb impression and signature on the sale deed, rather, her claim was that her thumb impression and signature obtained on papers were converted into a sale deed. The Court instead failed to make an attempt to compare the thumb impression and signature of the sale deed with the signature and thumb impression of the register maintained in the office of Sub-Registrar. The Court found no reason to allow this Special Leave to Appeal.

In view of the above-noted facts, the instant application was dismissed accordingly.[Daya Shankar Mishra v. State of Bihar, 2019 SCC OnLine Pat 1429, decided on 08-08-2019]

Case BriefsHigh Courts

Punjab and Haryana High Court: Ajay Tewari J. passed an order of the bail as the applicant was already granted with bail by the trial court.

An application under Section 439 of Code of Criminal Procedure was made for the grant of the anticipatory bail for the offence registered under Sections 420, 465, 471, 467, 120-B the Penal Code, 1860.

The facts of the case were that the complainant had come into the contact of Sujoy Biswas who assured her a job in Go Air Company and on that pretext, the petitioner took a lot of money from her and misappropriated it and they handed over fake appointment letters. However, when the complainant approached Go Air, she came to know that the document was fake.

S.R. Hooda, counsel for the petitioner argued that no role was attributed to him in the present case and that the applicant was already in custody for five months.

Amarjit Kaur Khurana, counsel for the State argued that the petitioner was an integral part of the whole scam scene and prayed for the dismissal of the application. It was further submitted that Sujoy Biswas has been granted conditional bail and the condition was that he will create a fixed deposit of Rs 1 lakhs and will keep it with the Trial Court.

High Court opined that as the trial court has passed an order of the bail, it was appropriate to grant the petitioner subject to some condition and thus passed an order of the interim bail to the satisfaction of the trial court.[Manoj Kumar v. State of Punjab, 2019 SCC OnLine P&H 1006, decided on 31-05-2019]

Case BriefsHigh Courts

Madhya Pradesh High Court: S.K. Awasthi, J.  dismissed the petition on the ground that trial court and not Special Court are competent to take cognizance when offences were made under the Penal Code, 1860.

A petition was made under Section 397 read with Section 401 of Code of Criminal Procedure, 1973 against the order passed by Additional Sessions Judge.

Facts of the case were that Mukesh and Radheyshyam Mandwani and applicant Sunil were the directors of the company, having an immovable property at Indore. The applicant tried to grab the property without calling any meeting of the company and had also forged the resignation of the complainant and indicted his real brother as director of the company. An FIR was lodged against the applicant for offences under Sections 420, 467, 468, 471 and 120-B of the Penal Code, 1860 and charge sheet was filed. A discharge application on the ground that the trial court was not competent to take the cognizance and Special Court should take the cognizance was rejected by the trial court. Hence, the revision petition was made.

Vijay Asudani, counsel for the applicant argued that a special court can try offence other than offence under the provisions of Companies Act with which the accused may under the CrPC be charged. It was further submitted that the trial court failed to appreciate that the Complainant was the ex-director and shareholder of the company and the fact that the non calling of the meeting, preparation of forged resignation are offences under the Companies Act, 2013 and thus only special court were competent to take cognizance of the offence and thus impugned order should be set aside and applicant should be discharged from the charges made under the Penal Code.

Counsel for the complainant submitted that in order to gain the control over assets of the company and to deceive, betray and cheat the complainant made the complaint under the Penal Code. It was further submitted that the jurisdiction of the Special Court is limited to the offences punishable under the Companies Act, 2013 and not under the Penal Code or any offences committed under any other law. Thus, prayed for the dismissal of the revision petition.

The Court opined that provision of Section 436 (2) of the Companies Act, 2013 also provide that while trying an offence under the Companies Act, a Special Court may also try an offence other than an offence under this Act with which the accused may, under the Code of Criminal Procedure, 1973 be charged at the same trial. In this case, the police registered the offence punishable under the Penal Code and not under Companies Act, 2013. It was held that no criminal trial has been initiated against the applicants for any of the offence which is punishable under the provision of Companies Act, therefore, in absence of any offence punishable under the Companies Act, Special Court is not having jurisdiction to try the case which is punishable under the Penal Code and court of Indore has territorial jurisdiction to try the case for the commission of offence punishable under Sections 420, 467, 468, 471 and 120-B of IPC. Thus, the revision petition was dismissed. [Sunil Mandwani v. State of M.P., 2019 SCC OnLine MP 1248, decided on 27-06-2019]

Case BriefsForeign Courts

South Africa High Court, Free State Division, Bloemfontein: A Division Bench of Mathebula and Chesiwe, JJ. dismissed the present appeal against convictions and sentences.

On 23-11-2012, the deceased and his friends arrived at Mahlomola’s Tavern, Welkom to have drinks but they were not allowed entry. After persuading the in-charge they bought beers. The moment they started to leave, an altercation erupted and the second appellant stabbed at the back of the deceased, Mokhele Thys Thebeladi. This led to the other two appellants also stabbing the deceased.

Counsel for the appellants, L. Tshabalala and P.P. Mile denied any involvement with the events leading to the death of the deceased. All the three had their own defenses; the first left the tavern before the fight started, the second saw him lying on the ground and the third neither participated nor saw anything.

The trial court (Regional Magistrate, Welkom) convicted all the appellants with murder under Section 51(2) of Act 105 of 1997 and sentenced to fifteen years imprisonment. The second appellant was convicted with a further charge of assault with intent to do grievous bodily harm and a further sentence of three years.

Aggrieved with both conviction and sentence the appellant appealed.

The Court observed that the findings of a trial court are credible and anyone even a Court of Appeal with a contrary opinion should support with sufficient reasons. S. v. Chabalala, 2003 (1) SACR 134 (SCA) a case based on ‘guilt to be proved beyond reasonable doubt’ was cited. It laid down that “The correct approach is to weigh up all elements which point towards the guilt of the accused against all those which are indicative of his innocence… to decide whether the balance weighs so heavily in favour of the State as to exclude reasonable doubt about the accused’s guilt.”

In addition, according to the post-mortem report, the deceased sustained multiple stab wounds, caused by the three appellants. The trial court took the right approach as stated in the case and concluded rightly that this was an attack. The trial court has not faulted in any way whatsoever. Therefore, the convictions and sentences are not to be altered.[Andile Cofa v. State, Case number: A132/2017, decided on 22-03-2019]

Case BriefsHigh Courts

Himachal Pradesh High Court: Chander Bhusan Barowalia, J. dismissed a petition finding no merit in the appeal as when two reasonable conclusions are possible on the basis of the evidence, the appellate court should not disturb the finding of acquittal recorded by the trial Court.

In the present matter, the appellants alleged that they had found a person carrying a plastic can in his right hand. The person on seeing the police party got perplexed and on suspicion, he was arrested. During his personal search, he was found in conscious and exclusive possession of one plastic can, containing three bottles of illicit liquor. After separating one nip as a sample, both the nips as well as sample were sealed. The prosecution, in order to prove its case, examined as many as six witnesses. Statement of the accused was recorded under Section 313 CrPC, wherein he denied the prosecution case and claimed innocence. Additional Advocates General, Shiv Pal Manhas and P.K Bhatti with Raju Ram Rahi, Deputy Advocate General argued that the prosecution has proved the guilt of the accused beyond the shadow of reasonable doubt.

While H.K.S. Thakur, counsel for the respondent argued that the alleged quantity of three bottles of illicit liquor stated to be recovered from the respondent is a concocted story, as no independent witness was associated by the police. And even the Investigating Officer in his statement has specifically stated that he did not find it appropriate to associate any independent witness.

The Court after considering the facts and circumstances and the arguments advanced found that “when independent witnesses were available on spot the Investigating Officer should have associated them. However, the Investigating Officer simply stated that he does not find it proper to associate independent witnesses. The non joining of the independent prosecution witnesses when they were available, makes the prosecution case doubtful with respect to recovery of three bottles of illicit liquor”. The Court further relied on K. Prakashan v. P.K. Surenderan, (2008) 1 SCC 258 and T. Subramanian v. State of T.N., (2006) 1 SCC 401. Further, it took into consideration the principles culled out in Chandrappa v. State of Karnataka, (2007) 4 SCC 415 that, “If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court” amongst other things.[State of Himachal Pradesh v. Joban Dass, 2019 SCC OnLine HP 646, decided on 21-05-2019]

Case BriefsHigh Courts

Allahabad High Court: A Division Bench of Ramesh Sinha and Dinesh Kumar Singh-I, JJ. allowed the appeal filed by a couple accused of murder, against the trial court’s order sentencing them to death for the said offence; and set aside the death reference made by the trial court.

In the present case, the appellant along with his wife Shakila was accused of murdering his two brothers-in-law and mother-in-law by hacking their neck, in a factory where he was a watchman. Charges were made out against the appellant and his wife under Sections 302, 34 and 201 of the Penal Code, 1860. The trial court convicted them on the basis that only appellant had access to the building as he lived inside it, and account of a child witness aged 6 years (son of the deceased lady) was taken into consideration.

Learned counsel for the appellant argued that the child witness’ testimony could not be taken into consideration as he had deposed that he was wrapped in a blanket and thrown in another room by his sister Shakila. The child’s presence at the crime scene could not be confirmed as had he been present over there, he too would have been killed by the accused-appellant but that was not the case. Moreover, the panchayatnama of three deceased was conducted as of unknown persons and had the child witness been present at the place of occurrence then definitely he would have disclosed the two male deceased to be his real brothers and female to be his mother. Also, it could not be said that the factory in which the appellant was a guard and where he was living along with his wife, was in his exclusive possession and not accessible to anyone else because one of the keys of the factory was with the owner of the factory. Therefore, the factory was accessible to others as well.

On the other hand, learned Additional Government Advocate submitted that accused-appellant has bad antecedents as he was already convicted and sentenced by the trial court for murdering his earlier wife. He had absconded from Lucknow jail and was living in Kanpur while working in the said factory as Chaukidar. He had enticed the daughter of deceased lady and when Shakila’s brothers along with their mother came to take her away from accused, a quarrel took place between the parties and Shakila’s mother and two brothers were murdered by accused. Shakila’s younger brother was an eye witness of the incident and had deposed that he saw the accused killing the three deceased with knife and his sister Shakila was facilitating in the crime.

The Court noted the aforestated facts and arguments and opined as below:

Section 118 Evidence Act – Reliability on testimony of child witness:

It was observed that the Investigating Officer had failed to show the place of occurrence and the place from where the child witness was witnessing the incident as the incident had taken place in two parts – body of mother of child witness was found on the second floor of the factory whereas the dead body of his two deceased brothers, was found on the first floor of factory. It was observed that it was highly doubtful that the child, who had stated that he was wrapped and thrown in a room by his sister, could not have seen the murder of the two deceased which had taken place on the first floor. Thus, his evidence could not be said to be wholly reliable for the conviction and sentence of two appellants.

The Court relied on Digamber Vaishnav v. State of Chhattisgarh, (2019) 4 SCC 522 where the Supreme Court while discussing Section 118 of the Evidence Act, 1872 held that “evidence of a child witness must be evaluated carefully as the child may be swayed by what others tell him and he is an easy prey to tutoring. Therefore, the evidence of a child witness must find adequate corroboration before it can be relied upon.”

Presumption under Section 106 Evidence Act:

It was opined that the prosecution admitted that one key of the factory was with accused and another key was with the owner of the factory. Hence, the presumption under Section 106 of the Evidence Act could not be drawn against the accused as he was not in his exclusive possession of the factory.

Proof beyond a reasonable doubt versus suspicion:

Further, the Court opined that it may not be possible that two deceased men aged about 25 years and 35 years and the deceased lady aged about 55 years could have been overpowered and killed single-handedly in such a gruesome manner by the accused who was just aged about 45 years. The possibility of the incident having occurred in some other manner by more persons could not be completely ruled out. It was noted that suspicion, howsoever strong, could not take the place of proof. Reliance in this regard was placed on Sujit Biswas v. State of Assam, (2013) 12 SCC 406 where the Court examined the distinction between ‘proof beyond reasonable doubt’ and ‘suspicion’.

Establishing guilt on the basis of circumstantial evidence:

Lastly, the Court relied on Digamber Vaishnav case and opined that in criminal cases where guilt of the accused is sought to be established on the basis of circumstantial evidence, “if two views are possible on evidence adduced in the case – one binding to the guilt of the accused and the other is to his innocence, the view which is favourable to the accused, should be adopted.”

In view of the above, the conviction and sentence of both the appellants by the trial court was set aside, and they were directed to be released from jail forthwith unless otherwise wanted in any other case.[Rashid v. State of Uttar Pradesh, 2019 SCC OnLine All 2228, decided on 16-05-2019]

Case BriefsHigh Courts

Madras High Court: M. Govindaraj, J. disposed of a civil miscellaneous appeal, giving the appellant liberty to approach the trial court with appropriate application to vacate the injunction.

The present appeal was filed against the order of Principal District Judge granting an ex-parte injunction, wherein the appellant was directed not to supply the subject material other than to the respondent till the disposal of the suit. After receipt of the order, without approaching the trial court, the appellant preferred the present appeal directly.

The High Court was of the view that the appeal did not disclose any extraordinary circumstance or irreparable loss warranting interference. It was observed: “Normally this Court does not interfere with the discretionary power exercised by the Court unless it is fainted with the arbitrary exercise of such power, patently illegal or capricious. The appellant cannot approach this Court without exhausting the effective remedy available to him.”

Therefore, without going into merits, the Court disposed of the appeal by giving liberty to the appellant to approach the trial court with appropriate application to vacate the injunction.[Selva Spinners (P) Ltd. v. Liberty Clothing Co., 2019 SCC OnLine Mad 1515, decided on 16-04-2019]

Case BriefsHigh Courts

Delhi High Court: In view of the failure of justice on account of lack of effective cross-examination of prosecution witnesses, Sanjeev Sachdeva, J. quashed the trial court’s order convicting and sentencing the accused (appellant) for offence punishable under Section 6 of the Protection of Children from Sexual Offences Act, 2012.

The appellant had challenged the order of the trial court whereby he was convicted and sentenced under POCSO Act. He contended that the manner in which the trial was conducted showed that the principles of natural justice were violated and he was declined a fair opportunity of being defended.

The High Court found that some prosecution witnesses were not cross-examined and for others, there was very sketchy cross-examination. It was noted that the manner in which cross-examination was conducted on part of the accused by the amicus curiae appointed by the trial court clearly showed that he made no serious efforts to defend the accused. It was observed: “If the Amicus Curiae does not or is not in a position to effectively provide assistance to an accused, the Trial Court is obliged to correct the situation. Even the trial court failed to take any remedial steps. The manner in which the cross-examination has been conducted has clearly led to failure of justice.” Holding it to be a clear case of failure of justice, the Court quashed the impugned order and remanded the matter to the Court of Additional Sessions Judge for re-trial from the stage of cross-examination of prosecution witnesses.

Before departing with the case, the High Court recorded appreciation for the assistance rendered by Adit S. Pujari, Advocate appearing on behalf of Delhi High Court Legal Services Committee and also by Meenakshi Dahiya, Additional Public Prosecutor for the State. [Dev Kumar Yadav v. State (NCT of Delhi), 2019 SCC OnLine Del 8485, decided on 10-05-2019]

Case BriefsHigh Courts

Jharkhand High Court: The Bench of Deepak Roshan, J. dismissed a revision application seeking to set aside the lower courts’ order acquitting the respondents in a case filed under Sections 448, 323, 427, 506 of Penal Code, 1860.

A complaint was filed by the applicant herein, against the respondents alleging that the latter had assaulted and abused her and her husband. The learned Chief Judicial Magistrate acquitted the accused persons, holding that the allegations made in the complaint petition were not proved. This was affirmed by the learned Sessions Judge who found that “there is huge discrepancy in the statement of witnesses with the averments made in the complaint petition regarding the manner of occurrence.” Aggrieved by judgments of the lower courts, the applicant filed the instant revision application before this Court and contended that the impugned judgments passed by the lower courts were not at all sustainable as they suffered from illegality and infirmity.

The Court in its order after giving due cognizance to all the facts and documents held that the applicant had failed to make out a case so as to warrant any interference from the Court. It observed that “It is only in glaring cases of injustice resulting from some violation of fundamental principles of law by the trial court, that the High Court is empowered to set aside the order.” It was further opined that “the petitioner has failed to establish any glaring injustice resulting from violation of fundamental principles of law. There is no illegality in the impugned order to approach this Court for appreciation of evidence and the finding which is not at all perverse.” The Court, thus, dismissed the application.[Geeta Devi v. State of Jharkhand, 2019 SCC OnLine Jhar 455, decided on 03-05-2019]

Case BriefsForeign Courts

South Africa High Court, Kwazulu-Natal Division: This appeal was filed before a Division Bench of Gorven, J and Ntshulana, AJ preferred against the convictions and sentence for the offence of rape of two minor girls in contravention of Section 3 read with Sections 1, 56(1), 57, 58, 59, 60 and 61 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007.

The appellant was sentenced to undergo life imprisonment for both the rapes committed but for sentences, they were treated as one and his name was entered into the register for sexual offenders in terms of Section 50 of the Act. The Court noted that throughout the trial, the appellant had only challenged the evidence which was based on his plea of alibi and that incident was fabricated due to a family feud which was later rejected as false beyond a reasonable doubt. Appellant had contended that medical evidence failed to prove offence and thus he should be acquitted.

High Court relied on a case of S v. Hadebe, 1997 (2) SACR 641 (SCA) where it was held that if there was no material misdirection by the Trial Court, it was to be presumed to be correct. Thus, the Court concluded that evidence on record did not show any misdirection. Therefore, in the absence of substantial and compelling circumstances, the sentence was sustained and the appeal preferred against conviction and sentence was dismissed. [Sibonelo Bo Ngobese v. State, Case No. AR751 of 2017, decided on 29-03-2019]

Case BriefsHigh Courts

Himachal Pradesh High Court: The Bench of Tarlok Singh Chauhan, J. allowed an appeal challenging the judgment of first appellate court whereby the trial court’s order was set aside without taking the findings of trial court into consideration.

Appellant herein was a defendant in a suit for possession filed by the respondent (plaintiff before trial court), which was dismissed by the trial court. In an appeal by the respondent-plaintiff, the first appellate court set aside the trial court’s order. Aggrieved thereby, the instant regular second appeal was filed. 

The sole issue pertained to the scope, ambit and power of first appellate court while deciding first appeal. It was opined that the right to file first appeal against a decree under Section 96 of the Code of Civil Procedure, 1908 is a valuable legal right of the litigant. The jurisdiction of first appellate court while hearing first appeal is very wide like that of trial court and it is open to the appellant to attack all findings of fact or/and of law in the first appeal. It is the duty of first appellate court to appreciate the entire evidence, and then it may come to a different conclusion. While doing so, the judgment of first appellate court must reflect its conscious application of mind and record findings supported by reasons, on all issues along with the contentions put forth, and pressed by the parties. While reversing a finding of fact, the first appellate court must come into close quarters with the reasoning assigned by the trial court and then assign its own reasons for arriving at a different finding.

The Court noted that in the instant case, the first appellate court had not at all adverted to findings and reasons recorded by the trial court and had simply chosen to write a separate judgment without taking into consideration any of the facts and circumstances that prevailed upon the trial court to dismiss the suit.

In view of the above, the impugned order of the first appellate court was set aside, and the matter was remanded to it for a fresh decision.[Sunder Singh v. Roop Singh, 2019 SCC OnLine HP 550, decided on 26-04-2019]

Case BriefsHigh Courts

Delhi High Court: Sanjeev Sachdeva, J.dismissed a petition filed against the order of the trial court whereby it had recalled its earlier order and restored the petition for maintenance filed by the respondent-wife.

The wife had filed a petition for maintenance under Section 125 CrPC. The trial court had initially awarded interim maintenance of Rs 2000 per month. The proceedings pending from 2003-2012. On 08-10-2012, the wife was not present before the trial court, Her father prayed for exemption on the ground that she was an asthma patient and therefore couldn’t come to the court. However, the trial court rejected the prayer and closed her evidence. Since there was no evidence on record to prove the factum of marriage between the respondent and the petitioner, the trial court dismissed the wife’s petition. She filed an application seeking a recall of the said order which was allowed by the trial court and her petition was restored. Aggrieved thereby, the husband filed the present revision petition.

Abhimanyu Kampani and Samarth Teotia, Advocates appeared for the husband. Per contra, the wife was represented by Manika Tripathy Pandey, Ashutosh Kaushik and Brahm Kumar Pandey, Advocacies.

As per the High Court, the trial erred in not appreciating that there was no dispute about factum of marriage between the parties. Perusing the grounds mentioned in the present revision petition the Court observed: “The averments in the Revision Petition itself establishes that there is no dispute with regard to factum of marriage. Even if assuming there is no evidence on record, Trial Court can still pass an order of maintenance, if there are admissions on record. In the present case, Trial Court has dismissed the petition only on the ground that factum of marriage has not been proved.” 

In the Court’s opinion, to accept at this stage, the plea of the husband and the wife should have filed an appeal, would amount to gross harassment of the wife as the Judgment of the trial court would anyway be set aside for the asking. Also, referring to the wife’s medical records, the Court was of the view that she had sufficient cause for being not able to appear before the trial court. Therefore, the present revision petition was dismissed. [Surender Singh Arya v. Meenu Arya, 2019 SCC OnLine Del 7998, decided on 05-04-2019]